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PARTITION SUIT – SALE DEED NOT BINDING RELIEF – LIMITATION – EXPLAINED BY JUSTICE V. JAGANNATHAN


IN THE HIGH COURT OF KARNATAKA, IN A CASE OF  SUSHEELAMMA VS. SHIVAKUMAR AND ORS,   DECIDED ON NOV 19 2008, REPORTED IN 2010 (2) KARLJ 195,   JUDGEMENT BY JUSTICE V. JAGANNATHAN, J.

CASES CITED:  

Ningawwa v Byrappa Shiddappa Hireknrabar and Others, AIR 1968 SC 956
Ram Charan Das v Girja Nandini Devi and Others, AIR 1966 SC 323:
Ramaiah v N. Narayana Reddy (deceased) by L.Rs, 2004(6) Kar. L.J. 164 (SC);
Krishna Chandra Bose v Commissioner of Ranchi. AIR 1981 SC 707:
Ramachandra Jivaji Kanago and Another v Laxman Shrinivas Naik and Another, AIR 1945 PC 54 :
Appanna v Jami Venkatappadu, AIR 1953 Mad. 611 (DB);
K.S. Mariyappa and Others v K.T. Siddalinga Setty and Others, 1989(1) Kar. L.J. 150 (DB);
Kona Adinarayana v Dronavalli Venkata Subbayya, AIR 1937 Mad. 869;
Pillanna alias Thimmiah v Syed Nasurodeen Sab, 1921(27) MCCR 11;
Smt. Bismillah v Janeshwar Prasad and Others, AIR 1990 SC 540: (1990)1 SCC 207;
Thamma Venkata Subbamma (dead) by L.R. v Thamma Rattamma and Others, AIR 1987 SC 1775 :  

IMPORTANT COURT OBSERVATIONS OF CASE:- 30. The Trial Court had dismissed the suit as barred by limitation. But, the lower Appellate Court held it otherwise. The main argument of the learned Senior Counsel for the appellants is that the lower Appellate Court was totally in error in taking a contrary view as regards the limitation point is concerned. Since the facts are not in dispute, it is clear that the partition took place in the family in the year 1961 and thereafter, in respect of one of the items of the joint family i.e., the suit item, in the year 1969, there was a deed of relinquishment executed by the fourth defendant and the first defendant in favour of Patel Mallegowda and, by that deed, the suit property was relinquished in favour of Patel Mallegowda in view of Patel Mallegowda being shouldered with the responsibility of clearing the mortgage loan standing against the suit property.

31. Subsequent to the said event of 1961, there was also a partition within the family of the plaintiffs in the year 1982. At that point of time, the plaintiffs, being the younger brothers of fourth defendant- Rajashekhar, did not raise any questions regarding the relinquishment of the suit property in favour of Patel Mallegowda by the plaintiffs' eldest brother Rajashekar and first defendant-Shanthappa. The plaintiffs have contended before the Trial Court in their pleadings that the cause of action for the suit arose only about two months prior to the filing of the suit when the defendants tried to interfere with the plaintiffs' possession. The suit itself was filed on 18-11-1994. Therefore, from the date of relinquishment deed i.e., 13-3-1969, the suit was filed almost after 25 years and if the time is reckoned from the partition effected within the family of the plaintiffs i.e., in the year 1982, still the suit came to be filed almost after 12 years.

32. The first relief sought in the plaint is to declare the relinquishment deed dated 13-3-1969 as invalid (the word used m Kannada is "Asindhu"). The second relief sought is consequent to the first prayer being granted, the plaintiffs are entitled to their separate share and possession from out of the suit property, which is put at 1 acre and 33 guntas to each one of them, and also for mesne profits, therefore, it is clear that the plaintiffs getting their share depends upon declanng the relinquishment deed as invalid.

33. The period of limitation prescribed under Article 58 of the Limitation Act, 1963 to obtain any other declaration other than what is mentioned in Articles 56 and 57 is three years and the time starts to run when the right to sue first accrues. Therefore, it has to be found out as to when the right to sue first accrued to the plaintiffs.

34. Though in the plaint, at paragraph 12, it is stated that the plaintiffs came to know of the deed of relinquishment only two months prior to the filing of the suit and that, for two years prior to filing of the suit, the defendants have been trying to interfere with the plantitts possession of the suit property, the documents produced by the defendants viz., Exs, D. 1 to D. 10 and Ex. D.12 which is the relinquishment deed, indicated that the khatha stood m the name of the first defendant pursuant to the deed of relinquishment and the plaintiffs had not questioned the said khatha in the name of the first defendant before any forum.

35. Secondly, it has also come in the evidence of P.W. 1-Vinoda, that, at the time of the relinquishment deed i.e., in the year 1969 except the fourth plaintiff, all other plaintiffs were aged more than 18 years and the learned Judge of the Trial Court has also referred to the year in which each one of the plaintiffs attained majority and has observed in paragraph 18 of his judgment that all the plaintiffs had attained majority and the plaintiffs woke up to question the validity of the relinquishment deed after a lapse of more than three years from the date of their attaining majority. The learned Judge of the lower Appellate Court has not referred to this part of the reasoning of the Trial Court, in her judgment.

36 Further, the very same witness P.W. 1 has also admitted in the course of his evidence that on 13-3-1969, defendants 3 and 4 executed the relinquishment deed in favour of Patel Mallegowda and has also stated further that in the very year in which the relinquishment deed was executed, the khatha also stood transferred. The witness has also further stated in the course of his cross-examination that he and his brothers had a partition effected in the year 1982.

37 In the light of the aforesaid evidence on record, the learned Judge of the Trial Court, therefore, held that the suit of the plaintiffs was hopelessly barred by time. The lower Appellate Court did not take the trouble of examining the evidence properly and did not even refer to the reasons given by the Trial Court as regards the suit being barred by limitation is concerned.

38. The learned Counsel for the respondents-plaintiffs strongly contended that there is no concept of kartha of the joint family, relinquishing the joint family property in favour of any one and the alienation that is permitted is only either by sale or by mortgage and, as such, fourth defendant-Rajashekhar could not have relinquished the suit property in favour of Patel Mallegowda and it is also argued in the same vein that, at the most, the fourth defendant could have relinquished his interest in the suit property but not the interest of the plaintiffs as the said Rajashekar was not the guardian of the plaintiffs nor the kartha of the family. The decision that is referred to in this regard is the one reported in Thamma Venkata Subbamma. I have carefully gone through the said decision rendered by the Apex Court in the case of Thamma Venkata Subbamma. It has been held in the said case by the Apex Court that if a coparcener relinquishes his interest in favour of another, it enures for the benefit of the remaining coparceners also. Relying on the aforesaid observation, the learned Counsel for the respondents-plaintiffs contended that even if Rajashekar had relinquished his share in favour of Patel Mallegowda under the deed of relinquishment, the same would enure to the benefit of the other coparceners including the plaintiffs. But, at the same time, the interests of the other coparceners could not have been relinquished by Rajashekar.

39. The very same decision also gives an indication that the concept of relinquishing or renunciation is also not alien to Hindu Law. In fact, a passage from Mulla's Hindu Law (15th Edition) has also been excerpted and Article 264 at page 357 is as under:
"Article 264. (1) Renunciation or relinquishment of his share:- A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed".

40. Therefore, it is clear from the aforesaid observation that the argument of the learned Counsel for the respondents-plaintiffs that except sale and mortgage, there can be no other form of alienation, does not carry much conviction and the Apex Court in the very case under discussion has observed that though the transaction is ostensibly gift, but really the donor meant to relinquish his interest in the coparcenary in favour of the brother and his sons and such renunciation enures for the benefit of all other coparceners and, as such, the gift may be construed as renunciation or relinquishment. Hence, the aforesaid decision, in my view, instead of coming to the assistance of the learned Counsel for the respondents-plaintiffs, supports the case of the appellants.

41. The next contention that is put forward by the learned Counsel for the respondents-plaintiffs with much persuation is that the relinquishment deed Ex. D. 12 is a void document and, therefore, the plaintiffs can ignore the same and, as such, the question of the suit of the plaintiffs being barred by time from the date of the deed of relinquishment does not arise. Before answering the said contention of the learned Counsel for the respondents-plaintiffs, it is proper to refer to the law laid down by the Apex Court as well as by other High Courts in the decisions referred to by the learned Senior Counsel for the appellant, as a reference to the same would provide the answer to the aforesaid contention of the learned Counsel for the respondents-plaintiffs.

42. In the case of K.S. Mariyappa, a Division Bench of this Court has held that where a suit was filed as one for declaration that the preliminary and final decrees passed were nullity because they were tainted with fraud and coercion, if such a relief is granted, in effect, it would result in setting aside the preliminary and final decrees and the Court went on to observe that, in fact, without getting the preliminary and final decrees set aside or cancelled, the plaintiffs are not entitled to reopening of the partition because, their father was a party to the preliminary and final decrees passed in the previous suit. In the instant case also, the plaintiffs, by seeking the relief of partition and separate possession of their share in the suit property are, in effect, calling in question the deed of relinquishment of the year 1969, which is a registered document. Therefore, unless and until the said deed of relinquishment is set aside, the question of the plaintiffs staking a claim for share in the suit property will not arise.

43. In the case of Ramachandra Jivaji Kanago, it has been held that the fact that the transaction of gift was brought about by undue influence, does not necessarily mean that it was not made voluntarily within the meaning of Section 122 of the Transfer of Property Act, 1882 and is, therefore, void. Where the donor wished to make a gift and acted voluntarily in making it, but the transaction was induced by undue influence, the gift is only voidable and requires to be set aside before the property conveyed by it can be claimed by the donee or anyone claiming through him and Article 91 applies to such a case and when the donee was aware of the character of the transaction when he executed the deed, limitation for setting aside the deed of gift would run from the date of the gift because under Article 91 time runs from the date of the knowledge.
44. The next decision is the one in the case of Kona Adiruirciyana, and it was held in the said case that, where the eldest brother of a joint Hindu family as kartha entered into a contract of sale of an item of joint family property, wherein he signed it for himself and as representing the minor brother, the contention that the contract could not be said to have been entered into on behalf of the family and all the members of the family were not parties as the minor was separately represented by the kartha was negatived by the Court by holding that the kartha alone could represent the minor member and, in fact, he alone could represent by himself the entire family and, therefore, the kartha must be deemed to have represented the entire family and the other brother signing it is only by way of concurrence.

45. In the case of Appanna, it was held by a Division Bench of the Madras High Court that Article 91 presupposes that a suit is necessary under the law to set aside the instrument. But, where under the law, there is no duty cast on the person to get an instrument set aside, the Article does not impose any obligation on him and the fact that there is a prayer for declaration that a deed is void or that it should be set aside, does not affect the position and such prayers being ancillary to the substantive prayer for possession may be regarded as mere surplusage.

46. In the case on hand, the plaintiffs' main prayer is to declare the relinquishment deed is invalid and the subsequent prayer is to grant their share in the suit item. Therefore, it cannot be said that the prayer seeking the relinquishment deed to be declared as invalid is an ancillary prayer but, in my view, the said prayer is the substantive prayer in the present suit.

47. As far as the decision in the case of Ram Charan Das, is concerned, it has been held in the said case that the Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family and in this context, the word "family" is not to be understood in a narrow sense of being a group of persons of which law recognises as having a right of succession by having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. That consideration having passed by each of the disputants the settlement consisting of recognition of the right by each other cannot be permitted to be impeached thereafter. It was further observed in the said case that a party who had taken benefit under the transaction was not now entitled to turn round and say that the transaction was of a kind which the other lady party could not enter into and was therefore invalid.

48. This decision also applies to the case on hand inasmuch as it is an admitted fact that there was a mortgage loan hanging over the suit property and in order to clear the said loan which would ultimately benefit the whole family that the deed of relinquishment came into picture and Patel Mallegowda was entrusted with the responsibility of dealing the said loan.

49. In the case of Ramaiah, it has been held by the Apex Court that applicability of the relevant article of the Limitation Act, 1963 will have to be decided on the basis of the pleadings. But, by suppression of material facts and skillful pleading, the plaintiff cannot seek to avoid inconvenient article and, after observing thus, the Apex Court found in the case before it that the suit was filed by the appellant in 1984 without disclosing that admittedly he was ousted from the property in 1971 and, therefore, applying Article 64, the Apex Court found that the suit had been filed 13 years after dispossession and accordingly, it was held barred by limitation.

50. In the instant case also, from the evidence of P.W. 1, it has come out in clear terms that barring one plaintiff, the other had attained majority on the date of execution of the relinquishment deed in the year 1969 and one of the date of execution of the relinquishment deed in the year 1969 and one of the plaintiffs, who was a minor, also attained majority and the present suit is filed in the year 1984 long after the completion of three years period from the date of attaining of each one of the plaintiffs. Therefore, by skillfully mentioning in the pleadings that the plaintiffs came to know about the relinquishment deed only about two months prior to the filing of the suit, they cannot avoid the limitation period that is applicable to the case on hand having regard to the nature of the suit that is filed viz., suit for declaration of the relinquishment deed of the year 1969 as invalid.

51. Another decision referred to by the learned Senior Counsel for the appellants is the judgment of this Court in an unreported case in R.S.A. No. 745 of 1975, disposed of on 20-4-1983, and it was held in the said case in facts that where the father of the plaintiff had relinquished his share in favour of the defendant by executing the documents Exs. D.7 and D.8 and later, the defendant were in possession of the share of the plaintiff in the joint family properties, and when the evidence revealed that following the death of the plaintiff''s father in the year 1935, the plaintiff never raised his little finger to claim his share in the joint family properties till he filed the suit in the year 1965. That itself probabilises that the plaintiff did not take any action because he knew early that his father of the defendants as otherwise, as a man partition in the year 1948.

52. The facts, more or less, can be comparable to the facts of the case before us in the sense, even in the present case, defendants 3 and 4 relinquished the interest in the suit property in favour of Patel Mallegowda in 1969 and even according to P.W. 1, on the very day itself, khatha was also changed in the name of Patel Mallegowda and thereafter, the plaintiffs did not raise their little finger when there was partition in the plaintiffs'' family in the year 1982 and furthermore, even after attaining the age of majority and long after that, the plaintiffs slept over their right, if they had any, and did not file the suit to question the validity of the relinquishment deed within three years of attaining the age of their majority.

53. In the next decision in the case of Smt. Bismillah, the Apex Court was dealing with a case where the issue revolved on a plea of nullity of certain sale deeds and the High Court had held that the plaint averment which amounted to plea of nullity of the transactions was only a prayer which was simply illusory but the main relief was that of the relief of possession. The Apex Court, reversing the above finding of the High Court, held that in order to determine the precise nature of the action, the pleadings should be taken as a whole and the real substance of the case has to be gathered by construing the pleadings as a whole and then refer to the law laid down by it in earlier decisions which are to be found at paragraphs 10 and 15 as mentioned hereunder:

"10. Indeed in Gorakh Nath Dube v Hari Narain Singh and Others, (1973)2 SCC 535, this Court, dealing with the provisions of the Uttar Pradesh Consolidation of the Holdings Act, 1954 where the provision excluding the Civil Court's jurisdiction is even wider, has had occasion to observe: (SCR p. 342: SCC p. 538, para 5)
"... but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it....".

15. This decision was referred to with approval by this Court in Ningawwa v Byrappa Shiddappa Hireknrabar and Others, AIR 1968 SC 956. It was observed: (SCR pp. 800-01) "It is well-established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the mean time acquire rights and interests in the matter which they may enforce against the party defrauded".

This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. This Court held: (SCR p. 801)

"The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable".

However the House of Lords in Saunders v Anglia Building Society, 1971 AC 1004, reviewed the law and held that the essential features of the doctrine, as expressed by Byles, J. in Foster v Mackinnon, 1869 LR 4 CP 704, had been correctly stated. Lord Reid, however observed: (AC headnote at p. 1005)

"The plea of non est factum could not be available to any one who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing"".

54. The last of the decisions is in the case of Pillanna alias Thimmiah. The Court was dealing with the expression "set aside" used in Article 91 of the Limitation Act, 1911 and posed to itself the question viz., can the plaintiff recover possession without cancelling the sale which is, in the eye of law, a reality, and answered it as under: "It is a fundamental principle of law that 'if a sale is a reality at all, it is a reality defeasible only in the way pointed out by law'', and 'anybody who desires relief inconsistent with it may and should pray to set it aside'. (See Malkarjun v Narhari, (1900)25 B. 337 (350, 352) (PC)). What then is the procedure prescribed by law to get rid of the effect of a voidable instrument?

In India, it is not expressly laid down in any statute that a person who comes in as plaintiff claiming relief against the effect of a deed voidable at his instance should have it judicially rescinded before or at the time of his getting the relief. Common Law of England has been followed in this country and will be a safe guide in determining this point. According to it, it is necessary 'to maintain an action or analogous proceedings for the purpose of having the contract or transaction declared void and rescinded by the Court, in which event it is deemed to have been void ab initio' (See Halsbury's Laws of England, Volume 20, para 1745).

According to the Indian Contract Act, Section 17(a), it is clear that the rescission of the contract unless accepted by the other party, must be by a judicial pronouncement. A mere unilateral repudiation in pais (e.g., effected by act out of Court) cannot constitute an effectual rescission of a contract. (See Bigelow on Fraud, pages 74 to 69). This view is confirmed by the provisions of Indian Contract Act and Section 35 of the Specific Relief Act, 1963. Articles 11, 12, 13, 14, 15 and 44 provides as shown above for suits to set aside the obstacles affecting adversely the interest of the plaintiff. Article 114 provides for the rescission of a contract. Thus by implication Indian Law requires judicial rescission. Sir H.H. Shephard says that Section 35 of the Specific Relief Act indicates that 'rescission imports a judicial decision, and that 'rescission by a person entitling to rescind means that he, having resolved not to persist in demanding performance is in a position to sue for rescission or to defend an action brought on the contract5. (See 24, Madras Law Journal 55 at page 59).

It follows therefore that the plaintiff has to sue for rescission in a Court of law, and if he omits to take such a step within the time fixed under Article 91, the instrument will operate as a bar for the relief claimed by her against the tenor of the instrument. There is no principle on which suits involving the issue of validity of an instrument should, if of a declaratory nature, be brought within one period of time, but if involving relief based on that declaration, may be brought within another period of time. The combination of several claims in a suit would not deprive each claim of its specific character and description".

55. As far as the contention put forward by the learned Counsel for the respondents-plaintiffs that the relinquishment deed is void ab initio is concerned, it has no merit in view of the very argument of the learned Counsel that to the extent of Rajashekar relinquishing his interest in the suit item in favour of Patel Mallegowda is concerned, the said act would enure to the benefit of the other coparceners also and the only grievance is that the interest of the plaintiffs could not have been relinquished by defendants 3 and 4 in favour of Patel Mallegowda. We have also seen from the very first relief that the claim in the suit that all that the plaintiffs seek in the form of declaration is to declare the relinquishment deed as invalid. Therefore, the question of the relinquishment deed being labelled as "void" does not arise and, in the instant case, it could be classified as a document which is voidable at the instance of the aggrieved persons.

56. Therefore, the distinction between void and voidable needs to be kept in view and, in this regard, it is appropriate to refer to the commentary of U.N. Mitra on Law of Limitation and Prescription (12th Edition - Volume 1) wherein, at page 1176, the learned author has drawn the distinction between Void' and 'voidable' very succinctly as under:

"3-A. Distinction between void and voidable:- The expression "void" has several facets. One type of void acts, transactions decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary and law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of "void" act e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole World. So far as the minor is concerned, if he decides to avoid the same and succeeds m avoiding it by taking recourse to appropriate proceedings the transaction becomes void from the very beginning Another type of void act may be one which is not a nullity, but for avoiding the same a declaration has to be made. Voidable act is that which is good act unless avoided e.g. if a suit is filed for declaration that a document is fraudulent and/or foiled and fabricated it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is foiled and fabricated and a declaration to that effect is given, the transaction becomes void from the very beginning. There may be voidable transactions which is required to be set aside and the same is avoided from the day it is so set aside and not any day Prior to cases, where legal effect of a document cannot be taken away without setting aside the same it cannot be treated to be void, but would be obviously voidable. The word Void' has a relative rather than absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of infirmity, as to whether it is fundamental or otherwise. The word "void" need not automatically indicate that any disposition should be ab initio void The legal implication of the word "void" need not necessarily be a stage of nullity in all contingencies".

Therefore the word Void' has a relative rather than absolute meaning and it only conveys the idea that the order is invalid or illegal and the word "void" need not automatically indicate that any disposition should be ab intitio void but the legal implication of the word ''void" need not necessarily be a stage of nullity in all contingencies.

57. The learned Counsel for the respondents-plaintiffs, in the course of his arguments, also had submitted that the plaintiffs were not seeking cancellation of the relinquishment deed, but their only prayer is to declare the said deed as invalid. The appropriate article applicable for seeking cancellation or setting aside an instrument or decree or for rescission of a contract is Article 59. But, where the prayer is to declare the deed of relinquishment as an invalid one, the article that is attracted will be Article 59. But, where the prayer is to declare the deed of relinquishment as an invalid one, the article that is attracted will be Article 58 and, therefore, if the said argument of the learned Counsel for the respondents-plaintiffs is to be taken note of viz., that the plaintiffs are not seeking for cancellation of the relinquishment deed, but only a declaration, then, Article 58 would come into play and the limitation period is three years from the time when right to sue first accrues.

58. Therefore looked from any angle, the suit filed by the plaintiffs has been rightly held to be barred by time by the learned Trial Judge But, the lower Appellate Court did not, as mentioned earlier, go into all the aspects of the matter and also did not consider the evidence in proper Perspective and, as such, the finding of the lower Appellate Court as regards the limitation issue cannot be sustained both on facts as well as in law. Accordingly, the first substantial questions of law stands answered.

59. As far as the second question of law is concerned, once the suit item was relinquished in favour of Patel Mallegowda by defendants 3 and 4 under Ex. D. 12, which is a registered document, the acquisition of the suit item by the aforesaid Patel Mallegowda, therefore, can be traced to the right which Patel Mallegowda got under the registered deed and, as such, the suit property continued to remain as joint family property does not arise. The second question of law, therefore, stands answered accordingly.

60. In the light of the foregoing reasons, the judgment of the lower Appellate Court cannot be sustained in law and that of the Trial Court needs to be restored and hence, I pass the following order: The appeal is allowed. The judgment of the lower Appellate Court is set aside and that of the Trial Court stands restored. No costs.


SPECIFIC PERFORMANCE - LIMITATION ACT - LAND REFORMS ACT - EXPLAINED BY JUSTICE K.L.MANJUNATH AND JUSTICE B.V.NAGARATHNA


SYED ZAHEER   VS. C.V. SIDDAVEERAPPA DECIDED ON DEC 18 2009  REPORTED IN   ILR 2010 KAR 765,   HON’BLE JUSTICES:  K.L. MANJUNATH AND B.V. NAGARATHNA,

WHEN NO TIME IS FIXED UNDER CONTRACT AND SORROUNDING CIRCUMSTANCES TO DECIDE CAUSE OF ACTION:-

Article 54 of the Limitation Act specifies two points of time from which time begins to run for the purpose of computing the period of three years limitation with regard to filing suits for specific performance of contract. One, is the date fixed for the performance of the contract and two, if no such date Is fixed then when the plaintiff has notice of the performance being refused. Much reliance has been placed on the decision of the Apex Court in the case of Ahamed Saheb Abidulla Mulla v. Bibijan reported in (2009) 5 SCC 462, by the counsel for the appellants to contend that in the instant case, the suit filed for specific performance was beyond the prescribed period of limitation and therefore, the suit filed by the respondent herein was not maintainable by placing reliance on the second limb of Article 54 of the limitation Act. While considering time from which period begins to run under Article 54 of the Limitation Act, the Apex Court in the aforesaid decision held that 'fixed' used in the said article in essence means having final or crystallized form or not stopped to change or fluctuation and the inevitable conclusion is that the expression "date fixed for the performance" is a crystallized notion which is clear from the fact that the second part of Article 54 states "time from which period begins to run" which refers to a case where no such date is fixed. In other words, the Apex Court held that when date is fixed, it means that there is a definite date fixed for doing a particular act and when there is no date fixed then when the plaintiff has notice that performance is refused is also a definite point of time when the plaintiff notices the refusal and in that sense both the particulars refer to definite dates. The same has been relied upon to contend that in the instant case the legal notice was issued by the appellants in the year 1995 with regard to refusal to perform the contract, In as much as it was stated that the agreement was unenforceable on account of non-alienation clause, but the suit has been filed only in the year 1999. The facts of the present case have to be considered in the light of the decision of the Apex Court. It is seen that the land grant which Is the subject matter of the agreement in question was made in the year 1983 and there was a fifteen year period of non-alienation which would have come to an end only In the year 1998. However, three years prior to that date i.e., in the year 1995 Itself legal notice was sent to the respondent stating that on account of the non-alienation clause, the contract could not be performed by the appellants on account of permission not been obtained from the concerned authority by them. At that point of time there were still three more years for the non-alienation period to come to an end and therefore, it was premature on the part of the appellants to contend that in the year 1995 itself that on account of the non-alienation clause the contract could not be performed on account of permission not being obtained. However, a declaration with regard to unenforceability of the contract was sought by the appellants by filing a suit in the year 1995 itself. But, what has to be noticed is the fact that on account of the non-alienation clause it was specifically mentioned in the contract that the sale deed would be registered only after coming to an end of the non-alienation period, which would have been in the year 1998. Therefore, until the non-alienation period came to an end the respondent also could not have asked for performance of the contract by the appellants. Only after the end of the non-alienation period i.e., in the year 1998 the cause of action to seek specific performance of the contract arose for the respondent.


WHEN A PARTY IS IMPLEADED : DATE OF IMPLEADING HIM AS PARTY DATES BACK TO FILING OF SUIT IF COURT IS SATISFIED IN THAT BEHALF:-

The case of Ganapathy (Padala) Suryakumari v. Dr. Erra Reddy and Anr. reported in AIR 2007 AP 118 has been cited to contend that if a party is added subsequently as a plaintiff or a defendant in the suit as far as that party is concerned, the date of institution of suit would be reckoned as the date on which the order allowing the impleadment is passed by the court and that in the instant case, 5th appellant was arrayed as fifth defendant by the respondent herein after the institution of the suit and that the suit was barred by limitation as against her. However, the said position of law is not correct in view of proviso to Section 21 of the Limitation Act which has been interpreted by the Supreme Court in the case of Munshi Ram v. Narsi Ram and Anr., AIR 1983 SC 271, wherein it has been held that if the court is satisfied with the omission to include a new plaintiff or a defendant was due to a mistake or the mistake was made in good faith it may direct that the suit as regards such plaintiff or defendant should be deemed to have been instituted on any earlier date. The said proviso is inserted to take care of the case of omission to implead a person due to to be a bonafide mistake which should not deprive the plaintiff of his rights against the person if the court is satisfied in that behalf.



PERMISSION OF AUTHORITIES IS NO BAR TO SPECIFIC PERFORMANCE DECREE:-

In this context it would be of relevance to refer to a decision of the Apex Court in the case of Ranjibhai v. Narotham Das reported in AIR 1986 SC 1912. In the said case there was an agreement for sale of flat which had to be finalized after obtaining permission of authorities to use as village site was a pre-condition for the execution of the sale deed. The suit for specific performance was filed within three years after obtaining permission, it was held to be not barred by limitation. The said decision is applicable to the facts of the present case also. Consequently, the other decisions which have been cited by the learned Counsel for the appellants namely ILR 1992 Karnataka 429 and ILR 1992 Karnataka 644 are not applicable to the facts of the present case.  


Gahesa Naicken v. Arumugha Naicken AIR 1954 Mad 811 has been cited to contend that where the darkhast grant was in the nature of a gift by the Government with a specific provision that the property shall not be alienated without the consent of the Tahsildar, any contract which has the effect of circumventing this policy of the Government would be opposed to public policy and the agreement to sell the property would be void. The said decision is not applicable to the facts of the present case since the sale agreement had to be executed by the appellants after the period of non-alienation and it is only on the lapse of the said period that the respondent filed the suit for specific performance. Similarly, the decision in Ramachandraiah v. Nagappa Naidu, ILR 1995 Kar 570 is also not applicable.


Pujari Narasappa and Anr. v. Shaik Hazrat and Ors. AIR 1960 Mys 59 has been cited on behalf of the appellant to contend that where permission of the collector is a condition precedent for alienation under the Act and the plaintiffs sought before the Civil Court specific performance of the agreement to sell and if the said suit is decreed, it would defeat the pre-condition of obtaining permission which would be in contravention of the grant or law regarding alienation of such grant and Section 23 of the Contract Act and would be a bar to such a suit. However, another Division Bench of this Court in the case of Yogambika v. Narsingh, ILR 1992 Kar 717 has held that even in the presence of a period of non-alienation clause for ten years in a document of allotment is not a bar to decree a suit for specific performance as the object of the law is to enforce contract which is applicable to the facts of the present case.


In the case of Nirmala Anand v. Advent Corporation Put Ltd. and Ors., AIR 2002 SC 2290 it has been held that when the construction company refused construction on the ground that the original lease of plot was terminated by the municipality and the facts showed that there was a possibility of renewal of lease and revalidation of building plan and the purchaser was ready to perform her part of the contract, then specific performance cannot be refused. The said decision is applicable to the facts of the present case.


In the case of Andanur Rajashekar v. Vasavi Industrial Enterprises and Ors. AIR 2007 Kar 497 this Court considered Section 80 of the Karnataka Land Reforms Act in the context of Section 23 of the Contract Act and Section 20 of the Specific Relief Act and held that what is prohibited under Section 80 is a non-agriculturist purchasing agricultural land and if a permission can be obtained from the statutory authority, then proviso to Section 80 would not be a bar. It was also stated that Section 80 did not bar an agreement to sell agricultural land to a non-agriculturist, but what is prohibited is a sale. The said decision is in fact applicable to the facts of the present case as no sale has taken place in contravention of the terms of the grant in the instant case and the agreement of sale specifically mentions that the sale deed would be executed after the period of non-alienation is completed. Therefore, the agreement in question cannot be held to be null and void or hit by Section 23 of the contract. To the same effect is the decision in another decision of this Court in the case of Ningappa Durgappa v. Hanumantappa Balappa and Anr. L.J. 1982(1) 419. In fact even in the case of Manasa Housing Co-operative Society Ltd. v. Marikellaiah and Ors. AIR 2006 Kant 273 it has been held that the mere filing of a suit for specific performance of contract for grant of a decree in the same would not amount to violation of Section 80 of the Karnataka Land Reforms Act and that the said Section will not create any bar in the Civil Court to decide whether the plaintiff would be entitled to a decree for specific performance or not.



In the case of Balu Babu Rao v. Shaik Akbar, AIR 2001 Bombay 364 in the context of Section 43 of the Bombay Tenancy and Agricultural Lands Act and Section 20 of the Specific Relief Act it has been held that when the suit property was not transferable, without prior permission of the collector a decree of specific performance granted subject to sanction of collector cannot be held to be improper.


READINESS AND WILLINGNESS INFERRED FROM EVIDENCE:- In Manzoor Ahmed Magray v. Gulam Hassan Aram and Ors., AIR 2000 SC 191 it is held that readiness and willingness can be inferred from evidence led by the parties and if there is no delay on the part of the plaintiff, equitable relief cannot be denied.



DISCRETIONARY RELIEF OF SPECIFIC PERFORMANCE EXPLAINED:-

Section 20 of the Act states that the jurisdiction to decree specific performance is discretionary. It says that the Court is not bound to grant such relief merely because it is lawful to do so. Such a discretion, however, is not to be exercised arbitrarily, but must be based on sound and reasonable judicial principles. The Section also specifies the circumstances in which the Court may properly exercise the discretion not to decree specific performance and it also specifies when, in an appropriate case, a decree could be given by proper exercise of discretion.

Section 20 is not an exhaustive provision, but merely illustrative as it is not possible to define the circumstances in which equitable relief could or could not be granted. If, therefore, on a consideration of all the circumstances of the case, the Court thinks that it will be inequitable to grant the relief asked for, it should not give the relief. In this context, it is necessary to refer to explanation to Section 10 of the Act provides that, unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. But the said presumption is a rebuttable presumption.

Sub-section (2) of Section 20 specifies certain circumstances when discretion may be exercised not to decree specific performance. These circumstances are illustrative and they can be defined as follows:
(i) when the terms of the contract or the conduct of the parties at the time of entering into contract or the circumstances under which the contract was entered into are such that they give the plaintiff an unfair advantage over the defendant.

(ii) where the performance of the contract would involve some hardship to the defendant whereas, its non-performance would involve no such hardship on the plaintiff.

(iii) that it makes it inequitable to enforce specific performance.


While explaining these circumstances,
Explanation-I speaks about unfair disadvantage.
Explanation-II relates to hardship which is a circumstance in favour of the defendant, while Explanations-Ill and IV are in favour of the plaintiff when in a case where the plaintiff has done substantial acts in consequence of a contract capable of specific performance or refused specific performance, merely because the contract is not enforceable at the instance of the defendant.


The decision of the Supreme Court in the case Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Ors., AIR 1987 SC 2328 is relied upon by the respondent to contend that it is the duty of the Court to see that litigation is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the said decision, the Hon'ble Supreme Court, while considering Section 20 of the Specific Relief Act, stated that Section 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case and the Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict.


In 1999(3) Kar.L.J. 677 (Y.N. Gopala RAO v. D.R. Laxminarayana and Ors.) it has been held by this Court that the presumption in a suit for specific performance is that a breach of contract cannot be adequately relieved by compensation in money and that contract can be satisfied only by conveyance of particular estate contracted for sale and the said presumption is rebuttable, and the burden of rebutting is on the party opposing enforcement of contract and where such party has failed to rebut presumption, suit for specific performance is to be decreed against such party. This principle is also stated in Explanation (i) to Sub-section (b) of Section 10 of the Specific Relief Act.

While adverting to Section 20 of the Act, it is stated in this decision that rise in price is no ground to refuse specific performance and the refusal may also have tendency to cause hardship in the plaintiff in acquiring such property or other property at such time.

In AIR 2004 SC 909 (M.S. Madhusoodhanan and Anr. v. Kerala Kaumudi Pvt. Ltd. and Ors.) it is observed that the guidelines for the exercise of the Court's discretion to decree specific performance of an agreement have been statutorily laid down in Sub-section (2) of Section 20 of the Act and that, in Explanation 1 to Section 20, it is stated that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b).


ILR 1992 Kar 717 (Yogambika v. Narsingh) is relied upon by the respondent to contend that the mere fact that a person is a retired Government servant cannot at all be considered to be a valid ground to refuse to enforce the contract he had voluntarily agreed to and that, under Section 20 of the Act, the grounds which enable the Court to refuse to grant a decree must be such which were not in the contemplation of the parties when they entered into an agreement of sale and also that the defendant had no control over those grounds and as a result of those grounds, it has become impossible for him to get on without the property agreed to be sold.







WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT – DELAY AND CHANGE IN STAND EXPLAINED BY SUPREME COURT

The Hon’ble Supreme court of India in Olympic Industries VS Mulla Hussainy Bhai Mulla Akberally & Ors. JUSTICE Tarun Chatterjee, JUSTICE H.L. Dattu, July 07, 2009. CODE OF CIVIL PROCEDURE, 1908: Or.8, r.9 - Subsequent pleadings - Additional written statement - Held: Even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff - Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. Mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement which could easily be compensated by cost. That apart, the delay in filing the additional written statement has been properly explained by the appellant. Even if the examination of PW-1 or his cross-examination was over, then also, it was open to the court to accept the additional written statement filed by the appellant by awarding some cost against the appellant. Even by filing an amendment or additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is well settled that courts should be more generous in allowing the amendment of written statement than in the case of plaint. While allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. In the instant case, by filing additional written statement, no injustice/prejudice would be caused to the respondents, but that would help the court to decide the real controversy between the parties.

EXECUTION OF A WILL IS REQUIRED TO BE PROVED IN TERMS OF THE PROVISIONS OF S. 63(C) OF THE SUCCESSION ACT, 1925

The Hon’ble Supreme court of India in Rur Singh (D) Th. LRS. & Ors. Vs Bachan Kaur JUSTICE S.B. Sinha JUSTICE Dr. Mukundakam Sharma New Delhi February 12, 2009, Succession Act, 1925 : S. 63(c) - Execution of a Will is required to be proved in terms of the provisions of s. 63(c) of the Succession Act, 1925 and s. 68 of the Evidence Act, 1872. The Will was attested by nine independent persons. Three of them in fact had been examined. The High Court while holding that a doubt is cast on its validity by reason of active participation of one of the sons, failed to notice that nine other independent witnesses attested the Will. Importance cannot be attached to the fact that although the Sarpanch scribed the Will in Urdu, he at more than one place signed in English. In a village, a person may be more proficient in the vernacular language than English although he may be able to sign his name in English. If the Will was otherwise proved to be genuine and the statutory requirements therefor were satisfied, only because the panchayat register was not produced, the same by itself would not lead to the conclusion that the Will would be held to have not been executed, particularly when two courts competent to arrive at findings of fact held it otherwise.

COURT CANNOT IMPOSE COSTS EXCEEDING ITS LIMITS UNDER CPC AND ALSO IT CANNOT DIRECT THE COSTS TO BE PAID TO LEGAL SERVICES AUTHORITY

The Hon’ble Supreme court of India in ASHOK KUMAR MITTAL VS. RAM KUMAR GUPTA & ANR. 2009(1) SCALE 321 , Justice R V Raveendran, Justice J M Panchal, New Delhi; January 9, 2009 “Exemplary costs - Imposition of - Courts should not exceed the limitations placed by CPC in this regard - Principles and practice relating to administrative law matters cannot be imported mechanically to civil litigation governed by the Code - Levy of huge costs in selected matters made payable to legal Services Authorities or non-party charitable organizations should be avoided - As regards the costs, courts should not exceed or overlook the limitations placed by the Code of Civil Procedure, 1908 with reference to costs in civil litigation. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code. On the aspect of the recipient of the costs, once the High Court held that costs had to be paid to the State, it should not have directed payment of the costs to the High Court Legal Services Committee, which being a statutory authority under the Legal Services Authorities Act, 1987, is not the 'State' that spends money on providing judicial infrastructure. Levy of huge amounts as costs in selected cases, made payable to Legal Services Authorities, may invite adverse comments and evoke hostility to legal services in general. The Court has also come across cases of costs being levied and made payable to some non-party charitable organizations. Levy of such costs should be avoided.”

GIFT DEED AND ITS VALIDITY EXPLAINED BY JUSTICE S.B.SINHA AND JUSTICE H.S.BEDI

ASOKAN VS LAKSHMI KUTTY 2007(13) SCR 901, It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift. 

The definition of gift contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are: (i) the absence of consideration; (ii) the donor; (iii) the donee; (iv) the subject matter (v) the transfer; and (vi) the acceptance. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance.

VENDORS RIGHTS-SPECIFIC PERFORMANCE - ANCESTRAL PROPERTY - PART PERFORMANCE – PARTITION OF DWELLING HOUSE

In Kammana Sambamurthy (D) By Lrs. vs Kalipatnapu Atchutamma & Ors. Before supreme court decided on 8 October, 2010 by Bench consisting of : Justice P Sathasivam, Justice R Lodha 

FINDINGS OF HIGH COURT UPHELD IN FOLLOWING WORDS:- The High Court recorded the findings on the basis of the factual matrix and the evidence adduced by the defendants, it was made out that the vendor and his wife had a son who died intestate and that the property was ancestral property in which the deceased son had half share and that share devolved upon the vendor's wife; the vendee cannot be said to have any knowledge that the vendor's wife had half share and in the absence of any express authority from his wife, the vendor could not alienate or otherwise dispose of her share in the property. The High Court did not accept the plea of the vendee that vendor had implied authority or that vendor's wife was estopped from raising the plea that the agreement did not bind her. The High Court finally held that the agreement of sale although covered the entire property but as the vendor had only half share and interest in the property, the decree for specific performance could only be granted to the extent of the vendor's share in the property. The High Court, accordingly, allowed the appeal preferred by vendor's wife to the extent of half share in the property and the judgment and decree of the Subordinate Judge was confirmed to the extent of half share of the vendor in the property. 

 As to whether the property is ancestral property or not, the finding of the two courts is divergent. The trial court held that the property was not the ancestral property but the High Court on reappraisal of the evidence did not agree with that finding. The High Court considered the matter thus : ".......Whatever may be the reason behind in getting Ex.A2 notice issued while seeking to avoid Ex.A2 transaction, the legal position cannot be doubted that half share in the suit house was devolved upon the second defendant on account of the death of her son, in as much as by birth, the son got half share along with his father in the ancestral property and the mother succeeded to the same as Class I heir. It is also clear that under section 14 of the Hindu Succession Act, the share devolved upon the mother would become the Streedhana property. The husband under such circumstances, in the absence of any express authority from the wife cannot alienate or otherwise dispose of the Streedhana property of his wife......." 

Having regard to the conclusion that the vendor's wife has got half share in the property and that she is not executant to the agreement, what needs to be considered is, whether the agreement binds the vendor's wife. According to vendee, the vendor had implied authority to enter into agreement of the property and the vendor's wife was clearly aware of that agreement and, therefore, she is estopped from raising the plea that she is not bound by that agreement. The High Court considered the evidence on record and held that no express or implied authority by the wife in favour of her husband is discernible from the facts and evidence. We agree. As regards applicability of Section 41 of the Transfer of Property Act, 1882 (T.P. Act), the High Court observed that it was not even the case of the vendee that the vendor was the ostensible owner of the property and, therefore, Section 41 has no application. We think that High Court is right and in view of the aforenoticed findings of the High Court, the conclusion that vendee is not entitled to seek specific performance of the agreement to the extent of half share of vendor's wife cannot be faulted. The crucial question in the case is whether the agreement could be enforced against the vendor to the extent of his half share in the property. The terms of the agreement show that the vendor represented to the vendee that he was absolute owner of the property that fell to his share in the partition effected with his brothers and he did not have any male child. The vendor assured the vendee that excepting him none has got any right over the property and he would obtain the witness signatures of his daughters and get their voluntary consent letters in his favour. It is clear from the evidence that the vendee had no knowledge that vendor's wife has half share in the property which devolved upon her on the death of her son intestate. 

 Section 12 prohibits specific performance of a part of a contract except in the circumstances under sub-sections (2), (3) 15 and (4). The circumstances mentioned in these sub-sections are exhaustive. Is Section 12 attracted in the facts and circumstances of the present case? We do not think so. The present case is not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor is concerned since he had agreed to sell the property in its entirety but it later turned out that vendor had only half share in the property and his wife held the remaining half. The agreement is binding on the vendor as it is without being fractured. As regards him, there is neither segregation or separation of contract nor creation of a new contract. 

 In Kartar Singh v. Harjinder Singh & Ors. (1990) 3 SCC 517, Supreme Court was concerned with a case where vendor--brother and a sister had each half share in the suit properties. The agreement for the sale was executed by the brother concerning the suit properties in which the sister had half share. The sister was not executant to the agreement; rather she refused to accept the agreement. The question for consideration before this Court was whether agreement could be enforced against the vendor--brother to the extent of his half share. Supreme Court considered Section 12 and held as under : "5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts, viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. 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. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and respondent's sister each have half share in the properties, the consideration can easily be reduced by 50 per cent which is what the first appellate court has rightly done." 

 Kartar Singh v. Harjinder Singh & Ors. (1990) 3 SCC 517,has been followed by Supreme Court in Manzoor Ahmed Magray v. Ghulam Hassan Aram & ; Ors (1999) 7 SCC 703. In that case Court considered the matter in the context of Section 15 of J & K Specific Relief Act, 1977 which is pari materia to Section 12 of Specific Relief Act, 1963. Supreme Court said : ".......Hence, there is no bar for passing the decree for specific relief with regard to 1/3rd or 2/3rds share owned by the contracting party for which he can execute the sale deed. For the share of Ghulam Rasool (brother of Defendant 1) admittedly, no decree is passed by the High Court. Dealing with the similar contention where agreement was for sale of property belonging to a brother and sister each having a half share, the Court in Kartar Singh v. Harjinder Singh held that when the absentee vendor, for some reason or the other refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed and his property is identifiable by specific share. The Court further held that such case is not covered by Section 12 of the Specific Relief Act, 1963 which relates to specific performance of a part of a contract. Such type of case would be the case of specific performance of the whole of the contract so far as the contracting party is concerned. Further, whenever a share in the property is sold the vendee has the right to apply for the partition of the property and get the share demarcated. Hence there would not be any difficulty in granting specific performance of the contract to the extent to which it is binding between the parties." 

In the case of A. Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors. (2000) 10 SCC 636, Supreme Court held that even where any property is held jointly and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, the party to the contract is bound to execute the sale deed. In that case, the suit property originally belonged to one Aziz Khan. On his death, his heirs under the Muslim law--nine sons and two daughters inherited that property. The sons agreed to sell that property to the first respondent therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. It was admitted case that the daughters of Aziz Khan had not joined in the agreement of sale. The trial court dismissed the suit by holding that the agreement was indivisible and could only be enforced if the daughters of Aziz Khan agreed. The first respondent therein preferred an appeal before the High Court against the judgment and decree of the trial court. The High Court held that he had not pleaded and proved that the daughters of Aziz Khan had agreed to sell the suit property and hence, it cannot be held that the said agreement was by all the heirs of Aziz Khan. The two daughters of Aziz Khan were held not bound by the agreement. However, the High Court held that insofar as the executants of the agreement (sons of Aziz Khan) were concerned they were bound by it and valid and enforceable contract existed between the first respondent and the sons of Aziz Khan. The High Court, accordingly, granted decree for specific performance to the extent of 5/6th shares which Aziz Khan's sons had in the property. This Court affirmed the decree of the High Court and it was held that plaintiff's suit for specific performance to the extent of 5/6th share was rightly decreed by the High Court warranting no interference. While holding so, this Court relied upon earlier decision in the case of Manzoor Ahmed Magray. 

 PARTITION OF DWELLING HOUSE:- Contention raised that property is an undivided dwelling house and the court should not grant specific performance against the co-owners of the family dwelling house. By relying upon Ghantesher Ghosh v. Madan Mohan Ghosh & ; Ors. (1996) 11 SCC 446 Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. (2005) 5 SCC 492 and Shanmughasundaram & Ors. v. Diravia Nadar (Dead) By LRs. & Anr. (2005) 10 SCC 728. The above submission was canvassed before the High Court. The High Court considered this aspect in the following manner : "It is too premature for the defendant to have invoked the provisions of section 4 of the Partition Act. The plaintiff's right has not been crystallized yet and he cannot at this stage be considered as a purchaser of the undivided interest of the first defendant. In order to validly invoke section 4 of the Partition Act, the following five conditions have to be satisfied : 

1. A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; 

2. The transferee of such undivided interest of co- owner should an outsider or stranger to the family; 

3. Such transferee much sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned; 

4. As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of preemption by undertaking to buy out the share of such transferee and; 

5. While accepting such a claim for preemption by the existing co-owners of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share belonging to the stranger transferee and made the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption and said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger-transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can he effectively deny entry in any part of such family dwelling house. The whole object seems to be to preserve the privacy of the family members by not allowing a stranger to enter in a part of the family dwelling house. Such is not the situation obtaining in this case having regard to the context. I am reinforced in my above view by the judgment of the Apex Court in Babulal V. Habibnoor Khan, 2000 (5) SCC 662. The apex Court placing reliance upon its earlier judgment in Ghantesher Ghosh V. Madan Mohan Ghosh, 1996 (11) SCC 446 reiterated the five essential requisites. For the foregoing reasons, the contention of the learned counsel merits no consideration." 

 SUPREME COURT OBSERVATION ON HIGH COURT FINDINGS:- In our opinion, the High Court has rightly concluded that at the present stage, Section 4 of the Partition Act, 1893 is not attracted. It is only after the sale deed is executed in favour of the vendee that right under Section 4 of the Partition Act, 1893 may be available. Similarly, insofar as vendee is concerned, he has right to apply for partition of the property and get the share demarcated only after sale deed is executed in his favour. Section 44 of the T.P. Act is also of no help to the case of vendor's wife. In view of the above, we agree that the decision of the High Court is right and, consequently, both the appeals must be dismissed and are dismissed with no order as to costs.

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS