1971 Supreme(AP) 175

Andhra Pradesh High Court
Judges : ALLADI KUPPUSWAMI, NARASIMHAM
Abdul Hakeem Khan - Appellant
Versus
Abdul Mannan Khadri - Respondent
Decided On : 09-02-71

A vendor cannot be permitted to except to his own title.

Headnote:

SPECIFIC PERFORMANCE - AGREEMENT TO SELL - DEFECTIVE TITLE - LACHES - LIMITATION - SECTION 18 (A) OF THE SPECIFIC RELIEF ACT, 1877 - HYDERABAD TENANCY AND AGRICULTURAL LANDS ACT - PARTNERSHIP.

Fact of the Case:

The plaintiff and the defendant entered into an agreement to sell certain land. The defendant also executed a suit agreement in favor of the plaintiff agreeing to sell all the remaining lands in favor of the plaintiff for a sum of Rs. 12,600. The plaintiff paid an advance of Rs. 8,600. It was also provided in the agreement that the defendant would obtain permission from the revenue authorities for the alienation of that land. The plaintiff and the defendant, as per their agreement to sell in favor of Bharat Krishi Co. executed a registered sale-deed in their favor on 26-11-1957. The defendant, however did not obtain permission from the revenue authorities to sell his lands to the plaintiff in accordance with the second agreement in favor of the plaintiff. The plaintiff, therefore, submitted an application for permission on 12/05/1959, and he was informed that there was no necessity for any permission as the transaction was between the two partners. Thereafter, the plaintiff asked the defending several times to receive and accept Rs. 4,000. The balance of consideration and execute a sale-deed. but the defendant did not comply with his request. Therefore, the plaintiff gave a registered notice on 9-11-1960. The defendant gave no reply. Hence the plaintiff filed the suit for specific performance of the agreement.

Finding of the Court:

The trial court held that the defendant executed the agreement, Ex. A-1 and received Rs. 8,600. as advance or earnest money. However, it held that as the defendant was not the sole or exclusive owner of the land agreed to be sold, as they are the property of the Graduates Farm, in which the plaintiff and the defendant, had equal interest, the title of the defendant was defective and as such Ex. A-1 could not be enforced by means of a specific performance. The court observed that the remedy of the plaintiff appears to be a to give a notice of dissolution of the partnership between the plaintiff and the defendant and for taking accounts and for division of partnership assts. As he held that a sum of Rs. 8,600. had been paid by the plaintiff under the agreement, he gave a decree for the plaintiff for that sum together with interest at ix per cent per annum from 27-8-1950. On issue (4) regarding limitation he held that the suit was within time as it was provided under Ex. A-1 that the sale was to be effected after the sale in favor of Bharat Krishi Co. which took place on 26-11-1957, and the suit was instituted within three years from that date. The defendant preferred A. B. No. 101 of 1963 to this Court and the plaintiff preferred A. S. 466/64. Both the appeals were heard together and were disposed of by a common judgment by our learned brother Sharfuddin Ahmed J. This Court considered the entire evidence and agreed with the findings of the trial Court that the agreement was true, and the plaintiff paid Rs. 8,600. to the defendant under the sale deed. Though the defendant had raised the plea of limitation in his grounds of appeal, it does not appear from the judgment that the question of limitation was argued in this court. This court further held that the agreement Ex. A-15 dated 15-8-1944. entered into between the plaintiff, the defendant and Ekramuddin Ali Khan constituted a partnership between the parties. Sharfuddin Ahmed, J. , then referred to the contention of the plaintiff that even if it is a partnership the Court below was not justified in refusing to grant a decree for specific performance. He however, did not give any express finding as to whether the plaintiff could insist on the specific performance of the agreement in view of them fact that the plaintiff and the defendant were partners. He preferred to hold hat the plaintiff ought (not?) to be granted a relief for specific performance on account of laces on his part. Her held that the Court was justified the relief for specific performance. In the result, both the appeals were dismissed with costs.

Issues: 1) Whether the suit sale agreement was made by the defendant in four of the plaintiff on 27-8-1950? if so, is it enforceable under the provision of law? 2) Whether the defendant obtained from the plaintiff a sum of Rs. 8,600. under the said suit agreement in advance as earnest money? 3) Whether the suit is valued correctly and the court-fee paid is sufficient? 4) Whether the suit is within time? 5) To what relief the plaintiff is entitled?

Ratio Decidendi: 1. The vendor cannot be permitted to except to his own title. 2. Where a person contracts to sell or let certain property. having only an imperfect title there, the purchaser or lessee has the following rights. (a) If the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him o make good the contract out of such interest. 3. The expression "subsequently to the sale or lease" means subsequently to the contract to sell. 4. Delay as a defence in a suit for specific performance should be specifically pleaded and if the point is not taken in the Courts below it will not be allowed to be raised for the first time in Second Appeal.

Final Decision: The appeal is allowed and there will be the usual decree for specific performance and possession. The sale deed will be executed within one month after the receipt of records in the trial court at the plaintiffs costs on his paying the balance of the sale price. In view of this it follows that the plaintiff will not be entitled to the sum of Rs. 8600. 00 directed to be paid to him by the defendant.