Whether specific performance of contract can be claimed when agreement of sale is executed by some of co-owners?
It is an undisputed fact that the suit
schedule property is self acquired property by late
Pemmada Venkateswara Rao as he had purchased the
said property vide Sale-Deed Document No.5174 of
1970 dated 24.11.1970 from his vendors. It is also
an undisputed fact that the said property is
intestate property. He is survived by his wife, 3
sons and 3 daughters. The said property devolved
upon them in view of Section 8 of Chapter 2 of the
Hindu Succession Act as the defendants are class I
legal heirs in the suit schedule property.
Undisputedly, the Agreement of Sale-Ex.-A1 is
executed only by defendant Nos. 1 and 2. The 3rd
son, mother and 3 sisters who have got equal
shares in the property have not executed the
Agreement of Sale. In view of the matter, the
Agreement of Sale executed by defendant Nos. 1 and
2 who have no absolute right to property in
question cannot confer any right whatsoever upon
the plaintiffs for grant of decree of specific
performance of Agreement of Sale in their favour.
The said agreement is not enforceable in law in
view of Section 17 of the Specific Relief Act in
view of right accrued in favour of defendant Nos. 3
to 6 under Section 8 of the Hindu Succession Act.
The provisions of Section 17 of the Specific Relief
Act in categorical term expressly state that a
Contract to sell or let any immovable property
cannot be specifically enforced in favour of a
vendor or lessor who does not have absolute title
and right upon the party. It is worthwhile to
extract Section 17 of the Specific Relief Act,1963
here :-
“17.-Contract to sell or let property by
one who has no title, not specifically
enforceable.- A contract to sell or let
any immovable property cannot be
specifically enforced in favour of a
vendor or lessor;
(a) who, knowing not to have any
title to the property, has
contracted to sell or let the
property
(b) who, though he entered into
the contract believing that he
had a good title to the
property, cannot at the time
fixed by the parties or by the
court for the completion of the
sale or letting, give the
purchaser or lessee a title free
from reasonable doubt.”
In view of the aforesaid provisions of the Specific
Relief Act, the Agreement of Sale entered between the
plaintiffs and some of the co-sharers who do not have
the absolute title to the suit schedule property is
not enforceable in law. This aspect of the matter has
not been properly appreciated and considered by both
the First Appellate Court and the Second Appellate
Court. Therefore, the impugned judgment is vitiated
in law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7835 OF 2014
(Arising out of SLP(C) NO. 24653 OF 2012)
PEMMADA PRABHAKAR & ORS. …APPELLANTS
Vs.
YOUNGMEN’S VYSYA ASSOCIATION & ORS. …
V.GOPALA GOWDA, J.
Citation;(2015)5 SCC355
schedule property is self acquired property by late
Pemmada Venkateswara Rao as he had purchased the
said property vide Sale-Deed Document No.5174 of
1970 dated 24.11.1970 from his vendors. It is also
an undisputed fact that the said property is
intestate property. He is survived by his wife, 3
sons and 3 daughters. The said property devolved
upon them in view of Section 8 of Chapter 2 of the
Hindu Succession Act as the defendants are class I
legal heirs in the suit schedule property.
Undisputedly, the Agreement of Sale-Ex.-A1 is
executed only by defendant Nos. 1 and 2. The 3rd
son, mother and 3 sisters who have got equal
shares in the property have not executed the
Agreement of Sale. In view of the matter, the
Agreement of Sale executed by defendant Nos. 1 and
2 who have no absolute right to property in
question cannot confer any right whatsoever upon
the plaintiffs for grant of decree of specific
performance of Agreement of Sale in their favour.
The said agreement is not enforceable in law in
view of Section 17 of the Specific Relief Act in
view of right accrued in favour of defendant Nos. 3
to 6 under Section 8 of the Hindu Succession Act.
The provisions of Section 17 of the Specific Relief
Act in categorical term expressly state that a
Contract to sell or let any immovable property
cannot be specifically enforced in favour of a
vendor or lessor who does not have absolute title
and right upon the party. It is worthwhile to
extract Section 17 of the Specific Relief Act,1963
here :-
“17.-Contract to sell or let property by
one who has no title, not specifically
enforceable.- A contract to sell or let
any immovable property cannot be
specifically enforced in favour of a
vendor or lessor;
(a) who, knowing not to have any
title to the property, has
contracted to sell or let the
property
(b) who, though he entered into
the contract believing that he
had a good title to the
property, cannot at the time
fixed by the parties or by the
court for the completion of the
sale or letting, give the
purchaser or lessee a title free
from reasonable doubt.”
In view of the aforesaid provisions of the Specific
Relief Act, the Agreement of Sale entered between the
plaintiffs and some of the co-sharers who do not have
the absolute title to the suit schedule property is
not enforceable in law. This aspect of the matter has
not been properly appreciated and considered by both
the First Appellate Court and the Second Appellate
Court. Therefore, the impugned judgment is vitiated
in law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7835 OF 2014
(Arising out of SLP(C) NO. 24653 OF 2012)
PEMMADA PRABHAKAR & ORS. …APPELLANTS
Vs.
YOUNGMEN’S VYSYA ASSOCIATION & ORS. …
V.GOPALA GOWDA, J.
Citation;(2015)5 SCC355
https://www.lawweb.in/2015/08/whether-specific-performance-of.html
