Readiness To Transfer Possession Not Sufficient In Case Of Joint Family Property Where Executor Incompetent To Execute Agreement: MP High Court

The appellant herein had filed a civil suit for specific performance of contract against the respondents on the basis of an agreement to sell a piece of land. It is noted that the appellant had paid a consideration of Rs.5,00,000/- on the date of agreement in the presence of witnesses. The physical possession of the property was thereafter handed over to the appellant by the 1st respondent, with an assurance that in future as soon as the name of the 1st respondent was mutated in the revenue records, he would execute the registered sale deed in favour of the appellant.

However, it is seen that the 1st respondent's brother was also having a share in the property, and that he was in physical possession of his share. The appellant averred that since the two brothers were living separately, the 1st respondent had a right to sell the property, and that the language of the agreement also made it clear that the 1st respondent had sold his share of the property which had been in his possession. 

The appellant claimed that despite approaching the 1st respondent to execute the sale deed in favour of the former, no such measures had been undertaken. 

He thus filed a suit seeking specific performance of the agreement, or in the alternative, to refund the amount already paid along with interest at the rate of 36% per annum.

The Trial Court dismissed the appellant's suit, and directed refund of the amount of Rs. 5 Lakhs, with interest at the rate of 10% per annum. 

Advocate Ritesh Kumar Sharma appearing on behalf of the deceased appellant, represented by his legal representatives contended that once the transaction and the factum of readiness and willingness were found to be proved, the Trial Court ought not to have rejected the appellant's claim on the ground that the respondent did not have any right to execute the agreement or sale deed since the propert in question is a joint family property. The counsel averred that the Trial Court did not take into account the evidence adduced that partition had already taken place between the brothers and that they were living separately. 

The Court noted that although the appellant had established the execution of the agreement and shown his readiness and willingness to get a sale deed executed, no document was produced to evidence the factum of handing over the possession of the property in question and the right and authority of the defendant to execute the agreement to sell. 

"Merely, an assertion in the Iqrarnama (Exibit P/1) regarding taking consideration of Rs.5,00,000/- and handing over the possession is not sufficient to prove the possession over the property, especially in the circumstances when the property is a joint family property. No document is placed on record to show that the joint holder of the property has given his consent at any point of time for either execution of the agreement to sell or to handover possession of the property in question," it said. 

Perusing the khasra panchshala, the Court found that the document clearly specified the property as a joint family property in the name of both brothers. It thus observed that the Trial Court had taken note of the said factors while recording its finding that the property in question was a joint family property, and that the defendant alone did not have any right to dispose of the same. 

"Therefore, the learned Trial Court was well within its jurisdiction and has rightly directed for refund of the amount of Rs.5,00,000/- as mentioned in the agreement to sell along with an interest at the rate of 10% from the date of filing of the suit. Therefore, the appeal filed by the appellant/plaintiff i.e. Manohar Lal Soni (dead) through LRs. being devoid of merit, is dismissed," it held. 

The respondents were represented by Advocate Manish Kumar Verma.

Citation: 2024 LiveLaw (MP) 14

Case Title: Manohar Lal Soni (Dead) & Ors. v. Fakir Chand Agrawal & Ors. and connected matter 

Case Number: FIRST APPEAL No.360 of 2004 and FIRST APPEAL No. 214 of 2004

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