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Bhagwan Bhau Indap and ors. Vs. Krishnaji Janoji Indap - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1920)ILR64Bom967
AppellantBhagwan Bhau Indap and ors.
RespondentKrishnaji Janoji Indap
Excerpt:
hindu law - joint family property--contract for sale of his interest by a co-parcener--death of the co-parcener before completion of the sale--suit for specific performance against sons--specific relief act (i of 1877), section 27, clause (c) and illustration. - - 20 to bhau, the contract clearly being a contract for sale to the plaintiff. that seems to be the argument although it is not perfectly clear how b can displace a's title, for the only thing that could happen to prevent a succeeding to b's half would be the event of a dying before b. however that may be, the illustration distinctly covers the case of one joint tenant agreeing to sell his undivided moiety, and then dying, for it states that his. the illustration itself is perfectly clear. whole-of which country the idea of a..........being a contract for sale to the plaintiff.' of bhau's interest, which was three pies in the joint family property. before the sale could be completed, bhau died and the suit is brought against his sons for specific performance. the 3rd defendant paid rs. 20 into court, the sum which had been paid to his, father, and the trial court directed that the plaintiff should receive that amount, and his claim for specific; performance was refused. in the lower appellate court this decree was reversed, and the plaintiffs suit was decreed. the respondent relies on section 27 of the specific relief act, clause (c), 2nd illustration to that clause. it is difficult at first sight to see how that illustration fits in with clause (c). i think the argument is this, that if a-and b are joint.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sued to obtain specific performance of an agreement to sell the plaint property passedbetween him and one Bhau Indap, dated the 7th. July 1916. The plaintiff had paid Rs. 20 to Bhau, the contract clearly being a contract for sale to the plaintiff.' of Bhau's interest, which was three pies in the joint family property. Before the sale could be completed, Bhau died and the suit is brought against his sons for specific performance. The 3rd defendant paid Rs. 20 into Court, the sum which had been paid to his, father, and the trial Court directed that the plaintiff should receive that amount, and his claim for specific; performance was refused. In the lower appellate Court this decree was reversed, and the plaintiffs suit was decreed. The respondent relies on Section 27 of the Specific Relief Act, Clause (c), 2nd Illustration to that clause. It is difficult at first sight to see how that Illustration fits in with Clause (c). I think the argument is this, that if A-and B are joint tenants of joint family property, A has the expectation of succeeding on the death of B to the whole, and A, therefore, may be said, though somewhat inaccurately, to have a title to that undivided moiety, although that title, whatever it may be called, is liable to be displaced by B. That seems to be the argument although it is not perfectly clear how B can displace A's title, for the only thing that could happen to prevent A succeeding to B's half would be the event of A dying before B. In that way it may;be said that B would be displacing A's title. However that may be, the Illustration distinctly covers the case of one joint tenant agreeing to sell his undivided moiety, and then dying, for it states that his. purchaser could bring a suit for specific performance against- the survivor, and unless we place co-parceners in a joint Hindu family in a different category to joint tenants, we should have to hold that the Illustration is binding upon us. The Illustration itself is perfectly clear. There is no ambiguity about it, and there is no reason why we should not follow it in the case of all joint tenants, whether members of a joint Hindu family or not. If we did not do so, a certain amount of uncertainty would arise in future, and it is always desirable to avoid that. In my opinion, therefore, the decision of the lower appellate Court must be upheld, and the appeal must be dismissed with costs.

Heaton, J.

2. I think the 2nd Illustration to Clause (d) of Section 27 of the Specific Relief Act must be taken to refer, not merely to joint tenants in the English sense, but to co-parceners in a joint Hindu family. I think so, because the Specific Relief Act is applicable to India, and enacted for India, where the majority of the population are Hindus, and throughout the. whole-of which country the idea of a joint Hindu family is well understood. But I rather regret that it is so for this reason : we have to decree specific performance,, and what will be the result. The result will be that the plaintiff will obtain a transfer to himself of. a three pies share in a certain property. He will have no right to-joint enjoyment of that property, and he will be unable to obtain separate possession of it without bringing a. suit for partition. So that we are giving the plaintiff' a decree which at best, in all human probability, will' only lead to further disagreement and farther litigation. That is not the kind of case in which I personally should be disposed to decree specific performance.' But the Legislature have thought otherwise, and after all our own personal views are nothing, the intentions of the Legislature everything. I think, therefore, that, the appeal must be dismissed with costs.


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