Case Note & Summary
The present second appeal arises from a decree for specific performance of an agreement to sell agricultural land. The respondent-plaintiff Raghunath Jagoji Shirpurkar filed a suit alleging that on 17-9-1997, the appellant-defendant Shankarrao Amrutrao Kale agreed to sell 1 hectare 21 R of land out of Field Survey No.36/3-36/1 for Rs.1,05,000/-, and paid Rs.60,000/- as part consideration, with the sale deed to be executed by 10-6-1998. The plaintiff claimed he was ready and willing to perform his part, but the defendant avoided execution. The defendant denied the agreement, alleging the document was forged and that the suit property was ancestral property in which his other family members had shares. The trial court decreed the suit, holding the agreement proved, the plaintiff ready and willing, and the defendant competent to alienate. The appellate court affirmed. In second appeal, the substantial question of law was whether the property was self-acquired or ancestral, and whether a decree for specific performance could be passed if other family members had shares. The High Court examined the evidence, particularly Exhibit-36, a sale deed from 29-2-1936 showing the defendant's grandfather purchased the property. The court noted that the defendant's father had died in 1965, and the defendant received the property in partition. The court held that property received in partition becomes self-acquired, and the defendant was competent to sell it. The court also noted that the defendant failed to prove that any other family member had a subsisting share. The court dismissed the appeal, upholding the decree for specific performance.
Headnote
A) Property Law - Self-Acquired Property - Partition - Property received by a coparcener in partition becomes his self-acquired property and he is competent to alienate it without consent of other family members - The court held that once a partition takes place, the share allotted to a coparcener ceases to be joint family property and becomes his separate property, and he can deal with it as he likes (Paras 6-8). B) Specific Performance - Title of Vendor - Burden of Proof - In a suit for specific performance, the plaintiff must prove the agreement and readiness and willingness; the defendant must prove that the property is ancestral and that other members have shares - The court held that the defendant failed to prove that the property was ancestral or that other members had any subsisting right, and thus the decree for specific performance was valid (Paras 4-8).
Issue of Consideration
Whether findings of both courts below that the suit land in the hands of the defendant was his self-acquired property, although it has been brought on record that the property was originally owned by his ancestors and it was received by him in partition, is correct? If yes, whether a decree for specific performance in respect of the suit property in which the other members of the joint family have shares, could have been passed?
Final Decision
The High Court dismissed the second appeal, upholding the decree for specific performance passed by the trial court and affirmed by the appellate court.
Law Points
- Property received in partition is self-acquired
- Coparcener can alienate self-acquired property without consent
- Burden of proof on party asserting ancestral nature
- Specific performance decree valid if vendor has title
