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Hardeo Rai v. Sakuntala Devi And Others
Factual and Procedural Background
The appellant agreed on 10 April 1978 to sell 18 kathas 5 dhurs of land in Begusarai District to the respondents’ father for Rs 25,000. An amount of Rs 16,000 was paid and the purchaser was placed in possession of 16 kathas 5 dhurs, with the balance of Rs 9,000 (plus Rs 4,000 interest) payable within four months.
When the appellant failed to execute the sale deed, the purchaser filed Title Suit No. 79 of 1978 for specific performance. The Subordinate Judge, Begusarai decreed the suit on 7 February 1981. On appeal, the first appellate court reversed the decree on 15 September 1997, holding that the property was joint family property and therefore inalienable.
The respondents (plaintiffs) succeeded before a Division Bench of the Patna High Court in Letters Patent Appeal No. 1334 of 1997; that judgment dated 16 November 2006 restored the decree for specific performance. The present appeal by the original defendant is against the Division Bench decision. The Supreme Court (S.B. Sinha, J.) dismissed the appeal.
Legal Issues Presented
- Whether the land agreed to be sold formed part of a Mitakshara coparcenary/joint family property, thereby restricting the appellant’s power of alienation.
- Whether, in the circumstances, the court should exercise its discretion under Section 20 of the Specific Relief Act, 1963 to decree specific performance.
Arguments of the Parties
Appellant's Arguments
- The property was joint family property; hence the appellant alone could not validly agree to sell it.
- The Division Bench erroneously decreed the suit solely on the basis of the appellant’s representation without determining jointness.
Respondents' Arguments
- Jointness of family was not proved; absence of common kitchen and the appellant’s own admissions of separate possession negate the defence.
- The primary defence—that the appellant never executed the agreement—was disbelieved by the trial court and not reversed on appeal, leaving no ground to refuse specific performance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| SBI v. Ghamandi Ram, (1969) 2 SCC 33 | Defines characteristics of a Mitakshara coparcenary. | Quoted to contrast true coparcenary requirements with facts; held inapplicable because no coparcenary proved. |
| M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470 | Purchaser of undivided coparcenary interest gets no possession, only right to sue for partition. | Relied on to show that even coparcenary interest can be transferred, though possession is deferred; supports enforceability of contract. |
| Dhanu Pathak v. Sona Koeri, (1936) 17 PLT 380 | No estoppel where collusion or deliberate misrepresentation exists. | Cited to emphasise that estoppel would not apply if misrepresentation were proved; court found none. |
| Bageshwari Prasad Duivedi v. Deopati Kuer, AIR 1961 Pat 416 | Where family is Mitakshara joint and shares undefined, agreement to sell cannot be enforced. | Distinguished; court found shares understood and separate possession admitted. |
Court's Reasoning and Analysis
The Supreme Court differentiated between a Mitakshara coparcenary and a mere joint family. A coparcenary is a legal creation, not merely a factual jointness. The first appellate court never established that the appellant and his brothers constituted a coparcenary; it overlooked key indicia such as source of property, joint mess, and kitchen.
Evidence showed the appellant’s separate possession and his own admission to that effect. One defence witness also confirmed separate possession. Accordingly, a presumption of partition arose, making each co-sharer a tenant-in-common capable of alienating his defined share.
The appellant had expressly represented in the 1978 agreement that partition had already occurred. He neither examined his brothers nor produced contrary evidence to rebut that representation. The court held that, if the statement was mistaken, the burden lay on the appellant to prove it—he failed to do so.
While acknowledging that undivided coparcenary interests are transferable only subject to partition (Manikayala Rao), the Court found the precedent irrelevant because the property had ceased to be coparcenary. The earlier decision in Ghamandi Ram did not affect this conclusion as its principles apply only where a true coparcenary exists.
Under Section 20 of the Specific Relief Act, the Court considered equitable factors: the agreement was over 30 years old; the suit succeeded in 1981; the purchaser was put in possession; and no other coparcener had challenged the transaction. Finding no inequity, the Court affirmed the decree for specific performance.
Holding and Implications
APPEAL DISMISSED WITH COSTS.
The decree for specific performance granted by the trial court and restored by the Patna High Court stands affirmed; the respondents retain possession and are entitled to have the sale deed executed. The ruling underscores that an unsupported plea of joint family property will not defeat specific performance where the seller has represented partition and evidence points to separate possession. The judgment applies settled principles and establishes no new precedent of wider application.
S.B Sinha, J.— Leave granted.
2. The appellant is aggrieved by and dissatisfied with the judgment and order dated 16-11-2006 passed by a Division Bench of the Patna High Court in LPA No. 1334 of 1997 whereby and whereunder a judgment and order dated 15-9-1997 passed by a learned Single Judge of the said Court was set aside.
3. The appellant and the father of the respondents herein had entered into an agreement to sell a property admeasuring 18 kathas and 5 dhurs of land situate in the district of Begusarai on or about 10-4-1978. In the said agreement a representation was made by the appellant herein that a partition of the joint family property had taken place and each of the four co-sharers had been in possession of separate portions of the property allotted to them.
4. The father of the respondents had paid a sum of Rs 16,000 out of the total consideration of Rs 25,000. They were put in possession of 16 kathas and 5 dhurs of land. The balance amount of Rs 9000 together with interest of Rs 4000 was to be paid within four months from the date of agreement of sale i.e 10-8-1978.
5. Admittedly, the said agreement was scribed by PW 14, Ram Gulam Pandit, PW 11, Garib Nath Chaudhary and PW 12, Narayan Singh were witnesses to the said agreement.
6. As despite notice, the appellant failed and/or neglected to execute a sale deed in terms of the said agreement a suit praying for specific performance thereof, which was registered as Title Suit No. 79 of 1978, was filed in the Court of the Subordinate Judge, Begusarai.
7. In his written statement, the appellant raised two defences:
(a) he was forcibly made to sign blank stamped papers whereon the purported agreement of sale was scribed later on.
(b) that the said property was a joint family property.
8. The respondents' father in support of his case examined himself as a witness. The scribe of the agreement as also the witnesses were also examined in the said suit.
9. The appellant also examined seven witnesses to prove his case. DW 2, Geeta Rai, admitted that the appellant had been in possession of the land in dispute. Even the appellant in his deposition before the learned trial Judge, although stated in the examination-in-chief that he and his brothers had not been in separate possession of the land, in the cross-examination stated as under:
“Bhiku Rai is my uncle. He has ½ share on the south of the said property. My 4 kathas and 19 dhurs is measured with 15 kathas of land on which there is my house. I have ½ share in that. There is no plot of 3 kathas and 6 dhurs. Brajkishore does not have possession over any plot. Khasra No. 1971 is measuring 1 bigha and 17 dhurs. There is my share as well as share of Bhiku Rai in the south of the said property. There is no plot of 4 kathas. No part in possession of Brajkishore Rai. I have possession over the land over which there is brick kiln. Khasra No. 2526 is measuring 17 kathas. My share is from the east.”
10. The appellant, however, failed to explain the stipulation contained in the said agreement that a partition of the joint family property had already taken place. Brothers of the appellant were not examined to prove joint possession. Existence of the coparcenary had not been established. The learned trial court keeping in view the nature of the evidences brought on record, decreed the suit disbelieving the defence of the appellant that the said agreement was an outcome of a forcible execution. It, however, did not enter into the question in regard to jointness of the property.
11. On an appeal having been preferred therefrom, the appellate court allowed the appeal of the appellant by a judgment and decree dated 15-9-1997 on the sole ground that the suit property was a joint family property.
12. The first appellate court in its judgment held:
“11. In his evidence the defendant has explained his alleged admission of private partition in the family in the mahda in question. According to him his signature and left thumb impression was forcibly on the point of gun obtained by the plaintiff on blank papers and later on a forged and fabricated mahdanama was scribed over those papers.
12. I find that even in the mahdanama (Ext. 1), it stood recited that rent receipt of entire joint family lands was issued only in the name of Ram Autar Rai, the father of the defendant. I further find that DWs 2, 5 and 6 and the defendant himself as DW 7 have supported jointness in the family of the defendant at the time of execution of the alleged mahdanama and till date. Even after the death of his father in the year 1986. Nothing in their cross-examination has been taken by the plaintiff to discredit their testimony in the regard. The defendants' case that the lands shown is Schedule A to the plaint have no separate identification and they stood amalgamated on the spot with other lands belonging to the family is supported by the report (Ext. 8) of the Advocate Commissioner (DW 3). In such situation not only jointness of the defendant with his brothers and father was proved, the plaintiff's claim for being put in possession over 16 kathas 5 dhurs, including the brick kiln (Schedule B) on 10-4-1978 was also falsified.”
13. The first appellate court, however, failed to determine the issue as to whether the signatures of the appellant were forcibly obtained. In fact it did not enter into the said question at all.
14. The Division Bench of the High Court, as noticed hereinbefore, allowed the appeal preferred by the respondents herein.
15. Mr Nagendra Rai, learned Senior Counsel appearing on behalf of the appellant, would submit that keeping in view the specific defence raised by the appellant herein that the property in question was a joint family property, it was obligatory on the part of the trial court as also the Division Bench of the High Court to go into the said question.
16. The Division Bench, Mr Rai would contend, wrongly proceeded on the basis that the suit of the respondents could be decreed only on the basis of the representation made by the appellant herein.
17. Mr Gaurav Agrawal, learned counsel appearing on behalf of the respondents, on the other hand, would submit:
(i) Jointness of a family must be established having regard to jointness of kitchen and mess, which having not been proved and on the contrary, separate possession of the appellant in the property having been admitted, there is no infirmity in the impugned judgment.
(ii) Main defence of the appellant in the suit being that he had not executed the document, and the same having been found to be incorrect by the learned trial court there is no infirmity in the impugned judgment particularly when no finding contrary thereto was arrived at by the first appellate court.
18. There exists a distinction between a Mitakshara coparcenary property and joint family property. A Mitakshara coparcenary carries a definite concept. It is a body of individuals having been created by law unlike a joint family which can be constituted by agreement of the parties. A Mitakshara coparcenary is a creature of law. It is, thus, necessary to determine the status of the appellant and his brothers.
19. We may at the outset notice the characteristics of a Mitakshara coparcenary from the decision of this Court whereupon Mr Rai has placed strong reliance being SBI v. Ghamandi Ram (1969) 2 SCC 33, AIR 1969 SC 1330. Therein this Court was concerned with a notification issued by the Government of Pakistan in terms of Section 45 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. We may, however, notice the dicta laid down therein: (Ghamandi Ram case (1969) 2 SCC 33, AIR 1969 SC 1330)
“5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Chapter I, pp. 1-27). The incidents of coparcenership under the Mitakshara Law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except insofar that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter.”
20. The first appellate court did not arrive at a conclusion that the appellant was a member of a Mitakshara coparcenary. The source of the property was not disclosed. The manner in which the properties were being possessed by the appellant vis-à-vis the other co-owners had not been taken into consideration. It was not held that the parties were joint in kitchen or mess. No other documentary or oral evidence was brought on record to show that the parties were in joint possession of the properties.
21. One of the witnesses examined on behalf of the appellant admitted that the appellant had been in separate possession of the suit property. The appellant also in his deposition accepted that he and his other co-sharers were in separate possession of the property.
22. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI (1969) 2 SCC 33, AIR 1969 SC 1330, therefore, is not applicable to the present case.
23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.
24. We have noticed the representation made by the appellant. If the representation to the respondents' father was incorrect, the appellant should have examined his brothers. He should have shown that such a representation was made under a mistaken belief. He did nothing of that sort.
25. In M.V.S Manikayala Rao v. M. Narasimhaswami AIR 1966 SC 470 this Court stated the law thus: (AIR p. 478, para 5)
“5. … it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased.”
26. Thus, even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition.
27. It does not appear that in SBI (1969) 2 SCC 33, AIR 1969 SC 1330 binding precedent in M.V.S Manikayala Rao AIR 1966 SC 470 was noticed.
28. However, in view of the admission made by the appellant himself that the parties had been in separate possession, for the purpose of grant of a decree of specific performance of an agreement, a presumption of partition can be drawn.
29. The learned Single Judge of the High Court, with respect, committed a serious error insofar as it failed to take into consideration the essential ingredients of a Mitakshara coparcenary.
30. We may also notice that the Patna High Court in Dhanu Pathak v. Sona Koeri (1936) 17 PLT 380 had held thus:
“It is hardly necessary to add that there would have been no estoppel, if there had been any collusion between the plaintiffs and the defendant, and if it had been established that the former had deliberately misrepresented themselves to be tenure-holders to the knowledge of the latter to defeat the provisions of the Chota Nagpur Tenancy Act.”
31. The decision of the Patna High Court in Bageshwari Prasad Duivedi v. Deopati Kuer AIR 1961 Pat 416 whereupon reliance has been placed by Mr Rai was rendered on a finding that the family was governed by the Mitakshara School of Hindu Law and the parties thereto were joint and in that view of the matter the share of Defendant 2 therein not having been defined, no decree could be passed against him for the execution of the mukarrari patta. In the aforementioned situation it was held that agreement of sale cannot be enforced against Defendant 1 therein. Such is not the position here.
32. The question which now arises for consideration is as to whether in a situation of this nature the Court shall exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.
33. The agreement was entered into in the year 1978. The suit had been decreed on 7-2-1981. The respondents' father had been put in possession of the property. No suit has been filed by the alleged coparceners of the appellant-defendant so long. There was, therefore, in our opinion, no reason as to why the judgment and decree passed by the learned trial court should be interfered with.
34. For the reasons abovementioned the appeal fails and is dismissed with costs. Counsel's fee assessed at Rs 10,000.
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