MISHRA AND S. ABDUL NAZEER, JJ.] versus SARAH C. URS & ORS.

Citation: [2019] 13 S.C.R. 1069 · Decided: 24-10-2019 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Disposed off

Judgment (excerpt)

A
B
C
D
E
F
G
H
1069
SIRDAR K.B. RAMACHANDRA RAJ URS. (DEAD)
THROUGH LRS.
v.
SARAH C. URS & ORS.
(Civil Appeal No.6049 of 2007)
OCTOBER 24, 2019
[ARUN MISHRA AND  S. ABDUL NAZEER, JJ.]
Estoppel – When not attracted – Suit property let out to plaintiff
no.2 by the late father of defendant no.1 and defendant no.1 –
Father of defendant no.1, represented by defendant no.1 as power
of attorney, entered into an agreement to sell with the plaintiffs for
Rs.1,50,000/- out of which Rs.1,00,000/- was received on the same
day – Plaintiffs continued to have the possession of suit property in
part performance of the agreement and stopped paying rent –
Defendant no.1 received the balance sale consideration from
plaintiff no.2 and undertook to execute the deed of conveyance –
Defendant no.1 was postponing to execute the registered sale deed
– Suit filed seeking specific performance – Trial court decreed the
suit – Affirmed by the High Court – Plea of defendants-appellants
that the agreement was with the father of defendant no.1 and not
with defendant no.1 who did not execute agreement of his share
and thus, the suit could not have been decree in toto – Held: Bare
reading of the agreement makes it clear that the “Vendors” was late
father of the defendant no.1 and not defendant no.1 – Defendant
no.1 acted as power of attorney – Said position may indicate that
plaintiffs were misled that only father of defendant no.1 was the
exclusive owner of the property – However, the statement of plaintiff
no.2 clearly indicates that he was well aware of the fact that the
property devolved upon, in equal shares and that it was a joint
family property – Ownership of the defendant no.1 was known to
the plaintiffs and in spite of that they did not set up the case to bind
his share – They did not plead in the plaint that defendant no.1
owned the property – In the plaint, the plaintiffs did not take the
plea of estoppel  and now the case was set up that property had
been sold by defendant no.1 in his capacity – In view of the
agreement and the admission made by the plaintiffs, decree passed
 [2019] 13 S.C.R. 1069
1069
A
B
C
D
E
F
G
H
1070
SUPREME COURT REPORTS
[2019] 13 S.C.R.
by the courts below modified to the extent of 50 per cent of the
shares of the late father of defendant no.1 and is set aside with
respect to the remaining ½ share of the defendant no.1 – Trial court
to divide the property in two equal proportions and it be given to
the parties – Hindu Succession Act, 1956 – s.15 – Income Tax Act,
1961 – s.230-A.
Disposing of the appeals, the Court
HELD: 1.1 The concurrent findings are recorded as to
receipt of consideration and execution of the agreement to sell.
There is no doubt about it that Plaintiff No.2 was earlier a counsel
and legal advisor to father of defendant no.1, but when the
agreement had been executed, he was not a lawyer and became a
Judge of the High Court. There are concurrent findings recorded
concerning the execution of the agreement, and it has been rightly
found established that signatures were not obtained on blank
papers. There is concurrent finding recorded by the courts below
that consideration has been paid. Thus, no case for interference
is made out in the aforesaid findings. The courts below have found
that correspondence was made by defendants No.1 to obtain
Income Tax clearance. The suit has been held not to be barred
by limitation. Given the facts and material placed on record, no
interference is called for with those findings also. [Paras 16,
17][1076-A-C]
1.2  A bare reading of the agreement makes it clear that
agreement is between late father of defendant no.1 through power
of attorney, Defendant No.1. The “Vendors” is mentioned as late
father of defendant no.1 and not defendant no.1. Thus, it cannot
be said that defendant no.1 had executed the agreement on his
behalf, concerning his share in the property. There is no whisper
about the same in the agreement. The position mentioned above
may indicate that plaintiffs were misled by the Power of Attorney
holder that only late  father of defendant no.1 was the exclusive
owner of the property.  When the statement of Plaintiff No.2 is
considered it clearly indicates that he was well aware of the fact
that Princess Leelavathi owned the property and upon her death
the property devolved upon, in equal shares and he was aware of
the other sale deeds executed (Exhs. P 43, P-44, P-45, P-46).  It
is clear that plaintiff No.2 was aware as to the extant title of
A
B
C
D
E
F

Excerpt shown. Read the full judgment & AI analysis in Lexace.