1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 124 OF 2003 1. Shri Chhaganlal Amrutlal Dave Adult, Occ: Business Siince deceased survived by his legal heirs: 1A Shri Dhirajkumar Chhaganlal Dave adult, occ: Business, residig at Dahiwadi. Tal. Man. Disrict Satara. 1B Smt. Pushpa Chhaganlal Dave 1C Shri Hasmukh Chhaganlal Dave 1D Shri Dinesh Chhaganlal Dave 1E Shri Vinod Chhaganlal Dave 1F. Smt. Joshna Trimbak Trivedi ... Appellants (org.Plaintiffs) Vs. 1. Smt. Halimabi Mard Manik Tamboli adult Occ: Agriculturist, residing at Tal: man, District: Satara. 2. Shri Gulab Manik Tamboli 3. Shri Babalal Manik Tamboli 4. Shri Chandulal Manik Tamboli 5. Shri Shabbir Manik Tamboli 6. Shri Ashwinkumar Vishwanath Mule 7. Shri Pramodkumar Vishwanath Mule 8. Shri Daulat Ilahi Tamboli 9. Shri Laila Husen Attar 10. Shri Mumtaz Latif Muner 2 11. Shri Bismilla Gulab Atar 12. Shri Sushilkumar Vishwanath Mule .. Respondents (Orig.Defendants) Mr Anil V.Anturkar,Advocate, for the appellant. Mr. S.G.Deshmukh i/b. Mr.D.S.Mhaispurkar,Advocate, for the respondent Nos. 1 to 5 & 7 to 11. CORAM: J.H.BHATIA,J. DATE: 27TH July, 2009. JUDGMENT 1. The appeal is taken up for final hearing with consent of the learned Counsel for the parties. 2. Following substantial question of law arise : “Whether the Courts below were justified in refusing specific performance of contract to the Plaintiff even though, defendant No. 1 Halimabi, the executant of agreement for sale did not enter into witness box to deny the agreement and there was no denial in the written statement that plaintiff was ready and willing to perform his part of the contract.” 3. Admitted facts are that the suit property admeassuring 1 Are is part of Survey No.731 situated at Dahiwadi, Taluka Man, Dist. Satara. The suit 3 property originally belonged to one Manik Tamboli. Defendant No.1 Halimabi is widow of Manik Tamboli and defendant Nos. 2 to 5 are their sons The plaintiff filed Regular Civil Suit No.186 of 1989 for specific performance of contract in respect of the suit property. According to him, on 3.2.1979, defendant No.1 Halimabi had entered into an agreement with the plaintiff to sell the suit land for consideration of Rs.305/- and she had also received an amount of Rs.50/- as earnest money and had accordingly executed an agreement for sale. Possession of the suit property was handed over to the plaintiff at the time of the agreement According to the plaintiff, he started business in the name and style of M/s. Vinod Agencies on the suit property after getting possession. On 14.6.1989, defendant Nos. 2 to 5 executed a sale deed in respect of the suit property in favour of defendant Nos 6 and 7. Halimabi was not party to the said sale deed. After execution of the sale deed, defendant Nos. 6 and 7 began to disturb possession of the plaintiff over the suit property. Therefore, on 19.8.1989, she filed a suit for specific performance of contract for sale of the property. Defendant Nos. 1 & 5 contested the suit by filing written statement. Defendant No.6 and 8 to 11 also filed written statement. Plaintiff examined himself and 2 other witnesses to prove the contract between himself and the defendant No..1. Defendant No.1 did not enter into the witness box. Defendant Nos. 6 and 7 also filed a counter-claim for possession of the plot 4 alleging that the plaintiff had unlawfully taken possession of the same. After hearing the parties, the learned trial Court dismissed the suit filed by the plaintiff/appellant and allowed the counter-claim. Therefore, the plaintiff filed two appeals bearing Civil Appeal No.399 of 1998 in respect of the counter- claim and Civil Appeal no.400 of 1998 in respect of the own suit for specific performance of the contract. The appellate Court allowed the Civil Appeal No. 399 of 1998 and set aside the order passed by the trial Court allowing the counter-claim of the defendants Nos. 6 and 7. However, the appellate Court concurred with the trial Court and dismissed the Civil Appeal No.400 of 1998 in respect of the claim for specific performance of the contract. Hence, the Second Appeal by the original plaintiff. 4. Mr. Anturkar for the plaintiff/appellant vehemently contended that the Courts below had committed error in coming to conclusion that defendant No.1 Halimabi had not executed the agreement for sale because she had never entered into the witness box to deny the same and her son, who appeared as a witness, did not have any personal knowledge about the agreement between the plaintiff and the defendant No.1 He contended that the Courts below came to conclusion that even if her thumb impression mark was on the agreement, it might have been obtained by undue influence or fraud. The learned Counsel 5 for the respondents pointed out that the plea of fraud or coercion was not pressed even before he first appellate Court and the defendants had taken simple plea that defendant No.1 had not entered into the contract. He pointed out that the Courts below had doubted the execution of the agreement for sale on the grounds that the stamp paper used for scribing the agreement for sale was purchased in the name of somebody else, even though at the time of purchase of the stamp paper and scribing of the agreement the defendant No.1 was allegedly present. The learned Counsel for the appellant contended that in absence of the evidence of Halimabi herself on this point it could not be held that the agreement was not executed by her. The learned Counsel for the respondents contended that even if this argument of the learned Counsel for the plaintiff-appellant is accepted, still there are sufficient reasons why the decree for specific performance could not be passed in favour of the plaintiff-appellant. 5. The courts below found that even though the alleged agreement had taken place for consideration of Rs.305/-,the plaintiff had allegedly paid only a sum of Rs.50/- and according to him he had taken possession of the suit property in 1979. However, for 10 years thereafter, the plaintiff did not take any steps to get the sale deed executed by paying the balance amount. It indicates that he was not ready and willing to perform his part of the contract by 6 paying the balance amount and getting the sale deed executed. Mr. Anturkar contended that there was no denial in the written statement that the plaintiff was ready and willing to perform his part of the contract. According to him, Halimabi was not even a party to the sale deed in favour of defendant nos. 6 and 7 and therefore, sale deed executed by defendant Nos. 2 to 5 in favour of defendant Nos.l 6 and 7 in 1989 is not valid. 6. Mr. Deshmukh, learned Counsel for the respondents pointed out that undisputedly the suit property belonged to Manik Tamboli. He had left behind widow, four sons and 3 daughters. All of them would have share in the said property under the Muslim Law. The defendant No.1 alone could not dispose of this property without the consent and joining the other co-sharers in the agreement when her share was about 1/12th taking into consideration the shares of widow, sons and daughters under the Muslim Law. Therefore, the agreement when her even though held to be proved, could not be binding on the defendant Nos. 2 to 5. I find substance in the contention of Mr.Deshmukh. Defendant No.1 holding a small share in the suit property, could not enter into agreement for sale of whole of the property. The other co-sharers in the property could not be bound by the said agreement. In view of this, the plaintiff could not be granted a decree for specific performance of the contract on the 7 basis of that agreement. A similar view was taken in Shyam Sundar Chowkhani alia Chandan and others AIR 1999 Gauhati 101. 7. In the present case, according to the plaintiff, he took possession of the suit property on payment of amount of Rs.50/- as earnest money in 1979, but admittedly, till 1989, he did not take any steps to get the sale deed executed. According to him, the sale deed could not be executed because permission for non-agriculture was required. However, the evidence on record clearly shows that even at the time of execution of the agreement for sale, the attesting witness was aware that no such permission is required. Even if for a moment, such permission was required, there is nothing to show what steps were taken by the plaintiff-appellant to secure that permission. He had never written any letter nor issued any notice to the defendant No.1 to obtain the permission and execute the sale deed. Taking into consideration this conduct of the plaintiff, merely because in the plaint, he had stated that he was ready and willing to perform his part of the contract, the decree for specific performance could not be granted. In fact, he had by his conduct shown that he was not interested in getting the sale deed executed. He was interested only in retaining possession of the property after having paid Rs.50 only. After the property was sold away to defendant Nos. 6 and 7 the plaintiff filed the suit for specific performance of 8 the contract. In K.S.Vidyanadam and others vs. Vairavan 1997 SC 1751 it was held that when there was total inaction on the part of the plaintiff for 2-1/2 years in violation of the terms of the agreement and delay was coupled with substantial rise in prices it would be inequitable to give relief of specific performance to the plaintiff. 8. In Parakunnan Veetill Joseph’s son Mathew vs. Nedumbara Kuruvila’s Son and others AIR 1987 SC 2328, Their Lordships of the Supreme Court observed that Sec. 20 of the Specific Relief Act preserves judicial discretion to Courts as to decreeing specific performance that the courts should meticulously consider all the facts and circumstances of the case and that the Court is not bound to grant specific performance merely because it is lawful to do so. In view of the fact that the defendant No.1, holder of a small share, alone had entered into agreement, while the other co-sharers hold major share the agreement cannot be biding on other shareholders. In such circumstances, it would not be lawful for the court to grant decree for specific performance in favour of the plaintiff. 9. Taking into consideration all the facts and the legal position, I find that the Courts below were right in refusing the decree for specific performance 9 of the contract. 10. In the result, the Appeal stands dismissed. (J.H.BHATIA,J.)