High Court

Legal Reasoning

1947-wp3483-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABADWRIT PETITION NO. 3483 OF 2024Shantilal Alichand SanklechaVERSUSAnita W/o Kartarsingh Chawla Deceased...Advocate for the Petitioner : Mr. Natu Sharad V.Advocate for Respondent Nos.2 & 3 : Mr. A.M. Gholap Advocate for Respondent No.5 : Mr. B.R. Warma...CORAM :ROHIT W. JOSHI, J.DATE :22nd AUGUST, 2025P.C.:1.Present petition arises out of execution proceeding being RegularDarkhast No.164 of 2011. The said execution petition is filed forexecution of judgment and decree dated 28.04.2022 passed by thelearned Adhoc District Judge-1, Ahmednagar in Regular Civil AppealNo.385 of 2015. A second appeal challenging the said decree beingSecond Appeal (Stamp) No.29673 of 2022 is pending before this Court.The learned advocate for respondent nos.2 and 3 had moved a motionbefore the Hon’ble Administrative Judge for clubbing of the presentpetition with said second appeal. However, the motion came to berejected and accordingly the present petition has come up for hearingbefore this Court.2.The name of respondent no.4 – Lavsagar is ordered to be deletedvide order dated 16.08.2024. Respondent no.1 is his mother who ispredeceased to him, respondent nos.2 and 3 are his brothers andMujaheed// 2947-wp3483-2024.odtrespondent no.5 is his sister. Deceased respondent no.4 – Lavsagar wasunmarried and does not have any legal heir in Class-I. He isthroughout represented by respondent nos.2, 3 and 5, who are hisbrothers and sister.3.Present petitioner had filed suit for specific performance ofcontract against respondent nos.1 to 4 claiming that respondent nos.1to 4 had entered into an agreement to sale with him on 25.01.2006.The said suit was registered as Special Civil Suit NO.109 of 2010. Thesaid suit was decreed vide judgment and decree dated 29.08.2011passed by the learned Civil Judge, Senior Division, Ahmednagarthereby directing respondent nos.1 to 4, who were defendants in thesaid suit to execute registered sale deed with respect to suit propertyaccepting balance sale consideration amount of Rs.15,00,000/-.Respondent nos.1 to 4, original defendants preferred an appealchallenging the said decree for specific performance of contract beingRegular Civil Appeal No.385 of 2015. Pending the said appeal,respondent no.1/Anita expired. She was survived by respondent nos.2to 4 (sons) and respondent no.5 (daughter) as her legal heirs. On herdemise, name of respondent no.5 was brought on record as legalrepresentative as other three were already on record.4.After the decree for specific performance of contract was passedin Special Civil Suit No.109 of 2010 on 29.08.2011, the respondentMujaheed// 3947-wp3483-2024.odtno.5/Kanchan filed a suit for partition and separate possession withrespect to suit property being Special Civil Suit No.82 of 2014. Hermother (Anita) and brothers (Manoj, Indrajit and Lavsagar), who arerespondent nos.1 to 4 were arrayed as defendants in the said suit.Mother (Anita) expired while the said suit was pending. The said suitcame to be decreed by the learned 7th Joint Civil Judge, Senior Division,Ahmednagar vide judgment and decree dated 21.06.2018. The learnedCourt has awarded 1/4th share each to respondent nos.2 to 5 i.e.plaintiff and defendant nos.2 to 4 in the said suit. Since defendantno.1 mother had expired, it was observed that her share will devolveequally upon plaintiff and defendant nos.2 to 4 in the said suit. Therelevant observations of the learned Court in para 9 of the judgmentare reproduced for ready reference as under :“9.As per finding of issue No. 1 the suit property is proved tohe joint family property. Therefore, the plaintiff being daughter ofKartarsing, is a class-I heir and can very well claim partition in it. Ihave no hesitation to hold that she is entitled to claim partitionand get her share divided. As said above, relationship between theparties is an admitted fact. Kartarsing was survived by his wife,three sons and daughter (the plaintiff). As per schedule-I of theHindu Succession Act, widow, son and daughter all are class-Iheirs. Therefore, the plaintiff and defendant Nos. 1 to 4 will getequal share in the suit property. Defendant No.1 died duringpendency of the suit. She is also survived the plaintiff anddefendant Nos. 2 to 4. Consequently the plaintiff will get 1/4thshare in the suit property. Likewise defendant Nos. 2 to 4 will getMujaheed// 4947-wp3483-2024.odt1/4th share each in the suit property.”5.The learned Court has observed that Kartarsing was survived byhis wife, three sons and daughter (the plaintiff), all of whom wereentitled to equal share in the suit property being his Class-I legal heirs.In sum and substance, the finding is that the widow and her childrenwill inherit equal share in the suit property. Although it is somentioned, it is pertinent that all five legal heirs had 1/5th share in thesuit property granted by the learned Court. The learned Court hasthereafter observed that since mother has also expired pending the suit,her share will also devolve upon three sons and daughter. Since themother is excluded on her demise, it is held that three sons anddaughter will have 1/4th share each in the suit property. Accordingly,the decree for partition and separate possession is passed granting1/4th share each to respondent nos.2 to 5 i.e. defendant nos.2 to 4 andplaintiff in the said suit. 6.Coming back to the appeal preferred by the respondentschallenging the decree for specific performance of contract, by the timethe appeal came up for hearing, the suit for partition and separatepossession was already decreed. The said judgment and decree wasbrought to the notice of the learned Appellate Court. The AppellateCourt considering the said subsequent development found that it wouldbe necessary to modify the decree since respondent no.5, who is theMujaheed// 5947-wp3483-2024.odtplaintiff in the suit for partition was not a party to agreement to sale.The learned Appellate Court has observed that the agreement for salewas binding on defendants and accordingly, the defendants will beliable to execute sale deed with respect to their share in the suitproperty. As regards the respondent no.5, who is not party toagreement of sale, it is observed that she being legal representative ofdefendant no.1 will be liable to execute sale deed as her legalrepresentative. These observations are made in para 22, 29 and 30 ofthe judgment. Para 2 (i) of the operative order and decree also directsthe legal heirs of deceased defendant no.1 (mother) and defendantsnos.2 to 4 to execute registered sale deed to the extent of their share.7.The decree when read in conjunction with observations recordedin para 22, 29 and 30 would mean that defendant nos.2 to 4 i.e. thesons will be liable to execute the sale deed with respect to their 75%share (25% each) in favour of plaintiff/petitioner. As regardsrespondent no.5, the correct purport of the decree is that she will nothave to execute sale deed in execution of the decree in her individualcapacity, however, in the capacity of legal heir of her deceased mother,to the extent of share derived by her in the suit property from herdeceased mother, she will be bound by the decree. If the mother wasalive, share of respondent no.5 (daughter) would be 1/5th i.e. 20%. Inview of demise of mother, the share of respondent no.5 has increased toMujaheed// 6947-wp3483-2024.odt1/4th share i.e. 25%. This additional 5% is received by respondentno.5 on inheritance from her mother. To this extent of 5% share,respondent no.5 is liable to execute sale deed in favour ofplaintiff/petitioner.8.The plaintiff/petitioner filed a draft of sale deed in the executionproceeding. The respondent no.5, who is judgment debtor no.1Araised objection that since she is not party to the agreement in questionand a decree for partition and separate possession is passed in herfavour in Special Civil Suit No.82 of 2014, the direction to execute thesale deed in execution of decree for specific performance of contractcannot be issued against her. Dealing with the said objection, thelearned Executing Court has observed that the decree passed by thelearned Trial Court which was with respect to entire property wasmodified by the learned Appellate Court in view of decree for partitionand separate possession. The learned Executing Court thereforeobserved that name of judgment debtor no.1A i.e. respondent no.5cannot be incorporated in the sale deed as a seller. The learnedExecuting Court directed the petitioner/decree holder to file correctdraft of the sale deed in terms of the modified decree. Thepetitioner/decree holder thereafter filed application for review videExhibit-81. This application for review came to be rejected vide orderdated 21.11.2023 observing that no error apparent on the face ofMujaheed// 7947-wp3483-2024.odtrecord was demonstrated and no reasonable ground was made out inorder to exercise the power of review.9.Learned advocate for the petitioner/decree holder contends thatthe petitioner/decree holder is ready to file a correct draft of sale deed.He further contends that in view of the observations in the order dated05.08.2023 holding that name of respondent no.5/judgment debtorno.1A cannot be incorporated in the sale deed, he is not in a position tofile correct draft of sale deed. According to learned advocate, name ofrespondent no.5 i.e. judgment debtor no.1A is required to be shown asseller in the sale deed with respect to 5% share that she has inheritedfrom her mother/judgment debtor no.1.10.Per contra, Mr. Warma, learned advocate for respondent no.5 andMr. Gholap, learned advocate for respondent nos.2 and 3 contend thatthe order passed by the learned Executing Court is correct. It is theircontention that since 1/4th share is granted to respondentno.5/judgment debtor no.1A in the decree for partition, the saidportion of suit property cannot be included in the sale deed. Theycontend that the decree for partition is binding on all the parties. I amafraid, the said contention cannot be accepted in its entirety. Thiscontention can be accepted only with respect to 1/5th or 20% share ofrespondent no.5/judgment debtor no.1A, which she holdsindependently of her mother/judgment debtor no.1. The additionalMujaheed// 8947-wp3483-2024.odt5% share that she has inherited from judgment debtor no.1 is liable tobe sold in execution of decree. 11.There cannot be two opinions regarding the same. The learnedAppellate Court has also dealt with this aspect and has directed thatdefendant nos.2 to 4 i.e. legal heirs of defendant no.1 will beresponsible to execute the sale deed. It is therefore obvious that nameof respondent no.5/judgment debtor no.1A needs to be reflected in thesale deed as vendor and she will be liable to sell 5% of her share inexecution of decree in specific performance of contract. Her 20% sharewill not be liable to be sold in execution of the decree since she is notparty to the agreement to sale. 12.The petition is disposed of accordingly. The orders dated05.08.2023 and 21.11.2023, passed by the learned Civil Judge, SeniorDivision, Ahmednagar on applications at Exhibits-56 & 81 respectivelyin Regular Darkhast No.164 of 2021 are quashed and set aside. 13.The petitioner/plaintiff is directed to file corrected sale deed onrecord before the learned Executing Court with respect to 80% share inthe suit property. Name of respondent no.5 will also be reflected asvendor qua 5% share in the suit property.[ROHIT W. JOSHI J.]Mujaheed//