Navaneethakrishnan vs S.A.Subramania Raja on 28 January, 2011

[Cites 7, Cited by 3]

Madras High Court

Navaneethakrishnan vs S.A.Subramania Raja on 28 January, 2011

2. The respondent/plaintiff filed the suit for specific performance. The case of the respondent/plaintiff was that the property was owned by defendants 1 to 3 and they agreed to sell the same to the respondent/plaintiff and an agreement of sale was also executed on 22.12.1997 and on that date itself, the respondent/plaintiff paid a sum of Rs.30,000/= as advance and it was agreed that the sale has to be executed within six months time and the respondent/plaintiff was ever willing and ready to pay the balance sale consideration and the appellants did not come forward to execute the sale deed and therefore, a notice was sent on 30.4.1998 to the appellants and the appellants sent a reply on 15.5.1998 with false allegations and appellants 1 to 3 failed to receive balance sale consideration and execute the sale deed and hence, the suit was filed for specific performance.

3. Originally, the suit was filed against defendants 1 to 3 and defendants 4 to 9 were impleaded later. The first defendant was the mother and the second defendant and third defendant are her sons and defendants 4 to 9 are the children of defendants 2 and 3.

4. Defendants 1 to 3 filed a written statement stating that by practising fraud, an agreement of sale was obtained from them and they were not aware of the contents of the document and it was agreed by the respondent/plaintiff that he would pay Rs.10,000/= per cent and for that price only, defendants 1 to 3 agreed to sell the same and without the knowledge of the defendants, sale consideration was reduced from Rs.10,000/= to Rs.2600/= per cent and they have not received Rs.30,000/= as advance as stated in the agreement and as the agreement was not entered into as per the sale consideration agreed between the parties, they are not bound to execute the sale deed. Further, the agreement was fraudulently obtained and therefore, the respondent/plaintiff is not entitled to the relief of specific performance and the properties are not the separate properties of defendants 1 to 3 and they are the ancestral properties and defendants 1 to 3 cannot sell the same without the consent and knowledge of the other co-owners.

5. Defendants 4 to 9 filed separate statement stating that on the date of agreement of sale, defendants 4 to 9 were born and the suit property is the ancestral property wherein respondents 4 to 9 are having share by birth and therefore, the agreement of sale would not bind them and in respect of ancestral property, defendants 1 to 3 cannot sell the property without getting their consent and therefore, the plaintiff is not entitled to the relief of specific performance.

6. The Trial Court and the first appellate court accepted the case of the respondent/plaintiff and held that the sale agreement was valid and it was not fraudulently obtained by the plaintiff and even assuming that the property is the ancestral property, the sale was for the necessity of the minors and defendants 2 and 3 who are the fathers of the minors are entitled to sell the property for the family necessities and therefore, the sale is binding on defendants 4 to 9 and therefore, the plaintiff is entitled to the decree of specific performance. Hence, this second appeal.

7. During the pendency of the suit, the first defendant died and defendants 2 and 3 are her legal representatives.

8. In the second appeal, the appellants viz., defendants 2 to 9 filed applications in M.P.Nos.2 and 3 of 2008 under Order XLI, Rule 27 to receive the letter issued by the P.A. To the District Collector and also the survey plan of S.No.268 and also the settlement register to prove that the property is the ancestral property belonging to the defendants/appellants.

9. The appeal was not admitted as the respondent entered caveat, and the appeal was heard on the following substantial questions of law:-

"1. Whether the suit property is the ancestral property in the hands of appellants 1 and 2 and therefore, appellants 1 and 2 are not entitled to enter into any agreement of sale in respect of that property without impleading other appellants.

2. Whether the agreement of sale, Ex.A1 is valid and whether the respondent is entitled to get the sale deed executed when the property is the ancestral property."

10. Mr.Thirunavukkarasu, learned counsel for the appellant submitted that the Trial Court erred in holding that the suit property is the separate property of defendants 1 to 3 and appellants 3 to 9 are not having any right over the suit property without considering the patta, Ex.A2, B6 and the additional documents viz., settlement register wherein it has been stated that the property stood in the name one Perumal Naicker father of appellants 1 and 2. He further submitted that the lower appellate court erred in holding that the sale is for the benefit of the minors and also the first and second appellant, as fathers, are entitled to sell the property for the benefit of the family and therefore, the sale is binding on the other appellants. He submitted that appellants 4 and 5 are the sons of the first appellant and appellants 3 to 6 were majors even at the time of agreement of sale and therefore, having regard to the fact that the property is the ancestral property in the hands of the first and second appellant, the other appellants have got right by birth over the same and the sale agreement, without impleading the other heirs is not binding on the other appellants and therefore, the agreement of sale is void and the respondent/plaintiff cannot claim title over the same. He further submitted that under section 12(2) of the Specific Relief Act, where a party to the contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for deficiency and the part which left unperformed forms a considerable part of the whole, then the purchaser is not entitled to obtain a decree for specific performance and therefore, the plaintiff/respondent is not entitled to the relief of specific performance as appellants 3 to 9 were not parties to the agreement of sale and have not consented for the sale deed. Mr.Thirunavukkarasu, learned counsel for the appellants also relied upon the judgments reported in SELVARAJ,M. v. P.KUMARIAH (1988-1-LW 216), P.ALAGESAN & 5 OTHERS v. A.MARIADAS & 6 OTHERS (1993-1-LW 599), THIRUMENI v. AMIRTHALINGAM (1997-3-LW 102) and ULAGANATHA REDDY,A. v. D.NANDAGOPPAL CHETTI (2005(4) CTC 426) in support of his contention. The learned counsel for the appellants further submitted that the additional documents filed by him are revenue records and the letter from the District Collector's office and the revenue records would also prove that the property was owned by the father of appellants 1 and 2 and appellants 1 and 2 inherited the property from their father and therefore, it is ancestral in their hands and appellants 3 to 9 obtained right by birth over that property and therefore, they are entitled to have a share and without making them as parties, the property cannot be sold by appellants 1 and 2 and therefore, the respondent is not entitled to the relief of specific performance.

11. On the other hand, it is submitted by the learned counsel for the respondent that both the courts below have concurrently held that the agreement of sale was validly executed by defendants 1 to 3 and no fraud has been practised by them while getting the agreement of sale and therefore, the concurrent finding of fact regarding the agreement of sale cannot be questioned. He further submitted that the lower appellate court has given a finding that even assuming that the property is the ancestral property in the hands of appellants 1 and 2 and appellants 3 to 9 have got right by birth, as appellants 1 and 2 happened to be their fathers and executed the sale agreement for the benefit of the family, it is binding on appellants 3 to 9 and they cannot question the same and therefore, both the courts below rightly decreed the suit and therefore, the second appeal is liable to be dismissed.

12. M.P.Nos.2 and 3 of 2008:- These two applications were filed by the appellants to receive the settlement register to prove that the property is the ancestral property in the hands of appellants 1 and 2 and also a letter of the District Collector and Survey plan. Though objection was raised by the respondent/plaintiff to receive the said documents, having regard to the fact that the documents are revenue records and that would also help the court to decide the substantial questions of law in this appeal, I am inclined to allow the applications and receive those documents as evidence on the side of the appellants. Accordingly, the above applications are allowed. The settlement register is marked as Ex.B8. The letter of the P.A. To the District Collector dated 20.11.2008 is marked as Ex.B9 and the sketch in respect of S.No.268 is marked as Ex.B10.

13. It is the specific contention of the appellants that the properties are the ancestral properties of appellants 1 and 2. In the agreement of sale, Ex.A1, it is not stated that the properties are the self acquired properties of appellants 1 and 2 or the ancestral properties belonging to appellants 1 and 2. It is only stated in Ex.A1 that defendants 1 to 3 are the owners of the suit properties. It is seen from the patta, Ex.A2 that the suit property in S.No.268/5 stands in the name of Aavudaithayammal, the first defendant, the mother of appellants 2 and 3 and the suit property is the hereditary property (tHpKiwahdJ)/ It is seen from Exs.B4 to B7 that the property stands in the name of appellants 1 to 3 viz., the mother and two sons and no document was produced by the respondent/plaintiff to prove that the property was purchased by the mother and two sons viz., appellants 1 and 2. On the other hand, it is seen from Ex.B8, the settlement register that the property is in the name of Perumal Naicker, father of appellants 1 and 2 and in Ex.A2 patta also it is stated that the property was obtained through hereditary. Therefore, when the property was obtained by appellants 1 and 2 from their father, it is ancestral in their hands and therefore, appellant 3 to 9 have got right by birth over the same. Once it is held that the property is the ancestral property in the hands of appellants 1 and 2, the next question to be considered is whether the agreement of sale executed by appellants 1 and 2 alongwith their mother is valid when the other legal heirs were not made parties to the agreement of sale.

14. It was contended by the learned counsel for the appellants that their fathers lived a wayward life and they did not take care of the children and therefore, the sale cannot be said to be for the benefit of the minors and therefore, the sale agreement will not bind the minors.

15. On the other hand, it was contended by the learned counsel for the respondent that no proof has been adduced by the appellants about the separate residence of appellants 3 to 9 and on the other hand, in the evidence, they accepted that appellants 2 and 3 are living alongwith their wives and the children viz., appellants 3 to 9 and therefore, it cannot be contended that the sale is not for the necessity of the family. The courts below also found that DW2 also admitted in evidence that appellants 2 and 3 have not divorced their wives and they have not produced any document to prove that they were living separately. Further, in Ex.A8, the voters list, it is clearly mentioned that appellants 2 and 3 are living with their wives in the same address. Therefore, both the courts below have rightly come to the conclusion that appellants 2 and 3 are living with their wives and children in the same house and the contention of appellants 3 to 9 that they are living separately from their fathers and the sale agreement is not binding on them cannot be accepted.

16. Nevertheless, having regard to Ex.A2 and B8 and also Exs.B4 to B7, the suit property must be held to be the ancestral property in the hands of appellants 1 and 2 and it cannot be the separate property of appellants 1 and 2 and therefore, the finding of the courts below that the suit property is the separate property of appellants 1 and 2 is not correct and it is liable to be set aside.

17. The next question is that when the suit property is the ancestral property in the hands of appellants 1 and 2, can they enter into agreement of sale without making the other sharers as parties to the agreement of sale and when appellants 1 and 2 alone executed the document, will it bind the other appellants. Admittedly, appellants 3 and 4 were majors on the date of agreement of sale. As stated supra, in the agreement of sale, Ex.A1, nothing has been stated about the purpose for which the property was agreed to be sold. Further, it is not the case of the respondent that the property was sold for the family necessities. Therefore, when the property is the ancestral property belonging to the appellants, and the property was not agreed to be sold for the family necessities and the agreement was entered into only by two co-owners without making the other co-owners as parties to the document, the said agreement of sale will not bind the other co-owners. When other co-owners are not parties to the agreement of sale, the respondent/plaintiff is not entitled to the decree of specific performance in respect of whole of the suit property.

18. The suit property is held to be the ancestral property and therefore, on the date of the death of Perumal Naicker, appellants 1 and 2 were also co- owners alongwith Perumal Naicker at the time of his death. Therefore, appellants 1 and 2 had 1/3 share in the property and 1/3 share of Perumal Naicker devolved on them as well as their mother, the first defendant. Therefore, appellants 1 and 2 got 1/3 share by birth and 1/9 share each through their father. Therefore, the first appellant and the second appellant became entitled to 4/9 share each and the remaining 1/9 share belonged to the mother Avudaithayammal, the first defendant.

19. Admittedly, the agreement of sale was entered into by the mother and two sons viz., appellants 1 and 2. Appellants 3 to 5 are the children of the first appellant and appellants 6 to 8 are the children of the second appellant. Therefore, the first appellant has got , share in 4/9 share and similarly, the second appellant is also entitled to , share of 4//9 share. Therefore, the first appellant and the second appellant are entitled to 1/9 share each in the suit property and their mother Avudaithayammal is also entitled to 1/9 share and under the agreement of sale, they can only convey their share of property to the first respondent and hence, the first respondent can get 3/9 share equivalent to 1/3 share in the suit property.

20. It is contended by the learned counsel for the appellants that under section 12 of the Specific Relief Act, when a sale agreement was executed by a person not having full right over the property, then the entire sale agreement falls to the ground and it cannot be enforced as per the judgments referred to above.

21. According to me, the contention of the learned counsel for the appellant cannot be accepted in full. As per section 12(3) of the Specific Relief Act, in my opinion, the respondent is entitled to claim specific performance in respect of 1/3 share in the suit property by paying the reduced consideration. Section 12(3) of the Specific Relief Act reads as follows:-

"Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--

(a) forms a considerable part of the whole, though admitting of compensation in money; or

(b) does not admit of compensation in money;

he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--

i) in a case falling under clause (a) pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b) pays or has paid the consideration for the whole of the contract without any abatement; and

ii) in either case, relinquishes all claims to eh performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant."

22. According to me, the share owned by appellants 2 and 3 and their mother Avudaithayammal viz., 1/3 share in total in the suit property forms a considerable part of the whole and therefore, the respondent is entitled to obtain decree of specific performance by paying the agreed price reduced by the consideration for the part which is left unperformed. In other words, if the respondent is prepared to pay 1/3 of the sale consideration, he is entitled to get the relief of specific performance in respect of 1/3 share in the suit property. As a matter of fact, in the judgment reported in 1993 (1) LW 599 cited supra, the same principle has been upheld and the decree was modified. The Honourable Supreme Court in the judgment reported in A.ABDUL RASHID KHAN (DEAD) AND OTHERS v. P.A.K.A.SHAHUL HAMID AND OTHERS ((2000) 10 SCC 636 and in the judgment reported in MANZOOR AHMED MAGRAY v. GHULAM HASSAN ARAM AND OTHERS ((1999) 7 SCC 703), held that where any property is held jointly and once any party to the contract has agreed to sell such joint property, the agreement, then, even if the other co-sharer has not joined, at lest to the extent of his share, the party to the contract is bound to execute the sale deed. The same principle was reiterated in KAMMANA SAMBAMURTHY v. KALIPATNAPU ATCHUTAMMA ((2011) 1 MLJ 404 (SC)). The other judgments relied upon by the learned counsel for the appellants are in respect of a contract where the remaining part which left unperformed forms part of a considerable portion and the parties can execute sale in respect of only a fraction of share and in such circumstances, it was held that the agreement of sale is not entitled to the specific performance.

23. As stated supra, in this case, appellants 1 and 2 and their mother together have got 1/3 share in the suit property and it forms a considerable part of the whole of the property and hence, as per section 12(3) of the Specific Relief Act, the respondent is entitled to claim specific performance in respect of 1/3 share in the suit property on payment of 1/3 of the sale consideration. Hence, the substantial questions of law are answered as follows:-

That the property is the ancestral property of the appellants and appellants 2 and 3 and their mother together have got 1/3 share in the suit property and as per section 12(3) of the Specific Relief Act, it forms a considerable part and the respondent/plaintiff is entitled to get sale deed in respect of 1/3 share by paying 1/3 of the sale consideration. In the result, the second appeal is partly allowed holding that the respondent/plaintiff is entitled to 1/3 share by paying balance amount towards 1/3 of the sale consideration within six months and on such payment within the time stipulated above, appellants 1 and 2 are bound to execute the sale deed in respect of 1/3 share failing which, the Trial Court shall execute the sale deed in respect of 1/3 share in the suit property. No costs. M.P.No.1 of 2008 is closed.

ssk.

To

1. The Principal District Judge, Virudhunagar District at Srivilliputtur.

2. The Sub Judge, Srivilliputtur.

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Madras High Court