SHANTABEN JAYANTIBHAI SOMABHAI PATEL Vs. PATEL BIHARIBHAI DAHYABHAI

JUDGEMENT

(1.) This judgement shall finally dispose of Second Appeal Nos.65 of 2006 and 66 of 2006.

(2.) The plaintiffs-respondents filed two separate suits before the trial Court seeking specific performance of the agreement/contract submitting, inter alia, that the plaintiffs and the defendant (since deceased) entered into an agreement for sale of the property and as the defendant was refusing to perform his part of the contract, and as the plaintiffs were always ready and willing to perform their part of the contract, a decree be granted in their favour. The defendant contested both the suits on almost every possible ground and also raised a plea that the agreement entered into between the parties was bad because the property belonged to the joint Hindu family and the plaintiffs could seek 1/6th share only in the property. After casting of issues, the two suits were consolidated; the parties were allowed to lead evidence, oral and documentary; and, after hearing the parties, the trial Court decreed both the suits holding, inter alia, that the plaintiff was acting as a Karta of the joint Hindu family and as he was even otherwise disposing of some other property belonging to the joint Hindu family for legal necessity, the agreement entered into between the parties was also for a legal necessity and as the plaintiff was always ready and willing to perform his part of the contract, the plaintiff was entitled to a decree in his favour. The suits were accordingly decreed. It appears that during pendency of the suits, the original defendant died and his legal representatives are substituted in his place. It was brought to the notice of the trial Court that during the pendency of the suit, a partition was effected amongst the members of the joint Hindu family and as the original defendant received only 1/6th share in the property, the suit could not be decreed to its fullest extent. The trial Court, while decreeing the suit, held that the partition was effected during the pendency of the suit; it would be hit by the principles of lis pendens; the partition, as a subsequent event, would not affect the rights of the plaintiffs and each of the defendants would be liable to execute the sale deed in favour of the plaintiffs for the entire property as if no partition had taken place.

(3.) Being aggrieved by the said two judgements, the defendants preferred two separate appeals. As the appeals had arisen out of the common judgement, those were heard simultaneously and were disposed of by a common judgement. The learned Appellate Court confirmed almost every finding of the learned trial Court and held that the original defendant entered into the agreement as a Karta of the family, there was legal necessity and the partition during the pendency of the suits would not affect the rights of the original plaintiffs. It dismissed both the appeals.