RAMGOPAL GUPTA Vs. SHANTI DEVI

JUDGEMENT

(1.) THIS appeal seeks to challenge the judgment & decree dated 29/03/2013 passed by learned Additional District Judge No. 2 Jaipur Metropolitan whereby, he dismissed the appeal as well as cross objection and modified the judgment & decree dated 05/08/2010 passed by learned Civil Judge (Senior Division) &, Additional Chief Judicial Magistrate No. 9, Jaipur City, Jaipur by which the suit was partly decreed. The appellate Court modified the judgment & decree of the trial Court by reducing the rate of interest on refund of the advance received by plaintiff -appellant No. 1 for sale of the disputed property. Shri R.K. Daga, learned counsel for the plaintiff -appellant argued that the trial Court having decided the issue regarding execution of the agreement by defendant No. 1, receiving all sale consideration in full and readiness and willingness of the plaintiff on Issues No. 1 to 3 has, in favour of the plaintiff -appellant, erred in law in deciding Issue No. 4 against him by holding that he was not entitled to decree of specific performance. Learned counsel cited the judgments of this Court in Deenanath vs. Chunnilal, : AIR 1975 Rajasthan 69 & Tej Singh vs. Prabhu Narayan Sharma & Ors.,, 2004 (1) WLC (Raj.) 629 and judgment of the Andhra Pradesh High Court in Netyam Venkataramanna & Ors. vs. Mahankali Narasimhan (died), : AIR 1994 Andhra Pradesh 244 to argue that defendant No. 1 -Shanti Devi could not set up the plea of defective title because in the agreement to sale, she has declared that she was absolute owner of the disputed property, which was self acquired property of her husband late Shri Chiranjilal Sharma. Learned counsel for the appellant argued that even if it was held that the disputed property was inherited by legal heirs of deceased -Shri Chiranjilal Sharma, one of whom was minor yet, trial Court ought to have decreed the suit for specific performance to the extent of share of Shanti Devi in the disputed property.

(2.) SHRI M.C. Jain, learned counsel for the defendant -respondents has opposed the appeal and argued that the plea of disputed title has not only been set up by defendant No. 1 -Shanti Devi alone but also by defendants No. 2 to 5, who have filed their separate written -statement. There can be no case for decreeing the suit for specific performance to the extent of share of Shanti Devi. In any case, it was a common house, which was inherited by all the legal heirs after the death of late Shri Chiranjilal Shantia. The trial Court has already directed refund of the sale consideration by Shanti Devi with interest @18% p.a., which rate of interest was reduced by the first appellate Court to 12% p.a. Learned counsel argued that in the facts like these, the suit for specific performance could not be decreed because plaintiff would not be entitled to any such relief in view of Sec. 12 of the Specific Relief Act if he purchased undivided share of one of the co -owners in the property.

(3.) THE Supreme Court in Shanmughasundaram & Ors. vs. Diravia Nadar (D) by LRS & Anr., : 2005 (1) WLC (SC) Civil 502 while dealing with a case in somewhat identical fact situation held that Sec. 12 of the Specific Relief Act would be of no assistance in the situation like this. In the absence of sisters being parties to the agreement, the vendee can at best obtain undivided interest of two brothers in the property. Section 12 of the Specific Relief Act cannot be invoked by the vendee to obtain sale of undivided share of the two brothers with a right to force partition on the sisters, who were not parties to the agreement of sale. Such a relief under Sec. 12 cannot be obtained by a vendee, on purchase of an undivided share of the property of some of the co -owners, against other co -owners, who were not parties to the sale agreement.