Suit – Specific performance of agreement – Agreement dated 12.06.1979 between the plaintiffs-respondents and the defendant no.1 (now represented by his legal representatives, appellant nos. 1 to 4 and 7) for sale of the suit property for Rs.46,000/- – Plaintiffs filed suit for specific performance alleging that they paid earnest money to defendant no.1 and were ready to perform their part of the agreement, however defendant no.1 sold the suit property to defendant nos.2 and 3 (appellant nos.5 & 6, respectively) for Rs.48,000/- – Trial Court though held that the plaintiffs were ready and willing to perform their part of the agreement but, dismissed the suit – Plaintiffs filed appeal before the First Appellate Court, which was allowed – Challenged by the defendants – High Court dismissed the second appeal – On appeal, held: Finding on the issue of readiness and willingness is one of the important and relevant findings in suit for specific performance of an agreement – Once recorded, it becomes a finding of fact – When the three Courts below held against the defendants and in favour of the plaintiffs that they were ready and willing to perform their part of the agreement, this finding was binding on the High Court and also on this Court – Defendants failed to challenge its legality at the first appellate stage in appeal filed by the plaintiffs – High Court upheld it by dismissing defendants’ second appeal – Sale made by defendant no.1 in favour of defendant nos.2 and 3 was a collusive sale to avoid the agreement of the plaintiffs – The agreement dated 12.06.1979 was binding on the legal heirs of defendant no.1 – Defendants failed to make out any case for interference in the impugned judgment – With a view to end litigation between the parties, pending since 1982 and also to balance the equities amongst the parties, defendant no.1 through his legal representatives to return the sum of Rs.48,000/- to the legal representatives of defendant no.2 (appellant no.5) and defendant no.3 (appellant no.6) – Decree further modified as directed – Indian Contract Act, 1872 – s.65 – Code of Civil Procedure, 1908 – Or.22, r.4(2) – Constitution of India – Art.142 – Decree.
Family Law – Joint Hindu Family Property – Powers of Karta – Held: Power of Karta to sell the Joint Hindu Family property is inherent in him – However, it is subject to certain restrictions, namely, the sale should be for the legal necessity and for the benefit of the family.
Disposing of the appeal, the Court
HELD: 1.1 When the three Courts below held against the defendants and in favour of the plaintiffs that the plaintiffs were ready and willing to perform their part of the agreement, this finding was binding on the High Court and also on this Court. A finding on the issue of readiness and willingness is one of the important and relevant findings in a suit for specific performance of an agreement. It is a finding based on facts and once it is recorded, it becomes a finding of fact. [Paras 19, 21] [513-E-F, G-H; 514-A]
1.2 In this view of the matter, unless such finding is found to be against the pleadings or contrary to the evidence or the law governing the issue, it is binding on the High Court and also on this Court. Appellants were not able to point out any infirmity or illegality in this finding. It is apart from the fact that the appellants (defendants) failed to challenge its legality and correctness at the first appellate stage in an appeal filed by the plaintiffs, which was the appropriate stage to challenge. It is, therefore, binding on this Court. [Paras 22, 23] [514-B-C]
1.3 The sale made by defendant no.1 in favour of defendant nos.2 and 3 was a collusive sale made to avoid the agreement of the plaintiffs. The Courts below were justified in holding that the agreement dated 12.6.1979 was binding on the legal heirs of defendant no.1. [Paras 36, 42] [516-A-B; 517-C-D]
1.4 One cannot dispute the power of a Karta to sell the Joint Hindu Family property. It is, indeed, inherent in him. However, it is subject to certain restrictions, namely, the sale should be for the legal necessity and for the benefit of the family. Defendant no.1 had obtained the consent of the legal heirs before entering into an agreement for sale of the suit property to the plaintiffs. The very fact that one son of defendant no.1 was a signatory to the agreement was sufficient to draw a presumption that the agreement to sell was made by defendant no.1 with the consent of other coparceners. It is also for the reason because none of the coparceners had raised any objection till the filing of written statement in the suit. The very fact that defendant no.1 sold the suit property to defendant nos. 2 and 3 and which was not objected to by his legal heirs showed that the plea regarding legal necessity had no factual basis to sustain. The appellants (defendants) have failed to make out any case so as to call for any interference in the impugned judgment. [Paras 44-46] [517-F-H; 518-A]
1.5 It is considered just and proper and with a view to end this litigation between the parties, which is pending since 1982 and also to balance the equities amongst the parties that defendant No.1 through his legal representatives (Appellant Nos. 1-4 & 7 herein) would return a sum of Rs.48,000/- to the legal representatives of defendant no.2 (Appellant No.5 herein) and defendant no. 3 (Appellant No.6 herein). This direction is given to do complete justice between the parties to the lis because one does not want another round of litigation to go on for years in future between the defendants inter se for recovery of this amount. [Para 52] [519-F-G]
1.6 The judgment and decree is modified as under:
(i) The legal representatives of defendant no.1 (Appellant Nos.1-4 and 7) shall deposit a sum of Rs. 48,000/- in the executing Court for being paid to the legal representatives of defendant no.2 and defendant no.3 (Appellant No.6 herein) within three months as an outer limit.
(ii) The legal representatives of original Plaintiff No.1 (respondent no.1 herein) and plaintiff no.2 (respondent no.2 herein) shall deposit in the executing Court a sum of Rs.41,000/- for being paid to the legal representatives of original defendant no.1 (Appellant Nos.1 to 4 and 7 herein) within three months as an outer limit.
(iii) The original defendant no.1, now represented by his legal representatives (Appellant Nos.1-4 & 7) along with legal representatives of original defendant no. 2 and defendant no. 3 (Appellant No.6 herein) will jointly execute the sale deed in favour of legal representatives of original plaintiff No.1 (respondent No.1 herein) and plaintiff No.2 (respondent No.2 herein) and hand over the possession of the suit property to them simultaneously and then will withdraw the money deposited for them in Court. [Para 53] [520-A-D]
Sunil Kumar & Anr. v. Ram Parkash & Ors. (1988) 2 SCC 77 : [1988] 2 SCR 623 ; Lala Durga Prasad & Anr. v. Deep Chand & Ors. AIR 1954 SC 75 :
[1954] SCR 360 – 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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