LexVIMALESHWAR NAGAPPA SHET versus NOOR AHMED SHERIFF & ORS.
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A B [2011) 6 S.C.R. 392 VIMALESHWAR NAGAPPA SHET v. NOOR AHMED SHERIFF & ORS. (Civil Appeal Nos. 4279-80 of 2011) MAY 11, 2011 [P. SATHASIVAM AND H.L. GOKHALE, JJ.] Code of Civil Procedure, 1908 - s. 96(3) - Pursuant to death of the original owner of the property in question, his C sons, daughters as also minor grandson succeeding to their respective share in the property - Co-sharers-sons and daughters entering into an agreement to sell the entire property with appellant-buyer - Non-execution of sale deed by co-sharers despite having received certain amount - Suit o for specific performance - Decreed by trial court - Appeal before High Court - High Court fixing the market value of the property - Defendant No. 3-minor grandson, who was not party to the agreement, proposing to purchase the share of the co-sharers by paying the value to the appellant- Counsel E for the appellant on instructions from the appellant agreeing to the said proposal - High Court directing co-sharers to execute the sale deed to the extent of their share in the suit property - On appeal, held: Order of the High Court shows that it is a consent order - No appeal lies from a decree F passed by the court with the consent of the parties- Defendant No. 3 has right to purchase, to exclude the outsider who holds an equitable right of purchase of the shares of other defendants - He was not bound by the agreement executed by other defendants to the extent of his share - Since defendant No. 3 did not join the other co-sharers, no G agreement of sale could be entered with the appellant for the entire property including the minor's share - Thus, the agreement of sale covering the entire property was void and ineffective - Also, before the High Court, both parties H 392 VIMALESHWAR NAGAPPA SHET v. NOOR AHMED 393 SHERIFF & ORS. including the appellant agreed for a reasonable market A valuation - Statement made by the counsel before the High Court, cannot be challenged before Supreme Court- Partition Act, 1893 - s. 4. Concession - Concession made by counsel, on a question of fact - Effect of - Held: Is binding on the client - B However, concession on a question of law, is not binding. After the death of 'M', his surviving sons-Defendant Nos. 1, 2 and 4 succeeded to the extent of 2/11 th share and his surviving daughters- Defendant Nos. 5 to 7 · C succeeded to 1/11th share in the property. Defendant No. 3, grandson of 'M' is a minor and he succeeded to 2111 th shar . The division in the scheduled property was not practica and as such Defendant No. 1, 2 and 4 to 5 desired to sell he property and distribute the sale proceeds between them. D Defendant No'. 1, 2 and 4 to 5 executed agreement of sale in favour of appellant and received an advance amount. Subsequentjy, wife of 'M' died. The defendants did not execute the/sale deeds and as a result the appellant filed a suit for specific performance. The trial court decreed the E suit and directed the defendant to execute the sale deed in terms of the agreement of sale. The defendant Nos. 2, 3 and 7 filed an appeal. The defendant No. 3 was not a party to the agreement and he proposed to purchase the 9/11th share by paying the value to the appellant. The F High Court fixed the market value of the property. The counsel for the appellant on instructions from the appellant agreed to the said proposal on the condition that defendant No. 3 would pay the said amount within three months, in default, the appellant would be entitled G to the relief of specific performance. The High Court directed defendant No. 1, 2, 4 to 7 to execute the sale deed of their share to the extent of 9/11 area in the suit property by making a convenient division of the property. Thereafter, an application was filed for deleting some H 394 SUPREME COURT REPORTS [2011) 6 S.C.R. A words from the judgment and the same was dismissed. Therefore, the appellant filed the instant appeals. Dismissing the appeals, the Court HELD: 1.1. Since defendant No. 3 was not a party to B the agreement of sale, he is not bound by the agreement executed by other defendants to the extent of his share. From the evidence and the materials, it is clear that the suit property Is _dwelling house. In view of s. 4 of the Partition Act, 1893, defendant No. 3 has right to purchase C to exclude the outsider who holds an equitable right of purchase of the shares of other defendants. [Paras 5
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