Bombay High Court
Mohammed Inamul Haq vs Mohammad Idris Qureshi on 4 July, 2008
Bench: A.P. Bhangale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.361 OF 1993.
Mohammed Inamul Haq S/o.Abdul Quddas,
aged 53 years, Occu.: Municipal Service,
resident of Khatibpura, Akot,
Taluq - Akot, District : Akola.
.... APPELLANT.
// VERSUS //
1.
Mohammad Idris Qureshi S/o.Abdul Rauf,
aged about 52 years, Occ.: Government
Service, Resident of Chhaoni, Nagpur.
2. Mohammed Zulfkhar Hussain son of
Abdul Rauf, aged about 37 years,
Occ.: Government Servant, resident of
Chandrapur, Taluq & District :
Chandrapur.
3. Mohammed Badre Jamir son of Abdul
Rauf, aged about 42 years, Occu.: Govt.
Servant, Resident of T.B. Hospital, Nagpur.
4. Mohammed Ziyaul Hasan son of Abdul
Rauf, aged 35 years, Occ. : Business,
Resident of C/o. Shri Mohammed Badre
Jamir, T.B. Hospital, Nagpur.
5. Smt. Bilquis Bano wife of Mohammed
Salim, aged 35 years, Occu. : Household,
Resident of Chhaoni, Nagpur.
6. Smt. Parjana Bano wife of Mohammed
Tagdirullah, aged 32 years,
Occ. : Service, resident of near
Over-bridge Urdu Girls School,
Akola, Tq. & Distt. Akola.
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7. Smt. Rehana Bano wife of Mohammed
Aquil, aged 27 years, Occu.:Household,
Reident of Khatibpura, Akot,
Tq. Akot, Distt. Akola.
8. Smt. Nazahar Afroy S/o. Mohd. Adil,
Khatibpura, Akot, Distt. Akola.
.... RESPONDENTS.
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Shri C.S.Kaptan, Advocate for the Appellant.
None for the respondent.
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CORAM: A.P.BHANGALE, J.
Judgment Reserved on : 24.06.2008.
Judgment Delivered on : 04.07.2008.
ORAL JUDGMENT :
1. By this appeal the appellant has challenged judgment and
order dated 15th July, 1993 passed by Additional District Judge, Akola in
Regular Civil Appeal No.34/1990, whereby the appeal was allowed,
setting aside judgment and decree passed in Regular Civil Suit
No.67/1986, decided on 20th October, 1989, in the result the suit by the
plaintiff for specific performance of the contract was dismissed refunding
earnest money to the plaintiff from original defendant No.1. This appeal
was admitted on following substantial question of law formulated as
question No.9 in the memo of appeal.
"Could a purchaser seek specific performance of
agreement in respect of proportionate share in the
property, if the agreement is admitted ?
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2. This second appeal was, thus, admitted for hearing by order
dated 15.11.1995.
3. Original plaintiffs Mohd. Inabul Haq (appellant herein) had
filed Regular Civil Suit No.67/1986 for specific performance of agreement
to sell as "Sthawarachi Isar Chitthi" dated 18.05.1982. Mohd. Idris
Quereshi (first defendant) had agreed to sell to the plaintiff a suit block
situated in Khatibpura, Ward No.24, Plot No.325 as described in para 1 of
the plaint. In consideration of the earnest money in the sum of
Rs.2,000/- it appears further that on 01.06.1982 a sum of Rs.500/- was
taken by the first defendant Mohd. Idris Quereshi and in consideration of
the promise that he will obtain power of attorney from other co-sharers of
the suit property and will execute sale deed in respect of the suit land.
Endorsement was made accordingly on 09.05.1983 in the "Isarchitthi".
4. It is also contended that there was oral partition in the year
1938 amongst the co-sharers of the family of Mohd. Ismail who had four
sons viz. Abdul Salam Abdul Jalim, Abdul Kulas and Abdul Rauf. The
plaintiff/ appellant herein is son of Abdul Kudas and defendants /
respondents are legal representatives of Abdul Rauf. Defendants had filed
Regular Civil Suit No.188/1975 against the plaintiff and his father for
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recovery of the suit block and the suit was decreed on 16.10.1981.
Thereafter the plaintiff agreed to purchase the suit block under the
Isarchitthi dated 18.05.1982. After payment of earnest money in the sum
of Rs.2,000/-, Rs.500/- was paid on 01.06.1982 and on 09.05.1983 a sum
of Rs.500/- was again paid, thus total sum of Rs.3,000/- out of total
consideration agreed in the sum of Rs.4,000/- was paid. However, the
defendant specifically refused to execute the sale deed. Therefore,
Regular Civil Suit No.67/1986 was filed in the Court of Civil Judge Jr.Dn.,
Akot who by judgment and order dated 26th October, 1989 decreed the
suit of the plaintiff for specific performance of contract on the basis of
agreement dated 18th May, 1982, directed defendants No.1 to 8 to
execute registered sale deed in respect of the suit block on depositing
balance consideration of Rs.1,000/- in the Court within two months from
the date of decree. The said judgment and order was challenged by
defendants No.1 to 8 before the Court of Additional District Jude, Akola,
who by impugned judgment and order allowed the appeal with costs,
setting aside judgment and order in Regular Civil Suit No.67/1986,
directing that the suit for specific performance of contract is dismissed
and the plaintiff is entitled to get total amount of Rs.3,000/- by way of
earnest money from defendant No.1.
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5. According to the learned Advocate for the appellants, herein,
by conduct defendant No.1 had represented to the plaintiff that he is
authorised to execute sale deed pursuant to the agreement to sell of the
suit block to the plaintiff. Further, according to the learned Advocate for
the appellants, the appellant had reason to believe that there was
authorisation in favour of first defendant by other defendants No.2 to 8.
Therefore, the first appellate Court ought to have granted decree of
specific performance. The learned Advocate for the appellant made
reference to Aminauddin Munshi Vs. Tajaddin, reported in AIR 1932
Calcutta 538 to urge that, where members of a Mohomedan family live in
commensality possessing the family property in common and in jointness,
the acquisition by one of the members occupying the position of a
managing member, during the jointness of the family will be presumed to
be for the benefit of the members of the family not because of any
presumption regarding acquisition akin to the joint Hindu family, but
because such person is in fudiciary relationship with other members and
has an obligation to discharge towards other members, and if any
property, as acquired, stand in the name of such person, the burden of
proving that it was his self-acquired and not the property of the joint
family will be on him.
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6. I have perused the ruling referred to by learned Advocate for
the appellants. It must be stated that concept of joint family is unknown
to Mohomedan Law.
7. It appears that the trial Court held that first defendant had
executed agreement for sale of the suit property for himself and on behalf
of defendants No.2 to 8 and further held that authorisation given by first
defendant for himself and on behalf of defendants No.2 to 8 were binding
on them. The first appellate Court did not agree with the findings of the
trial Court and held that the plaintiff did not prove that defendant No.1
had executed legal and valid agreement of sale in respect of the suit
premises in favour of the plaintiff and is not entitled for specific
performance of the contract. It is pertinent to note that the first appellate
Court considered the factual background of earlier litigation between the
parties and observed thus :
"No such power of attorney of the present Appellants
(Defendants 2 to 8) had come on record in favour of
Respondent No.2 (original Defendant No.1) and in view
of this fact, it is clear that conclusions and observations of
the learned trial judge, that there is legal and valid
agreement of sale of the Defendants in favour of of the
Plaintiff, are not at all proper and legal. On Exh.43 there
is signatures of Defendant No.1 at two places. If at all he
had executed the said agreement for himself and on behalf
of others, he should have mentioned it specifically to that
effect that he had put his signatures for himself and on
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behalf of his brothers and sisters. But no such specific
mention is there."
8. I have perused judgments and orders passed by both the
Courts below. At the most, it may be stated that the agreement to sale
was binding upon the first defendant Mohammed Idris Quereshi to the
extent of his share he is joint owner and can alienate the property. From
the document titled as "Sthawarachi Isarchitthi" dated 18.05.1982 along
with endorsement dated 01.06.1982 and 09.05.1983 considered together
do not indicate that other co-sharers had consented for the intended sale
in respect of the suit property. Hence, the agreement to sell in favour of
the plaintiff in so far as defendants No.2 to 7 are concerned, therefore,
not binding on them. But in so far as first defendant is concerned, the
transaction is binding on him. The plaintiff may ask for equitable
adjustment in general partition between the co-sharers. I am fortified in
my conclusion by ruling in U.G. Srinivasa Rao V. Vinaykumar S. Rao,
reported in AIR 2004 Karnataka 450.
9. Hence, the purchaser can seek specific performance of the
agreement in respect of the proportionate share in the property if the
agreement is admitted. In the present case, admittedly the agreement
was executed by Mohd. Idris Quereshi, first defendant. It would,
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therefore, be binding on him and not on other defendants. The
substantial question of law is answered accordingly.
10. In the result, the appeal is partly allowed.
The plaintiff's suit for specific performance of contract
succeeds as against the first defendant only. The suit shall stand
dismissed as against defendants No.2 to 8. The suit transaction of the
agreement to sell shall be binding upon the first defendant only. The
plaintiff may ask for equitable adjustment in the event of general partition
of the suit property. In the alternative the plaintiff is entitled to get back
refund of the total amount of Rs.3,000/- paid by way of earnest money
from original first defendant. Decree shall stand modified accordingly.
JUDGE
RR..
