SHRI SHIVJI versus SHRI RAGHUNATH (DEAD) AND ORS.

Citation: [1997] 2 S.C.R. 314 · Decided: 20-02-1997 · Supreme Court of India · Bench: K. RAMASWAMY, S. SAGHIR AHMAD · Disposal: Dismissed
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Judgment (excerpt)

A 
SHRI SHIVJI 
v. 
SHRI RAGHUNATH (DEAD) AND ORS. 
FEBRUARY 20, 1997 
B 
(K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.] 
Specific Relief Act, 1963 : 
Suit for specific performance of contract-Joint purchasers of 
C land-Agreement of sale executed by of them of the defendant, that she would 
convey her share in the property, to the other plaintiff-respondent--Oefendant 
attempting to ~ell the land to third party and refusing to execute the sale deed 
in terms of the agreement of sale-Suit for specific performance by respon-
dent-Defendant's plea that the agreement of sale was executed by playing 
fraud on her and that the document was void by operation of rule against 
D perpetuity, rejected by trial court and the appellate courts-Held, in view of 
concuJTent finding off act recorded by the courts below that the agreement of 
sale was a valid deed, it is not a prohibition on her right to alienate the 
property to anybody except the respondent-It is a fetter on her right to deal 
with her share in the property and a liability burdened with the land-When 
E the appellant purchased the property, being a subsequent purchaser, he pur-
chased it with notice of the said agreement for sale, so he could not get any 
valid title; and the agreement is valid and binds the appellant and the 
defendant. 
F 
Transfer of Property Act, 1882 : 
Ss. 14, 40 and 54-Rule against perpetui(JAgreement of sale-Held, 
where a contract has been executed in which no interest in presaenti has been 
created, the rule of pe1petuity has no application-The agreement is in the 
nature of a pre-emptive right created in favour of the co-owne~It is enforce-
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G able as and when an attempt is made by the co-owner to alienate the land to 
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third parties. 
Rambaran v. Ram Mohit, [1967] 1SCR293, relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 539 of 
H 1986. 
314 
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SHNJI v. RAGHUNATH 
315 
From the Judgment and Order dated 28.8.85 of the Madhya Pradesh A 
High Court in S.A. No. 323 of 1974. 
Y.P. Rao for the Appellant. 
Vivek Gambhir for the Respondents. 
The following Order of the Court was delivered : 
Substitution allowed. This appeal by special leave arises from the 
judgment of the single Judge of the High Court of M.P. passed on August 
28, 1985 dismissing the second appeal. 
The appellant is a subsequent purchaser from Smt. Reshambai, wife 
B 
c 
of Ramaji Gujar. The admitted facts are that the deceased respondent and 
Reshambai had purchased jointly, an extent of 9 acres 2 decimals of land 
under sale deed dated August 26, 1966. There was a contemporaneous 
agreement of sale executed by Reshambai in favour of the appellant D 
agreeing to convey her share in the property under the sale deed in terms 
of the agreement to the respondent. Pursuant to the sale, it is not in 
dispute, there was an oral arrangement under which the parties came to 
be in respective possession of the land comprised in the sale deed. When 
Reshambai attempted to sell the land to the appellant, notice was issued E 
by the respondent on January 20, 1969 calling upon her to execute the sale 
deed in terms of the agreement of sale. In her reply dated January 24, 1969, 
she denied having agreed to sell the land to him and refused to execute 
the sale. Reshambai also denied her liability to execute the sale deed. As 
a consequence, the respondent had filed the suit for specific performance. 
The defence taken in the,suit was that the agreement of sale was a F 
fraudulent document brought into existence to defeat her right and that 
she was not liable to execute the sale deed. The other defence taken was 
that the document was void by operation of rule against perpetuity. Further 
contention raised was that since the agreement put an embargo on her right 
to alienate the property, it was void. All the courts below have negatived G 
her right and decreed the suit. .Thus this appeal by special leave . 
. The question is : whether the document, viz., agreement'to sell was 
executed by playing fraud on her? Finding of fact recorded by all the courts 
is in the affirmative. Therefore, it need not be considered by this Court. 
Further the defence that the suit also puts perpetual restriction on her right H 
316 
SUPREME COURT REPORTS 
[1997] 2 S.C.R. 
A of alienation and is, therefore, void, also has no force for the reason that 
one~ reshambai was found to have executed the agreement for saleand the 
same was found to be a valid deed, the covenant became a 'contract
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