IMPORTANT POINT
Agreement to sell does not confer any rights nor does it vest any interest into party that agrees thereby to buy a particular property – Transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed).

JUDGMENT :

SANJAY KAROL, J.

1. In these appeals, challenge is laid to final judgment and order dated 1st March 2012 in Second Appeal No.435 of 2011 with Civil Application No.10306 of 2011 passed by the High Court of Judicature at Bombay, Bench at Aurangabad whereby the appellants assailed the order of the First Appellate Court in RCA No.87 of 2005¹[ District Judge, Aurangabad] dated 4th March 2005, overturning the findings of the Civil Court²[2nd Jt. Civil Judge (J.D.) Aurangabad in RCS No.310/99], was rejected.

2. The short conspectus of facts is that the appellant’s husband namely Chand Khan passed away and now this litigation pertains to the property he left behind, between his surviving spouse namely Zoharbee³[Hereinafter Defendant No.1] and his brother i.e. Respondent Imam Khan⁴[Hereinafter Plaintiff]. The plot of land which is germane to the dispute is land S.No.22/3 and 22/1 of Gut No. 107 and Gut No.126. It is the plaintiff’s case that all the property left behind by the deceased Chand Khan is matruka property and since he died issueless, as per Mohammedan law the former would be entitled to 3/4th of the total property and only the remaining 1/4th would fall in the rights and entitlements of defendant no.1. On the other hand, the case as per defendant no.1 is that the land bearing gut no.126 already stood transferred to the third party in the lifetime of Chand Khan by an Agreement to Sell dated November 1999 with defendant no.2 and 3 namely, Pandit Fakirrao Bodkhe and Bhausaheb Fakirrao Bodhke, and so the said property cannot be the point of contention in the instant proceedings. In so far as the other piece of land is concerned, it is contended that the same stood transferred to the sole and exclusive ownership and possession of defendant no.1 many years prior to the death of Chand khan but in the challenging circumstances of the latter’s continued illness, the same was sold to one Ayub Khan who is defendant no.4 and part consideration of such sale stood received in the life of Chand Khan and the remaining, subsequently after his death. Therefore, nothing remains to be partitioned in terms of matruka property.

3. The learned Civil Court agreed with the contentions of defendant no.1 and partly decreed the plaintiff’s suit in so far as the property sold to defendant no.4 is concerned for the reason that he chose not to contest the suit in any way whatsoever and did not file a written statement. Regarding the remaining property, it was observed that the Agreement to Sell entered into between the parties in the lifetime of Chand Khan stood duly proved by way of examination of witnesses (defendant no.2 and 3) and, therefore, no property remained to be divided between the successors in interest of the deceased. It was acknowledged that the sale deed was executed by Zoharbee after Chand Khan had died however the said fact was not treated as material in view of the evidence presented.

4. The plaintiff, being aggrieved, filed the first appeal under Section 96 of the Code of Civil Procedure. The First Appellate Court vide judgment dated 30th June 2011 reversed the findings of the Civil Court and held that the plaintiff’s suit was entirely maintainable. In other words, the plaintiff would be entitled to 3/4th of the total property in the name of the deceased. A further reason for arriving at such a finding was that an Agreement to Sell does not confer any right. The rights would stand vested with the third party only upon the execution of the sale deed which was done after his death. At the time of death therefor, the property was still vested in Chand Khan.

5. In Second Appeal, by way of the impugned judgment, it is recorded that no substantial question of law arises for consideration. The learned Single Judge thereafter proceeds to consider the contentions raised by either side which, for the defendant no.1 are the points that were raised before the learned Civil Court and on behalf of the plaintiff were those that were raised befo