REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 4279-4280          OF 2011 (Arising out of SLP (Civil) Nos. 16595-16596 of 2010

Vimaleshwar Nagappa Shet       .... Appellant(s)

Versus

Noor Ahmed Sheriff & Ors.               .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) These  appeals  are  directed  against  the  final  judgment  

and orders dated 03.03.2009 and 28.08.2009 of the Division  

Bench of the High Court of Karnataka at Bangalore in R.F.A.  

No. 52 of 2000 and Misc. Civil No. 13474 of 2009 in R.F.A. No.  

52 of 2000 respectively whereby the High Court disposed of  

the appeal and dismissed the application.

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3) Brief facts:

(a) The property in question originally belonged to one C.S.  

Abdul  Momin  Sheriff  and  he  died  leaving  behind  his  wife  

Hajiba  Tabsasum  and  Defendant  Nos.  1,  2  and  4  (sons),  

Defendant Nos.  5 to 7 (daughters) and Defendant No. 3, who  

is the son of Late Ismail Sheriff, son of Abdul Momin Shariff.  

After his demise, each of the surviving sons succeeded to an  

extent of 2/11th share and each of the daughters succeeded to  

1/11th share in the property.   As the division in the scheduled  

property  was  impractical,  Defendant  Nos.  1,  2  and  4  to  7  

desired  to  sell  the  schedule  property  and to  distribute  sale  

proceeds between them.  On 02.05.1988, they agreed to sell  

the  property  to  one  Vimaleshwar  Nagappa  Shet-plaintiff  

(appellant  herein)  for  a  consideration  of  Rs.3,10,000/-,  

executed  agreement  of  sale  and  received  advance  

consideration of Rs.10,000/-.  Subsequently, on 06.05.1988,  

the wife of C.S Abdul Momin Sheriff died.   

(b) Till  15.06.1989,  the  plaintiff  paid  a  sum  of  

Rs.1,53,000/-, in all, on various dates.  As the defendants did  

not execute the sale deed, the plaintiff filed a suit for specific  

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performance being O.S. No. 91 of 1991 in the Court of the Civil  

Judge at Chikmangalur.  By order dated 01.10.1999, the trial  

Court decreed the suit in favour of the plaintiff and directed  

the defendants to execute the sale deed in terms of agreement  

of sale dated 02.05.1988.  Aggrieved by the said judgment and  

decree  of  the  trial  Court,  Defendant  Nos.  2,  3  and  7  filed  

appeal being R.F.A. No. 52 of 2000 before the High Court of  

Karnataka at Bangalore.   

(c) The High Court taking into account the submission of the  

counsel for the appellants and respondents, fixed the market  

value  of  property  at  Rs.300/-  per  sq.  ft.   The total  area  of  

property is 4,655 sq. ft. (48’ x 90’), therefore, the total market  

value of property would be Rs.13,96,500/-.   The High Court,  

by  its  judgment  dated  03.03.2009,  while  holding  that  as  

Defendant  No.3  was  not  a  party  to  the  agreement  and  he  

proposes to purchase the 9/11th share by paying value to the  

plaintiff  and  the  value  of  9/11th share  would  be  Rs.  

11,42,590/-  and  the  counsel  for  the  plaintiff  on  the  

instruction from the plaintiff  agreed to the said proposal on  

the condition that Defendant No.3 would pay the said amount  

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within three months, in default, the plaintiff would be entitled  

to  the  relief  of  specific  performance  disposed  of  the  appeal  

directing defendant Nos. 1,2 and 4 to 7 to execute the sale  

deed  of  their  share  to  the  extent  of  9/11  area  in  the  suit  

property by making convenient division of the property.   

(d) Thereafter, an application being Misc. Civil No 13474 of  

2009  in  R.F.A.  No.  52  of  2000 was  filed  for  deleting  some  

words  from  the  judgment  and  the  same  was  dismissed.  

Challenging the judgment of the High Court in appeal and the  

order made in the application, the appellant-plaintiff has filed  

these  appeals  by  way  of  special  leave  petitions  before  this  

Court.

4)  Heard Mr. S.N. Bhat, learned counsel for the appellant and  

Mr. P.P. Rao, learned senior counsel for the respondents.

5)  It is not in dispute that the property in question belonged  

to Abdul Momin Sheriff.  After his death, each of the surviving  

sons succeeded to an extent of 2/11th share and each of the  

daughters succeeded to 1/11th share.  It is also not in dispute  

that the agreement of sale was executed only by Defendant  

Nos. 1, 2 and 4 to 7.  The total share of Defendant Nos. 1, 2  

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and 4 to 7 is 9/11 and the share of the Defendant No. 3 who  

did not join the execution of agreement of sale would be 2/11.  

Inasmuch  as  the  Defendant  No.  3  was  not  a  party  to  the  

agreement,  he  is  not  bound by  the  agreement  executed  by  

other defendants to the extent of his share.

6)  From the evidence and the materials, it is clear that the  

suit property is dwelling house.  In that event, Section 4 of the  

Partition Act, 1893 is relevant which reads as under:-

“4. Partition suit by transferee of share in dwelling-house.—

(1)  Where  a  share  of  a  dwelling-house  belonging  to  an  undivided family has been transferred to a person who is not  a  member  of  such  family  and  such  transferee  sues  for  partition, the court shall, if any member of the family being a  shareholder  shall  undertake  to  buy  the  share  of  such  transferee, make a valuation of such share in such manner  as it  thinks fit  and direct  the sale  of  such share to such  shareholder,  and  may  give  all  necessary  and  proper  directions in that behalf.

(2)  If in any case described in sub-section (1) two or more  members  of  the  family  being  such  shareholders  severally  undertake  to  buy  such  share,  the  court  shall  follow  the  procedure prescribed by sub-section (2) of the last foregoing  section.”    

In view of the above provision, Defendant No. 3 has right to  

purchase to exclude the outsider who holds an equitable right  

of purchase of the shares of other defendants.   

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7)  It is pertinent to point out that plaintiff  was aware that  

Defendant No. 3 who was a minor had a share in the property  

and the application made by the other defendants before the  

Civil Court for appointment of Defendant No. 2 as guardian of  

the said minor was not pursued and in fact it was dismissed,  

consequently, his share remained unsold to the plaintiff.

8)  As a matter of fact, agreement of sale dated 02.05.1988  

does not refer to Defendant No. 3 at all  or his share in the  

property.  However, in the plaint, the plaintiff clearly admitted  

the share of Defendant No. 3 who was a minor and the fact  

that no guardian was appointed for the minor and Defendant  

No. 2 was not his natural guardian.  Without Defendant No. 3  

joining the other co-sharers,  no agreement of  sale could be  

entered with the plaintiff for the entire property including the  

minor’s share.  Consequently, the agreement of sale covering  

the entire property was void and ineffective.    

9)  It is settled law that Section 20 of the Specific Relief Act,  

1963  confers  discretionary  powers.  [vide:  M. Meenakshi  &  

Ors. vs.  Metadin  Agarwal (2006)  7  SCC  470,  Nirmala  

Anand vs. Advent Corporation (P) Ltd. & Ors. (2002) 5 SCC  

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481,  Parakunnan  Veetill  Joseph’s  Son  Mathrew vs.  

Nedumbara Karuvila’s Son & Ors.  (1987) Supp. SCC 340].  

It  is also well  settled that the value of property escalates in  

urban areas very fast and it would not be equitable to grant  

specific performance after a lapse of long period of time.   

10)   Apart  from all  these  material  aspects  before  the  High  

Court,  both parties  including the  plaintiff/present  appellant  

agreed  for  a  reasonable  market  valuation.   This  factual  

position is clear from paragraph 7 of the High Court judgment  

which reads as under:-

“7.  The counsel for appellants and respondents submitted  that the market value of property is Rs. 300/- per sq. ft. The  total area of property is 4,655 sq. ft. (48’ x 90’).  The total  market  value  of  property  would be  Rs.  13,96,500/-.   The  value of 9/11th share would be Rs. 11,42,590/-.  Defendant  No. 3 proposes to purchase the 9/11th share by paying value  to  the  plaintiff.   The  counsel  for  the  plaintiffs  with  the  instructions from the plaintiff agreed to the said proposal on  the condition that the Defendant No. 3 should pay the said  amount within three months.  In the event of default,  the  plaintiff  would  be  entitled  to  the  relief  of  specific  performance.   The  Defendant  Nos.  1,  2  and  4  to  7  shall  execute sale deed of their share to the extent of 9/11 area in  the  suit  property  by  making  convenient  division  of  the  property.  Accordingly, the appeal is disposed of.”     

11)  The statement made by the counsel before the High Court,  

as recorded in the impugned judgment and order, cannot be  

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challenged before this Court.[vide: State of Maharashtra vs.  

Ramdas  Shrinivas  Nayak  &  Anr. (1982)  2  SCC  463,  

Shankar  K.  Mandal  &  Ors. vs.  State  of  Bihar  &  Ors.  

(2003) 9 SCC 519, Roop Kumar vs. Mohan Thedani (2003) 6  

SCC 595,  Guruvayoor Devaswom Managing Committee &  

Anr. vs. C.K. Rajan & Ors. (2003) 7 SCC 546]

12)  It is also clear that the High Court has recorded in the  

impugned judgment dated 03.03.2009 that the counsel agreed  

with instructions from the plaintiff and reiterated this fact in  

its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in  

the  above-mentioned  RFA  while  rejecting  the  plea  of  the  

counsel for the appellant herein that he did not give consent  

that  he  had no instructions from his  clients   A  concession  

made by a counsel  on a question of  fact  is  binding on the  

client, but if it is on a question of law, it is not binding. [vide:  

Nedunuri Kameswaramma vs Sampati Subba Rao & Anr.  

(1963)  2  SCR 208,  225,  B.S.  Bajwa & Anr.  vs.  State  of  

Punjab & Ors. (1998) 2 SCC 523, 525-526]

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13)   As  stated  earlier  and  the  reading  of  the  impugned  

judgment and order of the High Court, more particularly, para  

7,  which is  concluding paragraph,  clearly  show that  it  is  a  

consent order.  As per Section 96 (3) of the Civil  Procedure  

Code, no appeal lies from a decree passed by the court with  

the consent of the parties.   

14)  For all these reasons, more particularly, the statement of  

fact as noted in para 7 of the impugned judgment and order of  

the High Court, under Article 136, generally this Court will not  

interfere  with  the  order  of  the  High  Court  which  has  done  

substantial justice.

15)  Since this Court has stayed the impugned order of the  

High Court while ordering of notice on 08.07.2010, Defendant  

No. 3 is granted 3 months’ time from today to pay the amount  

as noted in para 7 of the impugned judgment and in the event  

of default, the directions of the High Court in the same para  

are to be applied and implemented.  Defendant Nos. 1, 2, 4 to  

7 are directed to return the sum of Rs.1,53,000/- which they  

have received towards sale consideration with interest at the  

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rate of 9 per cent from the date of payment within a period of  

eight weeks from today to the plaintiff.   

16) Accordingly, the appeals fail and the same are dismissed  

with the above direction.  No order as to costs.   

.…....…………………………………J.     (P. SATHASIVAM)                                  

 .…....…………………………………J.    (H.L. GOKHALE)  

NEW DELHI; MAY 11, 2011.         

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