VIJAY A. MITTAL & ORS. versus KULWANT RAI (DEAD) THR. LRS. & ANR.

Citation: [2019] 2 S.C.R. 507 · Decided: 28-01-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Disposed off

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Judgment (excerpt)

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VIJAY A. MITTAL & ORS.
v.
    KULWANT RAI (DEAD) THR. LRS. & ANR.
(Civil Appeal No.5177 of 2009)
JANUARY 28, 2019
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Suit – Specific performance of agreement – Agreement dated
12.06.1979 between the plaintiffs-respondents and the defendant
no.1 (now represented by his legal representatives, appellant nos. 1
to 4 and 7) for sale of the suit property for Rs.46,000/- – Plaintiffs
filed suit for specific performance alleging that they paid earnest
money to defendant no.1 and were ready to perform their part of
the agreement, however defendant no.1 sold the suit property to
defendant nos.2 and 3 (appellant nos.5 & 6, respectively) for
Rs.48,000/- – Trial Court though held that the plaintiffs were ready
and willing to perform their part of the agreement but, dismissed
the suit – Plaintiffs filed appeal before the First Appellate Court,
which was allowed – Challenged by the defendants – High Court
dismissed the second appeal – On appeal, held: Finding on the
issue of readiness and willingness is one of the important and
relevant findings in suit for specific performance of an agreement
– Once recorded, it becomes a finding of fact – When the three
Courts below held against the defendants and in favour of the
plaintiffs that they were ready and willing to perform their part of
the agreement, this finding was binding on the High Court and also
on this Court – Defendants failed to challenge its legality at the
first appellate stage in appeal filed by the plaintiffs – High Court
upheld it by dismissing defendants’ second appeal – Sale made by
defendant no.1 in favour of defendant nos.2 and 3 was a collusive
sale to avoid the agreement of the plaintiffs – The agreement dated
12.06.1979 was binding on the legal heirs of defendant no.1 –
Defendants failed to make out any case for interference in the
impugned judgment  – With a view to end litigation between the
parties, pending since 1982 and also to balance the equities amongst
the parties, defendant no.1 through his legal representatives to
return the sum of Rs.48,000/- to the legal representatives of
 [2019] 2 S.C.R. 507
    507
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SUPREME COURT REPORTS
[2019] 2 S.C.R.
defendant no.2 (appellant no.5) and defendant no.3 (appellant no.6)
– Decree further modified as directed – Indian Contract Act, 1872
– s.65 – Code of Civil Procedure, 1908 – Or.22, r.4(2) – Constitution
of India – Art.142 – Decree.
Family Law – Joint Hindu Family Property – Powers of Karta
– Held: Power of Karta to sell the Joint Hindu Family property is
inherent in him – However, it is subject to certain restrictions, namely,
the sale should be for the legal necessity and for the benefit of the
family.
Disposing of the appeal, the Court
HELD: 1.1 When the three Courts below held against the
defendants and in favour of the plaintiffs that the plaintiffs were
ready and willing to perform their part of the agreement, this
finding was binding on the High Court and also on this Court. A
finding on the issue of readiness and willingness is one of the
important and relevant findings in a suit for specific performance
of an agreement. It is a finding based on facts and once it is
recorded, it becomes a finding of fact. [Paras 19, 21] [513-E-F,
G-H; 514-A]
1.2 In this view of the matter, unless such finding is found
to be against the pleadings or contrary to the evidence or the law
governing the issue, it is binding on the High Court and also on
this Court. Appellants were not able to point out any infirmity or
illegality in this finding.  It is apart from the fact that the appellants
(defendants) failed to challenge its legality and correctness at
the first appellate stage in an appeal filed by the plaintiffs, which
was the appropriate stage to challenge.  It is, therefore, binding
on this Court.  [Paras 22, 23] [514-B-C]
1.3  The sale made by defendant no.1 in favour of defendant
nos.2 and 3 was a collusive sale made to avoid the agreement of
the plaintiffs. The Courts below were justified in holding that the
agreement dated 12.6.1979 was binding on the legal heirs of
defendant no.1.  [Paras 36, 42] [516-A-B; 517-C-D]
1.4 One cannot dispute the power of a Karta to sell the
Joint Hindu Family property.  It is, indeed, inherent in him.
However, it is subject to certain restrictions, namely, the sale
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should be for the legal necessity and for the benefit of the family.
Defendant no.1 had obtained the consent of the legal hei

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