Devi Dayal vs Manohar Lal

Gokal Chand Mital, J.—On 23rd of May, 1966, Devi Dayal, defendant-appellant agreed to sell 39 Kanals of land to Manohar Lal plaintiff-respondent at the rate of Rs. 1,000/- per acre. An amount of Rs. 500/- was paid as earnest money and the sale was to be executed by 23rd May, 1967. The said agreement is Ex. P-1. On 17th May, 1967, vide agreement Ex. P-2, the time for execution of the sale was extended to 23rd June, 1967 and another amount of Rs. 300/- was paid to the defendant-appellant for purchase of stamp-papers, etc. The plaintiff-respondent filed the present suit for specific performance pleading that he was always ready and willing to perform his part of the contract whereas the defendant-appellant declined to perform his part of the contract. The trial Court did not grant a decree for specific performance and instead granted a decree for Rs. 1300/- (Rupees 500/- being the earnest money, Rs. 500/- as damages for nonperformance of the contract and Rs. 300/- for return of the expenses paid for the purchase of stamp-papers, etc.). The plaintiff-respondent was not satisfied from the decree granted by the trial court and he took the matter in appeal which came up before the District Judge who allowed the same and granted a decree for specific performance of the contract. The defendant has come up in the present second appeal.

The crucial issue between the parties was whether the property agreed to be sold was ancestral co-parcenery property of the defendant and if so, what was its effect. The trial Court recorded a finding of tact on appraisal of the evidence that the property was ancestral co-parcenery and this finding of the trial court was not challenged before the lower appellate court by the plaintiff-respondent. Therefore, I have to proceed to decide this appeal on the basis that the property in dispute was a co-parcenery property. Once the property is held to belong to co-parcenery, the question would be whether a member of the co-parcenery or a manager thereof if agrees to sell the same can a decree for specific performance of the contract of sale be enforced through a court of a law. Precisely, this point came up for consideration be fore a Division Bench of this Court in Balmukand L. Hira Nand Vs. Pindi Dass (deceased) and Others, and it was held that specific performance of such an agreement of sale cannot be enforced because the sale can be challenged by any of the other co-parceners and would be set aside and, therefore, no useful purpose would be served by enforcing such a contract of sale That very case went up to the Supreme Court and the decision of this Court was upheld vide Balmukand v. Kamla Wati and others.2 The Supreme Court approved the view of this Court that since the property agreed to be sold was joint Hindu Family property belonging to the co-parcenery the agreement could not be specific enforced.

Before the Supreme Court, one more argument was raised on the basis of section 15 of the Specific Relief Act on behalf of the plaintiff that a decree for specific performance could be passed atleast against the share of the co-parcener who had agreed to sell. The contention was repelled by the following observations :--

However, in the case before us there is no claim on behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interests of Pindidas alone in the property.

Similarly in the present case there is no such claim laid by the plaintiff and, therefore, no relief can be granted on that basis. If claim had been made then certainly the point would have been gone into by the Courts below on the basis of evidence led on that matter.

For the reasons recorded above, I am of the view that the lower appellate court was in error in upsetting the well considered judgment and decree of the trial Court and wrongly understood the scope of the decision of the Supreme Court. Accordingly, the finding of the lower appellate Court is upset and it is held that the decree for specific performance cannot be granted

In view of the above, the appeal is allowed, the judgment and decree of the lower appellate court are set aside and these of the trial court are restored with no order as to costs.