The vendor's wife sent a notice to the vendee to cancel the agreement as she held half share in the property having devolved upon her on the death of her son - vendor's wife to the extent of half share in the property

Citation

CDJ 2010 SC 918

Kammana sambamurthy (died) by Lrs vs kalipathapu Atchuthamma(died) & others

Head note

Partition Act, 1893 - Section 4 - Specific Relief Act, 1963 - Section 12 - Transfer of Property Act, 1882 - Section 41 - the vendor entered into an agreement of sale with the vendee in respect of a tiled house - the vendor's wife sent a notice to the vendee to cancel the agreement as she held half share in the property having devolved upon her on the death of her son - 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) - The vendee filed a suit for specific performance - Trail court held that the defendants 1 and 2 shall execute registered sale deed as per the terms of the sale agreement in favour of the plaintiff after taking the remaining sale consideration of Rs. 90000/- - appeal - 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 – this appeal - The whole object of Act 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 – thus 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 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 –
Hence the appeal is dismissed.

(Para 26 & 30)

Case Law Referred:
1. Kartar Singh v. Harjinder Singh & Ors. ((1990) 3 SCC 517)
2. Manzoor Ahmed Magray v. Ghulam Hassan Aram & Ors ((1999) 7 SCC 703)
3. A. Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors. ((2000) 10 SCC 636)
4. HPA International v. Bhagwandas Fateh Chand Daswani & Ors. ((2004) 6 SCC 537)
5. Ghantesher Ghosh v. Madan Mohan Ghosh & Ors. ((1996) 11 SCC 446)
6. Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. ((2005) 5 SCC 492)
7. Shanmughasundaram & Ors. v. Diravia Nadar (Dead) By LRs. & Anr. ((2005) 10 SCC 728).

Comparative Citations:
2010 AIR(SCW) 6219, 2011 (1) MWN(Civil) 99, 2011 (1) LW 104, 2011 (1) MLJ 404, 2011 (1) SCJ 333, 2011 AIR(SC) 103, 2011 (1) KLJ(NOC) 1, 2012 (1) KCCR 39, 2010 (4) CLT 91, 2010 (7) SLT 249, 2011 (11) SCC 153, 2011 (111) CutLT 374,