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VENDORS RIGHTS-SPECIFIC PERFORMANCE - ANCESTRAL PROPERTY - PART PERFORMANCE – PARTITION OF DWELLING HOUSE

In Kammana Sambamurthy (D) By Lrs. vs Kalipatnapu Atchutamma & Ors. Before supreme court decided on 8 October, 2010 by Bench consisting of : Justice P Sathasivam, Justice R Lodha 

FINDINGS OF HIGH COURT UPHELD IN FOLLOWING WORDS:- The High Court recorded the findings on the basis of the factual matrix and the evidence adduced by the defendants, it was made out that the vendor and his wife had a son who died intestate and that the property was ancestral property in which the deceased son had half share and that share devolved upon the vendor's wife; the vendee cannot be said to have any knowledge that the vendor's wife had half share and in the absence of any express authority from his wife, the vendor could not alienate or otherwise dispose of her share in the property. The High Court did not accept the plea of the vendee that vendor had implied authority or that vendor's wife was estopped from raising the plea that the agreement did not bind her. The High Court finally held that the agreement of sale although covered the entire property but as the vendor had only half share and interest in the property, the decree for specific performance could only be granted to the extent of the vendor's share in the property. The High Court, accordingly, allowed the appeal preferred by vendor's wife to the extent of half share in the property and the judgment and decree of the Subordinate Judge was confirmed to the extent of half share of the vendor in the property. 

 As to whether the property is ancestral property or not, the finding of the two courts is divergent. The trial court held that the property was not the ancestral property but the High Court on reappraisal of the evidence did not agree with that finding. The High Court considered the matter thus : ".......Whatever may be the reason behind in getting Ex.A2 notice issued while seeking to avoid Ex.A2 transaction, the legal position cannot be doubted that half share in the suit house was devolved upon the second defendant on account of the death of her son, in as much as by birth, the son got half share along with his father in the ancestral property and the mother succeeded to the same as Class I heir. It is also clear that under section 14 of the Hindu Succession Act, the share devolved upon the mother would become the Streedhana property. The husband under such circumstances, in the absence of any express authority from the wife cannot alienate or otherwise dispose of the Streedhana property of his wife......." 

Having regard to the conclusion that the vendor's wife has got half share in the property and that she is not executant to the agreement, what needs to be considered is, whether the agreement binds the vendor's wife. According to vendee, the vendor had implied authority to enter into agreement of the property and the vendor's wife was clearly aware of that agreement and, therefore, she is estopped from raising the plea that she is not bound by that agreement. The High Court considered the evidence on record and held that no express or implied authority by the wife in favour of her husband is discernible from the facts and evidence. We agree. As regards applicability of Section 41 of the Transfer of Property Act, 1882 (T.P. Act), the High Court observed that it was not even the case of the vendee that the vendor was the ostensible owner of the property and, therefore, Section 41 has no application. We think that High Court is right and in view of the aforenoticed findings of the High Court, the conclusion that vendee is not entitled to seek specific performance of the agreement to the extent of half share of vendor's wife cannot be faulted. The crucial question in the case is whether the agreement could be enforced against the vendor to the extent of his half share in the property. The terms of the agreement show that the vendor represented to the vendee that he was absolute owner of the property that fell to his share in the partition effected with his brothers and he did not have any male child. The vendor assured the vendee that excepting him none has got any right over the property and he would obtain the witness signatures of his daughters and get their voluntary consent letters in his favour. It is clear from the evidence that the vendee had no knowledge that vendor's wife has half share in the property which devolved upon her on the death of her son intestate. 

 Section 12 prohibits specific performance of a part of a contract except in the circumstances under sub-sections (2), (3) 15 and (4). The circumstances mentioned in these sub-sections are exhaustive. Is Section 12 attracted in the facts and circumstances of the present case? We do not think so. The present case is not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor is concerned since he had agreed to sell the property in its entirety but it later turned out that vendor had only half share in the property and his wife held the remaining half. The agreement is binding on the vendor as it is without being fractured. As regards him, there is neither segregation or separation of contract nor creation of a new contract. 

 In Kartar Singh v. Harjinder Singh & Ors. (1990) 3 SCC 517, Supreme Court was concerned with a case where vendor--brother and a sister had each half share in the suit properties. The agreement for the sale was executed by the brother concerning the suit properties in which the sister had half share. The sister was not executant to the agreement; rather she refused to accept the agreement. The question for consideration before this Court was whether agreement could be enforced against the vendor--brother to the extent of his half share. Supreme Court considered Section 12 and held as under : "5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts, viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and respondent's sister each have half share in the properties, the consideration can easily be reduced by 50 per cent which is what the first appellate court has rightly done." 

 Kartar Singh v. Harjinder Singh & Ors. (1990) 3 SCC 517,has been followed by Supreme Court in Manzoor Ahmed Magray v. Ghulam Hassan Aram & ; Ors (1999) 7 SCC 703. In that case Court considered the matter in the context of Section 15 of J & K Specific Relief Act, 1977 which is pari materia to Section 12 of Specific Relief Act, 1963. Supreme Court said : ".......Hence, there is no bar for passing the decree for specific relief with regard to 1/3rd or 2/3rds share owned by the contracting party for which he can execute the sale deed. For the share of Ghulam Rasool (brother of Defendant 1) admittedly, no decree is passed by the High Court. Dealing with the similar contention where agreement was for sale of property belonging to a brother and sister each having a half share, the Court in Kartar Singh v. Harjinder Singh held that when the absentee vendor, for some reason or the other refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed and his property is identifiable by specific share. The Court further held that such case is not covered by Section 12 of the Specific Relief Act, 1963 which relates to specific performance of a part of a contract. Such type of case would be the case of specific performance of the whole of the contract so far as the contracting party is concerned. Further, whenever a share in the property is sold the vendee has the right to apply for the partition of the property and get the share demarcated. Hence there would not be any difficulty in granting specific performance of the contract to the extent to which it is binding between the parties." 

In the case of A. Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors. (2000) 10 SCC 636, Supreme Court held that even where any property is held jointly and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, the party to the contract is bound to execute the sale deed. In that case, the suit property originally belonged to one Aziz Khan. On his death, his heirs under the Muslim law--nine sons and two daughters inherited that property. The sons agreed to sell that property to the first respondent therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. It was admitted case that the daughters of Aziz Khan had not joined in the agreement of sale. The trial court dismissed the suit by holding that the agreement was indivisible and could only be enforced if the daughters of Aziz Khan agreed. The first respondent therein preferred an appeal before the High Court against the judgment and decree of the trial court. The High Court held that he had not pleaded and proved that the daughters of Aziz Khan had agreed to sell the suit property and hence, it cannot be held that the said agreement was by all the heirs of Aziz Khan. The two daughters of Aziz Khan were held not bound by the agreement. However, the High Court held that insofar as the executants of the agreement (sons of Aziz Khan) were concerned they were bound by it and valid and enforceable contract existed between the first respondent and the sons of Aziz Khan. The High Court, accordingly, granted decree for specific performance to the extent of 5/6th shares which Aziz Khan's sons had in the property. This Court affirmed the decree of the High Court and it was held that plaintiff's suit for specific performance to the extent of 5/6th share was rightly decreed by the High Court warranting no interference. While holding so, this Court relied upon earlier decision in the case of Manzoor Ahmed Magray. 

 PARTITION OF DWELLING HOUSE:- Contention raised that property is an undivided dwelling house and the court should not grant specific performance against the co-owners of the family dwelling house. By relying upon Ghantesher Ghosh v. Madan Mohan Ghosh & ; Ors. (1996) 11 SCC 446 Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. (2005) 5 SCC 492 and Shanmughasundaram & Ors. v. Diravia Nadar (Dead) By LRs. & Anr. (2005) 10 SCC 728. The above submission was canvassed before the High Court. The High Court considered this aspect in the following manner : "It is too premature for the defendant to have invoked the provisions of section 4 of the Partition Act. The plaintiff's right has not been crystallized yet and he cannot at this stage be considered as a purchaser of the undivided interest of the first defendant. In order to validly invoke section 4 of the Partition Act, the following five conditions have to be satisfied : 

1. A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; 

2. The transferee of such undivided interest of co- owner should an outsider or stranger to the family; 

3. Such transferee much sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned; 

4. As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of preemption by undertaking to buy out the share of such transferee and; 

5. While accepting such a claim for preemption by the existing co-owners of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share belonging to the stranger transferee and made the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption and said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger-transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can he effectively deny entry in any part of such family dwelling house. The whole object seems to be to preserve the privacy of the family members by not allowing a stranger to enter in a part of the family dwelling house. Such is not the situation obtaining in this case having regard to the context. I am reinforced in my above view by the judgment of the Apex Court in Babulal V. Habibnoor Khan, 2000 (5) SCC 662. The apex Court placing reliance upon its earlier judgment in Ghantesher Ghosh V. Madan Mohan Ghosh, 1996 (11) SCC 446 reiterated the five essential requisites. For the foregoing reasons, the contention of the learned counsel merits no consideration." 

 SUPREME COURT OBSERVATION ON HIGH COURT FINDINGS:- In our opinion, the High Court has rightly concluded that at the present stage, Section 4 of the Partition Act, 1893 is not attracted. It is only after the sale deed is executed in favour of the vendee that right under Section 4 of the Partition Act, 1893 may be available. Similarly, insofar as vendee is concerned, he has right to apply for partition of the property and get the share demarcated only after sale deed is executed in his favour. Section 44 of the T.P. Act is also of no help to the case of vendor's wife. In view of the above, we agree that the decision of the High Court is right and, consequently, both the appeals must be dismissed and are dismissed with no order as to costs.

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