Property Law & Specific Relief Act S. 17 - Agreement to Sell - vendors not absolute owners but co-sharers - whether enforceable

Pemmada Prabhakar & Ors vs Youngmen’s Vysya Association & Ors

CA 7835/2014 d/d 20 Aug 2014

http://judis.nic.in/supremecourt/imgst.aspx?filename=41856

Since some of the co-sharers were not party to the agreement of sale, the agreement is not enforceable.

Refer to Paras below from the decision.

29. …Undisputedly, the  Agreement of Sale- Ex.-A1 is executed only by defendant Nos. 1 and 2. The 3rd son, mother and 3 sisters who have got equal shares in the property have not executed the Agreement of Sale. In view of the matter, the Agreement of Sale executed by defendant Nos. 1 and 2 who have no absolute right to property in question cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of Agreement of Sale in their favour. The said agreement is not enforceable in law in view of Section 17 of the Specific Relief Act in view of right accrued in favour of defendant Nos. 3 to 6 under Section 8 of the Hindu Succession Act. The provisions of Section 17 of the Specific Relief Act in categorical term expressly state that a Contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have absolute title and right upon the party.

Court relied on S. 17 of Specific Relief Act,1963 before negating the claim for specific performance

“17.-Contract to sell or let property by one who has no title, not specifically enforceable.- A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor;

(a) who, knowing not to have any title to the property, has contracted to sell or let the property

(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.”

In view of  the  aforesaid  provisions  of  the  Specific  Relief  Act,  the Agreement of Sale entered between the plaintiffs and some of the  co-sharers who do not have the absolute title to the  suit  schedule  property  is  not enforceable in law.