JUDGMENT
A.C. Kabbin, J.
1. By judgment dated 27.11.1999 passed by the learned XI Addl City Civil Judge, Bangalore in O.S. No. 92/1994, the appellant’s (the plaintiffs) suit for specific performance of the contract has been partly decreed directing the respondent No. 1 (the defendant No. 1) to execute the deed for the sale of joint share of the defendant No. 1 in the suit property. Praying for a decree for grant of relief for the sale of the whole of the property as per agreement, the plaintiff has preferred this appeal.
2. The suit properly (i.e. schedule ‘A’) is H. No. 39/9, Marappa Line, Bazar Street, Neelasandra, Bangalore consisting of land and building thereon totally measuring east to west 40 feet, north to south 15% feet. Admittedly, the plaintiff was residing in the said premises as the tenant paying rent to the defendant No. 1’s elder brother M. Rangaiah; and later to the defendant No. 1, after Rangaiah’s death. It is the claim of the plaintiff that the defendant No. 1 offered to sell the said property, i.e., the property described in Schedule “A” to her for a sum of Rs. 1,00,000/- (Rupees one lakh) to discharge certain debts and after receiving an advance of Rs. 70,000/- (Rupees seventy thousand) executed an agreement on 15-02-1993 in this regard. Execution of the agreement and receipt of advance of rupees seventy thousand – cash of Rs. 15,000/- and cheque for Rs. 55,000/- have been admitted by the defendant No. 1 in the written statement. The sale was agreed to be completed before the end of December 1993. It is alleged by the plaintiff that despite repeated requests and notice by her to the defendant No. 1, the latter did not execute the sale deed, but instead he got a legal notice issued through the advocate for the defendant No. 3 (defendant No. l’s son) making false and frivolous claim to wriggle out of the contract. It is further alleged by the plaintiff that subsequently the defendant No. 1 set up his mother (the defendant No. 4) laying claim of an interest in schedule ‘A’ property. Alleging that the 1st defendant had sold other properties adjacent to the suit property as the sole and absolute owner of the properties, the plaintiff claimed that the defendant No. 1 was bound to execute the sale deed as per agreement. It was further alleged by the plaintiff that the first, third and fourth defendants, in collusion with the second defendant forcibly entered one room situated at the rear portion of ‘A’ schedule property and dispossessed her from the portion of that room. The description of that room has been given in ‘B’ schedule to the plaint. The plaintiff therefore sought for a decree for specific performance of the agreement of sale after receiving balance consideration and delivery of vacant possession of ‘B’ schedule property. She also prayed for permanent injunction restraining the defendants from interfering with her possession of ‘A’ schedule property.
3. The defendants 1 and 2 filed a common written statement. While admitting the possession of ‘A’ schedule property by the plaintiff as tenant and payment of rent by her to M. Rangaiah and later to the defendant No. 1, they admitted the agreement and receipt of advance amount by the defendant No. 1. It was contended that since the property was that of the joint family consisting of live members, the defendant No. 1 had no authority to execute the sale deed and therefore the plaintiff was entitled only to the refund of advance amount. As regards the claim of the plaintiff about forcible eviction from ‘B’ schedule property, it was simply denied.
4. The defendant No. 3 (defendant No. 1’s son) and defendant No. 4 (defendant No. 1’s mother) filed a common written statement. Though they admitted the possession of ‘A’ schedule property by the plaintiff as tenant, they denied the claim of the plaintiff that possession was in furtherance of part performance of the agreement for sale. They claimed that they along with the defendant No. 1 and other members of the family, were the owners of the property and therefore the plaintiff was entitled only to the refund of advance money. They denied the claim of the plaintiff that the sale was to discharge the loans alleged to have been taken by the defendant No. 1.
5. On these pleadings, the following issues were framed by the Trial Court:
1. Whether the plaintiff proves that she entered into agreement of sale of the suit schedule property with defendant No. 1 for consideration of Rs. One Lakh as per para. 4 of the plaint?
2. Whether plaintiff proves that agreement of sale is executed on 15.2.1993 by defendant No. 1 as per para 4 of the plaint?
3. Whether the plaintiff further proves that she has paid Rs. 15,000/- by cash and Rs. 55,000/- by cross cheque No. 0366471 dated 15.2.1993 to defendant No. 1 who acknowledged it as per para 4 of the plaint?
4. Whether plaintiff proves that she is put in possession of the suit property from 15.2.1993 as per para 4 of the plaint?
5. Whether the plaintiff proves that the defendants are not ready to perform their part of contract?
6. Whether the plaintiff proves that she is still ready to perform her part of contract with defendants?
7. Whether the plaintiff proves that 1st defendant postponed the sale on pretext as per para 5 of the plaint?
8. Whether the defendants prove that the plaintiff was ready to take the refund as per para 9 of the written statement?
9. Whether the plaintiff is entitled for the suit claim against the defendants?
10. If so, under what order or decree?
6. On behalf of the plaintiff, she and one witness were examined. On behalf of the defendants, the defendants 1 to 3 and one witness were examined. After considering the evidence and the arguments of the learned advocates on both sides, the learned Trial Judge answered issue Nos. 1 and 3 to 7 in the affirmative, issue Nos. 2 and 9 partly in the affirmative and issue No. 8 in the negative. Holding that the agreement executed by the 1st defendant in favour of the plaintiff was not binding on other members of the joint family, the Trial Court held that, agreement could be specifically performed only in respect of joint share of the defendant No. 1 in the property after receiving balance consideration; and consequently he partly decreed the suit. This appeal has been preferred by the plaintiff claiming specific performance of the entire agreement and for other reliefs.
7. It is argued by Sri. A. Ram Mohan, learned counsel for the appellant that only because a plea had been taken by the respondents and the defendant No. 4 (now no more) that the property was the joint family property of Rangaiah and the defendant No. 1, the learned Trial Judge has held that the agreement is binding only to the extent of the defendant No. 1’s joint share, but that this plea taken by the defendants 1, 3 and 4 at the time of evidence that there was no partition in the family of the defendant No. 1 and Ms brother had not been mentioned in the written statement. He points out that what all had been pleaded was that the property was the joint family property of five persons. He submits that the circumstances, which indicated separate enjoyment of the properties by the defendant No. 1’s brother and the defendant No. 1 itself showed that the family had not remained joint and that as regards the sale of the properties which had fallen to the share of defendant No. 1, he being the kartha of the family, the agreement entered into by him is binding on other members of his family. Pointing out that there were certain sales of other properties by the defendant No. 1 which had not been challenged by the defendants 3 and 4, it is submitted by him that the agreement with regard to the sale of suit property is binding on the defendant No. 1, 3 and 4 and therefore the learned Trial Judge ought to have granted relief of specific performance in respect of the whole of the property.
8. As regards the plea of dispossession taken by the appellant in the plaint, the learned counsel for the appellant points out to the admission of the defendants in the written statements that the appellant/ plaintiff was in possession of the whole of ‘A’ schedule property including ‘B’ schedule property. He submits that therefore the appellant/plaintiff was entitled also to the relief possession of ‘B’ schedule property.
9. Replying to this, Sri. K.V. Shiva Prasad, learned counsel for R-2 submits that the purchase of ‘A’ schedule property by the plaintiff’s father is indicative of the fact that it is the ancestral property of the defendant No. 1 in which by birth the defendant No. 3 (respondent No. 2) got a share and the defendant No. 4 (wife of the defendant No. 1) had also a share therein; and consequently the agreement of sale entered into by the defendant No. 1 without the consent of defendants 3 and 4 and not for family necessity is not binding on them.
He further submits that therefore the learned Trial Judge was right in decreeing the suit only in respect of the plaintiff’s joint share in the property.
10. The finding of the learned Trial Judge in favour of the plaintiff on issue Nos. 1, 3 and 7 has not been challenged by the defendants. The only point that is required to be considered in this appeal is:
Whether the plaintiff/appellant is entitled to the decree for specific performance in respect of the suit property as per agreement?
11. The learned Trial Judge had found that the execution of the agreement and payment of the amount had been proved. The readiness and willingness of the plaintiff to perform her part of the contract also had been proved. What had come in the way of the Trial Court decreeing the suit as prayed was the plea of the defendants 3 and 4 that they had shares in the property, for the sale of which the defendant No. 1 could not have contracted in the absence of any legal necessity. Relying on the observation of the Supreme Court in the case of Kartar Singh v. Harjinder Singh and Ors. that specific performance in respect of share of property can be passed and vendee has a right to apply for partition and get the share demarcated, the Trial Court has partly decreed the suit directing the defendant No. 1 to execute the sale deed to the extent of his joint share.
12. Defending that decision, Sri. K.V. Shivaprasad, learned counsel for the respondent No. 2 refers to five other decisions. In A. Abdul Rashid Khan (deceased) by his L.Rs and Ors. v. P.A.K.A. Shahul Hamid and Ors. , where the property agreed to be sold was held jointly, one of the co-sharers had agreed to sell such joint property. It was held that the decree can be to the extent of the share of executant of the agreement. It was further held that the decree can be only to the extent of transferring the share of the executant in the property to the other contracting party. In Triloki Vishwakarma alias Triloki Mistri v. Zaitun Nisa ) it was held that the seller was not entitled to the right of alienating the share in the joint family property. This decision being inconsistent with the view Supreme Court has taken in Abdul Rashid Khan’s case mentioned above, the learned Trial Judge has rightly not followed the principle in Triloki Vishwakarma’s case.
13. The other three decisions referred to by the learned counsel for the respondent No. 2 viz., Radhakrishnadas and Anr. v. Kaluram (dead) by his L.Rs and Ors. , Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and Ors. and Srivivas Krishnarao Kongo v. Narayan Devji Kongo and Ors. A.I.R. 1984 S.C. 379, deal with the requirement of alienee to prove the legal necessity and the character of any joint family property continuing to be joint until severance of the status.
14. The evidence adduced by the defendant No. 1 showed that this property had been purchased by the defendant No. 1’s father Marappa. After his death, it admittedly devolved on Marappa’s two sons Rangaiah and Rangappa (defendant No. 1). The defendant No. 4 claimed share in the property she being Marappa’s widow and the defendant No. 3 claimed right as coparcener with the defendant No. 1.
15. The plea of the plaintiff that the agreement of sale be considered as having been executed by the defendant No. 1 as Karta of the family has not found favour with the Trial Court since the plaintiff was unable to substantiate the necessity of sale for family benefit. As observed by the Supreme Court in the decision in Radhakrishnadas and Anr. v. Kaluram (dead) , the alienee in case of challenge to alienation has to establish legal necessity for the karta to alienate the property. Though there is a recital in the agreement of sale (Ex.P3) that the vendor was in need of funds for his family and there was legal necessity and though there is a possible need for sale as can be inferred from the sale of two other properties by the defendant No. 1 as admitted in the cross-examination, in the absence of material to show what that need was, I find that the Trial Court was right in forming an opinion that the plaintiff had not shown that there was legal necessity for the defendant No. 1 to sell the property on behalf of other members of the property.
16. Then the question that would arise is as to whether the final order passed by the learned Trial Judge directing specific performance of the agreement only to the extent of joint share of the defendant No. 1 shall be confirmed or the plaintiff is entitled to any other equitable order. It is submitted by Sri. Ram Mohan, learned counsel for the appellant that as the evidence shows this is not a case of manoeuvring by the plaintiff to get the property but is a bonafide agreement to purchase; the property. He points out that the plaintiff’s husband was the tenant in the property and after his death, the plaintiff had continued as the tenant and had accepted the offer made by the defendant No. 1 for the sale of the property, since she was getting service benefits of her husband to the extent of Rs. 1,10,000/- on his death out of which she agreed in 1993 to invest Rs. 1,00,000/- for purchase of this property. He also points out that the defendants 1, 2 and 4 are not specific as to who other sharers are except saying that there are five sharers and also they do not say what other properties had been owned by the family. He submits that the acceptance of rent by Rangaiah earlier and later by the plaintiff indicated a possible division between them, but nothing specific has been placed by the defendant No. 1 and therefore the defendants are not specific as to whether there was partition between Rangaiah and the defendant No. I (respondent No. 1) and have not specified who other sharers are. He argues that therefore it would be oppressive to ask the plaintiff/appellant to go for a suit for partition. In these circumstances he seeks an order moulding the relief in favour of the plaintiff within the limit of entitlement of the plaintiff to the relief.
17. Sri. K.V. Shiva Prasad, learned counsel for the respondent No. 2 in this regard has relied upon the observation of the Supreme Court in A. Abdul Rashid Khan (Dead) and Ors. v. P.A.K.A. Shahul Hamid and Ors. wherein it is observed that the decree for specific performance in case of sale of a joint property if other co-sharers had not joined the agreement could be only to the extent of transferring the share of executant of the agreement in such property to the other contracting party. That was a case in which the co-parcener who had entered into an agreement of sale had a specific share which could be ascertained and it was ascertained as 5/6th share in the property. The other decisions relied upon by the learned counsel for the respondent No. 2 also are of similar nature. The difficulty arises where the defendants who have objected to the specific performance do not furnish full particulars of the co- sharers and the properties and from available materials, the Court may not be in a position to determine about the claim of the objectors. Under such circumstances whether a bonafide purchaser can be asked to seek his remedy in a partition suit. Is the Court powerless to do justice in giving relief to a bonafide purchaser?
18. Where the agreement of sale of a family property made by the kartha of the family is challenged by the members of the family on the ground of want of legal necessity and the prospective purchaser is not able to establish the legal necessity, the agreement is enforceable to the extent of share of the contracting party in the family property. In that event, if that share is ascertainable, the decree that can be passed would be in respect of the share of the seller in the property and the purchaser may be asked to apply for partition and get the share demarcated. There may be cases where the members of the seller’s family object to the specific performance sought for, but for want of requisite particulars like the properties owned by the family or where the right of the member of the seller’s family is not certain, the Court may not be in a position to determine whether the claimants have a share in the property. Where Court finds that the agreement entered into by the plaintiff for purchase of the property is bonafide, but is not certain about the claim of the objector, it would be oppressive to grant partial decree and ask the purchaser to institute a suit for partition to carve out the share of the seller. In such cases, if the plaintiff is already in possession of the property or has been put in possession of the property in part performance of the contract, it will be appropriate to meet the ends of justice to grant decree for specific performance of the agreement as a whole directing that the sale shall be subject to the decision in any subsequent suit for partition in the family. In that event, the alienation in furtherance of specific performance has to be considered as sale of the right of the seller as may be determined in the subsequent suit.
19. In the present case plaintiff was in possession of the property as tenant. Her right to possession continued in view of the agreement and her willingness to perform her part of the contract. Consequently her possession has to be protected. The defendants have not placed particulars of the names of the members of the family who have got shares. The particulars of family properties are not furnished. Infact in evidence they contended that no partition between the defendant No. 1 and his brother had taken place.
20. The defendant No. 1 and his brother had inherited family properties on the death of their father. In view of the observation of the Supreme Court in Commissioner of Wealth Tax, Kanpur v. Chander Sen that it would be difficult to hold today that the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son, it is still to be decided as to whether the defendant No. 3 and other members of the family can claim share in the suit property. The decision in this regard has to be in a suit for partition to be filed by persons claiming shares and not by the plaintiff. Therefore, to do justice, specific performance in the present, case has to be in respect of the whole agreement however subject to any right that may be established in a suit which may be filed for partition by a member of the family. This aspect had not been considered by the learned Trial Judge while decreeing the suit for the joint share of the defendant No. 1. Therefore the suit has to be decreed for specific performance as prayed for.
21. As regards ‘B’ property, the learned Trial Judge has not taken into consideration the plea of the plaintiff that she was unjustifiably evicted by the defendants 1 and 2. In fact the written statement of the defendant Nos. 1 and 2 contains admission that the plaintiff was in possession of the whole of the ‘A’ schedule property a portion of which is ‘B’ schedule property. Though the allegation of eviction has teen denied in the written statement, the facts show that the defendant No. 1 had come in possession of the ‘B’ schedule properly after the agreement of sale. Since the plaintiff was in possession of ‘A’ schedule property at the time of the agreement, subsequent dispossession to the extent of ‘B’ schedule property gives her a right to ask for restoration of possession since specific performance is being granted.
22. For the above said reasons, the appeal is allowed and partial decree granted by the Trial Court is hereby modified granting decree in favour of the plaintiff as prayed for. The plaintiff shall deposit in the Trial Court within one month herefrom the balance sale consideration with interest at 6% p.a., from the date of the agreement till deposit.
The L.Rs., of the deceased first defendant, and the third defendant shall execute the sale deed in terms of the agreement dated 15-02-1993 in respect of “A” schedule property within two months from the date of deposit of the balance sale consideration by the plaintiff in the Trial Court. After execution of the Sale Deed, deposited amount shall be paid to the executants.
If the defendants mentioned above fail to execute the registered sale deed within the time, the plaintiff is entitled to get the decree executed through Court.
In case subsequently, any suit is filed for partition in respect of this property and other family properties and the appellant is made a party to such suit, this sale shall be subject to the decision in respect of the defendant No. 1’s share in the family properties in that suit. In the sale deed to be executed for specific performance of the contract, this fact shall be specifically mentioned.
The defendants shall hand over vacant possession of ‘B’ schedule property to the plaintiff within two months from today, failing which the plaintiff is entitled to get possession by executing the decree. There shall be permanent injunction in favour of the plaintiff against the defendants in respect of the remaining portion of “A” schedule property as prayed for.
The parties shall bear their respective costs.
A decree shall be drawn accordingly.
ORDER
After pronouncement of the judgment, the learned counsel for the respondents prays for grant of certificate to appeal to the Supreme Court. The view taken by this Court raises the following point of law:
i) In a suit for specific performance of contract for sale where the members of the setter’s family object to the specific performance on the ground that they have an interest in the property, whether there can be a decree as per the agreement, in appropriate cases directing the objectors to approach the Court to get their right established
It is certified under Section 109 of the Code of Civil Procedure read with Article 134-A of the Constitution of India that the case involves the above mentioned substantial question of law of general importance and in the opinion of this Court, the said question needs to be decided by the Supreme Court.
A certificate be issued accordingly.