RSA No.3844 of 2008 (O&M) 1 In the Punjab and Haryana High Court,at Chandigarh. Caveat No.--------- of 2008 and RSA No. 3844 of 2008 Decided on December 01,2008. Amrik Singh -- Appellant vs. Jagjit Singh Sayal and others --Caveators/Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.R.S.Longia,Advocate, for the appellant Mr.Amit Jain,Advocate,for the Caveators/respondents Rakesh Kumar Jain,J: The plaintiff (Jagjit Singh Sayal) filed a suit for specific performance of an agreement to sell dated 06.5.1991 in respect of land and building measuring 21 kanals 19 marlas bearing Khasra No. 157/21 (7-19), 168/5/1 (6-0), 156/25 (8-0) comprised in Khewat No.425, Khatoni Nos.557 and 558 as per jamabandi pertaining to year 1989-90 situated in village Naag, Tehsil and District Amritsar with all the rights, inclusive of securities, electric connections and installations, on payment of balance amount of Rs.1,70,219/- and in the alternative, for recovery of Rs.5,28,000/-with interest, with consequential relief of permanent injunction restraining the defendants from forcibly and illegally dispossessing him and from selling, mortgaging, leasing or alienating the property in dispute in any manner. The suit of the plaintiff was decreed by the trial Court against defendant RSA No.3844 of 2008 (O&M) 2 No.1. only for recovery of Rs.2,63,000/- to be paid by defendant No.1. to the plaintiff along-with interest @ 18% per annum from 06.5.1991 till realization. The suit qua defendant Nos. 2 to 4 was dismissed vide judgment and decree dated 4.12.2003. The learned First Appellate Court on an appeal preferred by the plaintiff, partly decreed the suit against respondent No.1 for specific performance of agreement to sell dated 06.5.1991 to the extent of share of defendant No.1 in the suit land subject to adjustment of the amount already received by defendant No.1. from the plaintiff as sale consideration of his share. It was also ordered that if the amount of earnest money exceeds the sale consideration amount of share belonging to defendant No.1,then he (defendant No.1) shall be liable to refund the said amount along-with interest @ 6% per annum from the date of agreement till the date of realization. Rest of the suit was dismissed. It is against the aforesaid decree of the learned First Appellate Court, defendant No.1 has come up in this appeal. The case of the plaintiff is that the defendant constitute a Joint Hindu Undivided Family and are joint owners of land measuring 21 kanals 19 marlas bearing Khasra No.157/21 (7-19), 168/5/1 (6-0), 156/25 (8-0) comprised in Khewat No.425, Khatoni Nos.557 and 558, situated in village Naag, Tehsil and District Amritsar. On part of the suit land, a poultry farm building has been constructed which has been given to the plaintiff in the year 1987 on rent @ Rs.1500/- per month for the purpose of running a poultry farm. The plaintiff has been running the business of poultry farm in the said premises under the name and style of M/s.. J.J.Broiler Farm. RSA No.3844 of 2008 (O&M) 3 During the subsistence of his tenancy, defendant Nos. 2 to 4 through their attorney defendant No.1. and defendant No.1, executed a legal and valid registered lease deed dated 06.5.1991 in favour of the plaintiff @ Rs.3000/- per year and on the same day, the defendant No.1 himself and defendant Nos. 2 to 4 executed an agreement to sell in favour of the plaintiff through their attorney -defendant No.1 for the sale of aforesaid land and building @ Rs.85,000/- per acre total amounting to Rs.2,33,219/- along-with building plus appurtenances and fixtures for a sum of Rs. 2,00,000/- all totalling Rs.4,33,219/-. The defendants had received a sum of Rs.2,63,000/- at the time of execution of the agreement to sell and balance amount of Rs.1,70,219/- was agreed to be paid at the time of execution of the sale deed. It was mutually agreed between the parties that the sale deed shall be executed after the defendants got their property released from mortgage from the United Commercial Bank. Fruther, the case of the plaintiff is that he has been ready and willing with the balance money to perform his part of the agreement and in pursuance thereof, he served a legal notice upon the defendants on 16.1.1994 through his counsel,but they failed to get the suit property redeemed from mortgage and execute the sale deed in his favour. The plaintiff has averred that few days prior to the filing of the suit, when the plaintiff again asked the defendants to get the sale deed executed, they flatly refused. Hence, this suit was filed. Defendant No.1 filed his separate written statement in which he took up preliminary objections that the plaintiff has not complied with the requirement of agreement in question and has not shown his readiness and willingness to perform his part of the agreement. It is also alleged that RSA No.3844 of 2008 (O&M) 4 the land in dispute has already been redeemed from the Bank on 28.8.1990 but the suit is not properly valued for the purposes of Court fee and jurisdiction. On merit, it was alleged that the property in dispute is not Joint Hindu Undivided Family Property and is rather self acquired property of all the defendants, but it was admitted that the building where the poultry farm is located is on rent with the plaintiff @ Rs.1500/- per month. It was denied that defendant Nos. 2 to 4 had ever given any power of attorney to defendant No.1. It was also alleged that the plaintiff had failed to perform his part of the agreement as he was not having ready money for purchasing the stamp and for payment of registration charges. Defendant Nos. 2 to 4 filed their separate written statement and raised preliminary objections that the suit is not maintainable in the present form; there is no privity of contract between the plaintiff and defendant Nos.2 to 4 and the plaintiff is not entitled to specific performance of the agreement to sell. On merit, it was denied that the property is Joint Hindu Family Property. It was alleged that the property is self acquired. It was admitted that the building and poultry farm are in existence and are in possession of the plaintiff @ Rs.1500/- per month on rent. Defendant Nos. 2 to 4 had never authorised defendant No.1. to execute the lease deed dated 06.5.1991. It was denied that defendant No.1 executed an agreement to sell in favour of the plaintiff on 06.5.1991 and had received earnest money. Averments regarding redemption of mortgaged land with United Commercial Bank was denied. It was denied that any contract exists between the parties and hence the question of readiness and willingness between the parties does not arise. RSA No.3844 of 2008 (O&M) 5 The plaintiff filed replication wherein stand taken in the plaint was reiterated and averments made in the written statement by the defendants were controverted. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff has been and is willing and ready to perform his part of the agreement ? OPP 2. Whether the plaintiff is entitled to the specific performance of agreement dated 6.5.1991 ? OPP 3. Whether the plaintiff is entitled to the injunction claimed ? OPD 4. Whether the suit is properly valued ? 5. Whether there was privity of contract between the plaintiff and the defendants No.2 to 4, if not, to what effect ? OPP 5-A Whether the suit is malafide and the said agreement is the result of fraud played with the defendants ? OPD 6.Relief: After appreciating the evidence, the trial Court held that the agreement to sell has been proved as defendant No.1 who had executed it in favour of the plaintiff has admitted its execution in the written statement itself. It was also held that the plaintiff remained ready and willing to perform his part of the agreement, but it was held that the agreement to sell is not binding upon defendant Nos. 2 to 4 as neither they gave any power of attorney to defendant No.1 to sell nor they themselves agreed to sell the suit land in favour of the plaintiff. In these circumstances, the trial Court RSA No.3844 of 2008 (O&M) 6 held that a decree for specific performance cannot be granted to the plaintiff as defendant Nos. 2 to 4 who are co-sharers in the suit property had never agreed to sell the suit land to the plaintiff. Thus, a decree in the alternative was granted for recovery of Rs. 2,63,000/-to be paid by defendant No.1 to the plaintiff with interest @ 18% per annum from 06.5.1991 till realization and suit qua defendant Nos. 2 to 4 was dismissed. The plaintiff filed the first appeal. It was found by the learned First Appellate Court that defendant No.1 is owner to the extent of 1/4th share and the other co-sharers are also owners to the extent of 1/4th share each. Therefore, it was held that relief for specific performance against/qua defendant No.1 can be granted. Thus, suit of the plaintiff was partly decreed against defendant/respondent No.1 directing him to perform his part of contract to the extent of his share in the suit land subject to adjustment of amount already received by him from the plaintiff for sale consideration of his share. It was also held that if the amount of earnest money exceeds the sale, then respondent No.1 shall be liable to refund the said amount along-with interest @ 6% per annum from the date of agreement i.e. 06.5.1991 till realization. Rest of the suit was however dismissed. Mr.R.S.Longia, learned counsel appearing on behalf of defendant No.1/appellant herein has vehemently contended that as he (defendant No.1) had only 1/4th share in the suit property, therefore, specific performance of part of contract cannot be ordered as it would cause legal difficulty. As against this learned counsel appearing on behalf of the RSA No.3844 of 2008 (O&M) 7 caveator/respondents submitted that the share of defendant No.1 was categoric to the extent of 1/4th share and plea of property being unpartionable was in no way would cause legal difficulty for granting the relief by the first Appellate Court in this regard. Learned counsel for the respondent has relied upon a decision of the Supreme Court in the case of “Kartar Singh vs. Harjinder Singh and others” (1990) 3 SCC 517. I have heard both the parties and perused the record with their assistance. From the perusal of the facts, it is quite clear that there is an agreement to sell and the plaintiff was also ready and willing to perform his part of the contract. It is also apparent that the plaintiff is already in possession of the disputed property as a tenant. Now the question is whether a decree for specific performance can be granted in respect of a small share in a joint property where the other share holders have refused on the ground that they had not given any authority to anyone of the co-sharers to sell the property in question. This question has been squarely answered by the Supreme Court in Kartar Singh’s case (supra). In the said case respondent Harjinder Singh and his sister Bibi Nasib Kaur owned some properties, namely,(i) two pieces of land in village Dhora measuring 26 kanals and 6 marals, and 33 kanals respectively; (ii) a vacant site in village Bighan measuring one kanal; (iii) a kachcha house in village Urapur, and; (iv) a Bara in village Urapur measuring about 8 marlas. In the said case, both the brother and sister were the owners of the properties, to the extent of half share each. The brother (Harjinder Singh) entered into an agreement with the appellant Kartar Singh for himself and on behalf of his sister on RSA No.3844 of 2008 (O&M) 8 28.2.1965 for the sale of all the said properties for a consideration of Rs.20,000/- and received a sum of Rs.2000/- as earnest amount and agreed to execute the sale deed and get the same registered between May 15 and July 15, 1965. It was mentioned in the agreement that he had agreed to sell not only his entire share of property but also that of his sister, and that he would be responsible for getting the sale deed executed from his sister. It was provided in the agreement that in case of failure to execute the sale deed, he would refund Rs.2000/- and also pay Rs.5000/- as damages. Since the sale deed was not executed, therefore, suit for specific performance was filed and in the alternative, prayer was made for recovery of Rs.2000/- paid as earnest money and Rs.5000/- as damages. The suit was decreed. The trial court came to the conclusion that brother (Harjinder Singh) was liable to sell his share in the suit property and decreed the suit with respect to his share. The learned trial court also awarded Rs.5000/- as damages and cost of Rs.1000/-. In the High Court learned Single judge maintained the decree for specific performance of contract in respect of the half share of brother (Harjinder Singh) and set aside the decree for damages of Rs.5000/- as well as for the costs of Rs.1000/-. In the Letters Patent Appeal, the Division Bench allowed the appeal and dismissed the suit, however,passed a decree for Rs.7000/- in favour of the plaintiff (Kartar Singh) being the amount consisting of Rs.2000/- as earnest money and Rs.5000/- as damages. The matter was then taken to the Supreme Court by the plaintiff (Kartar Singh). The Supreme Court observed that it is not a case of the performance of a part of the RSA No.3844 of 2008 (O&M) 9 contract but of the whole of the contract so far as the contracting party, namely the respondent-brother (Harjinder Singh) is concerned. Under the agreement, he had contracted to sell whole of his property. There were two contracts, namely, for the sale of his share and that of his sister (Bibi Nasib Kaur). Thus it was held that the share were separate and were severable from each other although they were incorporated in one agreement. In respect of the difficulty pointed out by the High Court that the decree of specific performance cannot be granted since the property will have to be partitioned, it was observed that 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. Thus, the suit was decreed in terms of the agreement in respect of the property sold by Harjinder Singh qua his share. In the present case, there is no difficulty so far as the share of the vendor is concerned because after the purchase of the share of the vendor, the vendee would step into the shoes of the vendor and would become a co-sharer and can always seek a partition. Moreover,defendant No.1/appellant has at least sold his entire share. Thus, in my view, the question of partition which was posed in this appeal is answered to the effect that in a case where the vendor enters into the contract in respect of his share as also on behalf of the other co-sharer and in case of denial of the other co- sharer in respect of the sale of their share on the ground of no authority having been given to one of the co-sharer, in that eventuality he/the vendor/co-sharer shall be bound and decree for specific performance can be granted to the extent of his share. No other question has been raised by the RSA No.3844 of 2008 (O&M) 10 counsel for the appellant. In view of above discussion, I do not find any merit in the present appeal and the same is hereby dismissed with no order as to costs. December 01,2008 (Rakesh Kumar Jain) RR Judge Refer to Reporter—Yes / No.