IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Second Appeal No. 07/2002 Telu Ram …. Appellant. Versus Kushal Pal Singh @ Vijay Kumar and another … Respondents. Sri Lok Pal Singh Advocate for the appellant. Sri Sharad Sharma, Advocate for the respondents. Dated: July 23, 2008 Hon’ble B.C. Kandpal, J. This Second Appeal, under Section 100 C.P.C. has been preferred against the judgment and decree dated 8-10- 2001, passed by Civil Judge (Senior Division) Roorkee, in Civil Appeal No. 6/1996, partly allowing the appeal, preferred against the judgment and decree dated 21-3-96, passed by Civil Judge (J.D.), Roorkee, in O.S. No. 231/2004. 2- Brief facts of the case are that Vishnu Dutt (Defendant) is the owner in possession of the land shown in the schedule of the plaint. He agreed to sell the said property to Kushal Pal (plaintiff) for a consideration of Rs. 20,000/-. The agreement was got registered on 19-2-1992 and a sum of Rs. 10,000/- was paid as advance and the sale deed was to be executed on 25-4-92. According to the plaintiff he was ready to pay the balance sum of Rs. 10,000/- and on the date fixed he remained present in Registrar Office, but insptie of notice to defendant No.1, the defendant No.1 did not execute the sale deed in his favour and he is not willing to do so, rather he executed sale agreement in favour of defendant No.2. Therefore, the plaintiff Telu Ram filed a suit before Civil Judge (J.D.) Roorkee for issuing direction to the defendant No.1 to execute the sale deed of the disputed property in favour of the plaintiff. 2 3- The defendant No.1, Vishnu Dutt did not contest the suit inspite of service, therefore, the suit proceeded exparte against him. 4- The defendant No.2 filed his written statement and denied the averments of the plaint. He alleged that the plaintiff has no possession over the disputed property, hence the suit is barred by the provision of Section 34 of Specific Relief Act. He also alleged that the disputed property was owned by Hosiyar Singh, father of defendant No.1. After the death of Hosiyar Singh, the land was devolved among Smt. Rampyari, widow of Hosiyar Singh, Dharam Pal, Jogendra Singh and Vishnu Dutt, sons and Km. Geeta daughter of Hosiyar Singh. After the death of Smt. Rampyari and Dharam Pal, the property of their shares, vested in their children. The defendant therefore alleged that the defendant No.1 is not the sole owner in possession of the disputed land, hence, there arise no question of any sale agreement between him and the plaintiff and the sale agreement, if any is there, the same is illegal. He further alleged that agreement dated 1-6-1992, executed in his favour, is a valid document and he has been given possession over the disputed land. He further alleged that he is bonafide purchaser, therefore, he is entitled to get benefit of Section 41 Transfer of Property Act and Section 19(B) of Specific Relief Act. 5- On the pleadings of parties, the trial Court framed following issues in the suit:- 1- Whether the defendant No. is the sole owner in possession of the disputed land?. 2- Whether the defendant No.1 executed a valid agreement dated 19-2-92 in favour of the plaintiff and received a sum of Rs. 10,000/-?. 3 3- Whether the plaintiff was eager and ready to have sale deed in his favour as per the terms and conditions of disputed agreement?. 4- Whether the suit is barred by the provision of Section 41 of the Specific Relief Act?. 5- Whether the defendant No.1, is entitled to get the benefit of Section 41 of Transfer of Property Act and Section 19(B) of Specific Relief Act?. 6- Whether the plaintiff is entitled to get the relief sought?. 6- Plaintiff in support of his case produced himself as P.W.1 and Jagdish as P.W.2. The defendant No.2 examined himself as D.W.1, Jogendra as D.W.2, Vishnu Dutt, as D.W.3 and Smt. Savitri Devi as D.W.4. Parties also filed documentary evidence. 7- After hearing learned counsel for the parties and perusing the material on record, the trial Court decreed the suit and directed the defendants to execute the sale deed in compliance of sale agreement dated 19-2-1992 arrived at between the plaintiff and the defendant No.1, in favour of the plaintiff within a month, after obtaining balance sum of Rs. 10,000/- from the plaintiff. 8- Feeling aggrieved, the defendant No.2 Telu Ram preferred civil appeal before the Civil Judge (S.D.), Roorkee. The first appellate court vide judgment and decree dated 8-10- 2001, allowed the appeal in part and directed the defendant Vishnu Dutt to execute sale deed in favour of plaintiff Kushal Pal only upto the extent of 2/3rd of the disputed land. 9- Feeling aggrieved, the defendant No.2, Telu Ram has preferred this appeal before this Court. 4 10- This appeal has been admitted on the following substantial questions of law:- (i) Whether the share of any witness of the agreement to sale can be transferred?. (ii) Whether any witness of the document is bound by the contents of the documents without made the party of the document?. (iii) Whether specific performance can be passed against a person for the property which he has not?. (iv) Whether a co-sharer can transfer more than his share in undivided property?. (v) Whether in absence of readiness and willingness a suit for specific performance can be decreed?. 11- I have heard learned counsel for the parties and perused the material on record. 12- Learned counsel for the appellant has submitted that the agreement to sale would be specifically enforceable only against the share of vendor and the findings of fact arrived at by the lower appellate court was contrary to the evidence on record and this court is fully empowered to correct the mistake at the stage of second appeal. He also submitted that the suit for specific performance of an agreement to sale regarding entire ancestral property executed by defendant No.1, giving undue advantage to Jogendra co-sharer over others, the decree for specific performance cannot be granted as the same is not binding on other co-sharers. In support of his above contentions the learned counsel has cited before me the following case laws:- (i) A. Abdul Rashid Khan (dead) and others Vs. P.A.K. Sahaull Hameed and other, 2000, Vol. X, SCC, page 636. 5 (ii) Bonder Singh and others Vs. Nihal Singh and others, 2003, Vol. IV, SCC, page 161. (iii) K. Narendra Vs. Reveria Apartments Pvt. Ltd., 1999, Vol. V, SCC, page 77 (iv) V. Muthuswami (dead) by legal heirs Vs. Angamal and others, 2002, Vol. III, SCC, page 316. (v) P.B. Joseph’s son Matthuw Vs. N. Kuruvilla’s son 1987, Vol. XIII, A.I.R. Supreme Court, page 976. (vi) Shyam Sundar Chowkhwani Vs. K.K. Biswas, AIR 1999, Gauhati, page 101. (vii) Ashwin Kumar M. Sah Vs. C.J. Patel, AIR 2001, Gujrat, 90. 13- Learned counsel for the plaintiff/respondent has opposed the submissions advanced by the learned counsel for the defendant/appellant and argued that the first appellate court has recorded a categorical finding that the defendant No.1 Vishnu Dutt had 1/3rd share in the disputed property and Jogendra Singh having another 1/3rd share, has consented by making his signature on the sale agreement, therefore, the lower appellate court was justified in asking the defendant No.1 Vishnu Dutt to execute sale deed up to an extent of 2/3rd share in favour of plaintiff/respondent No.1, after obtaining the cost of the said land. 14- I have gone through the cited rulings cited on behalf of the appellant, and I find that the facts of the cited cases are totally different to the facts of the case in hand and the same are not applicable here. From perusal of the record, it reveals that issue No.1 pertaining to the ownership of the disputed land has been framed in the suit. The trial court has recorded finding that the disputed property has been divided amongst the co-sharers and Vishnu Dutt was sole owner in possession 6 of the said land and accordingly decreed the suit. Contrary to this, the first appellate court has given a different verdict. Pedigree of Hosiyar Singh has been given in the judgment of the first appellate court, which has not been disputed from other side. The lower appellate court has given a finding that in the plaint nowhere it has been mentioned that the disputed land has been divided amongst the co-sharers. Further, sale agreement paper No. 11-A reveals that possession was not handed over to the vendee and it was noted that the possession shall be given at the time of execution of the sale deed. The lower appellate court also held that Vishnu Dutt had no right to sell whole property. He had 1/3rd share and Jogendra Singh, his brother, who had another 1/3rd share, had consented the sale of his share by making his signature on it. The conclusion drawn by the lower appellate court is just and proper. Admittedly, the disputed property is a joint ancestral property and every co-sharer has equal right and ownership over it. If the property has not been divided amongst the co-sharer, a co-sharer has no right to sell the said entire property beyond his share. He can sell the said property upto the extent of his share. The plaint is silent about the division of the disputed property. D.W.2, Jogendra, D.W.3, Vishnu Dutt and D.W. 4, Smt. Savitri Devi have deposed that the disputed property has not been divided as yet, therefore, the lower appellate court has rightly held that Vishnu Dutt cannot sell more than 2/3rd, 1/3rd of his share and another 1/3rd of the share of his brother Jogendra Singh, who had consented to sell his share by putting his signature on the sale agreement dated 19.2.92. 15- Paper No. 11-A is the registered sale agreement on the file. Jagdish Prasad is one of the witness of the agreement. He has been examined before the trial court as P.W.2. This witness has proved the execution of the sale agreement and stated that Rs. 10,000/- were paid at the time of agreement. 7 The defendant/appellant has not adduced any cogent evidence to show that the said agreement dated 19-2-92 was a forged document and the same was not executed by defendant No.1 in favour of the plaintiff. Vishnu Dutt, defendant No.1 did not contest the suit inspite of service. He has appeared in the court as D.W.3. In his deposition he has not specifically denied that the sale agreement was not executed. D.W.2, Jogendra has not denied his signature on the said agreement. These witnesses simply said that no partition has yet taken place and the disputed property is joint Hindu property. Jogendra along with Vishnu Dutt is obliged to enforce the said agreement by the principle of estoppel. 16- Thus, from the material available on record, it has been established that Vishnu Dutt had 1/3rd share over the property in dispute and another 1/3rd share of his brother, Jogendra Singh, who had consented to sell the same by putting his signature on the sale agreement paper No. 11-A. In the above facts and circumstances of the case, the lower appellate court has rightly modified the finding of the trial court that Vishnu Dutt can sell only 2/3rd share of the disputed property to plaintiff/respondent, instead of whole property. 17- It is pertinent to mention here that Jogendra Singh who had 1/3rd share in the disputed property and had signed the sale agreement, his status cannot be termed simply as a witness and presumption shall be drawn that he had signed the sale agreement in the capacity of a co-sharer thereby agreeing to sale his share as per the terms of the agreement dated 19-2-1992. He along with his brother Vishnu Dutt is obliged to enforce the agreement by the provision of principle of estoppel, therefore, his share can very well be transferred. The substantial question of No.(i) and (ii) are answered against the appellant/defendant. 8 18- As stated above, Vishnu Dutt has been directed by the lower appellate court to transfer his share and the share of his brother Jogendra Singh, who had consented for the same, therefore, no question of transfer of more than his share by Vishnu Dutt, arise. Therefore, specific performance could have been passed. The substantial questions of law framed at serial No. (iii) and (iv) are also decided against the appellant/defendant. 19- As far as the substantial question of law framed at serial no. (v) in this appeal, is concerned, it has been specifically proved that sale agreement paper No. 11-A was executed between Vishnu Dutt and the plaintiff and Rs. 10,000/- was also paid as sale consideration, therefore, Vishnu Dutt cannot deny the execution of the sale deed and he can not sell the said property to another vendee at his sweet will. The substantial question framed at serial No. (v) is, therefore, answered against the defendant/appellant. 20- For the reasons recorded above, the appeal lacks merit and is liable to be dismissed. 21- Accordingly the appeal is dismissed. The judgment and decree dated 8-10-2001 passed by Civil Judge (S.D.) Roorkee, is upheld. 22- The interim order, if any, stands vacated. (B.C. Kandpal, J.) ISB 9