D. Panduranga Joshi and Another vs K. Seshagiri Rao

B.K. Somasekhara, J.—The judgment and decree of the Additional Chief Judge, City Civil Court, Hyderabad in O.S.No.186 of 1982, dated 26.2.1983 are in challenge in this appeal. Appellants are the defendants. Respondent is the plaintiff and he filed the suit for specific performance of the suit agreement of sale, dated 28.12.1979 against the appellant No. 1 to sell the suit schedule property viz. a house bearing No. 12-10-1998 situated at Seethapalmandi, Secunderabad. The suit was decreed as prayed after a contest where by the defendants were directed to execute the sale deed in favour of the plaintiff on receiving the balance of sale consideration in terms of the agreement.

The oral evidence comprises in the testimony of the plaintiff as per P.W. 1 and witnesses as per P. W.2 and 3 and that of defendants as per D. Ws. 1 & 2 and witnesses as per D.W.3 & 4 respectively. The documentary evidence comprises in Exs. A.l to A.5 for the plaintiff and Ex. B.l to B.15 respectively for the defendants and Ex.X-1, copy produced through the witness L.W.3 (which is the original of Ex.B-11). The defendants having been aggrieved by such a judgment and decree have chosen to file this appeal.

It was alleged that although the defendant No. 1, the absolute owner of the suit house had agreed to sell it to the plaintiff for a consideration of Rs. 1,90,000/- on receiving an advance of Rs. 3,000/- with a stipulation that he would obtain the necessary permission from the competent authority under the Urban Ceiling Act in addition to producing proof of payment of municipal tax, etc., he failed to perform the said terms, the plaintiff sent a telegram to defendant No. l on 19.6.1980 demanding him to execute the sale deed on receiving the balance of sale consideration for which no reply was received and therefore, the plaintiff after issuing a legal notice, dated 23.6.1980 to defendant No. 1 for which a reply was received on 27.6.1980 and since the defendant no. 1 failed. to execute the sale deed, he had to file the suit. The defendant No. 2 is the son of the defendant No. 1. The defendant No. 1 admitting the execution of the sale agreement in favour of the plaintiff contended that the suit property is a coparcenary property of him and his son, there was a partition on 19.1.1979 of the joint family property wherein the suit house fell to the share of defendant No. 2 regarding which a Memo of partition list was prepared on 26.1.1979 to evidence the partition, the Defendant No. 2 collected the rent from the tenants in the suit house and therefore, he could not have executed the suit agreement in favour of the plaintiff. He further contended that the plaintiff, who is the rich contractor and the neighbor of defendant No. 1 and also his friend, prevailed upon him to execute the suit agreement with his assurance that he would get the sale deed executed by defendant No. 2 also although he pleaded that the suit house had fallen to the share of defendant No. 2 in a partition, that the suit agreement was not meant to be acted upon and therefore, he had sent a letter to him in January, 1980 informing him that the sale deed cannot be executed as the suit house belongs to defendant No. 2 and that he was prepared to refund the money and ultimately, he cancelled the suit agreement and wrote to the plaintiff on 14.3.1980 along with a cheque for Rs.3,000/- by way of refunding the advance amount and only thereafter, he received the registered notice from the plaintiff. Therefore, he contended that the plaintiff cannot get the relief of specific performance of the suit agreement as against him. He also pointed out that the defendant No. 2 filed a suit against him in O.S.No.517 of 1980 in July, 1980 to restrain the defendant No. 1 from alienating the suit house along with another house and also questioned the agreement of sale executed by him in favour of the plaintiff and it was decreed. Therefore, he contended that he is legally prevented from executing the sale deed in favour of the plaintiff in terms of the suit agreement The defendant No. 2 denied the right of defendant No. 1 regarding the suit house as it fell to his share in a partition as above and he was the absolute owner subsequent from 19.1.1979, he and his minor sons had obtained a decree against defendant No. 1 not to alienate the properties of him and his children and therefore, the plaintiff is not entitled to get the relief of specific performance as against the defendant No. l.

These issues were to settle in the suit:

Whether the suit schedule property is coparcenary property of defendants?

Whether the oral partition dated 19.1.1979 is true and valid and if so whether the suit schedule houses fell to the share of 2nd defendant in the said partition?

Whether the suit agreement of sale dated 28.12.1979 was brought into existence under the circumstances, stated in para ''A'' of the written statement of the 1st defendant and if so the same was not meant to be acted upon?

Whether the cancellation of sale agreement, dated 28.12.1979 as pleaded by the 1st defendant in his written statement is true, valid and binding on the plaintiff?

Whether the plaintiff is entitled for specific performance of agreement of sale dated 28.12.1979 directing the first defendant to execute a registered sale deed?

Whether the plaintiff is entitled for the compensation claimed in the suit?

To what relief?

After hearing both the sides and with the material stated above, the learned trial Judge held issues No. 1,2 and 5 in favour of the plaintiff, issues No.3 & 4 against the defendants and issue No.6 as not having been necessary to be decided in view of the findings on settled issues and consequently, decreed the suit, however to the extent of half the share of defendant No. 1 in the suit house with proportionate costs.

The learned Advocate for the appellants while challenging the judgment of the learned trial Judge and based on the grounds of appeal raised several contentions, viz., the learned trial Judge was unjustified in holding that there was no partition between the defendants whereby the suit house fell to the share of defendant No. 2 inspite of ample evidence in that behalf, the appreciation of evidence as a whole by the learned trial Judge has been improper to lead to the wrong conclusion in regard to rejecting the partition, the learned trial Judge ignoring the fundamental principle in law that the plaintiff should specifically plead and prove that he has been ready and willing to perform his part of the contract which the plaintiff had not actually done in the case, the learned trial Judge is wrong in holding that the suit could be decreed for specific performance in regard to half of the undivided share said to be of defendant No. 1 although the whole property belongs to defendant No. 2, the reasons of the learned trial Judge and the findings on the issues against the defendants leading to the judgment and the decree and not justified and thus, this Court should interfere and set aside the judgment and decree.

The learned Advocate for the respondent has totally supported the judgment and decree of the learned trial Judge and has also brought to the notice of this Court that the respondent in pursuance of the directions in judgment deposited Rs. 1,87,000/- and that the appellants while obtaining the interim order in the appeal sought permission to withdraw the amount so deposited by the respondent and on that the interim order was made absolute in the order, dated 13.7.1983 by this Court and now it is not open to them to challenge the judgment and decree of the trial Court. As a whole all the contentions raised by the learned Advocate for the appellants are attempted to be repelled on behalf of the respondent.

These points arise for consideration:

(1) Whether the learned trial Judge has properly appreciated the evidence in the case to draw the conclusions as against the defendants regarding the theory of partition among them wherein allegedly the suit house fell to the share of defendant No. 2?

(2) a. Whether the findings of the learned trial Judge on the issues against the defendants are justified?

b. If not, which finding on which issue is covered was improper requiring a contrary finding.

(3) Whether the learned trial Judge is wrong in law in holding that a decree for specific performance of an agreement of sale in regard to undivided share of the defendant No. 1 could be granted?

(4) a. Whether the judgment and decree of the trial Judge suffers from any factual or legal infirmities?

b. If so, whether they deserve to be interfered with in this appeal?

c. If so, to what extent.

(5) What order?

Ex. A-l is the original suit agreement of sale, dated 20.12.1979. The defendant No. 1 both in his written statement and testimony admitted the execution of the same. It is also proved through the testimony of the plaintiff and his witnesses P.W.2 and 3. The stipulations thereunder including the receipt of the advance of Rs.3,000/- by the defendant No. 1 from the plaintiff are thus admitted and established. The defendant No. 2 except formally challenging the suit agreement did not question either the execution or the stipulations of the suit agreement. Although nothing was mentioned in the suit agreement that the suit house was the ancestral property of the defendant No. 1, the plaintiff admitted that he is informed by defendant No. 1 that it was his ancestral property and he got it in a partition among him and his brothers. Therefore, that settles the question that the suit house is the ancestral property of defendant No. 1 and therefore, it is the joint family property of the defendants. The specific defence of the defendants that there was a partition between them orally on 19.1.1979 wherein the suit house fell to the share of defendant No. 2 is considered as the subject matter of issue No. 2 and has been negatived. In regard to this, the learned trial Judge has considered the evidence and circumstances in the case in meticulous detail in Para 7 to 13. Broadly stated, the evidence of the defendants in their testimony as D.Ws. 1 and 2 and the documents Ex.B-1 to B-14 can be recorded in brief.

There was an oral partition between them on 19.1.1979 wherein the suit house fell to the share of the defendant No. 2 A list of partition was prepared as per Ex.B-9 on 26.1.1979 evidencing such a partition. On the notice served by defendant No. 2 on defendant No. l (between their Counsels), Ex.B-8 to B-ll were produced. Ex.B-10 is the application filed on 1.2.1979 to the local Municipality reporting the oral partition. Ex. B-ll is the office copy of the letter issued by the tenants with their acknowledgments informing him that the tenants will continue on the same terms and conditions to commence from 1.2.1979. Ex.B-9 is the Memorandum of partition written by defendant No. 1 on 26.1.1979. There was exchange of notices as per Ex.B-12 and 13, regarding which the envelopes came back. Ex.B-14 is the certified copy of the judgment in O.S.No. 2643 of 1980, wherein the defendant No. 2 and his sons got perpetual injunction against the defendant No, 1 to restrain him from alienating the suit property and there was a notice issued in terms of Ex.X-1 to defendant No. 1 D.Ws.3 and 4, who are the tenants in the portions of the suit house testified about the letters sent to them by the defendants in relation to the partition of the suit house falling to the share of defendant No. 2 patently, the plaintiff is not a party to any of these documents, much less he can be said to have had notice of them. He is also not a party to O.S.No. 2643 of 1980. The suit agreement is dated 28.12.1979 whereas the oral partition is said to be dated 19.1.1979. No doubt, the documents Ex.B-9 to B-12 arc subsequent to the suit agreement and if they are true proving the partition, the suit agreement will lose its; legal existence. The suit OS.No. 2643 of 1980 as can be seen from Ex.B-14 and Ex.B-15 the copy of the decree patently shows that they were subsequent to the sit agreement and the plaintiff not being a party to the same cannot be bound by such a conduct or the decision obtained by the defendants inter se. The learned trial Judge by referring to the admitted documents Ex.B-1 to Ex.B-3 and Ex.B-5, the letters written to the plaintiff by defendant No. 1 and even dates 25.8.1980, 24.1.1980,14.3.1980 has found that there was no mention about the alleged oral partition allotting the suit house to the share of defendant No. 2 as pleaded and as sought to be made out from the documents supra. On the other hand, it has been found that the suit house being the ancestral property, he was not able to execute the sale deed as his son was not agreeable to the sale of the house. In particular, in Ex.B-1, B-2 and B-5, the defendant No. l specifically pleaded that his son was not agreeable for the sale of the suit house as he wanted to retain it for his residence and therefore, he had been intimating the plaintiff about the cancellation of the same as he was prepared to reimburse the amount of Rs.3,000/- advance received by him. The. omission to mention such important facts in such letters is found to be not explained. The documents of the defendants in proof of the partition did not find a reference in the written statement. They were also not produced along with the written statement. Admittedly, they were produced subsequently and during the trial. The learned trial Judge has found that the value of the properties allotted to defendant No. 1 is lesser than the value of the property which fell to the share of defendant No. 2. No terms were fixed dividing the shares allotted to defendants. There were proceedings against one Lalvani in relation to the family properties. The defendant No. 2 was not impleaded in that. Therefore, the learned trial Judge found that the theory of the oral partition allotting the suit house to the share of the defendant No. 2 is not true. This Court finds no reason to disagree with the learned trial Judge in this regard. Admittedly, the suit house situates in Hyderabad city for which urban Ceiling Law applies. There is another house in Hyderabad city belonging to the defendants. The possibility of their creating the documents of partition to avoid the ceiling Law may not be totally ruled out. Reading this probable conduct with the contents of Ex.B-1, B-2 and B-5 as above, it is very Clear that although there were such documents setting up the partition of the family properties among the defendants, it was not reflected in the letters written to defendant No. 1 as they were not the real and true situations of there being no partition to create documents for ulterior purposes to avoid the law. The circumstances are ample to believe that there was no partition at all. Whatever may be the conduct in arranging to attorn the tenancy to tenants, D.W.2 and 3, etc. and informing the Municipality etc. in the documents of the suspicious circumstances and the conduct of the parties, there could not have been any partition among the defendants to think that the suit house had been allotted to defendant No. 2 before the suit agreement, thereby disbelieving the defendant No. l to execute the suit agreement in favour of the plaintiff. The learned trial Judge has not spared any pains to deal with this question with all details, with all concern and full appreciation of the facts and circumstances of the case including the conduct of the parties and was totally justified in arriving at a conclusion to hold the finding against the defendants in such a partition. There was to even a slight omission on the part of the learned trial Judge in this regard.

The theory of defendant No. 1 that the plaintiff being his friend and neighbor and an intimate person prevailed upon him to execute the suit agreement although it was informed to him that in a partition it fell to the share of defendant No. 2, he would get the agreement executed from defendant No. 2 also appears to be beyond any truth or propriety. Such a theory does not find any mention in the admitted letters Ex.B-1, B-2 and B-S. It is not known whether such a theory was taken up in the suit between the defendants and the children of defendant No. 2 covered by the judgment and decree Exs.B-14 and B-15, which was filed in the year 1980 and therefore, even that such appears to be a make believe or collusive one for a purpose patently ulterior and not real. Therefore, the learned trial Judge was right in finding issue No. 2 against the defendants.

The contention of the learned Advocate for the defendants, who are the appellants that the plaintiff did not plead and prove that he was ready and willing to perform his part of contract is opposed to the facts and circumstances of the case. All along, the plaintiff was ready to obtain the sale deed by paying the balance of the sale consideration out of Rs. 1,90,000/-. The exchange of notices bear testimony corroborating the testimony of the plaintiff. The correspondence between the parties as per Ex.B-1, B-2 and B-5 as already pointed out, was in total inability of defendant No. l to execute the sale deed as his son did not agree and as he wanted to retain his house for his residence and not because of the plaintiff''s un-preparedness either financial or otherwise to obtain the sale deed in terms of the suit agreement. There was no other stipulation on the part of the plaintiff in the suit agreement to obtain the sale deed. On the other hand, it was for Defendant No. 2 to obtain permission from the competent authority under the Ceiling Law and to pay taxes, etc. which he was to conform in terms of the same. The plaintiff reiterated in his letters and the notice before the suit reminding the defendant No. 1 about his duty to execute the sale deed in terms of the agreement. They are apparent through the Ex.A-2, the notice of the plaintiff, the reply of Defendant No. 1, Ex. A-3 and the reply of the plaintiff as per Ex. A-4 and further reply as per Ex. A-5. There is a clear plea in the plaint, wherein the plaintiff has stated as to how he was ready to take the ale deed on payment of the balance of sale consideration and as to how the defendant No. 1 was postponing it and he made categoric plea that he was ready and willing to take the sale deed from the defendant. He also made it clear that he was willing to take the sale deed to the extent of the share of defendant No. l and in this regard a Memo was also filed on 18.2.1983 as follows:

The above named plaintiff humbly submits as follows:

The plaintiff has claimed alternative relief''s in the above suit. If the Hon''ble Court comes to the conclusion that plaintiff is not entitled to specific performance in pursuance of agreement of sale dated 28.12.1979, to the extent of half share of the first defendant as claimed in first alternative in such event the plaintiff is ready and willing to take the half share of the first defendant for full sale consideration, i.e. Rs. 1,90,000/ - by relinquishing all claims to further performance and all rights to compensation.

The plaintiff was prepared to pay Rs. 1,90,000/- even for half the share of defendant No. 1 and he also deposited in Court and the defendant No. 1 has withdrawn it. What more is necessary in regard to the readiness and willingness on the part of the purchaser could be a serious question which the defendants cannot answer successfully in this case. Therefore, the learned trial Judge was right in holding that the plaintiff was entitled to get the sale deed executed from the defendant No. 1 to the extent of half share.

Whether a suit for specific performance is maintainable regarding an agreement to sell the coparcenary property or the joint family property or the undivided interest or share of a member of such family is no longer res integra. The law is stretched to such an extent that even the coparcener may dispose of his undivided interest in coparcenary property (Panduranga v. Bhagwandas, AIR 1920 Bom, 104). According to Mitakshara law as applied in Bombay, Madras and Madhya Pradesh and some other States, a coparcener may alienate his undivided interest in the entire joint family property or his undivided share forming part of the joint family properties. But he has no right to alienate, as his interest any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. (Page 347, item 261 of Mull''s Hindu Law 15th Edition of 1982). Therefore, in this case, although the defendant No.1 agreed to sell the suit property to the plaintiff under the suit agreement that being the coparcenary property or the joint family property, the agreement and the subsequent sale would be valid only to the extent of his half share therein''. Admittedly, the plaintiff is not in possession of the suit house. Although he steps into the shoes of defendant No. 1 by virtue of the sale to be effected under the suit agreement, he is not entitled to the joint possession alongwith the defendants. The law is square and bare that a purchaser of an undivided interest of coparcenary in the areas of Madras, West Bengal and Uttar Pradesh does not acquire a right to joint possession with other coparceners. Such a purchaser acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, had he been so minded, before the sale of his interest took place. The right can only be enforced by a suit for a general partition to which all the coparceners must be joined as parties. The purchaser may in such a suit ask the Court to allot to his vendor the specific property sold to him, and the Court may allot that property to him if the interest of the other coparceners will not be prejudiced thereby (Page 348 of Hindu Law supra). The Supreme Court also settled this position in more than one precedent viz Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, Siddheshwar Mukherjee v. Bhubaneshwar Prasad, AIR 1953 SC 497 and our own High Court in Vadla Krishnaiah and Another Vs. Nalli Narasimhareddy, and Thammana Nukiah Shetti Vs. Velapa Appalaraju and Others, . It is settled that the purchaser has equitable rights of partition of the joint family properties since he purchases such a property subject to equities. Therefore, if the plaintiff had persuaded the Court to pass a decree in regard to the entire suit house under the suit agreement subject to his filing a suit for general partition against the defendants, such a relief in equity could have been kept open for him. In other words, the law does not prevent the plaintiff to get the entire suit house subject to this undertaking to file a suit for general partition. However, in view of his concession to have half the share of defendant No. 1 in the suit house for the same sale consideration regarding which a decree is passed, there is no difficulty in confirming such a decree by this Court subject to the plaintiff working out his remedies in an appropriately framed suit for partition and separate possession of such a share.

The learned Advocate for the plaintiff/appellant has depended upon several precedents listed in his Memo of notice and having due regard to the fact and circumstances of the case settling the issues between the parties themselves and the law so settled as above, there would not be any need to refer to the particular.

Judging the matter as a whole, this Court finds no reasons to interfere with the judgment and decree of the trial Court. However, since the defendant No. 1 has already received the entire amount and the costs from the plaintiff which was deposited in Court subject to decision in this appeal, it is proper that he must be made to pay the interest at 12 percent per annum on that amount to the plaintiff from the date of deposit till the date of executing the sale deed in favour of the plaintiff by virtue of the doctrine of unjust enrichment and the rule of restriction.

In the result, the appeal is dismissed with costs throughout with further directions so made in Para 15 supra.