Back
High Court Of Madhya Pradesh
D. M. DHARMADHIKARI, USHA SHUKLA
BABULAL AGRAWAL - Appellant
Versus
JYOTI SHRIVASTAVA - Respondents
FIRST APPEAL 229 Of 1996
Decided On : 09/20/1999
SPECIFIC PERFORMANCE - AGREEMENT OF SALE - LEGAL NECESSITY - EQUITABLE GROUNDS FOR REFUSAL - ESCALATION OF PRICE - COLLUSIVE SUIT - DECREE OF SPECIFIC PERFORMANCE GRANTED.
Fact of the Case:
The vendee, Babulal Agrawal, filed a suit for specific performance of an agreement of sale dated 12th May, 1982, in relation to a house site with eight quarters or houses standing thereon. The vendors were Prabhu Dayal Saxena and Gourish Chandra Saxena, who were the heads of two branches of the family. Ajay Rajan, an Advocate and one of the sons of Gourish Chandra, filed a suit for a declaration in their favour of being owners of the suit property and for obtaining an injunction against the vendors and vendees. The trial Court dismissed both suits.
Finding of the Court:
The trial Court dismissed the suit for specific performance on several alleged equitable factors, including the death of one of the vendors during pendency of the suit, the property being in possession of tenants, and a decree in a collusive suit filed by Ajay Rajan. The trial Court also dismissed the suit for declaration and injunction filed by Ajay Rajan, relying on a decision of the Supreme Court holding that a co-parcener has no right to obstruct alienation by the karta and his only right is to challenge the sale after it is completed, on the ground of want of legal necessity.
Issues: 1. Whether the vendee is entitled to a decree of specific performance of the agreement of sale? 2. Whether the equitable grounds relied upon by the trial Court are sufficient to deny specific performance? 3. Whether the escalation of price of the property during pendency of litigation is a ground to deny specific performance?
Ratio Decidendi: 1. The finding of legal necessity recorded by the trial Court in favour of the vendee is maintained. The vendee had made bona fide enquiries on the question of legal necessity of the members of the family before entering into the agreement of sale. The property was agreed to be sold for the benefit of the members of the family. 2. The equitable grounds relied upon by the trial Court are not sufficient to deny specific performance. The decree in the collusive suit filed by Ajay Rajan cannot bind and affect the interest of the vendee in this suit for specific performance. The fact that the property is in possession of tenants is not a ground to refuse specific performance as the parties entered into the agreement of sale with the property in occupation of tenants. 3. Escalation of price of property during pendency of litigation can constitute no ground to refuse specific performance.
Final Decision: First Appeal No. 330/96 arising out of C. S. No. 14-A/89 is dismissed and the dismissal of suit by the trial Court is maintained. First Appeal No. 229/96 arising out of C. S. No. 5-A/89 filed by Babulal Agrawal for specific performance of the agreement of sale (Ex. D/5) is allowed. A decree of specific performance of agreement (Ex. D/5) dated 12-5-1982 is passed in favour of appellant/vendee Babulal Agrawal with direction to the respondents as the vendors and legal representatives of deceased vendors to execute a registered sale deed of the property in suit in favour of plaintiff Babulal Agrawal on payment of the balance amount of consideration under the agreement by him within a period of three months from the passing of the decree failing which the vendee Babulal Agrawal shall have right to obtain a registered conveyance on deposit of the balance amount of consideration in the civil Court.
( 1 ) THIS appeal as also First Appeal No. 330 of 1996 (Ajay Rajan and others v. Smt. Jyoti Shrivastava and others) are being decided by a common judgment as they arise out of two civil suits between the same parties, jointly tried and decided by a common judgment.
( 2 ) CIVIL Suit No. 5-A/89 giving rise to F. A. No. 229/96 was filed by Babulal Agrawal (hereinafter referred to as "the vendee" for short) for specific performance of agreement of sale dated 12th May, 1982 (Ex. D/5) in relation to the suit property which is a house site of the area 15,400 sq. ft. with eight quarters or houses standing thereon which are admittedly in possession of tenants in the city of Bhopal.
( 3 ) CIVIL Suit No. 14-A/89 giving rise to F. A. No. 330/96 was filed by respondent-Ajay Rajan and his four other brothers - all sons of Gourish Chandra Saxena seeking a declaration in their favour of they being owners of the suit property and for obtaining an injunction against the vendors and vendees who were parties to the agreement of sale Ex. D/5.
( 4 ) THE vendors and vendees to the agreement Ex. D/5 are parties to both the suits. Since the subject-matter of the two suits was common, the suits were tried jointly and a common judgment has been passed by the trial Court.
( 5 ) THE trial Court dismissed the suit for declaration and injunction filed by Ajay Rajan and his brothers, all sons of Gourish Chandra Saxena, by relying on a decision of the Supreme Court in Sunil Kumar v. Ram Parkash, AIR 1988 SC 576 and holding that a suit for permanent injunction by co-parcener or co-parceners against their father or karta for restraining him from alienating the property belonging to the joint family for legal necessity is not maintainable because a co-parcener has no right to obstruct alienation by the karta and his only right is to challenge the sale after it is completed, on the ground of want of legal necessity.
( 6 ) THE trial Court by the impugned judgment also dismissed the suit for the vendee for specific performance on several alleged equitable factors details of which hereinafter shall be mentioned. The trial Court granted a decree only for refund of the sum of Rs. 2,91,000/- with 12% interest thereon from the date of agreement, in favour of the plaintiff/vendee and against all the defendants.
( 7 ) FOR appreciating the nature of dispute in the suits between the parties, it is necessary to understand the relationship inter se of the members of the family of the vendors :
( 8 ) THE suit property was alleged to have been purchased in the year 1937 by Raghubar Dayal, the main ancestor of the family of vendors in 1962. Eight quarters were constructed on the land which are in occupation of the tenants. There is on record the memorandum of partition dated 20-8-1970 (Ex. D/3) exhibited on behalf of the defendants showing allotment of suit property in equal shares to two sons of Raghubardayal, namely, Prabhu Dayal Saxena and Gourish Chandra Saxena. Out of the property allotted to the two above namedsons of Raghubardayal, they gifted 807 sq. ft. of land to Jankidevi, wife of their uncle Ramdayal Saxena. The gift deed executed by Prabhu Dayal and Gourish Chandra is marked as Ex. D/4. Jankidevi who was the donee has two sons Krishna Dayal and Ramesh Dayal. The sons of Raghubardayal and sons of Jankidevi jointly executed an agreement of sale dated 12-5-1984 (Ex. D/5) in favour of Babulal Agrawal, referred to above as the vendee. The terms of the agreement, inter alia, are that the total land (area 15. 418 sq. ft.) as shown in the annexed map to the agreement was agreed to be sold at the rate of Rs. 40/- per sq. ft. A sum of Rs. 60,000/- was paid as earnest. The vendors agreed to get the property vacated from the tenants and also agreed to obtain N. O. C. from Income-tax Department. Under the terms of the agreement, on various dates further sale consideration was paid as endorsed at the back of the agreement of sale and it is not in dispute th
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
