Hanumappa Channappa Hullur,(D) By Lrs. vs Shvamaruthappa Parappa Kalli .

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.411-412 OF 2004

Hanumappa Channappa Hullur (D) by LRs. .. Appellants -vs-

Shivamaruthappa Parappa Kalli & Ors. .. Respondents

JUDGMENT

C. NAGAPPAN, J.

1. These two appeals are directed against common

judgment and decree dated 11.3.2002 made in

RSA No.63/99 and 64/99 made by the High Court

of Karnataka at Bangalore, by which the High

Court has allowed the Second Appeals filed by the Signature Not Verified Digitally signed by respondents herein.

Sukhbir Paul Kaur Date: 2015.08.21 16:54:37 IST Reason: 2

2. The suit in OS 133/82 was filed by deceased

Hanumappa Channappa Hullur for seeking decree

for specific performance of contract on the strength

of agreement of sale dated 15.10.1981 executed by

defendant No.1 in his favour in respect of the suit

land RS 80/1-2/A measuring 11 acres and 24

guntas situated in Adavisomapur village in Gadag

Taluk restraining the defendants from interfering

in their possession and enjoyment of the suit land

and alternatively for refund of earnest money of

Rs.53,000/- received by defendant No.1 with

interest and damages. The suit in OS 136/82 was filed by defendants 2 and 3 in OS 133/82 against

the plaintiff-Hanumappa Channappa Hullur for

seeking decree of declaration that the agreement of

sale dated 15.10.1981 said to have been executed

by their father-Paramma is not binding on them

and their one-third share in the suit land and for 3

grant of consequential relief of permanent

injunction restraining Hanumappa Channappa

Hullur from interfering in their possession and

enjoyment of the suit land.

3. It is the case of Hanumappa Hullar, that the suit

land belongs to Parappa as it is his self acquired

property and he for the sake of legal necessity, i.e.

for purchasing the land at Kanavi village offered to

sell the land to him. Hence he agreed to purchase

the same for Rs. 72,000/- and paid a sum of Rs.

53,000/- as earnest money and Parappa received

the same and executed an Agreement on

15.12.1981 and on the same day delivered

possession of the land and since then he is in

possession and enjoyment of the same. But the

said Parappa failed to receive balance

consideration amount of Rs.19,000/- and execute

sale deed as agreed before the end of May 1982, 4

along with his two sons. So, he gave notice on

24.5.1982 calling upon them to perform their part

of contract, since he was ready and willing to

perform his part of contract. Sons of Parappa gave

reply to that notice and did not perform their part

of contract.

4. It is the case of Parappa and his two sons that there is no agreement of sale, as contended by

Hanumappa Hullar, but it was a loan transaction

and Parappa never received the sum of

Rs.53,000/- and he did not put Hanumappa

Hullar in possession of the land, but his signature

was taken on a blank stamped paper and it was

misused. It is also contended that the suit land is

not the self acquired property of Parappa and it is

not his exclusive ownership. It is the joint family

property and his two sons have got equal one third

share in it. There is no legal necessity for sale of 5

land and as such, the alleged sale agreement is not

binding on them. Hanumappa Hullar, was never

put in possession of the land. They have filed the

suit for decree for declaration that the alleged sale

agreement is not biding on them and also for

consequential permanent injunction against

Hanumappa Hullar.

5. Both the suits were tried together and on a

consideration of oral and documentary evidence

the trial court decreed the suit in O.S

No.133/1982 and dismissed the suit O.S

No.136/1982. Aggrieved by the same the

defendants 2 and 3 in O.S.No.133/1982 and the

plaintiffs in O.S. No.136/1982 preferred appeals

in RA No.55/1990 and 56/1990 respectively. The

lower appellate court by common judgment dated

17.10.1998 dismissed both the appeals and

challenging the same the said appellants preferred 6

RSA Nos.63/1999 and 64/1999 n the file of the

High Court. The High Court allowed both the

Second Appeals by impugned common judgment and dismissed the suit in O.S.No.133/1982 and

decreed the suit in O.S. No.136/1982 as prayed

for. Challenging the same the present civil appeals

are preferred.

6. For the sake of convenience in this judgment the

parties are referred to as arrayed in the suit in OS

No.133 of 1982 on the file of the trial court.

7. The learned counsel appearing for the appellants

contended that the sale agreement was entered

into by the vendor-father after receiving

substantial part of consideration for the benefit of

the estate and the High Court erred in reversing

the concurrent findings of the courts below, and

hence the impugned judgment is liable to be set

aside. It is his further contention that the deceased 7

appellant sold his only piece of property to

purchase the suit land and in any case, the sale

agreement could be enforced against the

vendor-father to the extent of his 1/3rd share and

he is bound to execute the sale deed. In support

of his submission he relied on the decisions of this

Court in A. Abdul Rashid Khan (Dead) and

others Vs. P.A.K.A. Shahul Hamid and others

[(2000) 10 SCC 636] and Kammana

Sambamurthy (Dead) by LRs. Vs. Kalipatnapu

Atchutamma (Dead) and others [(2011)11 SCC

153].

8. The learned counsel appearing for the respondents

contended that the plaintiff did not exercise the

option under Section 12(3) of the Specific Relief Act

for claiming lesser share viz. 1/3rd share of

vendor-father at the available opportunity and in view of non compliance of the said provision even 8

partial relief of specific performance cannot be

granted. Reliance was placed on the decision of

this Court in HPA International Vs.

Bhagwandas Fateh Chand Daswani and others

[(2004) 6 SCC 537].

9. It is not in dispute that the suit property is the

joint family property belonging to father and two

sons namely defendants 1 to 3. In fact the courts

below held so. Exh. P-1 is the Sale Agreement

dated 15.10.1981 executed by the first defendant

father in favour of the plaintiff. There is no

mention therein that the first defendant father was

executing the agreement for himself and on behalf

of the defendants 2 and 3, who are his major sons.

There is no averment in the agreement that the

suit property is joint family property and it is being

sold for the benefit of joint family. The joint family

members who jointly owned the property have not 9

executed the said agreement to enable them to

purchase another property in the neighbouring

village. Neither the plaintiff nor the first defendant

have produced evidence in the case to show that

pursuant to Exh. P-1 sale agreement, any property

was purchased by the first defendant for the

benefit of the estate of the joint family. The High

Court has rightly held that the agreement entered

into by the first defendant father without the

concurrence of the other sharers namely

defendants 2 and 3 to sell the joint family property

is not legal and valid.

10. The terms of the sale agreement show that the vendor-father represented to the vendee that he was the

absolute owner of the property and he would come along

with his children on the day fixed for the registration of

the sale deed and he is putting the vendee in physical

possession of the land. In fact, the High Court has 10

confirmed the findings of the courts below that the

plaintiff-vendee is in possession of the suit property.

11. The contention of the learned counsel for the

respondents that Section 12 of the Specific Relief Act,

1963 is attracted to the facts in the present case is devoid

of merit and the decision relied on in HPA International

(supra) is not applicable. In the agreement of sale in

HPA International case, full interest in the property i.e.

life interest of the vendor and spes successionis of the

reversioners with sanction of the court was agreed to be

sold. The reversioners were not parties to the sale

agreement and the parties were conscious that the vendor

had only life interest in the property. 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 he had only 1/3 rd

share in the property. The sale agreement is binding on

the vendor as it is without being fractured. 11

12. We are, therefore, of the view that this is not a case

which is covered by Section 12 of the Act.

13. This Court in the decision in A. Abdul Rashid

Khan’s case while considering the grant of relief for

specific performance pertaining to the contract to sell

property held jointly, laid down thus :

14. Thus we have no hesitation to hold, 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, he is bound to execute the sale deed. However, in the absence of the other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute that the appellants have 5/6th share in the property. So, the plaintiff’s suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which requires no interference."

12

14. In Kammana Sambamurthy Vs. Kalipatnapu

Atchutamma case (supra) this Court was concerned

with a case where vendor-husband and his wife had

each half share in the suit property and the

agreement for the sale was executed by the

vendor-husband concerning the entire suit property.

The question arose as to whether the agreement be

enforced against the vendor-husband to the extent of

his half share in the property. This Court relying on

the decision in Kartar Singh Vs. Harjinder Singh

[(1990) 3 SCC 517] and the decision in A. Abdul

Rashid Khan’s case (supra) held that the vendee is

not entitled to seek specific performance of the

agreement to the extent of half share of the vendor’s

wife and there is no impediment for enforcement of

the agreement against the vendor-husband to the

extent of his half share in the property. 13

15. In view of the above decisions of this Court and

the facts and circumstances which have already been

noticed by us, we are of the considered opinion that

there is no impediment for enforcement of the sale agreement against vendor-father-first defendant to the

extent of his 1/3rd share in the suit property. The

impugned judgment of the High Court dismissing the

suit seeking for specific performance is liable to be set

aside to the extent indicated above.

16. In the result Civil Appeal No.411 of 2004 is

partly allowed and the suit in OS No.133 of 1982 is

partly decreed to the extent of 1/3rd share of the first

defendant in the suit property is concerned. Civil

Appeal No.412 of 2004 is dismissed. No order as to

costs.

..............................J. (C. NAGAPPAN) New Delhi;

August 21, 2015.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.411-412 of 2004

Hanumappa Channappa Hullur (D)

By LRs. .....Appellant(s)

versus

Shivamaruthappa Parappa Kalli

and others .....Respondent(s)

JUDGMENT

M.Y. EQBAL, J.

I have had the advantage of going through the order proposed

by my esteemed Brother C. Nagappan, J. While I entirely agree 15

with the conclusion that the appellant must succeed to the extent

indicated in the order, I wish to add a few lines of my own.

2. The Court will not as a general rule compels specific

performance of a contract unless it can execute the whole contract.

This principle is based on the general law that the Court cannot

specifically perform the contract in piecemeal, but it must be

performed in its entirety if performed at all. In a case where he had

held himself contracted out as the owner of the whole, the case

would have been different. But in the absence of misrepresentation

or misconduct, the general rule is that where a person is jointly

interested in an estate with another person and purport to deal with

the entirety, the specific performance will not be granted against

him as to his share.

3. English law on grant of specific performance to the extent of

ownership/interest in joint property has been elaborately dealt with

in a number of cases. In Jenkins vs. Hiles, 6 Ves. 646, the Court

of Chancery observed as under:-

"I also agree, if a man, having partial interests in an estate, chooses to enter into a contract, representing it, and agreeing to sell it, as his own, it is not 16

competent to him afterwards to say, though he has valuable interests, he has not the entirety; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances, is bound by the assertion in his contract; and, if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement; and the Court will not hear the objection by the vendor, that the purchaser cannot have the whole."

4. The Rule of the Court and the principle upon which it is

founded are very distinctly reiterated by Lord Eldon in Mortlock

vs. Buller, 10 Ves. 315.

5. The principle of law so stated by Lord Eldon has been several

times adverted to in subsequent cases, but never questioned and

now treated as a settled rule.

6. The Author of the Book "Fry on Specific Performance", 6 th

Edition (1921), page 582 para 1257, says:- "There is no reason why

an innocent person who gives consideration for the promise of a

charge on the whole should not be in a position equivalent to that of

a purchaser and thus secure an order of partial performance. The

Doctrine of Partial Performance has been discussed in the book "Fry 17

on Specific Performance" at page 588 paragraph 1270. The Author

says :-

"It is well established principle of equity that where, in the course of concluding a contract, a person has represented that he can grant a certain property, or is entitled to a certain interest in that property, and it later appears that there is a deficiency in his title or interest, the other party can obtain an order compelling him to grant what he has got, and in an appropriate case, to submit to a reduction of the consideration for the grant: (See Fry on Specific Performance (6th Edition) paragraph 1257 and 1259 and the case there cited). We will call this "the doctrine of partial performance."

7. Under the old Specific Relief Act 1877, Sections 14 to 17 laid

down different circumstances of the performance of granting relief

for specific performance of a part of the contract. Under the

Specific Relief Act, 1963, Sections 14 to 17 of the old Act has been

amalgamated and new Section 12 has been enacted. However, the

principle contained under Sections 14 to 17 has not been changed

while enacting Section 12 of the Act. The vital departure from the

old Act and the new Act is that under the old Act, the party seeking

specific performance under the corresponding provision of Section

15 had to pay the entire amount of consideration stipulated in the 18

agreement even where he was seeking enforcement of a part of a

contract, but under the present Act he has to pay only a part of

consideration after abatement in the amount of consideration as

mentioned in the section.

8. Section 12, sub-section (2) of the Specific Relief Act, is based

on the English Law on the subject. The Privy Council in

Rutherford vs. Acton Adams, AIR 1915 PC 113, observed:-

"In exercising its jurisdiction over specific performance, a Court of Equity looks at the substance and not merely at the letter of the contract. If a vendor sues and is in a position to convey substantially what the purchaser has contracted to get, the court will decree specific performance with compensation for any small and immaterial deficiency, provided that the vendor has not, by misrepresentation or otherwise, disentitled himself to his remedy. In a suit by purchaser another possible case arises where a vendor claims specific performance and the court refuses it, unless the purchaser is willing to consent to a decree on terms that the vendor will make compensation to the purchaser, who agrees to such a decree on condition that he is compensated. If it is the purchaser who is suing, the court holds him to have and even larger right. Subject to considerations of hardship, he may elect to take all he can get and to have a proportionate abatement from the purchase money."

9. In the instant case in view of the findings that the appellant

had 1/3rd share in the property contracted to be sold will not bind 19

the sons, the defendant respondent being co-owner and the

property being divisible, a decree for specific performance to the

extent of his share can be enforced on the doctrine of partial

performance.

10. Having regard to the discussion made above, I fully agree with

the view taken by Brother C. Nagappan, J. that the

plaintiff-appellant is entitled to the decree for specific performance

in respect of 1/3rd share in the property and to that extent the

impugned judgment and decree is liable to be set aside.

..................................J.

(M.Y. Eqbal)

New Delhi August 21, 2015 20 ITEM NO.1A COURT NO.10 SECTION IVA (For Judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 411-412/2004

HANUMAPPA CHANNAPPA HULLUR,(D) BY LRS. Appellant(s)

VERSUS

SHVAMARUTHAPPA PARAPPA KALLI & ORS. Respondent(s)

Date : 21/08/2015 These appeals were called on for judgment today.

For Appellant(s) Mr. Rajesh Mahale,Adv.

Mr. Amith J., Adv.

For Respondent(s) Mrs. Vaijayanthi Girish,Adv.

Hon’ble Mr. Justice M.Y. Eqbal and Hon’ble Mr. Justice C. Nagappan have pronounced separate judgments in these appeals, though concurrent.

Civil Appeal No. 411 of 2004 is partly allowed and the suit in OS No. 133 of 1982 is partly decreed to the extent of 1/3rd share of the first defendant in the suit property is concerned.

Civil Appeal No. 412 of 2004 is dismissed.

No order as to costs.

[INDU POKHRIYAL] [SUKHBIR PAUL KAUR] COURT MASTER A.R.-CUM-P.S.

(Signed reportable judgments are placed on the file)