Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 735 (BOM)

Doshmani v. Ayoda Inok Anjore

2014-03-19

A.P.BHANGALE

body2014
JUDGMENT 1. Heard Mr. A.S. Ganu, learned Counsel for the Appellant, Mr. M.B. Naidu, learned Counsel for Respondent no.5 and Mr. P.P. Kothari, learned Counsel for Respondent no.6. 2. This Second Appeal is preferred against the judgment and order dt.26.4.2007 passed by Ad-hoc District Judge-9, Nagpur in Regular Civil Appeal No.401 of 2004. The appeal was dismissed. The said appeal arose from the judgment and order dt.29.6.2004 passed in Special Civil Suit No.795 of 1998 by Joint Civil Judge (Sr.Dn.), Nagpur. It was a suit for specific performance of agreement to sell executed on 9.12.1994 by one of the defendants namely Smt. Ayoda Inok Anjore. The agreement to sell was exhibited as Exh. Nos.62 & 63. The original agreement to sell was dt.9.12.1997. It is the case of the plaintiff/appellant that earnest money was paid in the sum of Rs.20,500/- and later the sum of Rs.51,000/- was also paid towards the consideration for the agreement. Thus, total payment of Rs.71,500/-was made towards agreed consideration of sum of Rs.1,10,000/-. The learned Counsel for the appellant has contended that since one of the defendants had executed agreement to sell the suit tenement no.132 admeasuring area of about 605 sq.ft. situated at Chandan Nagpur, Nagpur, the defendants were liable to execute the sale deed pursuant to the said agreement and therefore, the Courts below erred to refuse specific performance of the agreement to sell and erred in refunding the amount paid towards consideration with nominal interest of 6 % p.a. 3. As against this, the submission of the learned Counsel for the respondent (original defendant) is that signature of defendant no.1 only was taken by the present appellant/plaintiff and rest of defendant nos. 2 to 5 did not sign the suit agreement to sell that tenement. It is, therefore, contended that since agreement to sell was not signed by all the legal heirs of original allottee Ayoda inok Anjare in respect of tenement allotted to him by Nagpur Housing and Area Development Authority (In short “NHADA”), the agreement which was without signature of all the legal heirs of Ayoda was not specifically enforceable. 4. Mr. It is, therefore, contended that since agreement to sell was not signed by all the legal heirs of original allottee Ayoda inok Anjare in respect of tenement allotted to him by Nagpur Housing and Area Development Authority (In short “NHADA”), the agreement which was without signature of all the legal heirs of Ayoda was not specifically enforceable. 4. Mr. P.P. Kothari, learned Counsel representing respondent no.6 has submitted that the suit was bad in law as it was instituted against the NHADA without any prior intimation and without any pre-suit statutory notice required to be given under Section 173 of the Maharashtra Housing and Area Development Act, 1977. It is further submitted that the suit tenement was allotted in favour of predecessor-in-title of defendant nos. 2 to 5 and after death of original allottee, it was necessary for the legal heirs to obtain prior permission of NHADA/respondent no.6 if at all they were intending to sell tenement in favour of present appellant/plaintiff. It is, therefore, contended that defendant no.1 was liable for breach of the agreement with NHADA which was entered into by original allottee Smt. Ayoda Anjore and therefore, the agreement was not specifically enforceable. It is, therefore, contended that the Courts below considered all these facts and circumstances to record concurrent findings of facts and therefore, the Second Appeal does not deserve admission for want of any substantial question of law. 5. Mr. M.B. Naidu, learned Counsel for respondent no.5 made a reference to the ruling in the case of Shanmughasundaram and Others .vs. Diravia Nadar (Dead) by L.Rs. and another reported in AIR 2005 SC 1836 inviting my attention to para no.29 therein. It is submitted that when co-sharers inherit property and agree to sell the entire property, it is necessary that all of them must have signed such an agreement. If one of them only sign, it would be only in respect of undivided share of such signatory and when other co-sharers had not consented, in such a case, assuming that agreement is specifically enforceable, the interest of the signatory which is undivided can at best be transferred in favour of the vendee. The vendee, in such a case, can therefore, at the best obtain undivided interest of the signatory and not interest of other co-sharers who had not signed such an agreement. The vendee, in such a case, can therefore, at the best obtain undivided interest of the signatory and not interest of other co-sharers who had not signed such an agreement. The ruling is referred in order to submit that, in the present case, specific performance of agreement to sell dt.9.12.1994 which was signed only by the first defendant as widow of the original allottee and when other legal heirs of the original allottee namely defendant nos. 3 to 5, did not sign the suit agreement. Therefore, decree for specific performance of agreement to sell dt.9.12.1994 could not have been granted as it is an equitable relief. 6. Hearing all these submissions, I think that both the Courts below recorded concurrent findings of facts by their well reasoned judgments and found that when defendant no.1 alone had executed agreement to sell the suit tenement and other defendants namely respondent nos. 2 to 4 did not consent nor signed the agreement and furthermore when the suit against defendant no.6 a statutory public body could not have been instituted without issuance and service of pre-suit statutory notice as required u/s.173 of the MHADA Act. For all these reasons, upon the basis of the agreement entered into by widow of the original allottee without prior consent of MHADA as also for the reasons that other legal heirs of allottee did not sign the agreement to sell, the decree for specific performance of agreement, as prayed for should not have been passed. Taking into consideration all these facts and circumstances mentioned in the impugned Judgments, I think that the part of the decree to refund the earnest money with interest @ 6 % p.a. on the amount of Rs.51,000/- from the date 9.2.1994 till 15.9.1997 and on the amount of Rs.71,500/-w.e.f. 16.9.1997 till realization of the same was only possible equitable relief in favour of the plaintiff apart from the costs of the suit which was awarded and payable by defendant no.1. That being so, when there is no substantial question of law involved in the appeal, I am not inclined to entertain this appeal. The Second Appeal has to be dismissed at the stage of admission. It is accordingly dismissed.