Specific Relief Act, 1963 — Section 20 — Suit for specific performance — Decreed by trial court

May 10th, 2013

Specific Relief Act, 1963 — Section 20 — Suit for specific performance — Decreed by trial court — Appeal before High Court — Consent order — Appeal before Supreme Court — Sustainability of — High Court on submission of both the parties determined total market value of property being a dwelling house at Rs. 13,96,500/- — Defendant No. 3 who is a shareholder in said ancestral property and not being a party to agreement to sell being minor at relevant time proposed to purchase 9/11th share by paying value to plaintiff — Counsel for plaintiff agreed to said proposal on condition that defendant No. 3 would pay said amount within three months — Appeal disposed of by High Court in said terms — Thus, the impugned order of High Court being a consent order and which has done a substantial justice needs no interference — Appeal to be dismissed — Partition Act, 1893 — Section 4 — Civil Procedure Code, 1908 — Section 96(3).

HELD: It is not in dispute that the property in question belonged to Abdul Momin Sheriff. After his death, each of the surviving sons succeeded to an extent of 2/11th share and each of the daughters succeeded to 1/11th share. It is also not in dispute that the agreement of sale was executed only by Defendant Nos. 1, 2 and 4 to 7. The total share of Defendant Nos. 1, 2 and 4 to 7 is 9/11 and the share of the Defendant No. 3 who did not join the execution of agreement of sale would be 2/11. Inasmuch as the Defendant No. 3 was not a party to the agreement, he is not bound by the agreement executed by other defendants to the extent of his share.

It is pertinent to point out that plaintiff was aware that Defendant No. 3 who was a minor had a share in the property and the application made by the other defendants before the Civil Court for appointment of Defendant No. 2 as guardian of the said minor was not pursued and in fact it was dismissed, consequently, his share remained unsold to the plaintiff. 8) As a matter of fact, agreement of sale dated 02.05.1988 does not refer to Defendant No. 3 at all or his share in the property. However, in the plaint, the plaintiff clearly admitted the share of Defendant No. 3 who was a minor and the fact that no guardian was appointed for the minor and Defendant No. 2 was not his natural guardian. Without Defendant No. 3 joining the other co- sharers, no agreement of sale could be entered with the plaintiff for the entire property including the minor’s share. Consequently, the agreement of sale covering the entire property was void and ineffective.

It is settled law that Section 20 of the Specific Relief Act, 1963 confers discretionary powers. [vide: M. Meenakshi & Ors. vs. Metadin Agarwal (2006) 7 SCC 470, Nirmala Anand vs. Advent Corporation (P) Ltd. & Ors. (2002) 5 SCC 481, Parakunnan Veetill Joseph’s Son Mathrew vs. Nedumbara Karuvila’s Son & Ors. (1987) Supp. SCC 340]. It is also well settled that the value of property escalates in urban areas very fast and it would not be equitable to grant specific performance after a lapse of long period of time.

The statement made by the counsel before the High Court, as recorded in the impugned judgment and order, cannot be challenged before this Court.

It is also clear that the High Court has recorded in the impugned judgment dated 03.03.2009 that the counsel agreed with instructions from the plaintiff and reiterated this fact in its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in the above-mentioned RFA while rejecting the plea of the counsel for the appellant herein that he did not give consent that he had no instructions from his clients.

As stated earlier and the reading of the impugned judgment and order of the High Court, more particularly, para 7, which is concluding paragraph, clearly show that it is a consent order. As per Section 96 (3) of the Civil Procedure Code, no appeal lies from a decree passed by the court with the consent of the parties.

For all these reasons, more particularly, the statement of fact as noted in para 7 of the impugned judgment and order of the High Court, under Article 136, generally this Court will not interfere with the order of the High Court which has done substantial justice.

Since this Court has stayed the impugned order of the High Court while ordering of notice on 08.07.2010, Defendant No. 3 is granted 3 months’ time from today to pay the amount as noted in para 7 of the impugned judgment and in the event of default, the directions of the High Court in the same para are to be applied and implemented. Defendant Nos. 1, 2, 4 to 7 are directed to return the sum of Rs.1,53,000/-which they have received towards sale consideration with interest at the rate of 9 per cent from the date of payment within a period of eight weeks from today to the plaintiff.

Accordingly, the appeals fail and the same are dismissed with the above direction. No order as to costs.

Vimaleshwar Nagappa Shet v. Noor Ahmed Sheriff[Bench Strength 2], Civil Appeal Nos. 4279-4280/2011 (Arising out of SLP (Civil) Nos. 16595-16596/2010(11/05/2011), 2011(4) SCV(Civil) 82: 2011 AIR(SC) 2057: 2011(12) SCC 658: 2011(5) JT 476: 2011(5) SCALE 596: 2011(4) Supreme 62: 2011(4) SLT 422 [P. Sathasivam, J.: H.L. Gokhale, J.]

Entry Filed under: Judgements,Property Laws

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