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Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff And Others
Factual and Procedural Background
The property originally belonged to C.S. Abdul Momin Shariff. Upon his death, his three sons (Defendants 1, 2 and 4) each inherited a 2/11th share, and his four daughters (Defendants 5–7 and the deceased’s wife) each inherited a 1/11th share. Defendant 3, a minor grandson, also held a 2/11th share.
On 2-5-1988 Defendants 1, 2, 4–7 agreed to sell the property to the plaintiff (Vimaleshwar Nagappa Shet) for Rs 3,10,000 and received Rs 10,000 as advance. By 15-6-1989 the plaintiff had paid Rs 1,53,000. When the sellers failed to execute a sale deed, the plaintiff filed OS No. 91/1991 for specific performance. On 1-10-1999 the trial court decreed the suit.
Defendants 2, 3 and 7 appealed (RFA No. 52/2000). On 3-3-2009 the High Court, with the consent of counsel, valued the property at Rs 300 per sq ft, calculated the 9/11th share at Rs 11,42,590 and allowed Defendant 3 to purchase that share within three months, failing which specific performance would ensue. A subsequent application to modify wording in the judgment was dismissed on 28-8-2009.
The plaintiff appealed to the Supreme Court by special leave; interim stay was granted on 8-7-2010.
Legal Issues Presented
- Whether an appeal lies to the Supreme Court under Article 136 against a High Court decree passed with the consent of the parties (Section 96(3), CPC).
- Whether Defendant 3, who was not a party to the 1988 agreement and was a minor co-sharer, could invoke Section 4 of the Partition Act, 1893 to purchase the shares of other defendants and thereby defeat specific performance sought by the plaintiff.
- Whether the agreement for sale was void or unenforceable to the extent it purported to include the minor’s 2/11th share.
- Whether, in view of Section 20 of the Specific Relief Act, 1963 and the escalation of property values, granting specific performance after a long lapse of time would be equitable.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M. Meenakshi v. Metadin Agarwal (2006) 7 SCC 470 | Section 20 of the Specific Relief Act confers discretionary power; courts may refuse specific performance when circumstances make it inequitable. | Cited to justify the High Court’s discretionary decision to refuse specific performance in favour of monetary compensation. |
| Nirmala Anand v. Advent Corporation (P) Ltd. (2002) 5 SCC 481 | Discretion under Section 20 SRA and the effect of delay and market escalation on equitable relief. | Reinforced the view that equity may deny specific performance after long delay and substantial increase in value. |
| Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Karuvila's Son (1987 Supp SCC 340) | Same principle on discretionary relief under Section 20 SRA. | Combined with the above cases to underscore the discretionary nature of specific performance. |
| State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463 | Statements made by counsel recorded by the court cannot later be challenged. | Used to reject the plaintiff’s attempt to disown the consent recorded in the High Court judgment. |
| Shankar K. Mandal v. State of Bihar (2003) 9 SCC 519 | Binding nature of counsel’s statements on questions of fact. | Supported the conclusion that the High Court order was a consent decree. |
| Roop Kumar v. Mohan Thedani (2003) 6 SCC 595 | Same as above. | Reinforced binding effect of counsel’s admissions. |
| Guruvayoor Devaswom Managing Committee v. C.K Rajan (2003) 7 SCC 546 | Same as above. | Same application. |
| Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 | Concession on fact by counsel binds the client; concession on law does not. | Cited to hold the plaintiff bound by counsel’s factual consent on market value and Defendant 3’s right to purchase. |
| B.S Bajwa v. State of Punjab (1998) 2 SCC 523 | Same principle regarding binding admissions by counsel. | Added authority for treating the High Court decree as consensual and unappealable. |
Court's Reasoning and Analysis
1. Nature of the property and statutory right of pre-emption: The Court affirmed that the property is a dwelling house belonging to an undivided family; therefore Section 4 of the Partition Act, 1893 entitled Defendant 3 to buy out the plaintiff’s equitable interest and exclude an outsider from the family property.
2. Validity of the agreement vis-à-vis the minor’s share: Since Defendant 3 (a minor) never authorised the sale and no guardian ad litem was appointed, the 1988 agreement, in so far as it purported to cover his 2/11th share, was void and unenforceable.
3. Discretion under Specific Relief Act: Relying on precedents interpreting Section 20 SRA, the Court reiterated that specific performance is an equitable remedy and may be denied where property values have escalated and long delay has occurred.
4. Consent decree and binding admissions: Paragraph 7 of the High Court judgment recorded an express agreement by both sides on market value and Defendant 3’s proposal to purchase the 9/11th share. Citing authoritative cases, the Supreme Court held that such admissions on facts are binding; consequently, the High Court decree was a consent decree.
5. Bar to appeal: Under Section 96(3) CPC, no appeal lies from a consent decree. Exercising its discretionary jurisdiction under Article 136, the Supreme Court found no ground to interfere with an order that achieved substantial justice.
6. Interim stay and equitable directions: Because the Supreme Court had stayed the High Court’s order earlier, it granted Defendant 3 another three months to pay Rs 11,42,590 to the plaintiff, failing which the alternative relief of specific performance would revive. It also ordered Defendants 1, 2 and 4–7 to refund Rs 1,53,000 received from the plaintiff with 9% interest within eight weeks.
Holding and Implications
Appeals Dismissed.
Defendant 3 is allowed three months to pay Rs 11,42,590 to the plaintiff; failing payment, specific performance against the remaining defendants will ensue. Defendants 1, 2 and 4–7 must refund the plaintiff’s advance with interest. The decision affirms that consent decrees are unassailable in appeal and underscores the statutory right of a co-sharer in a dwelling house to exclude outsiders. No new precedent was set, but the judgment reinforces existing principles on consent decrees and discretionary relief.
P. Sathasivam, J.— Leave granted. These appeals are directed against the final judgment and orders dated 3-3-2009 and 28-8-2009 of the Division Bench of the High Court of Karnataka at Bangalore in RFA No. 52 of 2000 and Miscellaneous Civil Application No. 13474 of 2009 in RFA No. 52 of 2000 respectively whereby the High Court disposed of the appeal and dismissed the application.
Brief facts
2. The property in question originally belonged to one C.S Abdul Momin Shariff and he died leaving behind his wife Hajiba Tabassum and Defendants 1, 2 and 4 (sons), Defendants 5 to 7 (daughters) and Defendant 3, who is the son of late Ismail Shariff, 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, Defendants 1, 2 and 4 to 7 desired to sell the schedule property and to distribute the sale proceeds between themselves. On 2-5-1988, they agreed to sell the property to one Vimaleshwar Nagappa Shet, plaintiff (the appellant herein) for a consideration of Rs 3,10,000, executed agreement of sale and received advance consideration of Rs 10,000. Subsequently, on 6-5-1988, the wife of C.S Abdul Momin Shariff died.
3. Till 15-6-1989, 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 OS No. 91 of 1991 in the Court of the Civil Judge at Chikmagalur. By an order dated 1-10-1999, the trial court decreed the suit in favour of the plaintiff and directed the defendants to execute the sale deed in terms of the agreement of sale dated 2-5-1988. Aggrieved by the said judgment and decree of the trial court, Defendants 2, 3 and 7 filed an appeal being RFA No. 52 of 2000 before the High Court of Karnataka at Bangalore.
4. The High Court taking into account the submission of the counsel for the appellants and the respondents, fixed the market value of property at Rs 300 per square feet. The total area of property is 4655 sq ft (48′ × 90′), therefore, the total market value of property would be Rs 13,96,500. The High Court, by its judgment dated 3-3-2009, while holding that as Defendant 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 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 Defendants 1, 2 and 4 to 7 to execute the sale deed of their share to the extent of 9/11th area in the suit property by making convenient division of the property.
5. Thereafter, an application being Miscellaneous Civil Application No. 13474 of 2009 in RFA 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 the appeal and the order made in the application, the appellant-plaintiff has filed these appeals by way of special leave petitions before this Court.
6. Heard Mr S.N Bhat, learned counsel for the appellant and Mr P.P Rao, learned Senior Counsel for the respondents.
7. It is not in dispute that the property in question belonged to Abdul Momin Shariff. 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 Defendants 1, 2 and 4 to 7. The total share of Defendants 1, 2 and 4 to 7 is 9/11 and the share of Defendant 3 who did not join the execution of agreement of sale would be 2/11. Inasmuch as Defendant 3 was not a party to the agreement, he is not bound by the agreement executed by other defendants to the extent of his share.
8. From the evidence and the materials, it is clear that the suit property is a 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 3 has the right to purchase to exclude the outsider who holds an equitable right of purchase of the shares of other defendants.
9. It is pertinent to point out that the plaintiff was aware that Defendant 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 2 as guardian of the said minor was not pursued and in fact it was dismissed, consequently, his share remained unsold to the plaintiff.
10. As a matter of fact, the agreement of sale dated 2-5-1988 does not refer to Defendant 3 at all or his share in the property. However, in the plaint, the plaintiff clearly admitted the share of Defendant 3 who was a minor and the fact that no guardian was appointed for the minor and Defendant 2 was not his natural guardian. Without Defendant 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.
11. It is settled law that Section 20 of the Specific Relief Act, 1963 confers discretionary powers. [Vide M. Meenakshi v. Metadin Agarwal (2006) 7 SCC 470, Nirmala Anand v. Advent Corpn. (P) Ltd. (2002) 5 SCC 481 and Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Karuvila's Son 1987 Supp SCC 340.] 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 the lapse of a long period of time.
12. Apart 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 para 7 of the High Court judgment which reads as under:
“7. The counsel for the appellants and the respondents submitted that the market value of property is Rs 300 per square feet. The total area of property is 4655 sq ft (48′ × 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 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 Defendant 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. Defendants 1, 2 and 4 to 7 shall execute sale deed of their share to the extent of 9/11th area in the suit property by making convenient division of the property. Accordingly, the appeal is disposed of.”
13. The 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 v. Ramdas Shrinivas Nayak (1982) 2 SCC 463, Shankar K. Mandal v. State of Bihar (2003) 9 SCC 519, Roop Kumar v. Mohan Thedani (2003) 6 SCC 595 and Guruvayoor Devaswom Managing Committee v. C.K Rajan (2003) 7 SCC 546.)
14. It is also clear that the High Court has recorded in the impugned judgment dated 3-3-2009 that the counsel agreed with instructions from the plaintiff and reiterated this fact in its order dated 28-8-2009 in Miscellaneous Civil Application No. 13474 of 2009 in the abovementioned 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 v. Sampati Subba Rao AIR 1963 SC 884, (1963) 2 SCR 208, AIR p. 890 : SCR p. 225 and B.S Bajwa v. State of Punjab (1998) 2 SCC 523)
15. As stated earlier and the reading of the impugned judgment and order of the High Court, more particularly, para 7, which is the concluding paragraph, clearly shows 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.
16. For all these reasons, more particularly, the statement of fact as noted in para 7 of the impugned judgment and the 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.
17. Since this Court had stayed the impugned order of the High Court while ordering of notice on 8-7-2010, Defendant 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. Defendants 1, 2 and 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% from the date of payment within a period of eight weeks from today to the plaintiff.
18. Accordingly, the appeals fail and the same are dismissed with the above direction. No order as to costs.
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