Decree for specific performance can't be granted when agreement of sale is not executed by all co-owners

 Head Note

Specific Relief Act, 1963 – Section 17 – Hindu Succession Act, 1956 – Section 8 – Specific performance of agreement – Absolute title – Trial Court rejected relief of specific performance of agreement to Plaintiff and directed Defendants to refund amount of advance sale consideration to Plaintiffs – First Appellate Court partly allowed Plaintiff’s appeal and directed Defendants to execute registered sale deed in favour of Plaintiff’s – High Court dismissed appeal filed by Defendant –

Court held – Provisions of Section 17 of the Act expressly state that Contract to sell or let any immovable property cannot be specifically enforced in favour of vendor or lessor who does not have absolute title and right upon party – It is undisputed fact that suit schedule property is self acquired property by late and said property is intestate property – In view of matter, 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 Plaintiffs for grant of decree of specific performance of agreement of sale in their favour – Further, there is breach of contract on part of Plaintiffs regarding payment of part sale consideration amount – Hence, Plaintiffs are not entitled for decree of specific performance – This aspect of matter has not been properly considered by both First and Second Appellate Court – Therefore, order of High Court in affirming decree of First Appellate Court is set aside – Appeal allowed.

(Paras 29, 30, 32)

Specific Relief Act, 1963 – Section 20(2) – Entitlement for relief – Whether Plaintiffs are entitled for discretionary relief of specific performance under Section 20(2) of the Act when it has not approached Court with clean hands –

Court held – It is fact that Plaintiffs have not approached trial Court with clean hands – It is evident from pleadings of agreement of sale that Plaintiffs did not obtain signatures of all co-sharers of property namely, mother of Defendants, third brother and 3 sisters – Therefore, agreement is not enforceable in law as persons who have executed sale deed, did not have absolute title of property – Hence, order of High Court in affirming decree of First Appellate Court, is set aside and order of trial Court is restored with modification that Defendants shall pay sum of compensation to Plaintiffs – Appeal allowed.

(Paras 33, 35)

Cases Referred:
Kommisetti Venkatasubbayya v. Karamestti Venkateswarlu [A.I.R. 1971 AP 279]
Lourdu Mari David & Ors. v. Louis Chinnaya Arogiaswamy & Ors. [(1996) 5 SCC 589]
Rameshwar & Ors. v. Jot Ram & Anr. [1976) 1 SCC 194]
Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri

Comparative Citations:
2014 (7) SCJ 467, 2014 (6) ALT 38, 2014 (4) CalHN 194, 2015 (3) CTC 229, 2015 (2) LW 30, 2015 (2) WBLR 385, 2015 (3) MWN(Civil) 230, 2014 (106) ALLLR 893, 2014 (5) ALL MR 921, 2015 (2) AWC 1173, 2014 (10) JT 58, 2014 (4) Pat LJR 245, 2014 (4) RCR(Civil) 245, 2014 (9) Scale 545, 2015 (5) SCC 355, 2014 (6) Supreme 409,

 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. Vs. YOUNGMEN’S VYSYA ASSOCIATION & ORS.*

Citation; *2014(5)ALLMR 921 SC*

Coram: *V.GOPALA GOWDA, J*