Estoppel – When not attracted – Suit property let out to plaintiff no.2 by the late father of defendant no.1 and defendant no.1 – Father of defendant no.1, represented by defendant no.1 as power of attorney, entered into an agreement to sell with the plaintiffs for Rs.1,50,000/- out of which Rs.1,00,000/- was received on the same day – Plaintiffs continued to have the possession of suit property in part performance of the agreement and stopped paying rent – Defendant no.1 received the balance sale consideration from plaintiff no.2 and undertook to execute the deed of conveyance – Defendant no.1 was postponing to execute the registered sale deed – Suit filed seeking specific performance – Trial court decreed the suit – Affirmed by the High Court – Plea of defendants-appellants that the agreement was with the father of defendant no.1 and not with defendant no.1 who did not execute agreement of his share and thus, the suit could not have been decree in toto – Held: Bare reading of the agreement makes it clear that the “Vendors” was late father of the defendant no.1 and not defendant no.1 – Defendant no.1 acted as power of attorney – Said position may indicate that plaintiffs were misled that only father of defendant no.1 was the exclusive owner of the property – However, the statement of plaintiff no.2 clearly indicates that he was well aware of the fact that the property devolved upon, in equal shares and that it was a joint family property – Ownership of the defendant no.1 was known to the plaintiffs and in spite of that they did not set up the case to bind his share – They did not plead in the plaint that defendant no.1 owned the property – In the plaint, the plaintiffs did not take the plea of estoppel and now the case was set up that property had been sold by defendant no.1 in his capacity – In view of the agreement and the admission made by the plaintiffs, decree passed by the courts below modified to the extent of 50 per cent of the shares of the late father of defendant no.1 and is set aside with respect to the remaining ½ share of the defendant no.1 – Trial court to divide the property in two equal proportions and it be given to the parties – Hindu Succession Act, 1956 – s.15 – Income Tax Act, 1961 – s.230-A.
Disposing of the appeals, the Court
HELD: 1.1 The concurrent findings are recorded as to receipt of consideration and execution of the agreement to sell. There is no doubt about it that Plaintiff No.2 was earlier a counsel and legal advisor to father of defendant no.1, but when the agreement had been executed, he was not a lawyer and became a Judge of the High Court. There are concurrent findings recorded concerning the execution of the agreement, and it has been rightly found established that signatures were not obtained on blank papers. There is concurrent finding recorded by the courts below that consideration has been paid. Thus, no case for interference is made out in the aforesaid findings. The courts below have found that correspondence was made by defendants No.1 to obtain Income Tax clearance. The suit has been held not to be barred by limitation. Given the facts and material placed on record, no interference is called for with those findings also. [Paras 16, 17][1076-A-C]
1.2 A bare reading of the agreement makes it clear that agreement is between late father of defendant no.1 through power of attorney, Defendant No.1. The “Vendors” is mentioned as late father of defendant no.1 and not defendant no.1. Thus, it cannot be said that defendant no.1 had executed the agreement on his behalf, concerning his share in the property. There is no whisper about the same in the agreement. The position mentioned above may indicate that plaintiffs were misled by the Power of Attorney holder that only late father of defendant no.1 was the exclusive owner of the property. When the statement of Plaintiff No.2 is considered it clearly indicates that he was well aware of the fact that Princess Leelavathi owned the property and upon her death the property devolved upon, in equal shares and he was aware of the other sale deeds executed (Exhs. P 43, P-44, P-45, P-46). It is clear that plaintiff No.2 was aware as to the extant title of defendant no.1 in the property and also the fact that it was a joint family property. In the plaint, the plaintiffs have not taken the plea of estoppel, and now the case was set up that property had been sold by defendant no.1 in his capacity without any such plea in the plaint. Thus, plaintiff No.2 was well aware of the fact as to the title of defendant no.1 in the property and that late father of defendant no.1 did not exclusively own the property. [Paras 20][1079-A-D]
1.3 There was no possibility of erroneous beliefs in the mind of the plaintiffs as to title position in the property. No doubt about it that defendant No.1 acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of defendant no.1 was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind his share. They have not pleaded in the plaint that defendant no.1 owned the property. There is no whisper as to his title in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of his late father as his power of attorney. [Paras 22][1081F-G]
1.4 In view of the agreement and the admission made by the plaintiffs, it is appropriate to modify the decree passed by the courts below to the extent of 50 per cent of the shares of the deceased late father of defendant no.1 and to set it aside with respect to the remaining ½ share of defendant No.1 in the property, since the property devolved under section 15 of the Hindu Succession Act, 1956. The plaintiffs to be entitled only to the extent of ½ share in the suit property. The decree to the remaining extent is set aside. The plaintiffs would not be entitled to refund of any consideration as by now the worth of property has increased manifold. The trial court to divide the property in two equal proportions and it be given to the parties. The division be carried out within four months by the Trial Court. [Paras 23-25][1081-H; 1082-A-C]
R.S. Madanappa (deceased) v. Chandramma & Anr.
AIR 1965 SC 1812 : [1965] SCR 283 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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