IMPORTANT POINTS
1. Property could not be presumed to be a Joint Hindu Family property merely because of existence of Joint Hindu Family.
2. A son who inherits his fathers assets u/s 8 of Hindu Succession Act does so in his individual capacity and not as a Karta of Hindu Undivided Family.

Headnote:Specific Relief Act, 1963—Section 16—Suit for specific performance of agreement to sell—Appellant-defendant and respondent-plaintiff were two of four brothers, each owning 1/4th share in land measuring 40.2 Marlas and building along with 1/8th share in machinery installed therein—Defendant entered into agreement to sell his share in land and separate agreement to sell his share in machinery—Trial Court dismissed suit for specific performance holding that agreement to sell share in machinery was not enforceable and agreement to sell share in land was also unenforceable as entire land 40.2 Marlas was Joint Hindu Family property in hands of four brothers and onus was on plaintiff to prove that there was no joint family which plaintiff failed to discharge—District Court in 1st appeal upheld the judgment—High Court in second appeal decreed suit partly in respect of land measuring 29.2 Marlas holding that remaining other land 11 Marlas was joint Family property and decreed the suit regarding agreement to sell share in machinery also—Appeal—Interference by High Court in second appeal should be minimal and would not extend to a mere re-appraisal of evidence—High Court in interfering in the case was justified as trial court wrongly proceeded on point of onus—A property would not be presumed to be a Joint Hindu Family property merely because of existence of Joint Family—Except a self serving statement by defendant that property had been purchased from income of Joint Family, there was no other evidence—Even a son who inherited fathers assets u/s 8 of the Hindu Succession Act, did so in his individual capacity and not as Karta of Hindu Undivided Family—Plaintiff-respondent was entitled to specific performance of agreement in respect of entire land.
       Held : Interference of the High Court in second appeal should be clearly minimal and would not extend to a mere re-appraisal of the evidence. We are therefore clear that had the High Court on an appreciation of the evidence, taken a view different from that of the Trial Court and the first appellate court, the exercise would be clearly unjustified. We find, however, that the High Court differing with the courts below has proceeded on the basis and (we believe correctly) that the onus to prove that funds were available with the family with which the 29.2/3 marlas of land had been purchased by Dula Singh in the name of his sons lay on the defendant and not on the plaintiff. We find no evidence in this respect save a self serving and stray sentence in the statement of the defendant that the property had been purchased from the income of the Joint Hindu Family. It bears reiteration that the defendant had denied the execution of the two agreements Ex.P-1 and P-2 dated 3.5.1992 at the initial stage but faced with a difficult situation had later admitted that the agreements had been executed, leading to a finding by all three courts to that effect. There is also a clear recital by the defendant in Ex.P-4 that the property belonged to him and specific boundaries of the property were also given therein. The defendant’s statement had also been recorded by the Sub-Registrar on Ex.P-4 wherein he stated that he was ready to execute the sale deeds but Kulwant Singh, plaintiff had not appeared to do so. Likewise, in the original written statement a case of denial of the execution of the agreements had been pleaded and it was only by way of an amendment that the plea that the property belonged to the Joint Hindu Family had been raised. In this connection the judgment in D.S. Lakshmaiah case (supra) becomes relevant. It had been observed that a property could not be presumed to be a Joint Hindu Family property merely because of the existence of a Joint Hindu Family.(Para 8)
       The High Court has also rightly observed that there was no presumption that the property owned by the members of the Joint Hindu Family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it. The ratio of K.V. Narayanaswami Iyer case (supra) is thus clearly applicable to the facts of the case. We are therefore in full agreement with the High Court on this aspect as well. From the above, it would be evident that the High Court has not made a simpliciter re-appraisal of the evidence to arrive at conclusions different from those of the courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a Joint Hindu Family property.(Para 10)
       As already mentioned above, the reason as to why the decree for specific performance to the extent of 11 marlas regarding the sale of 1/4 share in 11 marlas of land and the building constructed thereon has been denied even by the High Court now needs to be examined. In this connection, reference must be made to Chander Sen’s case (supra ) wherein it has been held that a son who inherits his father’s assets under Section 8 of the Hindu Succession Act does so in his individual capacity and not as a Karta of the Hindu Undivided Family. It is the admitted case before us that the 11 marlas had been purchased by Dula Singh from his income as an employee of the Railways and it was therefore his self-acquired property. Such a property falling to his sons by succession could not be said to be the property of the Joint Hindu Family. We are, therefore, of the opinion that the appeal filed by Kulwant Singh must also be allowed and we accordingly so order. The suit filed by Kulwant Singh is accordingly decreed in toto.(Para 12)

JUDGMENT

Harjit Singh Bedi, J.—These appeals by special leave arise out of the following facts:

2. The plaintiff-respondent Kulwant Singh and defendant-appellant Makhan Singh (now through his LRs.) herein were two of four brothers. As per the case set up, each brother owned 1/4 share in land measuring 40.2/3 marlas and in a building housing an ice factory situated at Rayya alongwith 1/8 share in the machinery installed therein. On 3.5.1982, the defendant entered into two agreements with the plaintiff, – one for the sale of his share in the land measuring 40.2/3 marlas and the building on it for a consideration of Rs.10,000/- with earnest money of Rs.5,000/-, and a second pertaining to the sale of his share in the machinery installed in the ice factory for a consideration of Rs. 16,000/- out of which Rs. 5,000/- was paid as earnest money. These agreements are Ex.P-1 and Ex.P-2 on the record. As per the terms of the agreements, the sale deeds were to be executed on or before 10.8.1982. It was pleaded that the defendant defaulted on which a notice was served on him on 19.12.1983 but as no result was forthcoming, a suit for specific performance was filed on 17.1.1984.

3. The defendant contested the suit on several grounds, inter-alia, that the agreements as well as the receipts with respect to the earnest money had not been executed by him and that the land in question and the building raised thereupon and the ice factory were Joint Hindu Family property and he being one of four co-parceners was not competent to sell his share which made the agreement Ex.P-1 unenforceable and that no decree for specific performance could be claimed with respect to the machinery which was moveable property and at best damages or compensation could be claimed for the breach of this agreement. On the pleadings of the parties, the Trial Court framed the following issues:

1.Whether the defendant executed agreements to sell building and machinery as referred in paras No.1 and 2 of the Plaint? OPP

2.Whether the plaintiff has been and continuous to be ready and willing to perform his part of the agreement? OPP

3.Whether the defendant has committed breach of the agreement of sale ? OPP

4.Whether agreement regarding sale of building is not specifically enforceable? OPP

4A.Whether the suit property is ancestral and/or Joint Hindu Family property? If so to what effect? OPP

4B.Whether the agreement to sell is void or unenforceable for the reasons given in paras No. 3 and 4 of additional pleas raised in the amended written statement? OPP

4C.Whether the suit for specific performance is not competent so far as it relates to agreement for sale of machinery? OPP

4D.Whether the suit property has been properly described? OPP

4. The Trial Court held that the execution of the agreements Ex.P-1 and P-2 as well as the receipt of earnest money by the defendant had been proved. It further held that the defendant had not been ready and willing to perform his part of the contract and had thereby committed a breach thereof. Contrarily, it was held that the plaintiff had always been ready and willing to perform his part of the contracts. The findings on the issue Nos. 1 to 3 were thus recorded in favour of the plaintiff. The Trial Court nevertheless dismissed the suit holding that the agreement to sell pertaining to 1/8 share in the machinery of the ice factory was not enforceable, as the remedy available to the plaintiff was to claim a refund of the earnest money with damages, if any. The Court further held that the second agreement pertaining to the sale of 1/4 share in the land and building out of 40.2/3 marlas too was unenforceable as the 11 marlas of land had been purchased by the father of the plaintiff and the defendant, Dula Singh, and the balance land measuring 29.2/3 marlas had been purchased by Dula Singh in the name of his four sons in equal shares by four different sale deeds from the income accruing from the 11 Marlas and the ice factory and as such the entire property h

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2007 Supreme(SC) 408

IMPORTANT POINTS1. Property could not be presumed to be a Joint Hindu Family property merely because of existence of Joint Hindu Family.2. A son who inherits his fathers assets u/s 8 of Hindu Succession Act does so in his individual capacity and not as a Karta of Hindu Undivided Family.

Cases Referred (3)

IMPORTANT POINTS
1. Property could not be presumed to be a Joint Hindu Family property merely because of existence of Joint Hindu Family.
2. A son who inherits his fathers assets u/s 8 of Hindu Succession Act does so in his individual capacity and not as a Karta of Hindu Undivided Family.