@JUDGMENTTAG-ORDER
Charanjit Talwar, J.@mdashBy this suit Smt. Chand Rani Mehra, the plaintiff herein seeks specific performance of the agreement to sell dated 31st July, 1985, whereby Shri Om Shankar Mehra, the defendant herein, who had described himself as the owner of the property, had agreed to sell that property bearing No. 4397 (old No. 2457), Chandni Chowk, Delhi, for a sum of Rs. 1,30,000/-.
2. The defendant has admitted the execution of the said agreement. By his order dated the 17th April. 1986, the Joint Registrar, therefore, exhibited the Agreement as Ex. P. 1. The defendant has further admitted in the written statement that a sum of Rs. 30,000/- was paid to him by the plaintiff on the date the agreement was executed by way of earnest money. It is averred that the defendant did apply to the income tax authorities for the grant of clearance to execute the sale deed, which was granted on 7th August, 1985 and accordingly informed the plaintiff about it. The claim for specific performance and possession of the property is, however, contested on the ground that the property in question belongs to the HUF; that in fact the defendant was under the impression that he had right to execute the sale deed on behalf of the HUF; that as one of his sons Shri Shiv Shankar was not ready to join him in execution of the sale deed, the defendant who has only 1/4th share in the property is unable to execute the sale deed. It is denied in the written statement that the defendant did not perform his part of the contract. It is further claimed in the defence that the agreement (Ex. P. 1) was cancelled on 11 th September, 1985. In this connection, the plea is that the plaintiff on coming to know that the property was of HUF and that one of the sons of the defendant was unwilling to execute the sale deed, approached the defendant for a settlement but the negotiations failed on 11th September, 1985. It is useful to quote relevant portion of para 4 of the written statement:
The talk went on between the plaintiff and the defendant till 11th September, 1985.
Till 11th September, 1985 the son of the defendant Shri Shiv Shankar was not ready to join the defendant in the agreement to sell. It may be stated that other son of the defendant Shri Ravi Shankar had already signed the agreement as a witness. The defendant was also hopeful that he would be able to get the consent of his wife to the agreement. However, in view of the dispute raised by Shri Shiv Shankar the whole thing fell through. On 11th September, 1985 the agreement stood cancelled between the parties and the defendant tendered the sum of Rs. 30,000/- received by him and it was made clear that no further time would be sought from the Court of Shri M. L. Mehta, Additional Rent Controller, Delhi where the eviction proceedings were pending. The plaintiff was first willing to take the money but on being advised by somebody refused to accept the same and informed that he would take action against the defendant and would take him to Court.
3. I recorded the statement of the defendant herein on 20th August, 1986 under R. 2, O. 10, Civil P.C. In the said statement he has shown his willingness to sell the property in question as per Ex. P. 1. He has further admitted that so far the property in question had not been shown as that of HUF and that he had never been assessed as a Karta of the HUF although individually he was being assessed to income tax. The said statement reads as follows :
In answer to the Court question I am ready and willing to sell the property in question as per Ex. P. 1. It is correct that in the agreement there is no mention of the property being of HUF. The income tax clearance certificate was received by me on 7th August, 1985. The application made by me for the said certificate is on record. In the said application in column 2, I had described the status of the applicant as HUF. So far I have never been assessed as a Karta of the HUF neither has the property in question been shown as of that HUF. The property in question was purchased by me in the year 1956. Individually I am assessed to income tax. I had not filed the said application as Karta of HUF. Only my name appears in column 1. In the permission granted, there is no mention that the property is that of HUF. I had purchased this property in my name from the compensation claims arising out of the properties left by me in Pakistan. I do not remember whether 1 had received a legal notice from the plaintiff.
(Emphasis added)
4. Mr. Y. K. Sabharwal, Learned Counsel for the plaintiff has contended that in view of the representations made in Ex. P. 1 that the vendor was the owner of the property in question and particularly keeping in view the statement made in court that he was ready and willing to sell the property as per that agreement, no issues arise for consideration in this case and, therefore, decree as prayed for be passed. The submission is sought to be supported by a decision of this Court in a case entitled "Bhagat Behari Lal v. J. J. Singh (R. F. A. 170-D of 1965 decided on 19th February, 1979). The facts in the said case are more or less similar. The two learned Judges, however, differed on interpretation of provisions of Specific Relief Act vis-�-vis S. 115, Evidence Act, and referred four questions for opinion to a third Judge. Two of those questions were:
(3) Whether it is open to the vendor to plead partial want of title in the subject matter of the sale as a bar to the relief of specific enforcement of the agreement to sell? or to put it in other words, is it open to the vendor to plead that he is not the absolute owner of the property and joint owners/co-owners are not willing to join him in the sale?
(4) What is the legal effect of an express stipulation in the contract of sale that the vendor is the absolute owner of the property agreed to be sold?
5. Deshpande, C. J. agreed with the opinion expressed by one of the learned Judge that the vendor was estopped from showing that the representation of title made in the agreement was mistaken and that in truth the property belonged to the joint Hindu family of which the vendor was only a Karta. After noticing the rival contentions and analysing the case law on the point, his Lordship answered the above two questions as follows :
(3) The vendor is estopped from pleading partial want of title in the subject matter, The other joint owners or co-owners are not concerned with the suit.
(4) The effect of the representation of title made in the sale deed by the vendor is that the vendor is estopped from showing that the said representation is incorrect or untrue.
6. In view of the clear enunciation of the legal propositions in the said Division Bench judgment Mr. V. K. Makhija, Learned Counsel for the defendant agreed that the defence regarding the property in question being that of the HUF cannot be raised in the present case. However, his submission is that the plea of the defendant that the agreement (Ex. P. 1) stood cancelled or impliedly has to be taken to have been cancelled on 11th September, 1985, is to be gone into and, therefore, an issue whether the agreement (Ex. P. 1) stood cancelled in view of the conduct of the parties, has to be framed. Mr. Sabharwal''s rival contention is that in view of the statement made in Court in which the defendant has shown his readiness and willingness to sell the property in question as per the agreement, no material proposition of fact or law arises. He submits that in view of the said statement and keeping in view the provisions of sub-rule (5) of R. 1, O. 14 read with R. 6, O. 12, Civil P. C., the parties cannot be said to be at variance at all.
7. I have quoted above the relevant portions of the written statement wherein it has been alleged that because of the dispute raised by Shri Shiv Shanker stated to be the son of the defendant herein, the settlement between the parties could not be arrived at.
The fact which is pleaded therein is that as the plaintiffs were made aware that the property in the suit belonged to the HUF, the agreement (Ex. P. 1) "fell through" on 11th September, 1985. I agree with Mr. Sabharwal that that averment also relates to the title of the property and thus is facet of that very point, viz., that the vendor''s respresentation in the agreement (Ex. P. 1) was incorrect or untrue. At any rate in view of the categorical and specific statement made before me by the defendant, that controversy cannot be considered to be an allegation constituting his defence. Mr. Makhija''s reliance on
8. The result of the above discussion is that in view of the statement made before me, no issue arises in the present case. Relief
9. The plaintiffs are thus entitled to a decree of specific performance of the contract in question (Ex. P. 1) as prayed for them against the defendants. Ordered accordingly. The defendant shall within a month from today execute the sale deed as per Ex. P. 1 in favour of the plaintiffs and shall get the same registered with the Sub-Registrar of Documents. The balance of the amount to be paid in accordance with the agreement (Ex. P. 1) before the Sub-Registrar. In case the defendant fails to execute the sale deed as per this decree, the plaintiffs shall be entitled to get the same executed through the Court. The plaintiffs shall get the cost of the suit from the defendant which is decreed in their favour and against the defendant.
