IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.1566 and 1567 of 2010 and M.P.Nos.1 and 1 of 2010 Narayanan .. Appellant in both appeals/Plaintiff in O.S.No.69/06/4th Defendant in O.S.No.97/06 vs. 1. Kuppan 2. Ponnusamy .. Respondents in S.A.No.1566/2010/ Ist and 2nd Defendants in O.S.NO.69/06 1. Alamelu 2. Kala alias Kalavathi 3. Geetha 4. Pounammal 5. Kuppan 6. Ponnusamy .. Respondents in S.A.No.1567/2010/Ist to 3rd Plaintiff & Ist to 3rd Defendant in O.S.No.97/06 These two second appeals are focussed (i) as against the judgment and decree dated 30.09.2010 in A.S.No.50 of 2009 by the learned Subordinate Judge, Kancheepuram, setting aside the judgment and decree of the learned District Munsif cum Judicial Magistrate at Uthiramerur dated 19.6.2009 in O.S.No.69 of 2006; and also (ii) as against the judgment and decree dated 30.09.2010 in A.S.No.20 of 2010 by the learned Subordinate Judge, Kancheepuram, modifying the judgment and decree of the District Munsif cum Judicial Magistrate, Uthiramerur dated 9.11.2009 in O.S.No.97 of 2006. For Appellant (In both appeals) : Mr.B.Kumar,Sr.Counsel for Mr.R.Krishnan For R1 and R2 in S.A.No.1566/2010 & For R5 and R6 in S.A.No.1567/2010 : Mr.Y.Jyothish Chander For R1 to R3 in S.A.No.1567/2010 : Mr.K.Surendranath C O M M O N J U D G M E N T These two second appeals are focussed by the original plaintiff, animadverting upon the judgment and decree dated 30.09.2010 passed in A.S.No.50 of 2009 by the learned Subordinate Judge, Kancheepuram, setting aside the judgment and decree of the learned District Munsif Court at Uthiramerur in O.S.No.69 of 2006 and also as against the https://hcservices.ecourts.gov.in/hcservices/ judgment and decree dated 30.09.2010 in A.S.No.20 of 2010 by the same appellate Judge modifying the judgment and decree of the Munsif Court in O.S.No.97 of 2006. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of these two Second Appeals would run thus: (a) The appellant/plaintiff filed O.S.No.69 of 2006 seeking the following reliefs: (i) To pass a decree for specific performance directing the 1st and 2nd defendants to execute and register a sale deed with regard to the schedule of property in favour of plaintiff for a sale consideration of Rs.39,000/- within a time to be specified by this Court, failing which, the sale deed to be executed through process of court at the expense of the plaintiff and the same will be recovered later from the defendants. (ii) To grant permanent injunction against the 1st and 2nd defendants and his men or agents from in any way alienating or encumbrance in the suit property till the disposed of the suit; and (iii) for costs. (Extracted as such) (b) The plaintiffs/R1 to R3 herein in S.A.No.1567 of 2010 filed O.S.No.97 of 2006 seeking the following reliefs: (i) To grant a preliminary decree for partition of half share of the plaintiffs in the suit properties morefully described in the schedule hereunder by dividing the same into two equal halves; (ii) to pass a final decree in pursuance of the Prel.Decree that may be passed in the above suit by appointing an Advocate Commissioner, under order 26 Rule 13 and 14 CPC to divide the properties into two equal halves and allot one such share to the plaintiffs, by metes and bounds and according to good and bad soil, to have separate partition of the joint family properties in favour of the plaintiffs and separate possession be delivered to the plaintiffs; and https://hcservices.ecourts.gov.in/hcservices/ (ii) for costs. (Extracted as such) (c) The respective defendants filed separate written statements resisting the suits. (d) Whereupon the trial Court framed the issues. (e) Separate trials were conducted. In the specific performance suit, i.e. O.S.No.69 of 2006, the plaintiff-Narayanan examined himself as P.W.1 along with P.W.2-Sahadevan and Exs.A1 to A4 were marked. On the side of the defendants, D.Ws.1 and 2 were examined. (f) In the partition suit, i.e. O.S.No.97 of 2006, the second and the first plaintiff, namely, Kala and Alamelu examined themselves as P.Ws.1 and 2 along with P.W.3-Rani and Exs.A1 to A8 were marked. The fourth defendant-Narayanan examined himself as D.W.1 and Exs.B1 to B5 were marked. (g) The trial Court disposed of both the suits by separate judgments. The suit for partition (O.S.No.97 of 2006) was ordered allotting half share in favour of the plaintiffs, who happened to be the three daughters of deceased Jayaraman, the propositus concerned in this case and the remaining half share was allotted in favour of D1 - the wife and D2 and D3 the sons of deceased Jayaraman. D4 is the agreement holder in respect of the item number 10 of the suit properties, under the agreement to sell which emerged between D2 and D3 as proposed sellers and D4 as proposed purchaser. (h) The trial Court also granted decree of specific performance (O.S.No.69 of 2006) in favour of D4 in respect of the said 10th item. (i) The defendants in the specific performance suit O.S.No.69 of 2006 preferred A.S.No.50 of 2009 and the plaintiffs in the partition suit O.S.No.97 of 2006 filed another appeal A.S.No.20 of 2010. Both the appeals were heard together and disposed of by separate judgments. The appellate Court in the appeal relating to specific performance suit held that the agreement to sell itself was bad in law and in the appeal relating to partition suit, modifications were ordered relating to trial Court's judgment. Being aggrieved by and dissatisfied with the judgments and decrees of the first appellate Court, these two Second Appeals have been filed by Narayanan, who is D4 in O.S.No.97 of 2006 and the plaintiff in O.S.No.69 of 2006. 3. Succinctly and tersely, the germane facts would run thus: Indubitably and indisputably, unarguably and unassailably, the deceased Jayaraman was treated by all the parties concerned to this lis as the owner of the suit properties, who died during the year 1995 leaving behind his wife Pavunammal-D1 and his two sons, D2- Kuppan and D3-Ponnusamy, and his three daughters, P1-Alamelu, P2-Kala https://hcservices.ecourts.gov.in/hcservices/ and P3-Geetha in O.S.No.97 of 2006. Regarding the respective shares of the heirs of Jayaraman is concerned, absolutely there is no dispute as the parties agreed that each of the legal heirs of Jayaraman would be entitled to one sixth share. It so happened that even before the litigation erupted, D2 and D3 executed an agreement to sell in favour of D4 agreeing to sell the tenth item of the suit properties, whereupon only, D4 in O.S.No.97 of 2006, who is the plaintiff in O.S.No.69 of 2006, filed that suit for specific performance. However, P1 to P3 the daughters of Jayaraman filed the said partition suit in respect of as many as ten items including the item involved in the suit for specific performance. The main dispute before me now is as to whether the agreement holder Narayanan could specifically get a sale deed executed in his favour relating to the 10th item of the suit properties referred to in the partition suit O.S.No.97 of 2006 ,and which is the suit property in the specific performance suit O.S.No.69 of 2006. 4. In my considered opinion, the substantial question of law involved in these matters would run thus: (1) Whether the first appellate Court was justified in holding the agreement to sell – Ex.A.1 dated 17.07.2005, is bad in law and unenforceable, as against the settled proposition of law as found highlighted in the various precedents of the Hon'ble Apex Court and if such agreement is valid and enforceable, then at what stage and how it is enforceable? 5. The learned Senior Counsel for the appellant, so to say the agreement holder in both the appeals, would put forth and set forth his arguments, the warp and woof of them would run thus: The law is well settled that even if a co-owner enters into an agreement to sell with a third party relating to his share and also in excess of his share, then it is for the Court to order specific performance of the respective share of the proposed seller and equity has to be worked out in the process of partitioning such joint properties and at any rate such agreement to sell cannot be held as void and bad in law as held by the first appellate Court erroneously. 6. Per contra, in a bid to torpedo and pulverise and to take the edge off the arguments as put forth and set forth on the side of the appellants, the learned counsel for P1 to P3 in O.S.No.97 of 2006 and the corresponding respondents would advance his arguments thus: This is a peculiar case in which partition suit as well as the suit for specific performance both came to be decided by two separate judgments by the appellate Court. The interest of three daughters of https://hcservices.ecourts.gov.in/hcservices/ Jayaraman should be protected and over and above that, if the agreement holder, Narayanan, the appellant herein wants to get his right enforced, then it is for him to seek equity at the final decree proceedings and while passing preliminary decree, the proposed purchaser cannot try to obtain an order from the Court so as to secure his alleged exclusive right over the 10th item of the suit properties in O.S.No.97 of 2006. 7. The learned counsel for D2 and D3, the sons of Jayaraman in O.S.No.97 of 2006 would submit that the first appellate Court was correct in holding that the said agreement to sell as sought to be enforced by the appellant herein, was bad in law and no interference is required. 8. I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2005) 5 SCC 142[ Surinder Singh v. Kapoor Singh,]; certain excerpts from it would run thus: "9. Section 12(3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the appellant herein was not authorised by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regards performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff claiming the relief unless the defendant establishes prejudice. 15. The question which deserves consideration now is as to whether the application for amendment of the plaint filed by the plaintiff-respondents should be allowed. Sub-section (3) of Section 12 does not lay down any limitation for filing such an application. Such an application can be filed at any stage of the proceedings and in that view of the matter an application even before this Court would be maintainable." https://hcservices.ecourts.gov.in/hcservices/ (ii) (1990) 3 SCC 517 [ Kartar Singh v. Harjinder Singh]; certain excerpts from it would run thus: "4. We are afraid that the very foundation of the reasoning of the Division Bench of the High Court is defective. It was never disputed that the respondent and his sister had each half share in the suit properties. Hence a mere failure to mention in the agreement that they had such share in the property would not entitle one to come to the conclusion that they did not have that share. When the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the joint owners owns a moiety of the property. In the present case, there is neither a pleading nor a contention that the respondent and his sister did not own the property in equal shares. Secondly, the agreement of sale clearly mentions that respondent was entering into the agreement both on behalf of himself and his sister, and that he was, under the agreement, selling the whole of his share and also the whole of the share of his sister in the property. Further in the agreement itself he had stated that he was responsible to get the sale deed executed by his sister and that he would persuade her to do so. This being the case, the properties agreed to be sold were clearly distinguishable by the shares of the respective vendors. In the circumstances 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 it and whose property is identifiable by his specific share. 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 https://hcservices.ecourts.gov.in/hcservices/ was with respondent in respect of his share in the property. 6. 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." (ii) The decision of the Madurai Bench of this Court reported in 2011(2) CTC 727 [Navaneethakrishnan and 7 others v. S.A.Subramania Raja]; an excerpt from it would run thus: "22. According to me, the share owned by Appellants 2 and 3 and their mother Avudaithayammal viz., 1/3 share in total in the suit property forms a considerable part of the whole and therefore, the Respondent is entitled to obtain decree of specific performance by paying the agreed price reduced by the consideration for the part which is left unperformed. In other words, if the Respondent is prepared to pay 1/3 of the sale consideration, he is entitled to get the relief of specific performance in respect of 1/3 share in the suit property. As a matter of fact, in the judgment reported in 1993(1) LW 599 cited supra, the same principle has been upheld and the decree was modified. The Honourable Supreme Court in the judgment A.Abdul Rashid Khan (Dead) and others, v. P.A.K.A. Shahul Hamid and others, 2000 (1) SCC 636, and in the judgment Manzoor Ahmed Magray v. Ghulam Hassan Aram and others, 1999 (7) SCC 703, held that where any property is held jointly and once any party to the contract has agreed to sell such joint property, the agreement, then, even if the other co- sharer has not joined, at lest to the extent of his share, the party to the contract is bound to execute the Sale Deed. The same principle was reiterated in Kammana Sambamurthy v. Kalipatnapu Atchutamma, 2011(1) MWN https://hcservices.ecourts.gov.in/hcservices/ (Civil) 99 (SC) : 2011 (1) MLJ 404(SC). The other judgments relied upon by the learned Counsel for the Appellants are in respect of a contract where the remaining part which left unperformed forms part of a considerable portion and the parties can execute sale in respect of only a fraction of share and in such circumstances, it was held that the Agreement of Sale is not entitled to the specific performance." 9. A mere poring over and perusal of the aforesaid judgments would amply make the point clear that even undivided shares could be the subject matter of agreement to sell and the only remedy open for such agreement holder is to get the specific share of the proposed seller carved out from the joint property and obtain sale deed in respect of the same. As such, I am of the considered view that the first appellate Court was not right in simply holding that the said agreement to sell is bad in law and the first appellate Court was not justified in reversing the judgment and decree of the trial Court in ordering specific performance. However, the trial Court was not right in holding that the appellant herein, namely D4-Narayanan was entitled to the specific item, namely item 10 of the suit property. Only during final decree proceedings the shares of D2 and D3 would be carved out and allotted and in that process, D4 would be able to step into the shoes of D2 and D3 and get his right enforced to the extent possible and accordingly equity has to be worked out during final decree proceedings. While passing the preliminary decree in a partition suit, it is the normal rule to declare the quantum of the shares of the sharers and the proposed purchasers of the shares of the undivided share holders would be considered only during final decree proceedings based on equity. 10. Wherefore, the aforesaid substantial question of law is answered to the effect that the first appellate Court was not justified in holding the agreement to sell – Ex.A.1 dated 17.07.2005, as bad in law and unenforceable. 11. In the result, the judgments and decrees of the appellate Court shall stand modified as under: Each of the heirs of Jayaraman, namely P1 to P3 - the daughters, and D1 - the widow, and D2 and D3 - the sons of Jayaraman, are entitled to one sixth share in all the items of the suit property including the tenth item as found set out in O.S.No.97 of 2006 and accordingly preliminary decree shall follow. D4 in O.S.No.97 of 2006 who happened to be the plaintiff in the specific performance suit O.S.No.69 of 2006 is entitled to get the equity worked out during final decree proceedings by stepping into the shoes of D2 and D3 to the extent possible and accordingly, the lower https://hcservices.ecourts.gov.in/hcservices/ Court shall work out the equity and deal with the matter. 12. Accordingly, these two Second Appeals are disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. 13. The learned counsel for the plaintiffs 1 to 3 in O.S.No.97 of 2006 would submit that at the most the appellant would be entitled to only 1/6 + 1/6 shares of D2 and D3 in the 10th item of the suit properties and not to that entire item even under equity. I would like to point out that such an argument is totally antithetical to the equity concept contemplated while partitioning properties during final decree proceedings and there are well defined procedures for working out the equity of the purchaser of undivided share and the same shall be adhered to by the lower Court during final decree proceedings. 14. I would like to disambiguate the ambiguity if any in my above direction by elaborating that out of several joint family properties if a co-sharer sells one of the items to a third party, then the purchaser has got the right to pray before the court to apply equity to allot the very same property, which he purchased from one of the co-sharers in favour of the said vendor co-sharer so that the vendee, third party purchaser would be able to enjoy it as his property. But the court before accepting such prayer should see how far that would be conducive for allotting such item which was already sold by one of the co-sharers in favour of the third party purchaser and it should not be detriment to the other co-sharers. The other co-sharers cannot insist without valid reason that under all circumstances in the item purchased by the third party from one of the co-sharers only a small portion should be allotted to the purchaser in commensurate with the share of the said vendor's share in the entire property and the remaining shares in that individual item should be allotted to other co-sharers. However, if there is only one undivided property of the co-sharers and if one of the co- sharers sells his share, then the matter would be different. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Gms https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Judge, Kancheepuram. 2. The District Munsif at Uthiramerur. 4 cc To Mr.R.Krishnan, Advocate, SR.27487 & 27488 1 cc To Mr.Y.Jyothish Chander, Advocate, SR.27443 S.A.Nos.1566 and 1567 of 2010 sai(co) pmk.27.4.2011 https://hcservices.ecourts.gov.in/hcservices/