JUDGMENT : Goutam Bhaduri, J. 1. Heard. 2. The present appeal is against the judgment and decree dated 21.06.2017 passed in civil suit No.41-A/2006 by the Court of Second Additional District Judge, Raipur (CG), whereby a suit for specific performance was decreed. 3. The brief facts of the case are that Shyam Ratan Sahu, respondent No.1 herein, filed a civil suit for specific performance of contract dated 15.06.2005 (Ex. P/13) initially against Anjana Bai Bagre. It was alleged that as per the plaint allegation the suit property bearing plot No.320 under Khasra No.320/2 admeasuring 2400 sq. ft. having superstructure situated at Sundar Nagar Grih Nirman Cooperative Society, Mahadev Ghat Road, Raipur was in name of late Rajesh Kumar Bagre son of Anjana Bai Bagre. Mother Anjana Bai Bagre entered into an agreement of sale initially with two sellers namely Shyam Ratan Sahu and Mahendra Sahu on 29.04.2005 (Ex. P-9) and subsequent agreement was executed on 15.06.2005 only with Shyam Ratan Sahu. According to the plaintiff, after execution of the second agreement dated 15.06.2005, the sale deed was not executed within specified time despite notice and the defendant/appellant herein when was called upon to execute the sale deed but the same was not done, eventually the suit was filed. 4. As per the written statement, the property belonged to one Rajesh Kumar Bagre and the seller Anjana Bai Bagre being the mother has executed the agreement, she did not have the absolute right to enter into such agreement. The objection having been taken to that effect, the other defendants i.e. daughter Ku. Ranjana Bagre, son Ratan Rao Bagre, another daughter Smt. Archana Kande and another son Vilas Rao Bagre were added as defendants on 18.03.2008. It was further stated that no execution of agreement was made by Anjana Bai Bagre and additional plea was taken since the other legal heirs have not been joined, the specific performance of the sale cannot be ordered. Learned trial Court framed as many as 8 issues and decreed the suit in favour of the plaintiff Shyam Ratan Sahu. Hence this appeal. 5. Learned counsel for the appellant would submit that admittedly the property was purchased by Rajesh Kumar Bagre by a sale deed vide Ex. Learned trial Court framed as many as 8 issues and decreed the suit in favour of the plaintiff Shyam Ratan Sahu. Hence this appeal. 5. Learned counsel for the appellant would submit that admittedly the property was purchased by Rajesh Kumar Bagre by a sale deed vide Ex. P/1 and it was his absolute property, therefore, as per Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act, 1956) read with Section 9 of the Act, 1956, the mother will not get the absolute ownership over the property, as such when the other legal heirs were not joined as a party, the specific performance of the agreement cannot be decreed. He further submits that the wife of the deceased was also not made a party, therefore, such agreement cannot be executed. He further placed his reliance in the cases of Vishin N. Khanchandani and another Vs. Vidya Lachmandas Khanchandani and another { (2000) 6 SCC 724 } and Dharmabiri Rana Versus Pramod Kumar Sharma (DEAD) Through Legal Representatives and another { (2018) 11 SCC 554 } and would submit that the finding of the learned Court below is completely perverse which requires interference. 6. Per contra, learned counsel for the respondents would submit that the defendants have not filed their written statement as such it would amount to ratification of the agreement, consent and admission on the part of the defendants. He would further submit that after death of Rajesh Kumar Bagre, the mother has received the amount which has been used for all other legal heirs and when they were made a party they have not filed their written statement, which would lead to admission and consent. He further submits that the execution of the agreement since been denied, therefore, no defence can be looked into and it would be binding on the other legal heirs. He would further submit that even otherwise when the mother finds place as a Class-I heir, then that part of the agreement is required to be executed. 7. We have heard learned counsel for the parties and perused the documents. 8. The record of the Court below would show that initially a suit was filed against one Anjana Bai Bagde which was based on the agreement dated 15.06.2005 (Ex. P/13), wherein she agreed to sell the plot No.320 under Khasra No.320/2 admeasuring 2400 sq. ft. 7. We have heard learned counsel for the parties and perused the documents. 8. The record of the Court below would show that initially a suit was filed against one Anjana Bai Bagde which was based on the agreement dated 15.06.2005 (Ex. P/13), wherein she agreed to sell the plot No.320 under Khasra No.320/2 admeasuring 2400 sq. ft. having superstructure over 800 sq. ft. situated at Sundar Nagar Grih Nirman Co-operative Society, Mahadev Ghat Road, Raipur. This agreement was preceded by another agreement dated 29.04.2005 (Ex. P-9) which too was executed alone by Anjana Bai Bagde and the purchasers initially were two people namely Shyam Ratan Sahu and Mahendra Sahu. 9. Be that as it may, since initially the suit was filed to execute the agreement dated 15.06.2005 which is a subsequent one, we would like to deliberate as to whether such agreement could be specifically enforced. In order to find out the nucleus of title as it has been raised by the appellant that Anjana Bai Bagde did not have the absolute right, the document Ex. P/1 was perused. Ex. P/1 is a sale deed which purports that Rajesh Kumar Bagre since deceased had purchased the subject property from Shyam Prakash by sale deed dated 22.02.1993, therefore, it was an absolute property of Rajesh Kumar Bagre. Rajesh Kumar Bagre since died, his mother Anjana Bai Bagde entered into an agreement for sale of the property vide Ex. P/9 and subsequent agreement Ex. P/13. 10. As per the Hindu Succession Act, 1956 Section 8 lays down the general rules of succession in the case of males. Which reads as under:- “8. General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.” 11. The other Section 9 of the Act, 1956 contemplates that among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs. For sake of brevity Section 9 of the Act, 1956 is also reproduced:- “9. Order of succession among heirs in the Schedule.- Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.” Reading of the Sections 8 & 9 of the Act, 1956 would show that the property of a male hindu dying intestate would devolved firstly upon the heirs, being the relatives specified in Class I of the schedule and Section 9 of the Act, 1956 contemplates that persons enlisted in the schedule I shall take simultaneously the property. Class-I schedule includes son, daughter, widow, mother and so on. 12. When the agreement Ex. P/13 is examined, as against the statutory provision, it would show that the agreement was only executed by Anjana Bai Bagde claiming herself to be the nominee of her son. The right of the nominee came for consideration in the case of Smt. Sarbati Devi and another Vs. Smt. Usha Devi { 1984 (1) SCC 424 } wherein the Supreme Court held that mere nomination does not have the effect of conferring on the nominee any beneficial interest and nomination is only held for a specific purpose and nominee cannot be treated as being equated to the heirs and legatees. The Supreme Court further in Vishin N. Khanchandani and another Vs. Vidya Lachmandas Khanchandani and another { (2000) 6 SCC 724 } has held that right of a nominee cannot be given an overriding effect over the Hindu Succession Act, 1956. The Supreme Court further in Vishin N. Khanchandani and another Vs. Vidya Lachmandas Khanchandani and another { (2000) 6 SCC 724 } has held that right of a nominee cannot be given an overriding effect over the Hindu Succession Act, 1956. While interpreting Section 39 of the Insurance Act, 1938 the Supreme Court in the case of Challamma Versus Tilaga and others { (2009) 9 SCC 299 } adjudicating the right of a nominee has reiterated the earlier view in the case of Vishin (supra) and held that the nomination only indicated the right which was authorised to receive the amount on the payment and it cannot be equitted to a testamentary or intestate succession to be styled as statutory enactment. 13. Perusal of the plaint would show that widow of late Rajesh Kumar Bagre namely Smt. Prerna Bagre also remains, which is evident from the statement of Ratan Kumar Bagde (DW-2) with respect to the existence of Smt. Prerna Bagre being the widow and no cross-examination has been made. In absence of the cross-examination to the vital issue the same would be admitted. This proposition was further laid down by the Supreme Court in the case of Vinod Kumar Vs. State of Haryana {(2015) (3) SCC 138}, wherein the Court reiterated the judgment passed in the case of State of U.P. Vs. Nahar Singh { (1998) 3 SCC 561 }, in which the Court held that in the absence of cross-examination and when the statement remained unchallenged, the Court ought to believe the same. 14.The trial Court has dealt the issue as issue No.4 in its judgment and completely failed to appreciate the fact of effect of Sections 8 & 9 of the Act, 1956, instead it went into adjudicating the issue by brushing aside the legal right by holding that since the heirs have been added in plaint as such the issue of non-joinder would not come in way. The trial Court failed to consider the statement of Ratan Kumar Bagde (DW-2) regarding existence of Smt. Prerna, the wife of the deceased coupled with the fact that the subject property was absolute self acquired property of Rajesh Kumar. Despite the fact the learned trial Court further failed to take into account to deliberate upon that when the legal heirs have not been added then how the specific performance decree can be ordered. Despite the fact the learned trial Court further failed to take into account to deliberate upon that when the legal heirs have not been added then how the specific performance decree can be ordered. 15.Under these circumstances, without going further into the issue about readiness & willingness, according to our considered opinion when the agreement itself was defective and in respect of suit property the other legal heirs have a vested right, who were not joined as a seller in the agreement, the same cannot be enforced to take away the right of the other co-owners. Accordingly, the agreement Ex. P/13 since was executed by only nominee-mother, the same cannot be specifically enforced. In a result, we set aside the judgment and decree of the Court below dated 21.06.2017, whereby the decree of specific performance was ordered for. 16. Now coming back to the agreement which shows that an amount of Rs.4,00,000/- was paid as an earnest money out of sale consideration of Rs.11,51,000/-. There is nothing on record to show that despite the amount was taken, any effort was made to return the same to the purchaser. Since we have declined to issue the decree for specific performance, therefore, at the same time it may not lead to unjust enrichment to the appellant. Unjust enrichment could be defined as a benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense. 17. The Supreme Court in the case of Indian Council for Enviro-legal Action Versus Union of India and others { (2011) 8 SCC 161 } discussed different case-laws. Few of the paras i.e. para Nos.152, 153, 154, 155 & 156 are reproduced hereinbelow:- 152. Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 153. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash (732 A 2d 217) Delware 1999), 232-33. 154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] 2 All ER 122, Lord Wright stated the principle thus : "....(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution." 155. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- "…...It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires." 156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment. 18. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires." 156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment. 18. Since the money is in the hold of the appellant, we are of the opinion that the respondent has a right of restitution and he cannot be deprived of the said amount. The Supreme Court has observed that the restitution and unjust enrichment have to be viewed in two stages i.e. Pre-suit and post-suit. In the pre-suit position the amount is not returned and also in the post-suit the amount is still with the appellant. If we look into other angel that the appellant has borrowed the money from the nationalized bank, what the bank would demand. Therefore, by applying the principles of justice and equity and not to make it as an incentive for the appellant, it is directed that the respondent shall be entitled to receive the amount of 4 Lakhs from the appellant. To implement in practical terms in concept of time, value and money, we deem it appropriate to grant an interest @ 6 % p.a. from June 2005. 19. In a result, the appeal is allowed. In the facts of the case the parties shall bear their own costs. 20. A decree be drawn accordingly.