Case Note & Summary
The Second Appeal arose from a suit for specific performance of an agreement to sell immovable property. The plaintiff (respondent no.1) claimed that defendant nos.1 and 2, owners of the suit property, agreed to sell it to him for Rs.7000, received Rs.600 earnest money, and put him in possession. The defendants allegedly cancelled the agreement and sold portions to defendant nos.3 to 5. The plaintiff alleged that defendant nos.6 and 7, claiming through Bayakka, had no right as Bayakka died spinster. The trial court dismissed the suit, inter alia finding that the plaintiff was not ready and willing, that defendants nos.3 to 5 were bona fide purchasers, and that defendant no.7 was the son of Bayakka from a void marriage but had inheritance rights, so defendants 1 and 2 were not exclusive owners. The first appellate court reversed, granting a decree for specific performance, holding that Bayakka died unmarried without issue, defendants 3-5 were not bona fide, and plaintiff was ready and willing. In this Second Appeal, the High Court admitted it on the question whether the decree was proper without setting aside the subsequent sales. Additional substantial questions were later framed concerning: failure to appoint guardian-ad-litem for the minor defendant no.7; correctness of reversing finding on defendant no.7's share; readiness and willingness; and exercise of discretion under Section 20 Specific Relief Act. The arguments of the defendants' counsel were that the plaintiff's power of attorney could not depose, time was essence, plaintiff failed to prove continuous readiness, and that defendant nos.3-5 were bona fide purchasers. The court reserved judgment on 27 August 2019 and pronounced on 20 September 2019. The final decision and reasoning are not included in the provided excerpt.
Issue of Consideration
Whether first appellate court could grant specific performance without setting aside subsequent sale deeds; whether trial court erred in not appointing guardian-ad-litem for minor defendant No.7; whether first appellate court erred in reversing finding that defendant No.7 was son of Bayakka and had half share; if so, whether plaintiff was ready and willing to perform; and whether discretion under Section 20 Specific Relief Act could be exercised in plaintiff's favour.
Law Points
- Requirement of guardian-ad-litem for minor defendant
- Proof of readiness and willingness in specific performance
- Discretion under Section 20 Specific Relief Act
- Reversal of findings by first appellate court
- Need to set aside subsequent sale deeds when decreeing specific performance
Case Details
2019 LawText (BOM) (09) 108
Second Appeal No.114 of 1991
Smt. Anuja Prabhudessai, J.
Mr. Bhooshan Mandlik I/b. S.S. Patwardhan for the Appellant, Mr. Tejpal Ingle a/w. Nikhil Pawar, APP for the Respondent/State
Sou. Sharada Nanasaheb Patil, Sou. Aruna Dattajirao Patil, Uday Nansaheb Patil, Ramu Akoba Hanchanle (deceased) through L.R. Krishna Ramu Hanchanale, Krishna Ramu Hanchanale
Appaso Jivappa Chougule, Laxmibai w/o. Babu Bondre, Mohan Babu Bondre (deleted), Dhondibai Mahadev Bodake (deceased)
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Nature of Litigation
Second Appeal against decree for specific performance of agreement to sell immovable property
Remedy Sought
The plaintiff sought specific performance of agreement dated 17.1.1981, permanent injunction, or alternatively refund of earnest money
Filing Reason
The defendants cancelled the agreement and sold portions to third parties, denying plaintiff's rights
Previous Decisions
Trial court dismissed the suit; first appellate court decreed the suit directing execution of sale deed and deposit of balance consideration
Issues
Whether lower appellate court could grant decree without setting aside sale in favour of defendant nos.3 to 5
Whether trial court erred in not appointing guardian-ad-litem for minor defendant no.7
Whether first appellate court erred in reversing finding that defendant no.7 was son of Bayakka and had half share
If defendant no.7 had half share, whether plaintiff was ready and willing to perform
Whether discretion under Section 20 Specific Relief Act could be exercised in plaintiff's favour
Submissions/Arguments
Plaintiff's power of attorney could not depose on behalf of principal
Time was essence of contract and plaintiff failed to perform within stipulated period
Plaintiff did not establish continuous readiness and willingness to perform
Defendant nos.1 and 2 were not exclusive owners; Bayakka had half share which passed to defendant no.7
First appellate court wrongly reversed trial court's finding on defendant no.7's share
Defendant nos.3-5 are bona fide purchasers for value without notice
Judgment Excerpts
Whether the lower Appellate Court is right in granting decree when the plaintiff has not prayed for setting aside sale in favour of the defendant nos.3 to 5, which sale deeds have not been challenged?
1. Whether the Trial Court erred in proceeding without appointment of guardian-ad-litem for the Defendant No.7 who was a minor?
2. Whether the First Appellate Court erred in reversing finding of the trial Court that the Defendant No.7 was the son of Bayakka and had ½ share in the suit property?
3. If Defendant No.7 had ½ share, whether the plaintiff was ready and willing to perform his part of the contract?
4. Whether the discretion under Section 20 could have been exercised in his favour?
Procedural History
Suit No.31 of 1981 filed in trial court; trial court dismissed suit; Regular Civil Appeal No.252 of 1986 before Addl. District Judge, Kolhapur allowed appeal and decreed suit on 31.12.1990; Second Appeal No.114 of 1991 filed; admitted on 8.3.1991 on one substantial question; additional substantial questions framed on 28.9.2018; judgment reserved on 27.8.2019, pronounced on 20.9.2019.
Acts & Sections
- Specific Relief Act, 1963: 16(1)(c), 20
- Code of Civil Procedure, 1908: 100
