Mohamed Asgar Mohamed Mazhar & Anr. Vs. Arvind Raghunath Sawant and Anr.
EmailAppeal: Civil Appeal No. 4397
Petitioner: Mohamed Asgar Mohamed Mazhar & Anr.
Respondent: Arvind Raghunath Sawant and Anr.
Apeal: Civil Appeal No. 4397
Judges: V. N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Feb 05, 2001
Head Note:
SPECIFIC PERFORMANCE
Specific Relief Act, 1963
Section 16(c) – Specific performance of sale agreement – Grant of – Agreement entered by Karta of HUF – Minors holding share – Not made parties – Sale not shown to be under legal necessity. Held that courts were justified in refusing relief of specific performance. (Para 4)
JUDGEMENT:
ORDER
1. This is a plaintiffs’ appeal.
2. On 20th September, 1960 the defendant-respondents executed an agreement for sale of the property situate at Bhiwandi, Mumbai for a sum of Rs. 7, 500/-. It is alleged that the plaintiff-appellants paid a sum of Rs. 1,000/- as earnest money and subsequently, another sum of Rs. 6,000/- was also paid. However, the defendant-respondents refused to execute the sale deed. The plaintiff-appellants thereafter filed a suit for specific performance for sale of the property. The defendant-respondents filed a written statement wherein the plea taken was that since the property belonged to a Joint Hindu Undivided Family and the minors are co-sharers, no relief for specific performance can be granted. The defendant-respondents also filed a counter claim in the suit for delivery of possession of the property. The trial court dismissed the suit as well as the counter claim. The plaintiff-appellants preferred an appeal against the judgment of the trial court to the extent the relief for specific performance was refused. Similarly, the defendants also filed a cross appeal to the extent the trial court rejected the counter claim filed by them. The first Appellate Court dismissed the appeal preferred by the plaintiff-appellants. However, the cross appeal filed by the defendants was allowed. Aggrieved, the plaintiff-appellants filled two sets of appeals before the High Court. The High Court affirmed the judgment of the Appellate Court to the extent it dismissed the appeal preferred by the plaintiff-appellants. However, the appeal to the extent it related to allowing the cross objection was allowed and the judgment of the first Appellate Court was set aside. It is against the said judgment, the plaintiff-appellants have filed this appeal.
3. Learned Counsel appearing for the appellants urged that the defendant being Karta of Hindu Undivided Family was well within the power to enter into an agreement for sale and the court below has committed serious mistake of law in refusing to grant relief for specific performance to the plaintiff-appellants.
4. We do not find any merit in the submission. Admittedly, all the three courts have recorded the concurrent finding of fact that the property belongs to the Hindu Undivided Family in which the minors have shares. The minors were, admittedly, not party to the agreement. Under law, the defendants could not have sold the property without any legal necessity. It was not proved that there was any legal necessity for sale of the property. Under such circumstances, the court below was justified in refusing the relief for specific performance.
5. For the aforesaid decision, we do not find any merit in the appeal and the same is dismissed. There shall be no order as to costs.
1. This is a plaintiffs’ appeal.
2. On 20th September, 1960 the defendant-respondents executed an agreement for sale of the property situate at Bhiwandi, Mumbai for a sum of Rs. 7, 500/-. It is alleged that the plaintiff-appellants paid a sum of Rs. 1,000/- as earnest money and subsequently, another sum of Rs. 6,000/- was also paid. However, the defendant-respondents refused to execute the sale deed. The plaintiff-appellants thereafter filed a suit for specific performance for sale of the property. The defendant-respondents filed a written statement wherein the plea taken was that since the property belonged to a Joint Hindu Undivided Family and the minors are co-sharers, no relief for specific performance can be granted. The defendant-respondents also filed a counter claim in the suit for delivery of possession of the property. The trial court dismissed the suit as well as the counter claim. The plaintiff-appellants preferred an appeal against the judgment of the trial court to the extent the relief for specific performance was refused. Similarly, the defendants also filed a cross appeal to the extent the trial court rejected the counter claim filed by them. The first Appellate Court dismissed the appeal preferred by the plaintiff-appellants. However, the cross appeal filed by the defendants was allowed. Aggrieved, the plaintiff-appellants filled two sets of appeals before the High Court. The High Court affirmed the judgment of the Appellate Court to the extent it dismissed the appeal preferred by the plaintiff-appellants. However, the appeal to the extent it related to allowing the cross objection was allowed and the judgment of the first Appellate Court was set aside. It is against the said judgment, the plaintiff-appellants have filed this appeal.
3. Learned Counsel appearing for the appellants urged that the defendant being Karta of Hindu Undivided Family was well within the power to enter into an agreement for sale and the court below has committed serious mistake of law in refusing to grant relief for specific performance to the plaintiff-appellants.
4. We do not find any merit in the submission. Admittedly, all the three courts have recorded the concurrent finding of fact that the property belongs to the Hindu Undivided Family in which the minors have shares. The minors were, admittedly, not party to the agreement. Under law, the defendants could not have sold the property without any legal necessity. It was not proved that there was any legal necessity for sale of the property. Under such circumstances, the court below was justified in refusing the relief for specific performance.
5. For the aforesaid decision, we do not find any merit in the appeal and the same is dismissed. There shall be no order as to costs.
