Case Type: Civil Appellate Jurisdiction
Case No: Civil Appeal No.6049 Of 2007
Decided On: 24 October, 2019
Appellant: Sirdar K.B. Ramachandra Raj Urs. (Dead)
Respondent: Sarah C. Urs & Ors
Bench: Arun Mishra, Vineet Saran, S. Ravindra Bhat
Statutes Referred:
Section 15 in the Hindu Succession Act, 1956
The Income- Tax Act, 1995
The Urban Land (Ceiling and Regulation) Act, 1976
Section 27 in the Urban Land (Ceiling and Regulation) Act, 1976
Section 54 in the Income- Tax Act, 1995
Facts:
- The appeals are preferred against the judgment and order dated 13.8.2007 gone by the Supreme Court, affirming the judgment and order of the court decreeing the suit filed by the plaintiff for performance of an agreement of sale.
- The plaintiffs filed the suit concerning suit scheduled property inherited by Princess Leelavathi, wife lately K. Basavaraja Urs. She had adopted the defendant No.1 and died during the year 1958¬59. Signature Not Verified RACHNA the suit scheduled property alongside adjoining properties devolved digitally signed by Date: 2019.10.24 17:08:53 IST Reason:
- On late K. Basavaraja Urs, father of K.B. Ramachandra Raj Urs, who was defendant No.1, in terms of section 15 of the Hindu Succession Act, 1956. The Plaintiff Nos.1 and a couple of were the close relatives and friend of the family lately K. Basavaraja Urs and therefore the 2 nd plaintiff aside from being an in depth relative and friend of Defendant No.1, was also a Legal Advisor and Advocate lately K. Basavaraja Urs.
- The property was let loose to plaintiff No.2 within the year 1969 by late K. Basavaraja Urs and defendant No.1. Late K. Basavaraja Urs and defendant No.1 sold the adjoining property to varied persons vide registered sale deeds. Late K. Basavaraja Urs wanted to sell the property and thus offered to sell the suit scheduled property to the plaintiffs. On 24.4.1979, late K. Basavaraja Urs, who was represented by his son, i.e., defendant No.1 as power of attorney, entered into an agreement to sell with the plaintiffs for a consideration of Rs.1,50,000/¬ out of which a sum of Rs.1,00,000/¬ was received on an equivalent day. The defendant No.1 agreed to get a clearance certificate under section 230¬A of the tax Act as also under the provisions of the Urban Land Ceiling Act. The plaintiffs continued to possess the possession of suit property partially performance of the agreement dated 24.04.1979 and stopped paying rent.
- The defendant No.1 always ensured the plaintiffs to execute the registered sale deed in terms of suit agreement after obtaining a clearance certificate from the tax Department and under the Urban Land Ceiling Act. On 1.6.1993, defendant No.1 received the balance sale consideration of Rs.50, 000/¬ from 2 ND plaintiff and executed a stamped receipt in favour of the plaintiffs with an undertaking to execute the deed of conveyance.
- The defendant No.1, made the correspondence with the tax Department to get the tax clearance. However, the necessity to hunt permission under the Urban Land Ceiling Authority vanished as per the choice of this Court concerning section 27 of the said Act as defendant No.1 was postponing to execute the registered sale deed on one pretext or the opposite. A legal notice dated 5.6.1990 was served, and then, the suit had been filed on 19.9.1990 seeking performance.
- Defendant Nos.1, 2, and 4 in their written statements contended that the 2nd plaintiff claimed to be an in depth relative lately K. Basavaraja Urs. He was his lawyer and self-assured trustee. He obtained the signatures of defendant no.1 on blank papers, which has been misused by the 2nd plaintiff to make the agreement in question dated 24.4.1979. it had been assured that agreement was obtained as a collateral document to secure professional charges, which, consistent with the plaintiff, remained unpaid.
- The defendants denied the receipt of the sale consideration on 24.4.1979 and 1.6.1993 and also the next correspondence between plaintiff No.2 and defendant No.1 and his Tax Consultant. The 2nd plaintiff was never permitted to place 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 first defendant has not conveyed his interest within the suit property in favour of plaintiffs. Defendants had contended that there was no agreement which was entered into with the plaintiffs. The suit is barred by time.
- Defendant No.5, in his written statement, took the plea that the property being ancestral couldn’t are sold by defendant No.1 to the detriment of the 5 the defendant. There was no legal necessity to sell the property.
Issues Involved:
- Being the property being ancestral couldn’t are sold by defendant No.1 to the detriment of the 5 the defendant. Was there any legal necessity to sell the property?
- The Supreme Court has also held that defendant No.1 has entered into the agreement and therefore the entire consideration has been received, was it not considered appropriate to grant the liquidated damage or penalty for the breach of contract?
- Whether the property that was held by Princess Leelavathi, wife lately K. Basavaraja Urs?
- And after the death, the suit property devolved on late K. Basavaraj Urs and defendant No.1 under section 15 of Hindu Succession Act, 1956.Can this happen?
Observations/Obiter Dicta:
The plea of estoppel in view the decision of this court in R.S. Madanappa (deceased) v. Chandramma & Anr., (supra) is not attracted, in which the Court has held that estoppel by conduct could not arise when a person concerned knew the right position relating to the title in property in his possession, he could not plead that he was induced to hold an erroneous belief because of the conduct of real owner of that property. This court has observed thus:
We will consider the question of estoppel first. The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consists of her attitude when she was served with a notice by the plaintiff, her general attitude respecting Bangalore properties as expressed in the letter dated 17th January 1941, written by her to her stepmother and the attestation by her and her husband on 3rd October 1944, of the will executed on 25th January 1941 by Maddanappa.
In the notice dated 26th January 1948, by the plaintiff’s lawyer to the first defendant it was stated that the plaintiff and the first defendant were 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 these properties belonged to Puttananjamma and that he had no authority to deal with these properties.
No doubt, in his written statement, Maddanappa had set up a case that the properties belonged to him by virtue of the declaration made by Puttananjamma at the time of her death, but that case has been negative by the courts below. The father’s possession must, therefore, be deemed to have been, to his knowledge, on behalf of the plaintiff and the first defendant.
There was thus no possibility of an erroneous belief about his title being created in the mind of Maddanappa because of what the first defendant had said in her letter to her stepmother.
Insofar as the attestation of the will is concerned, the appellants’ position is no better. This “will” purports to make a disposition of the suit properties along with other properties by Maddanappa in favour of Defendants 3 to 8. The attestation of the will by the first defendant and her husband, would no doubt affix them with the knowledge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of Defendants 3 to 8 or even in favour of Maddanappa.
The will could take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to Defendants 3 to 8, even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and, therefore, could not say that an erroneous belief about his title to the properties was created in his mind by reason of the conduct of the first defendant and her husband in attesting the document.
Apart from that, there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage.
Mr. Venkatarangaiengar, however, says that subsequent to the execution of the will, he had effected further improvements in the properties and for this purpose, spent his own moneys. According to him, he would not have done so in the absence of assurance like the one given by the first defendant and her husband to the effect that they had no objection to the disposition of the suit properties by him in any way he chose to make it.
The short answer to this is that Maddanappa, on his own allegations, was not only in possession and enjoyment of these properties ever since the death of Putananjamma 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.”
Rationale:
The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs haven’t found out the case to bind the share of K.B. Ramchandra Raj Urs. they need not pleaded within the plaint that K.B Ramchandra Raj Urs owned the property. there’s no whisper on the title of K.B. Ramchandra Raj Urs within the plaint.
They needed to plead the facts to draw in the plea of estoppel. That has not been done. Thus, the agreement which had been executed wasn’t concerning share of defendant No.1, but lately K. Basavaraja Urs as his power of attorney.
In sight of the agreement and therefore the admission made by the plaintiffs, we are of the opinion that it might be appropriate to switch the decree gone by the courts below to the extent of fifty per cent of the shares of the deceased late K. Basavaraja Urs and to line it aside with reference to the remaining ½ share of K.B. Ramchandra Raj Urs (defendant No.1) within the property, since the property devolved under section 15 of the Hindu Succession Act.
Thus, we hold that the plaintiffs to be entitled only to the extent of ½ share within the suit property. The decree to the remaining extent is about aside. The plaintiffs wouldn’t be entitled to refund of any consideration as by now the price of property has increased manifold.
Judgement:
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.
In view of the agreement and the admission made by the plaintiffs, we are of the opinion that it would be appropriate to modify the decree passed by the courts below 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 ½ 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.
Thus, we hold that the plaintiffs to be entitled only to the extent of ½ 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.
We direct the trial court to divide the property in two equal proportions and it be given to the parties. Let the division be carried out within four months by the Trial Court. The appeals are allowed to the extent mentioned above. No costs.
Conclusion:
There is decree of performance in favour of the plaintiff(s) with reference to ½ share. Consequently, conveyance is required to be executed, pursuant to the choice rendered by this Court. Court asked to divide the property in two equal proportions and it’s given to the parties. Let the division be administered within four months by the court. So the appeal was allowed with no costs.
Prepared by Anushka Choudhary