REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6088 OF 2003

Kammana Sambamurthy (D) By  LRs.        …Appellants

Versus   Kalipatnapu Atchutamma (D)  & Ors.    ...Respondents

WITH

CIVIL APPEAL NO. 7265 OF 2003

JUDGEMENT

R.M. Lodha, J.

The  original  contesting  parties  are  dead.  They  are  

now  represented  by  their  legal  representatives.  This  is  not  

unusual when litigation goes on for more than 25 years.

2. These two appeals, one  by the legal representatives  

of  Kammana Sambamurthy (original  plaintiff)  and the  other  by

legal  representatives  of   Kalipatnapu  Atchutamma  (original  

defendant no. 2) are directed against the judgment and decree  

dated  December  23,  2002  passed  by  the  High  Court  of  

Judicature,  Andhra  Pradesh,  at  Hyderabad.   The  High  Court  

modified the judgment and decree dated July 2, 1991 passed by  

the  Subordinate  Judge,  Anakapalli  in  a  suit  for  specific  

performance of the contract.  The husband of defendant no. 2 –  

Kalipatnapu Kamaraju - was original defendant no. 1; he is also  

dead.  For  convenience, we shall refer to the original plaintiff, ‘the  

vendee’; the original defendant no. 1, ‘the vendor’ and the original  

defendant no. 2, ‘the vendor’s wife’. The facts, as we find them,  

are shortly as follow.  

3. On February  19,  1984,  the  vendor  entered  into  an  

agreement of sale (for short, `the agreement’) with the vendee  in  

respect of a tiled house consisting of six rooms, verandah, three  

mulgis upstair portion consisting of one room, hall and verandah  

inclusive  of  entire  area pertaining to  the house along with  the  

entire vacant site situate in door no. 9.118 bearing assessment  

116 at  village Payakaraopet,  District  Visakhapatnam (for  short,  

‘the property’) for a consideration of Rs. 1,00,000/-.   The vendee  

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paid Rs. 10,000/- in advance and the remaining consideration of  

Rs. 90,000/- was agreed to be paid at the time of execution and  

registration  of  the  sale  deed.   The  vendor  in  the   agreement  

represented that  he was absolute  owner of  the property.   The  

agreement  reads as follows :

“ SALE AGREEMENT DATED 19-2-1984

Absolute Sale Agreement for Rs. 100000/- (Rupees one  lakh)  in  respect  of  the  immovable  property  i.e.  tiled  house, building upon the tiled house inclusive of entire  vacant  site  pertaining to  the house got  executed and  delivered  on  19-2-84  in  favour  of  Kommana  Samba  Murthy  S/o  Kommana Adaiah  r/o  Namavaran Village,  Nekkapalli Tq. Visakhapatnam District.

By

Kalipatanapu  Kamaraju  s/o  Kalipatnapu  Suryanarayana r/o Payakaraopet Village, Ditto Tq. Ditto  District is as follows :-

II. As regards the property mentioned in para no. III in  schedule hereunder wherein I have possessed absolute  right  and enjoyment and which fell  to  my share in the  partition effected in respect of immovable property with  my brothers about forty years back and ever since has  been in my possession and enjoyment and situated in  southern row of G.N.T. road of Payakaraopet village i.e.  the tiled house,  six  rooms,  verandah,  3 mulgis  upstair  portion  consisting  of  one  room,  hall  and  verandah  inclusive of entire area pertaining to the house along with  the entire vacant site there of belonging to me. I  have  settled  to  sell  the  same  to  you  for  the  reason  that  I  attained old age and did not have any male children and  

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with intention to spend my rest of life with any one of my  daughters and thinking that it  is  better to augment the  cash balances as you offered today higher price, then I  agreed there to and settled to sell the property to you.

Having regard for a sale consideration of Rs. 100000/-  (Rupees one lakh only) this agreement of sale has been  executed  and  delivered  to  you.  Out  of  the  sale  consideration you have paid Rs. 10000/- as advance in  the  presence  of  undersigned  witnesses  at  the  time of  execution  of  this  sale  agreement  and  the  same  was  received by me. Therefore starting from this date you are  requested  to  pay  by  20-6-84  the  balance  sale  consideration of Rs. 90000/- payable to me and shall get  the sale deed executed as per your plan on your name or  the name chosen by you on a proper stamp paper and  shall  get  the  same registered and delivered  to  you  at  your  expense.  Having  assured  you  to  the  effect  that  excepting me, none have got any right over this property  and having proved that the measurements,  boundaries  and circumstances in respect of the property are proper  and correct and that this property had not been subjected  to any alienation by way of mortgages etc. and that it is  an  undisputed  property  and  after  making  you  to  so  believe  this  sale  agreement  has  been  executed  and  delivered to you. The say situated on the rear side of the  house i.e. an extent of 3.9 feet in width and 91 feet in  length  happens  to  be  the  common  passage  to  this  property and also to Nudala Chekeenam Chokka Rao.  As requested by you I shall obtain the witness signatures  of my daughters who are near to me and those who are  living in far of areas, I shall get their voluntary consent  letters in your favour.

III. Situated  in  door  No.  9.118  bearing  assessment  116 a tiled house consisting of six rooms, verandah, 3  mulgis, upper terrace portion consisting of a room, hall  and verandah together  with  entire  vacant  site  there of  situated in southern row of G.N.T. road of Payakaraopet  village  and  which  has  been  included  in  Payakaraopet  grama panchayat limits in Nekkapalli Tq. Visakhapatnam  District and the boundaries whereof are as follows :-

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East : 196  feet  vacant  site  belonging  to  Venkata  Ramalinga Swamy and others

South : 54  feet  houses  belonging  to  Nemmi  Gouraiah and others

West : 196 feet house, site belonging to Bekivalla   Bapi Raju

North : 37 feet, G.N.T. Road.

The house and vacant site comprising within the  aforesaid boundaries has been sold to you. This is the  absolute sale agreement get executed and delivered with  my consent.”

4. On March 24, 1984, the vendor’s wife sent a notice to  

the vendee as well  as vendor calling upon them to cancel  the  

agreement   as  she  held  half  share  in  the  property  having  

devolved  upon  her  on  the  death  of  her  son  K.  Appala  

Suryanarayana Murthy.  She stated in the notice that she was not  

willing to sell her share and was ready to purchase the share of  

the vendor (her husband).

5. On March 28, 1984, the vendee replied to the notice  

sent to him by the vendor’s wife and asserted that the  agreement  

was binding on her and the notice has been given in collusion  

with the vendor.  

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6. On March 30, 1984, the vendee sent a notice to the  

vendor calling upon him to receive the balance sale consideration  

of Rs. 90,000/- from him and execute the sale deed along with his  

wife (if she has any right in the property) as per the terms of the  

agreement failing which he may be constrained to initiate action  

for necessary reliefs.

7. On  April  21,  1984,  the  vendor  sent  reply  to  the  

vendee’s notice dated March 30, 1984 informing him that he was  

unable to execute sale deed in the vendee’s favour and he may  

take back sum of Rs. 10,000/- that was paid in advance.

8. The vendee then filed a suit for  specific performance  

of the agreement  against the  vendor and his wife.  He prayed for  

a direction to them  to execute  sale deed as per the terms of the  

agreement  and get it registered  after taking the remaining sale  

consideration of Rs. 90,000/- and if they  fail to execute the same  

as per the directions of  the court,  then court  may execute the  

sale deed after the vendee deposits the balance sale price within  

time allowed by the court. In the alternative, the vendee prayed  

for refund of the advance amount along with interest.

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9. The  vendor  and  his  wife  filed  separate  written  

statements. The vendor admitted execution of  agreement  and  

receipt of advance amount of Rs. 10,000/-. The vendor averred  

that he had one son,  K. Appala Suryanarayana Murthy who had  

half share in the property; he died intestate and after his death,  

his  half share devolved upon his wife and thus he does not have  

absolute title to the property and unable to execute the sale deed.

10. The vendor’s wife mainly set up the plea that her son  

died intestate and she succeeded to his share; her husband is not  

the absolute owner of the  property; she is not willing to part with  

her share and she has already asked  her husband to sell  his  

share to her.  

11. The  Subordinate  Judge,  Anakapalli  in  light  of  the  

pleadings of the parties framed  issues and after recording the  

evidence and hearing the parties decreed the suit in the following  

manner :

“In the result, the suit is decreed with costs and with a  direction  that  the  defendants  1  and  2  shall  execute  registered  sale  deed  as  per  the  terms  of  the  sale  agreement dated 19-2-84 in favour of the plaintiff after  taking the remaining sale consideration of Rs. 90000/-  on or before 2-9-91 at the costs of the plaintiff and the  plaintiff  is  hereby  directed  to  be  get  ready  with  the  remaining  sale  consideration  by  Rs.  90000/-  and  

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expenses  for  registration  on  or  before  3-9-1991  by  informing the defendant for its registration…….”  

12. The  vendor’s  wife  being  not  satisfied  with  the  

judgment  and  decree  dated  July  2,  1991  passed  by  the  

Subordinate Judge, Anakapalli  preferred first  appeal before the  

High  Court.  The  High  Court  in  view of  the  contentions  raised  

before it formulated the following points for determination :

“1) Whether the suit house is the ancestral property  of the first defendant?

2) Whether the suit house contract of sale binds the  second defendant?

3) Whether the second defendant has got the right   to purchase the half share of the first defendant?

4) Whether the suit contract of sale is not voidable  having been made by the ostensible owner,  the  first defendant and as the plaintiff acted in good  faith?

5) To what relief?”

13. The High Court recorded the findings namely,  that on  

the basis of the factual matrix and the evidence adduced by the  

defendants, it was made out that the vendor and his wife had a  

son who died intestate and that   the property  was   ancestral  

property in which the deceased son had half share and that share  

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devolved  upon the vendor’s wife;   the vendee cannot be said to  

have any knowledge that the vendor’s wife had half share and in  

the absence of any express authority from his wife, the vendor  

could  not  alienate  or  otherwise  dispose  of  her  share  in  the  

property. The High Court did not accept the plea of the vendee  

that  vendor  had  implied  authority  or  that  vendor’s  wife  was  

estopped from raising the plea that the agreement did not bind  

her.  The  High  Court  finally  held  that  the  agreement  of  sale  

although covered the entire property  but as the vendor  had only  

half share and interest in the property,   the decree for specific  

performance could only be granted to the extent of the vendor’s  

share in the property.  The High Court, accordingly,   allowed the  

appeal preferred by vendor’s wife to the extent of half share in the  

property and the judgment and decree of the Subordinate Judge  

was confirmed to the extent of half  share of the vendor in the  

property.

14. We heard Mrs. Sudha Gupta, learned counsel for the  

legal  representatives  of  the  vendee  and  Mr.  A.T.M.  Sampath,  

learned counsel for the legal representatives of the vendor’s wife.  

15. Mr. A.T.M. Sampath, learned counsel for the vendor’s  

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wife  would  have  us  believe   that  the  agreement   is  not  an  

agreement of sale but an invitation to offer as it is only signed by  

the vendor.  We are not impressed. That the agreement  is an  

agreement of sale  and there has been  concluded contract in this  

regard between the vendor and vendee has not at all been  in  

dispute. The vendor in his reply dated April 21, 1984  to the notice  

received  from  the  vendee   did  not  dispute  the  nature  of  the  

agreement.    In  the  plaint,  the  vendee  made  the  following  

averment with regard to the agreement:

“…….The  1st defendant  offered  to  sell  the  plaint  schedule house and site representing that he has got  absolute title in them and that no others have got title  in the said property. The plaintiff accepted to purchase  the property  after  making due inquiries.  After  mutual  deliberations the plaintiff  offered to purchase the suit  schedule  property  for  one  lakh  rupees.  The  first  defendant  executed sale agreement on 19-2-1984 in  favour of the plaintiff, agreeing to sell the suit property  to  plaintiff  for  the  said  sum  of  one  lakh  and  also  agreeing to receive the balance of consideration on or  before 20-6-1984 and to execute registered sale deed  at the expense of the plaintiff in  favour of plaintiff or to  his  order  and  also  undertaking  to  get  his  daughters  and make them attest the sale deed. The plaintiff paid  Rs. 10000/- (Rupees ten thousand only) as advance at  the  time  of  the  said  sale  agreement.  The  first  defendant undertook to deliver possession of the suit  schedule property on the date of sale deed…….”

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The  vendor  filed  written  statement  and  therein  he  admitted  

execution of the  agreement  in the following words :

“…..The averments that this defendant executed a sale  agreement on 19-2-1984 in favour of plaintiff offering to  sell the schedule house and site for a sale consideration  of  Rs.  100000/-  (one  lakh)  agreeing  to  receive  the  balance of  sale  consideration on or  before 20-6-1984  and  to  execute  a  sale  deed  at  the  expense  of  the  plaintiff and that on the date of sale agreement received  an amount  of  Rs.  10000/-  towards  sale consideration  are true…..”

16. As a matter of fact, in view of the admitted position  

between the parties, particularly,  the vendor and vendee about  

the agreement,    no issue was struck by the trial  court  in this  

regard nor any argument was advanced on behalf of the vendor  

before the trial court that the agreement  was not an agreement of  

sale or that the same did not tantamount to concluded contract.  

Insofar  as  vendor  is  concerned,  he  did  not  challenge  the  

judgment  and  decree  passed  by  the  trial  court.  It  was  only  

vendor’s  wife  who  filed  appeal  being  not  satisfied  with  the  

judgment  and  decree  dated  July  2,  1991  passed  by  the  

Subordinate Judge before the High Court. Even before the High  

Court, no plea was raised by the vendor’s wife or  the vendor that  

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the  agreement   is  not  a  concluded  contract  for  sale  of  the  

property.  The  submission   of  Mr.  A.T.M.  Sampath  that  the  

agreement is not  an agreement of sale but an invitation to offer is  

afterthought and does not merit further consideration.  

17. As to whether the property is  ancestral property or  

not, the finding of the two courts is divergent.  The trial court held  

that  the  property  was  not  the  ancestral  property  but  the  High  

Court  on  reappraisal  of  the  evidence  did  not  agree  with  that  

finding. The High Court considered the matter thus :

“…….Whatever  may  be  the  reason  behind  in  getting  Ex.A2  notice  issued  while  seeking  to  avoid  Ex.A2  transaction, the legal position cannot be doubted that half  share in the suit house was devolved upon the second  defendant on account of the death of her son, in as much  as by birth, the son got half share along with his father in  the ancestral property and the mother succeeded to the  same as Class I heir. It is also clear that under section 14  of the Hindu Succession Act,  the share devolved upon  the mother would become the Streedhana property. The  husband under such circumstances,  in  the absence of  any express authority  from the wife  cannot  alienate or  otherwise  dispose  of  the  Streedhana  property  of  his  wife…….”

In our view, the High Court has considered this aspect in the right  

perspective  and  we  find  no  justifiable  reason  to  take  a  view  

different from the High Court.

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18. Having regard to the conclusion that the vendor’s wife  

has got half share in the property and that she is not executant to  

the  agreement,  what  needs  to  be  considered  is,  whether  the  

agreement   binds the vendor’s wife.  According to vendee, the  

vendor  had  implied  authority  to  enter  into  agreement   of  the  

property  and  the  vendor’s  wife  was  clearly  aware  of  that  

agreement and, therefore, she is estopped from raising the plea  

that  she  is  not  bound  by  that  agreement.  The  High  Court  

considered the evidence on record and held that no express or  

implied  authority  by  the  wife  in  favour  of  her  husband  is  

discernible from the facts and evidence. We agree. As regards  

applicability of Section 41 of the Transfer of Property Act, 1882  

(T.P. Act), the High Court observed that it was not even the case  

of the vendee that the vendor was the ostensible owner of the  

property and, therefore, Section 41 has no application. We think  

that High Court is right and in view of the aforenoticed findings of  

the High Court, the conclusion that vendee is not entitled to seek  

specific performance of the agreement to the extent of half share  

of vendor’s wife cannot be faulted.  

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19. The  crucial  question  in  the  case  is  whether  the  

agreement  could be enforced against the vendor to the extent of  

his half share in the property. The terms of the agreement show  

that the vendor represented to the vendee that he was absolute  

owner of the property that fell to his share in the partition effected  

with his brothers and he did not have any male child. The vendor  

assured the vendee that excepting him none has got any right  

over the property and he would obtain the witness signatures of  

his daughters and get their voluntary consent letters in his favour.  

It is clear from the evidence that the vendee had no knowledge  

that vendor’s wife has half share in the property which devolved  

upon her on the death of her son intestate.  

20. Section 12 of the Specific Relief Act, 1963 reads as  

follows :

“S.-  12. Specific performance of part of contract.-  

(1) Except  as  otherwise  hereinafter  provided  in  this  section,  the  court  shall  not  direct  the  specific  performance of a part of a contract.  

(2) Where a party to a contract is unable to perform the  whole of his part of it, but the part which must be left  unperformed by only a small proportion to the whole in  value and admits of compensation in money, the court  may,  at  the  suit  of  either  party,  direct  the  specific  performance  of  so  much  of  the  contract  as  can  be  

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and (4). The circumstances mentioned in these sub-sections are  

exhaustive. Is Section 12 attracted in the facts and circumstances  

of the present case? We do not think so. 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  

vendor had only half share in the property and his wife held the  

remaining half. The agreement is binding on the vendor as it is  

without  being  fractured.  As  regards  him,  there  is  neither  

segregation  or  separation  of  contract  nor  creation  of  a  new  

contract.  In  Kartar Singh v.  Harjinder Singh & Ors.1,  this Court  

was concerned with a case where vendor—brother and a sister  

had each half share in the suit properties. The agreement for the  

sale was executed by the brother concerning the suit properties in  

which the sister had half share. The sister was not executant to  

the agreement; rather she refused to accept the agreement. The  

question  for  consideration  before  this  Court  was  whether  

agreement could be enforced against the vendor—brother to the  

extent of his half share. This Court  considered Section 12 and  

held as under : 1 (1990) 3 SCC 517

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“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 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.”

22. Kartar  Singh1  has  been  followed  by  this  Court  in  

Manzoor  Ahmed  Magray v.  Ghulam Hassan  Aram &  Ors2.  In  

Manzoor Ahmed Magray2, this Court considered the matter in the  

context of Section 15 of J & K Specific Relief Act, 1977 which is  2 (1999) 7 SCC 703

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pari materia to Section 12 of Specific Relief Act, 1963. This Court  

said :

“…….Hence, there is no bar for passing the decree for  specific relief with regard to 1/3rd or 2/3rds share owned  by the contracting party for which he can execute the  sale deed. For the share of Ghulam Rasool (brother of  Defendant  1)  admittedly,  no decree is  passed by the  High Court.  Dealing with the similar  contention where  agreement  was  for  sale  of  property  belonging  to  a  brother and sister each having a half share, the Court in  Kartar  Singh v.  Harjinder  Singh held  that  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  and  his  property  is  identifiable  by  specific share. The Court further held that such case is  not  covered by Section 12 of  the Specific  Relief  Act,  1963 which relates to specific performance of a part of a  contract.  Such  type  of  case  would  be  the  case  of  specific performance of the whole of the contract so far  as  the  contracting  party  is  concerned.  Further,  whenever a share in the property is sold the vendee has  the right to apply for the partition of the property and get  the share demarcated. Hence there would not be any  difficulty in granting specific performance of the contract  to the extent to which it is binding between the parties.”

23. In the case of A. Abdul Rashid Khan (Dead) & Ors.  v.  

P.A.K.A. Shahul Hamid & Ors.3,  this Court held that 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,  

the party to the contract is bound to execute the sale deed. In that  3 (2000) 10 SCC 636

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case, the suit property originally belonged to one Aziz Khan. On  

his death,  his heirs under the Muslim law—nine sons and two  

daughters inherited that  property.  The sons agreed to sell  that  

property to the first respondent therein. However, some dispute  

arose  between  the  parties  and  that  necessitated  the  first  

respondent   therein  to  file  the  suit  for  specific  performance in  

which  the  executants  of  the  agreement  as  well  as  the  two  

daughters of Aziz Khan were impleaded as defendants.  It was  

admitted case that the daughters of Aziz Khan had not joined in  

the  agreement  of  sale.  The  trial  court  dismissed  the  suit  by  

holding  that  the  agreement  was  indivisible  and  could  only  be  

enforced  if  the  daughters  of  Aziz  Khan  agreed.  The  first  

respondent  therein  preferred  an  appeal  before  the  High  Court  

against the judgment and decree of the trial court. The High Court  

held that he had not pleaded and proved that the daughters of  

Aziz  Khan  had  agreed  to  sell  the  suit  property  and  hence,  it  

cannot be held that the said agreement was by all the heirs of  

Aziz Khan. The two daughters of Aziz Khan were held not bound  

by the agreement. However, the High Court held that insofar as  

the  executants  of  the  agreement  (sons  of  Aziz  Khan)  were  

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concerned  they  were  bound  by  it  and  valid  and  enforceable  

contract  existed  between the  first  respondent  and  the  sons  of  

Aziz  Khan.  The  High  Court,  accordingly,  granted  decree  for  

specific  performance  to  the  extent  of  5/6th shares  which  Aziz  

Khan’s sons had in the property. This Court affirmed the decree  

of the High Court and it was held that plaintiff’s suit for specific  

performance to the extent of 5/6th share was rightly decreed by  

the High Court warranting no interference. While holding so, this  

Court relied upon earlier decision in the case of Manzoor Ahmed  

Magray2.

24. In view of the above decisions of this Court and the  

facts and circumstances which have already been noticed by us,  

in  our  opinion,  there  is  no impediment  for  enforcement  of  the  

agreement  against the vendor to the extent of his half share in  

the property. However, Mr. A.T.M. Sampath, learned counsel for  

the vendor’s wife placed great reliance upon HPA International v.  

Bhagwandas Fateh Chand Daswani & Ors.4 and, particularly, the  

following paragraphs of the report.

“67. If  the  vendee  intended  to  seek  conveyance  separately of the life interest of the vendor, the earliest  opportunity  for  him was  when  he  had  received  notice  

4 (2004) 6 SCC 537

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dated 11-9-1979 sent through the lawyer by the vendor  cancelling  the  contract.  Assuming  that  at  that  time he  could not opt for lesser relief as the suit for sanction was  pending,  he  could  have,  in  any  case,  opted  for  conveyance of life interest of the vendor soon after he  came  to  know  of  the  negotiations  for  sale  with  Bob  Daswani, which took place in the presence of one of the  partners of the plaintiff  vendee. Even after deriving the  knowledge of the execution of the sale deed dated 29- 12-1979  Ext.  D-1,  the  option  to  obtain  lesser  relief  of  transfer  of  life  interest  was  not  exercised.  It  was  exercised as late as on 25-11-1986 by filing an affidavit  and  at  the  time  when  pleadings  of  the  parties  were  completed and the joint trial in the two suits had already  commenced. During long pendency of the suits between  1979  to  1986,  the  parties  interested  in  the  property  changed  their  positions.  The  vendor  by  executing  a  registered sale deed in favour of the subsequent vendee  got his public dues paid to relieve the pressure on the  property and obtained market price of the property. After  obtaining possession of the property pursuant to the sale  deed,  the  subsequent  vendee  has  raised  construction  and inducted tenants.  Accepting the legal stand based  on Sections 90, 91 and 92 of the Indian Trusts Act that  the  subsequent  vendee,  being  a  purchaser  with  knowledge of prior agreement, is holding the property as  a trustee for the benefit of the prior vendee, the vendor,  who changed his position by effecting a subsequent sale  cannot  be  compelled  to  convey  his  life  interest  when  such  lesser  relief  was  not  claimed  at  the  earliest  opportunity  and  the  terms  of  the  contract  did  not  contemplate transfer of life interest alone.”

98. The  above  argument  has  no  merit  and  the  aforesaid decision is hardly of any help to the vendee.  This is  not  a case where the vendor had only right of  spes successionis and after execution of agreement of  sale,  he  subsequently  acquired  full  interest  in  the  property to be held bound by Section 43 of the Transfer  of Property Act.  In the case before us, the reversioners  were not parties to the agreement of sale.   When in the  suit for sanction to transfer their interest they were made  parties and were noticed, they expressly objected to the  

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proposed transfer.  No principle of estoppel or provisions  of  Section  43  of  the  Transfer  of  Property  Act  can,  therefore,  operate  against  them.   So  far  as  the  subsequent vendee is concerned, in the course of suit,  he was pushed to a position in which he could not take a  stand that he had no knowledge of the prior agreement  with  the  vendee  but  he  has  separately  purchased life  interest from the vendor and obtained separate release  deeds,  on  payment  of  consideration,  from  the  reversioners.  The reversioners being not parties to the  sale agreement, Ext. P-1 entered into with the vendee,  the latter could not enforce the contract, Ext. P-1 against  the former.”  

It  is  sufficient  to  say that  the agreement  of  sale and the facts  

which  their  Lordships  had  to  consider  in  the  case  of  HPA  

International4 were in many respects different from the agreement  

in the present case. In that case vide agreement of sale (Exhibit  

P1)  therein,  full  interest  in  the property,  i.e.  life  interest  of  the  

vendor and spes successionis of reversioners with sanction of the  

court was agreed to be sold. The reversioners were not parties to  

the sale agreement  that  was entered with  the vendee therein.  

The parties were conscious that the vendor had only life interest  

in  the  property  and  he  could  not  convey  more  than  his  own  

interest.  The court found that vendee entered into a speculative  

deal for obtaining full interest in the property depending upon the  

sanction to  be granted by the court.  In  the backdrop of  these  

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facts,  this Court  observed in paragraphs 68,  69 and 70 of  the  

report thus :

“68. On  duly  appreciating  the  evidence  on  record,  construing  specific  terms  of  the  contract  and  considering the conduct of the parties, we have arrived  at the conclusion that the rescission of the contract, due  to non-grant of sanction by the Court within two years  after execution of the contract and filing of the suit for  sanction, was not an act of breach of contract on the  part  of  the vendor  to  justify  grant  of  relief  of  specific  performance of the contract to the prior vendee.

69. We are also of the view that the plaintiff vendee, by  his  own act  in  the pending suits,  was responsible for  rendering the suit for sanction as infructuous. He was  guilty of lapse in not seeking conveyance of life interest  of the vendor at the earliest opportunity when notice of  rescission of the contract was received by him and later  when  he  derived  the  knowledge  of  execution  of  registered  sale  deed  in  favour  of  the  subsequent  vendee. The option was exercised conditionally in the  midst of the joint trial of the two suits.

70. There was one integrated and indivisible contract by  the vendor to convey full interest in the property i.e. his  own life interest and the interest of the reversioners with  sanction of the Court. As the Court had not granted the  sanction, the contract could not be specifically enforced.  The  lesser  relief  of  transfer  of  life  interest  was  not  claimed within a reasonable time after the vendor had  intimated that  the contract,  as agreed for full  interest,  was not possible of performance. We find that neither  equity nor law is in favour of the plaintiff vendee.”

The Court  further  observed in  paragraph 100 of  the  report  as  

follows :

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“100. In the case before us, we have not found that the  vendor  was  guilty  of  rendering  the  suit  for  sanction  infructuous. It did terminate the contract pending the suit  for sanction but never withdrew that suit.  The vendee  himself prosecuted it and rendered it infructuous by his  own  filing  of  an  affidavit  giving  up  his  claim  for  the  interest of reversioners. In such a situation where the  vendor was not in any manner guilty of not obtaining the  sanction  and  the  clause  of  the  contract  requiring  the  Court’s sanction for conveyance of full interest, being for  the benefit  of  both the parties,  the contract  had been  rendered  unenforceable  with  the  dismissal  of  the  sanction suit.”

HPA International4  ,  thus, have no considerable bearing on the  

case in hand.

25. Mr.  A.T.M.  Sampath,  learned  counsel  for  vendor’s  

wife  also  argued  that  she  had  offered  as  joint  owner  to  the  

undivided  entire  property  to  purchase  the  half  share  of  her  

husband under the Partition Act,  1893  and Hindu Succession  

Act, 1956. He would submit that at the earliest point of time both  

in a notice as well as in the written statement she has raised the  

plea of pre-emption to buy her husband’s share and demanded  

the vendee as well as her husband to sell undivided half share to  

her. In this regard, he further submitted  that the property is an  

undivided dwelling house and the court should not grant specific  

performance against the co-owners of the family dwelling house.  

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He relied upon  Ghantesher Ghosh v.  Madan Mohan Ghosh &  

Ors.5,  Pramod Kumar Jaiswal and Ors. v.  Bibi Husn Bano and  

Ors.6 and Shanmughasundaram & Ors.  v.  Diravia Nadar (Dead)  

By LRs. & Anr.7.

26. The above submission  was also canvassed before  

the  High  Court.  The High Court  considered  this  aspect  in  the  

following manner :

“It is too premature for the defendant to have invoked  the  provisions  of  section  4  of  the  Partition  Act.  The  plaintiff’s  right  has  not  been  crystallized  yet  and  he  cannot at this stage be considered as a purchaser of the  undivided  interest  of  the  first  defendant.  In  order  to  validly invoke section 4 of the Partition Act, the following  five conditions have to be satisfied :

1. A co-owner having undivided share in the family  dwelling house should effect  transfer  of  his  undivided  interest therein;

2. The transferee of such undivided interest of co- owner should an outsider or stranger to the family;

3. Such  transferee  much  sue  for  partition  and  separate possession of the undivided share transferred  to him by the co-owner concerned;  

4. As  against  such  a  claim  of  the  stranger  transferee, any member of the family having undivided  share in the dwelling house should put forward his claim  of preemption by undertaking to buy out the share of  such transferee and;

5 (1996) 11 SCC 446 6 (2005) 5 SCC 492 7 (2005) 10 SCC 728

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5. While accepting such a claim for preemption by  the existing co-owners of the dwelling house belonging  to  the  undivided  family,  the  Court  should  make  a  valuation  of  the  transferred  share  belonging  to  the  stranger  transferee  and  made  the  claimant  co-owner  pay the value of the share of the transferee so as to  enable  the  claimant  co-owner  to  purchase by  way  of  pre-emption and said transferred share of the stranger  transferee  in  the  dwelling  house  belonging  to  the  undivided  family  so  that  the  stranger-transferee  can  have  no  more  claim  left  for  partition  and  separate  possession  of  his  share  in  the  dwelling  house  and  accordingly can he effectively deny entry in any part of  such family dwelling house.

The  whole  object  seems to  be  to  preserve  the  privacy  of  the  family  members  by  not  allowing  a  stranger to enter in a part of the family dwelling house.  Such is not the situation obtaining in this case having  regard to the context. I am reinforced in my above view  by  the  judgment  of  the  Apex  Court  in  Babulal  V.  Habibnoor Khan,  2000 (5) SCC 662. The apex Court  placing reliance upon its earlier judgment in Ghantesher  Ghosh V.  Madan Mohan Ghosh, 1996 (11)  SCC 446  reiterated the five essential requisites. For the foregoing  reasons, the contention of the learned counsel merits no  consideration.”     

In our opinion, the High Court has rightly concluded that at the  

present stage, Section 4 of the Partition Act, 1893 is not attracted.  

It is only after the sale deed is executed in favour of the vendee  

that  right  under  Section  4  of  the  Partition  Act,  1893  may be  

available. Similarly, insofar as vendee is concerned, he has right  

to apply for partition of the property and get the share demarcated  

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only after sale deed is executed in his favour.  Section 44 of the  

T.P. Act is also  of no help to the case of vendor’s wife.

27. There  are  two  other  points  raised  by  Mr.  A.T.M.  

Sampath.  Learned counsel for the vendor’s wife would  contend  

that  it  has not  been proved that  vendee has been  ready and  

willing to purchase the property  all  along;   the vendee did not  

produce passbook showing that he had sufficient funds and the  

vendee  did  not  deposit  the  remaining  consideration  of  Rs.  

90,000/-  within three months of the decree granted by the trial  

court. The argument of Mr. A.T.M. Sampath has no merit at all  

and seems to have been raised in desperation. As a matter of  

fact, as early as on March 30, 1984, the vendee sent a notice to  

the  vendor  calling  upon  him  to  receive  the  balance  sale  

consideration  of  Rs.  90,000/-  from  him  and  execute  the  sale  

deed. In the plaint, a specific averment with regard to readiness  

and willingness has been made by the vendee which was not  

even  controverted  by  the  vendor  in  the  written  statement.  No  

such issue has been raised nor it  was pressed by the vendor  

before the trial court. Even the vendor’s wife in the appeal before  

the High Court did not raise any argument in this regard.  At the  

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time  of  hearing  of  these  appeals,   we  were  informed  by  the  

counsel for the vendee that the balance sale consideration of Rs.  

90,000/- has been deposited by the vendee on July 18, 1991 vide  

T.R. Challan No. 1159 before the trial court and has been lying  

there  for  more  than  19  years.  This  argument  of  Mr.  A.T.M.  

Sampath  is, therefore, rejected.

28. The other point  argued by Mr. A.T.M. Sampath is that  

the decree granted by the High Court would result  in hardship  

since  the  vendor  and  vendor’s  wife  are  dead  and  their  10  

daughters are residing in the property. We are afraid these facts  

hardly constitute hardship justifying denial of decree for specific  

performance to the extent of vendor’s half share in the property.  

29. In all fairness to Mr. A.T.M. Sampath, it must be said  

that  he  cited  some  English  decisions  but,  in  our  view,  these  

decisions have no bearing at all in the present case and it is for  

this reason that we have not burdened this judgment by referring  

to those decisions.

30. In view of the above, we agree that the decision of the  

High Court is right and, consequently, both the appeals must be  

dismissed and are dismissed with no order as to costs.

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  ..……………….J.                (P. Sathasivam)

                              ……………….. J.       (R.M. Lodha)  NEW DELHI, OCTOBER 8, 2010

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