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IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
G. S. AHLUWALIA, J.
Sher Singh – Appellant
Versus
Ramkishan Rathore And Others – Respondent
Second Appeal No. 1794 of 2024
Decided On : 06-01-2025
¼1½ fofufnZ"V vuqr¨"k vfèkfu;e] 1963 & èkkjk 12 rFkk 16 & D;k vfoÒkftr Òwfe d¢ foØ; dk djkj fu"iknu ;¨X; gS & lg&va'kèkkjh }kjk Òwfe dh fofufnZ"V lhek,¡ mfYyf[kr dj foØ; dk djkj fu"ikfnr & lwpuk d¢ ckn Òh foØ; foys[k fu"ikfnr ugÈ fd;k cfYd ,d vU; O;fä d¢ i{k esa foØ; dk djkj fu"ikfnr fd;k & lafonk d¢ fofufnZ"V vuqikyu d¢ fy, okn çLrqr & çfroknh lg&va'kèkkjh us vkifÙk dh fd vfoÒkftr Òwfe dk foØ; ugÈ fd;k tk ldrk & okn [kkfjt & çFke vihy U;k;ky; }kjk fopkj.k U;k;ky; dk fu.kZ; vikLr fd;k x;k & çfroknh }kjk f}rh; vihy çLrqr dh xà & vfHkfu/kkZfjr lg&va'kèkkjh vius va'k dk vU; laØe.k dj ldrk gS ijarq fdlh fofufnZ"V va'k dk vU; laØe.k ugÈ dj ldrk & ;g ugÈ dgk tk ldrk fd ;fn lg&va'kèkkjh us fofufnZ"Vr% lhek,¡ mfYyf[kr dj djkj fu"ikfnr fd;k rks Øsrk d¨ d¨Ã vfèkdkj çkIr ugÈ g¨xk & oknh us çfroknh dk va'k Ø; djus dh jtkeanh O;ä dh & vfoÒkftr Òwfe d¢ foØ; dk djkj fofèk esa fu"iknu ;¨X; gS & vihy [kkfjt & çFke vihy U;k;ky; dk fu.kZ; vfÒiq"VA ,vkbvkj 1990 ,llh 854 vuqlfjrA flfoy vihy Øekad 7840 lu~ 2023 fu.kÊr fnukad 17-5-2024 ¼mPpre U;k;ky;½] flfoy vihy Øekad 6075 lu~ 2023 fu.kÊr fnukad 22-9-2023 ¼mPpre U;k;ky;½ rFkk ¼2015½ 5 ,llhlh 355 fufnZ"VA ¼iSjk 10 ls 13 ,oa 21½
¼2½ ifjlhek vfèkfu;e] 1963 & vuqPNsn 54 & fofufnZ"V vuqr¨"k vfèkfu;e] 1963 & èkkjk 12 rFkk 16 & lafonk d¢ fofufnZ"V vuqikyu d¢ fy, okn & ifjlhek & lg&va'kèkkjh }kjk vfoÒkftr Òwfe d¢ foØ; dk djkj fu"ikfnr & lg&va'kèkkjh dk va'k Ø; djus d¢ fy, Øsrk rS;kj ,oa jtkean & lwpuk d¢ ckn Òh çfroknh us foØ; foys[k fu"ikfnr ugÈ fd;k & lafonk d¢ fofufnZ"V vuqikyu d¢ fy, okn çLrqr & çfroknh }kjk vkifÙk dh xà fd Ng ekl ds vuqcaf/kr le; dk volku g¨ x;k gS blfy, djkj fu"iknu ;¨X; ugÈ & djkj esa fu;r le; d¢ Òhrj çfroknh }kjk vius va'k d¢ foÒktu d¢ fy, d¨Ã dkjZokbZ ugÈ dh xà -- rhu o"kZ dh ifjlhek dkykofèk vuqikyu d¢ fy, fu;r fnukad ls vkjaHk g¨xh & ;fn d¨Ã fnukad fu;r ugÈ gks rc oknh }kjk nh xà lwpuk ij vuqikyu ls bUdkj fd, tkus ij vkjaHk g¨xhA ¼2019½ 8 ,llhlh 62 vuqlfjrA 2003 ¼2½ ,eih,yts 86 fufnZ"VA ¼iSjk 14 ls 20½
¼3½ flfoy çfØ;k lafgrk] 1908 & èkkjk 100 & 'kfä dh O;kfIr & çFke vihy U;k;ky; d¢ rF; d¢ fu"d"kZ & rc rd gLr{ksi ugÈ fd;k tk ldrk tc rd ;g ugha n'kkZ;k tk, fd og foi;ZLr gSa & d¨Ã foi;ZLrrk ugÈ crkà xà & gLr{ksi visf{kr ugÈ & vihy [kkfjtA ¼iSjk 20 ,oa 22½
(1) Specific Relief Act, 1963 -- Ss. 12 and 16 -- whether agreement to sell unpartitioned land is executable -- agreement to sell executed by co-sharer by mentioning specific boundaries of land -- sale deed not executed even after notice but agreement to sell executed in favour of another person -- suit filed for specific performance of contract -- defendant co-sharer objected that sale deed of unpartitioned land cannot be executed -- suit dismissed -- judgment of trial Court set aside by first appellate Court -- second appeal filed by defendant -- held, co-sharer can alienate his share but cannot alienate any specific share -- it cannot be said that if co-sharer executed agreement by specifically mentioning boundaries then purchaser would not get any right -- plaintiff expressed his willingness to purchase share of defendant -- agreement to sell unpartitioned land is enforceable in law -- appeal dismissed -- judgment of first appellate Court affirmed. AIR 1990 SC 854 followed. Civil Appeal No. 7840 of 2023 decided on 17.5.2024 (SC), Civil Appeal No. 6075 of 2023 decided on 22.9.2023 (SC) and (2015) 5 SCC 355 referred to. [Paras 10 to 13 & 21]
(2) Limitation Act, 1963 -- Art. 54 -- Specific Relief Act, 1963 -- Ss. 12 and 16 -- suit for specific performance of contract -- limitation -- agreement to sell unpartitioned land executed by co-sharer -- purchaser ready and willing to purchase share of co-sharer -- sale deed not executed by defendant even after notice -- suit filed for specific performance of contract -- defendant objected that stipulated time of six months has expired so agreement is not executable -- no action taken by defendant for partition of his share within time fixed in agreement -- three years’ period of limitation would start from date fixed for performance -- if no date is fixed then it will start when performance is refused on notice given by plaintiff. (2019) 8 SCC 62 followed. 2003 (2) MPLJ 86 referred to. [Paras 14 to 20]
(3) Civil P.C. 1908 -- S. 100 -- scope of powers -- findings of fact of first appellate Court -- cannot be interfered with until and unless they are shown to be perverse -- no perversity pointed out -- no interference called for -- appeal dismissed. [Paras 20 & 22]
| Table of Content |
|---|
| 1. factual background of the case. (Para 2 , 3) |
| 2. co-sharers impleaded in the suit (Para 4 , 7) |
| 3. arguments challenging contract enforceability. (Para 5 , 6) |
| 4. court's analysis on co-sharers' rights. (Para 8 , 9 , 10) |
| 5. court discusses enforceability of agreement (Para 11 , 20) |
| 6. agreement enforceability principles established. (Para 12 , 13) |
| 7. interpretation of readiness and willingness. (Para 14 , 15 , 16 , 18) |
| 8. final ruling and affirmation of previous judgment. (Para 17 , 19 , 21) |
| 9. no substantial question of law arises (Para 22) |
JUDGEMENT :
G.S. AHLUWALIA, J.
This second appeal, under section 100, CPC , has been filed against the judgment and decree dated 15/5/2024 passed by Principal District Judge, Shivpuri in RCA No. 71/2023 thereby reversing the judgment and decree dated 18/7/2023 passed by I Civil Judge, Senior Division, Shivpuri in RCSA No. 1/2021.
2. Present appeal has been filed by defendant no.1. Facts necessary for disposal of present appeal, in short, are that respondent no.1/plaintiff filed a suit for specific performance of contract pleading inter alia that appellant/defendant no.1 was co-owner and in possession of Survey No. 1253 area 1.47 hectares situated in Village Ratore, Tahsil and District Shivpuri. Defendant No.1 had share to the extent of 0.32 hectare. Since defendant no.1/appellant was in need of money, therefore, he entered into an agreement to sell 0.20 hectare of land for a consideration amount of Rs.9 lacs and, accordingly, a written agreement was executed on 27/04/2019. Plaintiff/respondent no.1 also paid an amount of Rs.3,00,000/- by Cheque No.88478 dated 27/4/2019. Since defendant no.1/appellant was co-sharer and partition had not taken place, therefore, it was assured by defendant no.1 that he would get the land partitioned within a period of six months i.e. up to 30/10/2019 and thereafter he would execute the sale deed after receiving an amount of Rs.6 lacs. It was further pleaded that defendant no.1, in spite of accepting the advance amount, did not take any action for demarcation and partition. Whenever plaintiff requested defendant no.1 to initiate the aforesaid proceedings, then he always avoided the same and, accordingly, the period of six months expired. Thereafter, even for a further period of six months, no action was taken by defendant no.1 for partition and demarcation. As a result, execution of sale deed was not possible. It is further pleaded that plaintiff was always ready and willing to execute the sale deed and was in possession of remaining sale consideration, as well as, expenses for registration etc. It was further pleaded that plaintiff is still in possession of aforesaid funds and he is ready and willing to get the sale deed executed. It is the case of plaintiff that though defendant no.1 received an amount of Rs.3 lacs but he was intending to cheat from very inception that he would not execute the sale deed. It was further pleaded that in spite of multiple reminders, defendant no.1 did not take any action for demarcation and partition. It was further pleaded that thereafter defendant no.1 executed another agreement to sell in favor of one Virendra Rathore and has also received an amount of Rs.3 lacs on 9/10/2019. It was further pleaded that since defendant no.1 has already executed agreement to sell in favour of plaintiff, therefore, he does not have right or title to enter into agreement to sell with any other person. Thus, it was pleaded that in view of written agreement dated 27/04/2019, plaintiff is still ready and willing to get the sale deed executed after making payment of remaining consideration amount of Rs.6 lacs. It was further pleaded that on 28/07/2020 plaintiff had given a notice to defendant no.1, but defendant no.1 neither gave any reply nor executed the sale deed. Accordingly, another notice dated 3/9/2020 was sent to which a wrong reply was sent by defendant no.1 and he did not take any action to execute the sale deed. Thus, suit for specif
A co-sharer can alienate his share in unpartitioned land, and failure to partition does not negate the enforceability of a sale agreement if the purchaser is willing to accept the share.
The continuous readiness and willingness of the plaintiff to perform her part of the contract is a condition precedent to grant the relief of specific performance.
Mere escalation of price does not constitute hardship to the vendor, and the conduct of the parties and the terms of the agreement are crucial in determining entitlement to specific performance.
Agreement to sell joint leasehold share, contingent on non-party co-lessee's renewal involvement and discretionary transfer permission, is void for uncertainty; plaintiff must prove continuous readin....
The court upheld that a partition among co-owners allows individual members to execute sale agreements for their shares without needing consent from others, reinforcing the enforceability of prior co....
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