ORDER
J.D. Kapoor, J.
1. Through this suit the plaintiff has sought a decree for specific performance for completing the sale transaction and executing necessary title deeds in favor of the plaintiff pertaining to their 1/4th undivided share measuring 18 bighas and 11 biswas in village Satbari, tehsil Mahrauli, New Delhi forming part of Khasra Nos. 119/2 (0-01), 301/2 (2-00), 1072/2 (2-08), 1061/1 (0-04), 1073 (6/02), 1078/1 (1-07), 1074 (4-01) and 890/2 (2-08) and to hand over the peaceful and vacant possession of the land to the plaintiff or in the alternative pay Rs.6 lacs towards the damages. Though on service of summons of the suit defendants 1 and 2 put in appearance and filed the written statement but thereafter they did not chose to participate in the proceedings and consequently they along with defendants No.3 were proceeded ex parte.
2. Facts lie in short compass.
3. The defendants being the owners of the above referred suit property offered by way of communicating their intentions through broker in the area including one Shri Mahender Singh. Since the plaintiff was desirous of purchasing some agricultural land, he approached Shri Mahender Singh who introduced him to the defendants. The defendants agreed to sell their undivided share in the land for a sale consideration of Rs.6 lacs and that sum of Rs.2 lacs was to be paid to each of the defendants towards the sale consideration two agreements of sale were executed. One pertains to the plaintiff and defendant No.3. It is averred in the plaint that the plaintiff has paid Rs. 2 lacs on signing of the documents and further paid a sum of 30,000/- to each of the defendants on or before 10th of February 1992. The aforesaid amount was paid by way of cheques as detailed in paragraph 6 of the plaint. The defendants also executed two receipts acknowledging the receipt of the aforesaid amount. The cheques were got encashed by the defendants. The balance of Rs. 4.50 lacs were to be paid at the time of execution of the title deeds. Admittedly, the land in question was notified under sections 4 and 6 of the Land Acquisition Act along with other 12 villages in the neighborhood. The acquisition proceedings pertaining to the 13 villages were challenged before this Court and these lands were denotified vide judgment of this Court dated 18.11.1988 in CW 1639/85, Balak Ram Gupta vs. Union of India.
4. The defendants were requested by the husband of the plaintiff to take necessary steps and approach the Revenue Authorities for rectification of the records. The concerned patwari also demarcated the land in question in favor of the plaintiff. During these proceedings the husband of the plaintiff was also present.
5. In terms of clause 3, the defendants were to obtain necessary permission and “No Objection Certificate” from the authorities to complete the transaction. The permission was to be obtained within six months. The same was to be communicated to the plaintiff in writing so that the plaintiff could get the transaction completed within one month thereafter. Since the defendants failed to take any action for completion of the transaction and take necessary permission the plaintiff approached the defendants on various occasions and requested them to obtain such permission sot hat the transaction could be completed but all in vain. Hence this suit.
6. It is the apprehension of the plaintiff that the intention of the defendants had become dishonest after denotification of the land in question as its market value had risen exorbitantly and thus they are now trying to wriggle out from the agreements entered into between them. Since the defendants are bound by the terms and conditions of the agreements for sale and are duty bound to complete the sale transaction and after execution of the title deeds they are also required to hand over the peaceful and vacant possession of the land in question, the plaintiff has always been ready and willing to perform her part of obligation and was and is ready with the money so that transaction could be completed in the event the defendants could obtain the necessary permission and No Objection Certificate from the authorities concerned for executing the title deeds. The above averments of the plaintiff have received confirmation by way of affidavit filed by her.
7. As is apparent from the above facts the plaintiff entered into the agreement with the defendants after the land in question was denotified as a result of the above referred judgment of this Court in Balak Ram’s case (supra). The defendants had agreed to sell the land in question for Rs. 6 lacs with open eyes and when the price of the land in the area in question rose exorbitantly the defendants backed out from the agreement for sale and in spite of the fact that he has already received a sum of Rs. 1.50 lacs partly by way of aforesaid cheques and partly by cash, the defendants were duty bound to perform their part of the obligation.
8. The plaintiff has no other alternative but to seek remedy by way of instant suit. She has not only shown her willingness but was ready with the money to complete the transaction.
9. Now the question arises whether by way of specific performance the plaintiff is entitled to seek specific performance in respect of undivided 3/4 share of the defendants. Counsel for the plaintiff has referred to provision of Section 44 of the Transfer of Property Act in this regard which are as under:
“44. Transfer by one co-owner – where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.”
10. While construing the above provision of the law the learned counsel has contended that by way of agreement to sell and by way of remedy of specific performance available to the plaintiff he stepped in to the shoes of the original co-owner and whatever remedy is available to the co-owners as co-owners shall become available to the plaintiff after a decree for specific performance is passed. In other words the plaintiff shall be entitled after obtaining the decree for specific performance, to seek partition to claim share in spite of the fact that other co-owners are in possession of the property.
11. In support of the above contention, learned counsel for the plaintiff has placed reliance upon , Kartar singh v. Harjinder Singh and others, wherein the respondent and his sister owned some property and the respondent therein entered into an agreement with the appellant for himself and for his sister for sale of the property and undertook to get the same registered. It was specifically mentioned in the agreement that he had agreed to sell not only his entire share in the property but also that of his sister, and that he would be responsible for getting the sale deed executed from his sister. However, subsequently the sister refused to sell the property coming to her share. In a suit for specific performance of agreement a decree was granted in respect of half share of suit property. The decree was set aside by the High Court by taking into consideration the provisions of Sections 12 of the Transfer of Property Act, 1882 which reads as under :-
“12. Condition making interest determinable on insolvency or attempted alienation – Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for becoming insolvent or endeavoring to transfer of dispose of the same, such condition or limitation is void.
12. The Supreme Court held that the case is not covered under Section 12 of the Specific Relief Act as it relates to the specific performance of a part of the property. It was observed that a mere failure to mention in the agreement that they had such share in the property would not entitle one to come to the conclusion that they did not have that share. When the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the join owners owns a moiety of the property. Though in the above referred case the respondents had contracted to sell whole of the property through two contracts viz. for the sale of his share and of his sister’s share although these were incorporated in one agreement and these were separate severable from each other.
13. In the case in hand, the stand of the plaintiff is on much stronger footing than the above case. The contracting party had agreed to sell his share in the property and, therefore, the properties agreed to be sold were clearly distinguishable by the share the plaintiff held to his credit.
14. Again on the question whether decree for specific performance can be granted in an unpartitioned property and in respect of unspecified share of the vendor, the Supreme Court observed :”The law does not bring any such difficulty in decreeing the suit for specific performance. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated”.
15. In view of the above position of law, the maintainability of suit for specific performance in respect of undivided or undemarcated property of the person entered into an agreement to sell has no element of doubt and is unquestionable.
16. Since the plaintiff has successfully proved the performance of her part of obligation she is entitled to a preliminary decree for specific performance and as such I direct the defendants to complete the sale transaction and execute necessary title deeds in favor of the plaintiff pertaining to their 1/4th undefined share each in the land measuring 18 Bighas 11 Biswas in village Satbari, Tehsil Mehrauli, New Delhi forming part of Khasras No. 119/2(0-01), 301/2(2-00), 1072/2(2-08), 1061/1(0-04), 1073 (6-02), 1078/1(1-07), 1074 (4-01), 890/1(2-08) and handover the peaceful and vacant possession of the land to the plaintiff or pay plaintiff a sum of Rs. 6.00 lacs towards damages.