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TMI Blog2019 (10) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of 50 per cent of the shares of the deceased late K. Basavaraja Urs and to set it aside with respect to the remaining share of K.B. Ramchandra Raj Urs (defendant No.1) in the property, since the property devolved under section 15 of the Hindu Succession Act. The plaintiffs to be entitled only to the extent of share in the suit property. The decree to the remaining extent is set aside. The plaintiffs would not be entitled to refund of any consideration as by now the worth of property has increased manifold - appeal allowed in part. - CIVIL APPEAL NO.6049 OF 2007, CIVIL APPEAL NO.6050 OF 2007 - - - Dated:- 24-10-2019 - Arun Mishra And S. Abdul Nazeer, JJ. JUDGMENT ARUN MISHRA, J. 1. The appeals are preferred against the judgment and order dated 13.8.2007 passed by the High Court, affirming the judgment and order of the trial court decreeing the suit filed by the plaintiff for specific performance of an agreement of sale. 2. The plaintiffs filed the suit concerning suit scheduled property inherited by Princess Leelavathi, wife of late K. Basavaraja Urs. She had adopted the defendant No.1 and died during the year 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2nd plaintiff claimed to be a close relative of late K. Basavaraja Urs. He was his lawyer and selfassumed trustee. He obtained the signatures of defendant no.1 on blank papers, which has been misused by the 2nd plaintiff to create the agreement in question dated 24.4.1979. It was assured that agreement was obtained as a collateral document to secure professional charges, which, according to the plaintiff, remained unpaid. 7. The defendants denied the receipt of the sale consideration on 24.4.1979 and 1.6.1993 and also the subsequent correspondence between plaintiff No.2 and defendant No.1 and his Tax Consultant. The 2nd plaintiff was never permitted to put up construction on the property by the defendant No.1. After the demise of Princess Leelavathi, the suit property devolved on late K. Basavaraja Urs and defendant No.1. The 1st defendant has not conveyed his interest in the suit property in favour of plaintiffs. Defendants contended that no agreement was entered into with the plaintiffs. The suit is barred by time. 8. Defendant No.5, in his written statement, took the plea that the property being ancestral could not have been sold by defendant No.1 to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4.1979. 12. The High Court has found that defendant No.1 has executed the agreement not only as power of attorney for his father but also as a son of late K. Basavaraja Urs. The stand of defendant No.1 is inconsistent. Defendant No.1, allowed the plaintiffs to put up the construction in the suit property. Thus, he was precluded from contending that he was not a party to the agreement. The High Court has also held that defendant No.1 has entered into the agreement and the entire consideration has been received, it is not considered appropriate to grant the liquidated damage or penalty for the breach of contract. The High Court has also held that the property was held by Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death, the suit property devolved on late K. Basavaraj Urs and defendant No.1 under section 15 of Hindu Succession Act, 1956. 13. It was submitted by the learned counsel appearing on behalf of the appellants that plaintiff No.2, M.P. Chandrakanta Raj Urs, was elevated as Judge of the High Court. Earlier, he was the Legal Advisor of the late K. Basavaraja Urs. Thus, he could not have purchased the property. The agreement was not du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncess Leelavathi. Thus, the suit could not have been decreed in toto; it could have been decreed only to the extent of the share of late K. Basavaraja Urs in the property. In support of his contention, he has relied upon the decision of this Court in R.S. Madanappa (deceased) v. Chandramma Anr., AIR 1965 SC 1812. 19. The statement of plaintiff No. 2 has been pointed out, indicating that he was aware that there were equal shares of K. Basavaraja Urs and K. B. Ramchandra Raj Urs (defendant No.1) in the property. Thus, plaintiff No.2 cannot plead that they were induced by erroneous belief while entering into agreement, by the conduct of defendant No.1. The plea of estoppel is, thus, not attracted. There is no proper foundation in the pleading regarding the plea of estoppel. The submission raised by learned counsel on behalf of respondent is that defendant No.1 acted as power of attorney holder of his father and received the sale consideration also. As such he is bound by the plea of estoppel to contend to the contrary. 20. It is necessary to consider the agreement. The agreement is extracted hereunder: THIS AGREEMENT TO SELL is made on 24th day of Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the sale not materializing through the default of the VENDOR, the amount of ₹ 1,00,000/- (Rupees One Lakh Only) shall be refunded to the PURCHASERS with interest at 10 percent per annum from the date hereof to the date of refund; (7) That in the event of the sale not materializing through the default of the PURCHASERS, 10 percent of the consideration money shall be forfeited as earnest money and the balance refunded by the VENDOR to the PURCHASERS out of the advance of ₹ 1,00,000/- (Rupees One lakh only) received by the former; (8) VENDOR or his Power of Attorney shall cause all licences etc., to be sanctioned for any additions or alterations to be made to the premise before the actual transfer of title in terms of this agreement. IN WITNESS where of the parties have set their hands the day and the year first above mentioned. Sd/- SELLER WITNESSES: 1. Sd/- 2. Sd/- PURCHASERS A bare reading of the agreement described above makes it clear that agreement is between late K. Basavaraja Urs through power of attorney, K.B. Ramchandra Raj Urs. The Vendors is menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re joint owners of the suit properties which were in possession of their father and requested for the cooperation of the first defendant in order to effect the division of the properties. A copy of this notice was sent to Maddanappa, and he sent a reply to it to the plaintiff's lawyers. The first defendant, however, sent no reply at all. We find it difficult to construe the conduct of the first defendant in not replying to the notice and is not cooperating with the plaintiff in instituting a suit for obtaining possession of the properties as justifying the inference of estoppel. It does not mean that she impliedly admitted that she had no interest in the properties. It is true that in Ex. 15, which is a letter sent by her on 17th January 1941, to her stepmother she has observed thus: I have no desire whatsoever in respect of the properties which are at Bangalore. Everything belongs to my father. He has the sole authority to do anything . We give our consent to anything done by our father. We will not do anything. But even these statements cannot assist the appellants because admittedly, the father knew the true legal position. That is to say; the father knew that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a but had made improvements in the properties even before the execution of the will. In these circumstances, it is clear that the provisions of Section 115 of the Indian Evidence Act, which contain the law of estoppel by representation, do not help him. 22. Thus, it is clear that there was no possibility of erroneous beliefs in the mind of the plaintiffs as to title position in the property. No doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney. 23. In view of the agreement and the admission made by the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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