Shet Vs. Noor Ahmed Sheriff & Ors.
J U D G M E N T
P. Sathasivam, J.
appeals are directed against the final judgment and orders dated 03.03.2009 and
28.08.2009 of the Division Bench of the High Court of Karnataka at Bangalore in
R.F.A. No. 52 of 2000 and Misc. Civil No. 13474 of 2009 in R.F.A. No. 52 of 2000
respectively whereby the High Court disposed of the appeal and dismissed the
a. The property in question
originally belonged to one C.S. Abdul Momin Sheriff and he died leaving behind his
wife Hajiba Tabsasum and Defendant Nos. 1, 2 and 4 (sons), Defendant Nos. 5 to
7 (daughters) and Defendant No. 3, who is the son of Late Ismail Sheriff, son
of Abdul Momin Shariff. After his demise, each of the surviving sons succeeded to
an extent of 2/11th share and each of the daughters succeeded to 1/11th share
in the property. As the division in the scheduled property was impractical, Defendant
Nos. 1, 2 and 4 to 7 desired to sell the schedule property and to distribute sale
proceeds between them. On 02.05.1988, they agreed to sell the property to one Vimaleshwar
Nagappa Shet-plaintiff (appellant herein) for a consideration of Rs.3,10,000/-,
executed agreement of sale and received advance consideration of Rs.10,000/-. Subsequently,
on 06.05.1988, the wife of C.S Abdul Momin Sheriff died.
b. Till 15.06.1989, the plaintiff
paid a sum of Rs.1,53,000/-, in all, on various dates. As the defendants did not
execute the sale deed, the plaintiff filed a suit for specific performance
being O.S. No. 91 of 1991 in the Court of the Civil Judge at Chikmangalur. By
order dated 01.10.1999, the trial Court decreed the suit in favour of the plaintiff
and directed the defendants to execute the sale deed in terms of agreement of
sale dated 02.05.1988. Aggrieved by the said judgment and decree of the trial Court,
Defendant Nos. 2, 3 and 7 filed appeal being R.F.A. No. 52 of 2000 before the High
Court of Karnataka at Bangalore.
c. The High Court taking
into account the submission of the counsel for the appellants and respondents, fixed
the market value of property at Rs.300/- per sq. ft. The total area of property
is 4,655 sq. ft. (48' x 90'), therefore, the total market value of property
would be Rs.13,96,500/-. The High Court, by its judgment dated 03.03.2009, while
holding that as Defendant No.3 was not a party to the agreement and he proposes
to purchase the 9/11th share by paying value to the plaintiff and the value of 9/11th
share would be Rs. 11,42,590/- and the counsel for the plaintiff on the instruction
from the plaintiff agreed to the said proposal on the condition that Defendant
No.3 would pay the said amount within three months, in default, the plaintiff
would be entitled to the relief of specific performance disposed of the appeal directing
defendant Nos. 1,2 and 4 to 7 to execute the sale deed of their share to the extent
of 9/11 area in the suit property by making convenient division of the
d. Thereafter, an application
being Misc. Civil No 13474 of 2009 in R.F.A. No. 52 of 2000 was filed for deleting
some words from the judgment and the same was dismissed. Challenging the
judgment of the High Court in appeal and the order made in the application, the
appellant-plaintiff has filed these appeals by way of special leave petitions before
Mr. S.N. Bhat, learned counsel for the appellant and Mr. P.P. Rao, learned
senior counsel for the respondents.
is not in dispute that the property in question belonged to Abdul Momin
Sheriff. After his death, each of the surviving sons succeeded to an extent of 2/11th
share and each of the daughters succeeded to 1/11th share. It is also not in
dispute that the agreement of sale was executed only by Defendant Nos. 1, 2 and
4 to 7. The total share of Defendant Nos. 1, 2 and 4 to 7 is 9/11 and the share
of the Defendant No. 3 who did not join the execution of agreement of sale
would be 2/11. Inasmuch as the Defendant No. 3 was not a party to the agreement,
he is not bound by the agreement executed by other defendants to the extent of
the evidence and the materials, it is clear that the suit property is dwelling
house. In that event, Section 4 of the Partition Act, 1893 is relevant which
reads as under:- "4. Partition suit by transferee of share in
dwelling-house.-- (1) Where a share of a dwelling-house belonging to an undivided
family has been transferred to a person who is not a member of such family and
such transferee sues for partition, the court shall, if any member of the
family being a shareholder shall undertake to buy the share of such transferee,
make a valuation of such share in such manner as it thinks fit and direct the sale
of such share to such shareholder, and may give all necessary and proper directions
in that behalf. (2) If in any case described in sub-section (1) two or more members
of the family being such shareholders severally undertake to buy such share, the
court shall follow the procedure prescribed by sub-section (2) of the last
foregoing section." In view of the above provision, Defendant No. 3 has right
to purchase to exclude the outsider who holds an equitable right of purchase of
the shares of other defendants.
is pertinent to point out that plaintiff was aware that Defendant No. 3 who was
a minor had a share in the property and the application made by the other defendants
before the Civil Court for appointment of Defendant No. 2 as guardian of the
said minor was not pursued and in fact it was dismissed, consequently, his
share remained unsold to the plaintiff.
a matter of fact, agreement of sale dated 02.05.1988 does not refer to Defendant
No. 3 at all or his share in the property. However, in the plaint, the
plaintiff clearly admitted the share of Defendant No. 3 who was a minor and the
fact that no guardian was appointed for the minor and Defendant No. 2 was not
his natural guardian. Without Defendant No. 3 joining the other co-sharers, no agreement
of sale could be entered with the plaintiff for the entire property including
the minor's share. Consequently, the agreement of sale covering the entire
property was void and ineffective.
is settled law that Section 20 of the Specific Relief Act, 1963 confers discretionary
powers. [vide: M. Meenakshi & Ors. vs. Metadin Agarwal Nirmala Anand vs.
Advent Corporation (P) Ltd. & Ors. Parakunnan Veetill Joseph's Son Mathrew vs.
Nedumbara Karuvila's Son & Ors. It is also well settled that the value of property
escalates in urban areas very fast and it would not be equitable to grant specific
performance after a lapse of long period of time.
from all these material aspects before the High Court, both parties including the
plaintiff/present appellant agreed for a reasonable market valuation. This factual
position is clear from paragraph 7 of the High Court judgment which reads as
under:- "7. The counsel for appellants and respondents submitted that
the market value of property is Rs. 300/- per sq. ft. The total area of property
is 4,655 sq. ft. (48' x 90'). The total market value of property would be Rs.
13,96,500/-. The value of 9/11th share would be Rs. 11,42,590/-. Defendant No.
3 proposes to purchase the 9/11th share by paying value to the plaintiff. The
counsel for the plaintiffs with the instructions from the plaintiff agreed to
the said proposal on the condition that the Defendant No. 3 should pay the
said amount within three months. In the event of default, the plaintiff would
be entitled to the relief of specific performance. The Defendant Nos. 1, 2 and
4 to 7 shall execute sale deed of their share to the extent of 9/11 area in the
suit property by making convenient division of the property. Accordingly, the
appeal is disposed of."
statement made by the counsel before the High Court, as recorded in the impugned
judgment and order, cannot be challenged before this Court.[vide: State of
Maharashtra vs. Ramdas Shrinivas Nayak & Anr. Shankar K. Mandal & Ors. vs.
State of Bihar & Ors. (2003) 9 SCC 519, Roop Kumar vs. Mohan Thedani Guruvayoor
Devaswom Managing Committee & Anr. vs. C.K. Rajan & Ors.
is also clear that the High Court has recorded in the impugned judgment dated
03.03.2009 that the counsel agreed with instructions from the plaintiff and reiterated
this fact in its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in the
above-mentioned RFA while rejecting the plea of the counsel for the appellant herein
that he did not give consent that he had no instructions from his clients A concession
made by a counsel on a question of fact is binding on the client, but if it is
on a question of law, it is not binding. [vide: Nedunuri Kameswaramma vs Sampati
Subba Rao & Anr. (1963) 2 SCR 208, 225, B.S. Bajwa & Anr. vs. State of Punjab
& Ors. (1998) 2 SCC 523, 525-526]
stated earlier and the reading of the impugned judgment and order of the High
Court, more particularly, para 7, which is concluding paragraph, clearly show that
it is a consent order. As per Section 96 (3) of the Civil Procedure Code, no appeal
lies from a decree passed by the court with the consent of the parties.
all these reasons, more particularly, the statement of fact as noted in para 7
of the impugned judgment and order of the High Court, under Article 136,
generally this Court will not interfere with the order of the High Court which has
done substantial justice.
this Court has stayed the impugned order of the High Court while ordering of
notice on 08.07.2010, Defendant No. 3 is granted 3 months' time from today to
pay the amount as noted in para 7 of the impugned judgment and in the event of default,
the directions of the High Court in the same para are to be applied and
implemented. Defendant Nos. 1, 2, 4 to 7 are directed to return the sum of Rs.1,53,000/-
which they have received towards sale consideration with interest at the rate
of 9 per cent from the date of payment within a period of eight weeks from
today to the plaintiff.
the appeals fail and the same are dismissed with the above direction. No order
as to costs.