2015 INSC 0595 SUPREME COURT OF INDIA Hanumappa Channappa Hullur Vs. Shivamaruthappa Parappa Kalli & Ors. C.A.No.411-412 of 2004 (C.Nagappan and M.Y.Eqbal, JJ.) 21.08.2015 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. 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 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 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 1 SpotLaw 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, 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 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 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 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) an1 2 SpotLaw and Kamman Sambamurthy (Dead) by LRs. Vs. Kalipatnapu Atchutamma (Dead) and others2 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 partial relief of specific performance cannot be granted. Reliance was placed on the decision of this Court in HPA International Vs. Bhagwandas Fateh Chand Daswani3 and others 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 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 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 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. 3 SpotLaw 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." 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 o the decision in Kartar Singh Vs. Harjinder Singh4 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 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 Judgment Referred. 1(2000) 10 SCC 636 2(2011)11 SCC 153 3 (2004) 6 SCC 537 4(1990) 3 SCC 517 4 SpotLaw 5 SpotLaw