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SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, INDU MALHOTRA, JJ.
Vijay A. Mittal & Ors. – Appellants
Versus
Kulwant Rai (Dead) Thr. LRs. & Anr. – Respondents
CIVIL APPEAL No.5177 OF 2009
Decided on : 28-01-2019
(b) Specific Relief Act, 1963 – Section 16 – Readiness and willingness to perform one’s part of contract – Important and relevant finding in a suit for specific performance of an agreement – Such finding of trial court not challenged in first appeal – Upheld by first appellate court and High Court – Binding on Supreme Court. (Para 21, 24)
(c) Code of Civil Procedure, 1908 – Section 96 – Names of all legal representatives of the defendants on record in the suit – Some of them filing written statements singly or jointly or being power of attorney holders of others – One remaining ex parte – Only those legal representatives impleaded in first appeal whose names appeared in the decree of trial court – Trite that if majority of defendants are impleaded, the decree becomes binding on all defendants – Defendants in first appeal not raising any objection before first appellate court as regards not impleading all of them I which case the plaintiffs would have cured the effect – Held no error in order an decree of first appellate court. (Para 27, 28, 29, 30, 31, 32, 33)
(d) Property law – Sale deed – By defendant 1 to defendants 2 and 3 – Collusive in nature – Defendants not able to show that their agreement to sale was prior in point of time to that of plaintiffs – Courts below concurrently upholding readiness and willingness of plaintiffs to perform their part of agreement to sale – Defendant 1 not raising objection in his individual capacity or representative cxaopacity under Order XXII Rule 4(2), Code of Civil Procedure, 1908 – Courts below rightly held the sale deed to be bad. (Para 35, 36, 37, 38, 39)
(e) Property law – Joint Hindu family – Karta – Alienation of property – Karta entitled to alienate joint property for good of family – Original defendant 1 entering into agreement to sale with original plaintiff as karta of his family – Agreement signed by one son of original defendant, now his legal representative, showing their awareness of the agreement – Thus, the Karta had consent of his family members for the transaction – No issue was framed on the question of “legal necessity” – Appellants-defendants failing to make out a case for interference. (Para 46)
(1988) 2 SCC 77 – Relied upon
(f) Administration of justice – Original defendant 1 executing agreement to sale with original plaintiff – Selling the property to defendants 2 and 3 in a collusive sale – Plaintiffs held entitled to specific performance of the agreement to sale – Defendant 1 through his legal representatives directed to return the sale consideration to legal representatives of defendants 2 and 3 – Legal representatives of plaintiffs directed to deposit a sum of Rs.41,000/- for being paid to the legal representatives of original Defendant No.1- Legal representatives of all defendants directed to execute sale deed in favour of legal representatives of plaintiff 1 and 2 – Legal representatives of defendants directed to hand over possession of property to legal representatives of plaintiffs. (Para 52, 53)
AIR 1954 SC 75 – Relied upon
Facts of the case:
The two plaintiffs (respondents herein) filed a civil suit against the four defendants (appellants herein) claiming a relief of specific performance of the agreement dated 12.06.1979 in relation to the suit property.
The Trial Court dismissed the suit.
The First Appellate Court allowed the appeal.
The High Court dismissed the second appeal.
Finding of the Court:
Sale by defendant 1 to defendants 2 and 3 is bad.
Plaintiffs are entitled to specific performance of the agreement to sale.
Result: Appeal disposed of.
JUDGMENT :
Abhay Manohar Sapre, J.
1. This appeal is directed against the final judgment and order dated 21.12.2007 passed by the High Court of Punjab & Haryana at Chandigarh in RSA No.1537 of 1993 whereby the Single Judge of the High Court dismissed the regular second appeal filed by the appellants herein and upheld the judgment/decree dated 15.04.1993 of the First Appellate Court in C.A. No.7 of 15.02.1992.
2. In order to appreciate the controversy involved in this appeal, it is necessary to set out the relevant facts hereinbelow.
3. Appellant Nos.1 to 4 and 7 are the legal representatives of the original defendant No.1 Amar Nath. Appellant No.5 (Yash Pal Mittal), who was the original defendant No.2 also died and he is now represented by his legal heirs (i) Rita Mittal (ii) Akanksha and (iii) Akshay Mittal and Appellant No.6 (Sunil Mittal) is the original defendant No.3 whereas respondent No.1 (Kulwant Rai) is the original plaintiff, who also died and is now represented by his legal heirs (i) Sudesh Goel, (ii) Ajay Goel and (iii) Sanjay K. Goel and respondent No.2 (Atul Kumar) is the original plaintiff No.2 in the civil suit out of which this appeal arises.
4. In short, the civil suit out of which this appeal arises was originally filed by one Kulwant Rai as plaintiff No.1 and Atul Kumar as plaintiff No.2 against the defendants, namely, (1) Amar Nath, (2) Yash Pal Mittal, (3) Sunil Mittal and (4) Bal Kishandas.
5. During the pendency of the civil suit, Kulwant Rai (Plaintiff No.1), Amar Nath (defendant No.1) and Yashpal Mittal (defendant No.2) died and, therefore, their legal representatives, on whom the right to sue devolved as detailed above, were brought on record in places of the original plaintiff/defendants in the civil suit to enable them to continue the lis on behalf of those who died.
6. As mentioned above, two aforementioned plaintiffs (respondents herein) filed a civil suit against the aforementioned four defendants (appellants herein) on 19.03.1982 claiming a relief of specific performance of the agreement dated 12.06.1979 in relation to the suit property (as detailed in the plaint) situated at Narain Dass Building, Durga Charan Road, Ambala Cantt.
7. The suit was founded on the agreement dated 12.06.1979 entered into between the plaintiffs and the defendant No.1 (Amar Nath) for sale of the suit property for a sum of Rs.46,000/. According to the plaintiffs, they paid a sum of Rs.5,000/- by way of earnest money to defendant No.1 (Amar Nath) and the sale deed in relation to the suit property was to be executed on or before 31.12.1979 by defendant No.1 (Amar Nath) in favour of the plaintiffs on paying the balance consideration before the sub-Registrar.
8. It was alleged that defendant No.1 (Amar Nath) instead of selling the suit property to the plaintiffs in terms of agreement dated 12.06.1979 sold it to defendant Nos. 2 and 3 on 27.11.1981. The plaintiffs alleged that they were ready to perform their part of the agreement but it was defendant No.1 (Amar Nath) who failed to perform his part and committed breach by selling the suit property to defendant Nos. 2 and 3 on a higher price and, therefore, the plaintiffs were constrained to file the suit for seeking specific performance of the agreement dated 12.06.1979.
9. Defendant No.1 (Amar Nath) died and, therefore, he could not file his written statement. His legal representatives, however, filed the written statement. Their defense was threefold.
10. First - Amar Nath (defendant No.1) was not the absolute owner of the suit property because the suit property was a Joint Hindu Family property; Second, Amar Nath (defendant No.1) was, therefore, not competent to enter into an agreement to sell the suit property; and the Third, the sale in question was not for any legal necessity and, therefore, it was bad in law and not binding on the legal representatives because their consents were not obtained by Amar Nath (defendant No.1) prior to entering into an agreement of sale.
11. So far a
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