REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4279-4280 OF 2011
(Arising out of SLP (Civil) Nos. 16595-16596 of 2010
Vimaleshwar Nagappa Shet .... Appellant(s)
Versus
Noor Ahmed Sheriff & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted. 2) These appeals are directed against the final judgment
and orders dated 03.03.2009 and 28.08.2009 of the Division
Bench of the High Court of Karnataka at Bangalore in R.F.A.
No. 52 of 2000 and Misc. Civil No. 13474 of 2009 in R.F.A. No.
52 of 2000 respectively whereby the High Court disposed of
the appeal and dismissed the application.
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3) Brief facts: (a) The property in question originally belonged to one C.S.
Abdul Momin Sheriff and he died leaving behind his wife
Hajiba Tabsasum and Defendant Nos. 1, 2 and 4 (sons),
Defendant Nos. 5 to 7 (daughters) and Defendant No. 3, who
is the son of Late Ismail Sheriff, son of Abdul Momin Shariff.
After his demise, each of the surviving sons succeeded to an
extent of 2/11th share and each of the daughters succeeded to
1/11th share in the property. As the division in the scheduled
property was impractical, Defendant Nos. 1, 2 and 4 to 7
desired to sell the schedule property and to distribute sale
proceeds between them. On 02.05.1988, they agreed to sell
the property to one Vimaleshwar Nagappa Shet-plaintiff
(appellant herein) for a consideration of Rs.3,10,000/-,
executed agreement of sale and received advance
consideration of Rs.10,000/-. Subsequently, on 06.05.1988,
the wife of C.S Abdul Momin Sheriff died.
(b) Till 15.06.1989, the plaintiff paid a sum of
Rs.1,53,000/-, in all, on various dates. As the defendants did
not execute the sale deed, the plaintiff filed a suit for specific
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performance being O.S. No. 91 of 1991 in the Court of the Civil
Judge at Chikmangalur. By order dated 01.10.1999, the trial
Court decreed the suit in favour of the plaintiff and directed
the defendants to execute the sale deed in terms of agreement
of sale dated 02.05.1988. Aggrieved by the said judgment and
decree of the trial Court, Defendant Nos. 2, 3 and 7 filed
appeal being R.F.A. No. 52 of 2000 before the High Court of
Karnataka at Bangalore.
(c) The High Court taking into account the submission of the
counsel for the appellants and respondents, fixed the market
value of property at Rs.300/- per sq. ft. The total area of
property is 4,655 sq. ft. (48′ x 90′), therefore, the total market
value of property would be Rs.13,96,500/-. The High Court,
by its judgment dated 03.03.2009, while holding that as
Defendant No.3 was not a party to the agreement and he
proposes to purchase the 9/11th share by paying value to the
plaintiff and the value of 9/11th share would be Rs.
11,42,590/- and the counsel for the plaintiff on the
instruction from the plaintiff agreed to the said proposal on
the condition that Defendant No.3 would pay the said amount
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within three months, in default, the plaintiff would be entitled
to the relief of specific performance disposed of the appeal
directing defendant Nos. 1,2 and 4 to 7 to execute the sale
deed of their share to the extent of 9/11 area in the suit
property by making convenient division of the property.
(d) Thereafter, an application being Misc. Civil No 13474 of
2009 in R.F.A. No. 52 of 2000 was filed for deleting some
words from the judgment and the same was dismissed.
Challenging the judgment of the High Court in appeal and the
order made in the application, the appellant-plaintiff has filed
these appeals by way of special leave petitions before this
Court.
4) Heard Mr. S.N. Bhat, learned counsel for the appellant and
Mr. P.P. Rao, learned senior counsel for the respondents.
5) It is not in dispute that the property in question belonged
to Abdul Momin Sheriff. After his death, each of the surviving
sons succeeded to an extent of 2/11th share and each of the
daughters succeeded to 1/11th share. It is also not in dispute
that the agreement of sale was executed only by Defendant
Nos. 1, 2 and 4 to 7. The total share of Defendant Nos. 1, 2
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and 4 to 7 is 9/11 and the share of the Defendant No. 3 who
did not join the execution of agreement of sale would be 2/11.
Inasmuch as the Defendant No. 3 was not a party to the
agreement, he is not bound by the agreement executed by
other defendants to the extent of his share.
6) From the evidence and the materials, it is clear that the
suit property is dwelling house. In that event, Section 4 of the
Partition Act, 1893 is relevant which reads as under:-
“4. Partition suit by transferee of share in dwelling-house.–
(1) Where a share of a dwelling-house belonging to an
undivided family has been transferred to a person who is not
a member of such family and such transferee sues for
partition, the court shall, if any member of the family being a
shareholder shall undertake to buy the share of such
transferee, make a valuation of such share in such manner
as it thinks fit and direct the sale of such share to such
shareholder, and may give all necessary and proper
directions in that behalf.
(2) If in any case described in sub-section (1) two or more
members of the family being such shareholders severally
undertake to buy such share, the court shall follow the
procedure prescribed by sub-section (2) of the last foregoing
section.”
In view of the above provision, Defendant No. 3 has right to
purchase to exclude the outsider who holds an equitable right
of purchase of the shares of other defendants.
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7) It is pertinent to point out that plaintiff was aware that
Defendant No. 3 who was a minor had a share in the property
and the application made by the other defendants before the
Civil Court for appointment of Defendant No. 2 as guardian of
the said minor was not pursued and in fact it was dismissed,
consequently, his share remained unsold to the plaintiff.
8) As a matter of fact, agreement of sale dated 02.05.1988
does not refer to Defendant No. 3 at all or his share in the
property. However, in the plaint, the plaintiff clearly admitted
the share of Defendant No. 3 who was a minor and the fact
that no guardian was appointed for the minor and Defendant
No. 2 was not his natural guardian. Without Defendant No. 3
joining the other co-sharers, no agreement of sale could be
entered with the plaintiff for the entire property including the
minor’s share. Consequently, the agreement of sale covering
the entire property was void and ineffective.
9) It is settled law that Section 20 of the Specific Relief Act,
1963 confers discretionary powers. [vide: M. Meenakshi &
Ors. vs. Metadin Agarwal (2006) 7 SCC 470, Nirmala
Anand vs. Advent Corporation (P) Ltd. & Ors. (2002) 5 SCC
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481, Parakunnan Veetill Joseph’s Son Mathrew vs.
Nedumbara Karuvila’s Son & Ors. (1987) Supp. SCC 340].
It is also well settled that the value of property escalates in
urban areas very fast and it would not be equitable to grant
specific performance after a lapse of long period of time.
10) Apart from all these material aspects before the High
Court, both parties including the plaintiff/present appellant
agreed for a reasonable market valuation. This factual
position is clear from paragraph 7 of the High Court judgment
which reads as under:-
“7. The counsel for appellants and respondents submitted
that the market value of property is Rs. 300/- per sq. ft. The
total area of property is 4,655 sq. ft. (48′ x 90′). The total
market value of property would be Rs. 13,96,500/-. The
value of 9/11th share would be Rs. 11,42,590/-. Defendant
No. 3 proposes to purchase the 9/11th share by paying value
to the plaintiff. The counsel for the plaintiffs with the
instructions from the plaintiff agreed to the said proposal on
the condition that the Defendant No. 3 should pay the said
amount within three months. In the event of default, the
plaintiff would be entitled to the relief of specific
performance. The Defendant Nos. 1, 2 and 4 to 7 shall
execute sale deed of their share to the extent of 9/11 area in
the suit property by making convenient division of the
property. Accordingly, the appeal is disposed of.”
11) The statement made by the counsel before the High Court,
as recorded in the impugned judgment and order, cannot be
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challenged before this Court.[vide: State of Maharashtra vs.
Ramdas Shrinivas Nayak & Anr. (1982) 2 SCC 463,
Shankar K. Mandal & Ors. vs. State of Bihar & Ors.
(2003) 9 SCC 519, Roop Kumar vs. Mohan Thedani (2003) 6
SCC 595, Guruvayoor Devaswom Managing Committee &
Anr. vs. C.K. Rajan & Ors. (2003) 7 SCC 546]
12) It is also clear that the High Court has recorded in the
impugned judgment dated 03.03.2009 that the counsel agreed
with instructions from the plaintiff and reiterated this fact in
its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in
the above-mentioned RFA while rejecting the plea of the
counsel for the appellant herein that he did not give consent
that he had no instructions from his clients A concession
made by a counsel on a question of fact is binding on the
client, but if it is on a question of law, it is not binding. [vide:
Nedunuri Kameswaramma vs Sampati Subba Rao & Anr.
(1963) 2 SCR 208, 225, B.S. Bajwa & Anr. vs. State of
Punjab & Ors. (1998) 2 SCC 523, 525-526]
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13) As stated earlier and the reading of the impugned
judgment and order of the High Court, more particularly, para
7, which is concluding paragraph, clearly show that it is a
consent order. As per Section 96 (3) of the Civil Procedure
Code, no appeal lies from a decree passed by the court with
the consent of the parties.
14) For all these reasons, more particularly, the statement of
fact as noted in para 7 of the impugned judgment and order of
the High Court, under Article 136, generally this Court will not
interfere with the order of the High Court which has done
substantial justice.
15) Since this Court has stayed the impugned order of the
High Court while ordering of notice on 08.07.2010, Defendant
No. 3 is granted 3 months’ time from today to pay the amount
as noted in para 7 of the impugned judgment and in the event
of default, the directions of the High Court in the same para
are to be applied and implemented. Defendant Nos. 1, 2, 4 to
7 are directed to return the sum of Rs.1,53,000/- which they
have received towards sale consideration with interest at the
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rate of 9 per cent from the date of payment within a period of
eight weeks from today to the plaintiff.
16) Accordingly, the appeals fail and the same are dismissed
with the above direction. No order as to costs.
………………………………………..J.
(P. SATHASIVAM)
………………………………………..J.
(H.L. GOKHALE)
NEW DELHI;
MAY 11, 2011.
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