PEMMADA PRABHAKAR & ORS.versusYOUNGMENS VYSYA ASSOCIATION & ORS.

                      [2014] 7 S.C.R. 1064


A                PEMMADA PRABHAKAR & ORS.
                                   v.
           YOUNGMEN'S VYSYA ASSOCIATION & ORS.
                (Civil Appeal No. 7835 of 2014)
                          AUGUST 20, 2014
B
         [DIPAK MISRA AND V. GOPALA GOWDA, JJ.]

         Specific Relief.Act, 1963- ss. 17, 20(2) - Contract to sell
    or let property by one who has no title - Enforceability of -
C   Suit for specific performance of the agreement of sale -
    Entitlement for decree - When agreement of sale entered
    between the plaintiffs-vendee and defendant nos. 1 and 2-
    vendor and vendor did not have absolute title to the property,
    there was absence of execution of the agreement of sale by
o   the other defendants/co-sharers, and there was breach of
    terms and conditions of the contract on the part of the plaintiffs
    in not paying the sale consideration amount within the
    stipulated period - Held: In view of s. 17, the agreement of
    sale entered between the plaintiffs and some of the co-sharers
E   who do not have the absolute title to the suit schedule property
    is not enforceable in law - On facts, suit schedule property
    was self acquired property of 'P' who died intestate, surviving
    by his wife, three sons and three daughters upon whom the
    property devolved in view of s. 8 of the Hindu Succession Act
F   being class I legal heirs in the suit schedule property -
    Agreement of sale was executed only by defendant Nos. 1
    and 2 - 3rd son,· mother and three sisters who got equal
    shares in the property did not execute the agreement of sale
    - Thus, agreement of sale executed by defendant Nos. 1 and
    2 who had no absolute right to property cannot confer any right
G   whatsoever upon the plaintiffs for grant of decree of specific
    performance of agreement of sale in their favour - Said
    agreement is not enforceable in law in view of s. 17 - As
     assured by the defendant Nos. 1 and 2 that they would get

H                                 1064
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1065
             ASSOCIATION
the signatures of the 3rd brother at the time of execution of      A
the agreement, signatures were not obtained, thus, the
agreement was not executed by all the co-sharers of the
property- Furthermore, the plaintiffs did not approach the trial
court with clean hands - Plaintiffs did not pay the sale
consideration amount as agreed to be paid within the period        B
stipulated - Thus, the order passed by the trial coµrt
dismissing the suit for specific performance of agreement of
sale restored with modification that the defendants would pay
a sum of Rs. 6, 00, 0001- to the plaintiffs as lump-sum
compensation within the stipulated time - Order passed by          c
the High Court and first appellate court set aside - Hindu
Succession Act, 1956.

     'PVR'-owner of the suit property, died intestate. He
survived by his wife and his six children, three sons and
three daughters-defendant Nos. 1 to 6. The respondents- D
plaintiffs filed suit for the specific performance of
agreement of sale against the defendants-appellants. The
plaintiffs alleged that the defendant Nos.1 and 2 executed
the agreement of sale in favour of plaintiff No.1 agreeing
to sell the suit schedule property at certain rate. The E
defendant Nos.1 and 2 received advance amount and the
remaining amount was to be paid to the defendants within
10 days from the day of vacating the tenants from the suit
schedule property. The defendant Nos.1 and 2 agreed
that they would obtain the signatures of their 3rd brother- F
the defendant No.3 as also the sisters who got married
long ago. The Senior Civil Judge holding that the
agreement of sale was not valid as the defendant Nos.3
to 6 and their mother did not give consent to sell the suit
schedule property to the plaintiffs, dismissed the suit for G
specific performance of sale as also directed the
defendants to refund the advance amount received by
them. On appeal, the first appellate court held that the
sale agreement is valid and binding between the parties;
and directed the defendant Nos.1, 2, 4 and 5 to execute H
    1066   SUPREME COURT REPORTS            [2014) 7 S.C.R.


A the registered sale deed in favour of the plaintiff's
  Association in respect of their 1/6th share. The
  defendants filed Second Appeal. Hence the instant
  appeal.

8      The questions which arose for consideration in the
  instant appeals were whether the plaintiffs were entitled
  for the dec'ree for specific performance of the agreement
  of sale when agreement of sale entered between the
  plaintiffs and defendant Nos. 1 and 2 who did not have
C absolute title to the property; whether in the absence of
  execution of the agreement of sale by the other
  defendants/co-sharers the agreement was valid, even
  assuming that agreement was valid, there is breach of
  terms and conditions of the Contract on the part of the
  plaintiffs in not paying the sale consideration amount of
D Rs. 1,70,000/- within 10 days from the day of vacating the
  tenants; and whether the plaintiffs were entitled for
  discretionary relief of specific performance under Section
  20(2) of the Specific Relief Act when it did not approach
  the court with clean hands?
E
       Partly allowing the appeal, the Court

       HELD: 1.1. The suit schedule property is self acquired
  property by late 'PVR' as he had purchased the said
  property vide Sale-Deed Document from his vendors·. ,The
F said property is intestate property. He is survived by his
  wife, 3 sons and 3 daughters. The said property devolved
  upon therr. in view of S~ction 8 of Chapter 2 of the Hindu
  SuccessiQn Act as the defendants are .class I legal heirs
  in the suit schedule property. Undisputedly, the
G Agreement of Sale was executed only by defendant Nos.
  1 and 2. The 3rd son, mother and 3 sisters who got equal
  shares. in the property did not execute 'the Agreement of
  Sale. The said agreement is ~ot enforceable in law in view
  of Section 17 of the Specific Relief Act in view of r;ght
H
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1067
             ASSOCIATION
accrued in favour of defendant Nos. 3 to 6 under Section A
8 of the Hindu Succession Act. The provisions of Section
17 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. In view of the said B
provisions of the Specific Relief Act, the Agreement of Sale
entered between the plaintiffs and some of the co-sharers
did not have the absolute title to the suit schedule property
is not enforceable in law. It cannot confer any right
whatsoever upon the plaintiffs for grant of decree of c
specific performance of Agreement of Sale in their favour.
The First Appellate Court and the Second Appellate Court
did not consider the said aspect. [Para 29) [1080-C-G; 1081-
0)

     1.2. Even assuming for the sake of argument that the        D
agreement is valid, the names of three sons are
mentioned in Agreement of Sale, out of whom the
agreement is executed by defendant Nos. 1 and 2 and
they assured that they would get the signatures of the
3rd brother and also the remaining 3 sisters. At the time        E
of execution of this agreement signatures were not
obtained. Therefore, the agreement is not executed by all
the co-sharers of the property which fact is evident from
the recitals of the document itself. Hence, the plaintiffs are
not entitled for specifio. performance decree. This vital        F
factual and legal aspect was ignored by both the First
Appellate Court and the Second Appellate Court. [Para
30] [1081-E-G]
    1.3. Except payment of Rs.5,000/- and Rs.10,000/-
paid by the purchaser-plaintiff No.1 to the defendant Nos.       G
1 and 2 according to the Agreement of Sale, the
remaining installment i.e. an amount of Rs.1,70,000/-
which was to be paid to the Vendors within 10 days from
the day of vacating the tenants in the property was not
                                                                 H
    1068    SUPREME COURT REPORTS               [2014] 7 S.C.R.

A paid. Even assuming that the amount could have been
  paid had the tenants vacated the schedule property then
  the remaining part of the sale consideration agreed to be
  paid as notified under clauses (ii) and (iii) as per the
  paragraph of the Agreement of Sale undisputedly was
B not paid to the defendant Nos. 1 and 2. Therefore, there
  is breach of contract on the part of the plaintiffs as could
  be seen from the agreement of sale regarding the
  payment of part sale consideration amount. [Para 32]
  (1082-D-G]             .
C      1.4. The plaintiffs did not approach the trial court with
  clean hands. It' is evident from the pleadings of the
  Agreement of Sale which is produced for the decree for
  specific performance of Agreement of Sale as the plaintiffs
  did not obtain the signatures of all the co-sharers of the
D property namely, the mother of the defendants, the third
  brother and 3 sisters. Therefore, the agreement is not
  enforceable in law as the persons who have executed the
  sale deed, did not have the absolute title of the property.
  Apart from the said legal lacuna, the terms and conditions
E of the Agreement of Sale for payment of sale
  consideration .agreed to be paid by the first plaintiff in
  installments within the period stipulafed were not paid.
  The First Appellate Court and the High Court did not
  exercise their power under Section 20(2) of the Specific
F Relief Act which by itself is the substantial question of law
  which fell for consideration before the. High Court as the
  First Appellate Court failed to consider this important
  aspect of the matter and exercised its power while
  determining the rights of the party, particularly, in the light
G of the unenforceable contract between the plaintiffs
  against the defendants as all of them were not parties to
  the Agreement of Sale document and the executants viz.
  defendant Nos. 1 and 2 have not acquired absolute title
  to the property in questiOn ..[Para 33] [~082-H; 1083-A-E]
                              •.
H       1.5. Though, the defendants on merits havr
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1069
             ASSOCIATION
succeeded in this case for the reasons recorded on             A
appreciation of facts and legal evidence on record, it
would be just and proper for this Court to award a sum
of Rs.6,00,000/- by lump-sum amount of compensation to
the plaintiffs within 3 months from the date of receipt of
a copy of this judgment as provided under Section 22 of        B
the Specific Relief Act. [Para 34) [1083-G-H; 1084-B]

     1.6. The impugned judgment and decree passed by
the High Court in affirming the judgment and decree .of
the First Appellate Court, is set aside. The judgment and
decree of the trial court is restored with modification that   C
the defendants would pay a sum of Rs.6,00,000/- to the
plaintiffs as lump-sum compensation within 3 months
_from the date of receipt of copy of this order. [Para 35)
 [1084-B-D]
                                                               D
    Kommisetti      Venkatasubbayya      v.   Karamestti
Venkateswar/u A.l.R. 1971 AP 279; Lourdu Mari David & Ors.
v. Louis Chinnaya Arogiaswamy & Ors. 1996 (4) Suppl.
SCR 540: (1996) 5 SCC 589; Rameshwar & Ors. v. Jot Ram
& Anr. 1976 (1) SCR 847: (1~76) 1 SCC 194 - referred to.       E
                     Case Law Reference:
   A.l.R. ·1971 AP 279           Referred to      Para 19
    1996 (4) Suppl. SCR 540      Referred to      Para 19
                                                               F
    1976 (1) SCR 847             Referred to      Para 19
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7835 of 2014.
    From the Judgment and Order dated 04.11.2011 of the        G
High Court of Judicature Andhra Pradesh at Hyderabad in
Second Appeal No. 815 of 2011.

    Adi Narayan Rao, M. Srinivas R. Rao, Abid Ali, J.
 Govardhan Reddy, Sudha Gupta for the Appellants.              H
             SUPREME COURT REPORTS                 [2014] 7 S.C.R.

A      P. Vinay Kumar, C.S.M. Mohan Rao, A. Ramesh, Syed
    Ahmed Naqvi, Shilpi Gupta, G. Madhavi for the Respondents.

        The Judgment of the C.ourt was delivered by

        V. GOPALA GOWDA, J. 1. Leave granted.
B
         2. This appeal has been filed against the judgment and
 . final order dated 04.11.2011 passed in the Second Appeal No.
   815 of 2011 by the High Court of Judicature of Andhra Pradesh
   at Hyderabad, whereby the High Court has dismissed the
c Second Appeal.
       3. Certain relevant facts are stated for the purpose of
  appreciating the rival legal contentions urged on behalf of the
  parties with a view to examine the correctness of the findings
  and reasons recorded by the High Court in the impugned
0 judgment.

         For the sake of brevity and convenience, the parties are
    referred to in this judgment as per the rank assigned to them
    in the original suit proceedings.
E
       4, The property bearing Door No. 20/42-1-9 with land
  measuring about 657-1/3rd sq. yards situated to the west of
  Vallabhai Street, Cinema Road, Kakinada (hereinafter, referred
  to as the 'suit schedule property') was the self acquired property
F of one Pemmada Venkateswara Rao. He died intestate and
  survived by wife Syama Sundari, three sons and three
  daughters (the defendant Nos. 1 to 6) .
            •
       5. The plaintiffs-the Youngmen's Vyasa Association (who
  are the respondents herein), instituted O.S.No.267of1995 for
G the specific performance of Agreement of Sale dated
  03.05.1993 against the defendants (the appellants herein). The
  plaintiffs alleged that the defendant Nos. 1 and 2, who are
  managing the suit schedule property, agreed to sell the same
  to plaintiff No. 1.
H
  PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1071
     ASSOCIATION [V. GOPALA GOWDA, J.]
      6. According to the plaintiffs, the defendant Nos. 1 and 2 A
 executed the Agreement of Sale dated 03.05.1993 in favour
 of plaintiff No. 1 agreeing to sell the suit schedule property at
 the rate of Rs.575/- per sq. yard, the total consideration of which
 was to be fixed later after taking the actual measurement. Later
 on, the total land value was fixed at Rs.3,77,967/- for 657-1/3 B
 sq. yards. The defendant Nos. 1 and 2 received advance
 amount of Rs.5000/- and Rs.10,000/- also. Under the
 Agreement the plaintiff No. 1 agreed to pay Rs.1,70,000/- to
 the defendants within 10 days from the day of vacating the
 tenants from the suit schedule property. Rs.50,000/- was to be       c
  paid on 30.11.1993 and that the balance amount of
  Rs.1,50,000/- was to be paid by 30.3.1994. The defendant Nos.
· 1 and 2 agreed that they would obtain the signatures of their
  3rd brother-the defendant No. 3 by 9.05.1993. Defendant Nos.
  7 and 8 are the tenants in the sheds situated in the suit schedul~
                                                                     0
. property. The defendant Nos.1 & 2 stated that their sisters were'
  married long ago therefore, they had no interest in the suit
  schedule property, and that they would also get the sisters'
  signatures on the agreement.

     7. The 2nd Addi. Senior Civil Judge, Kakinada (the Trial         E
Court) by his judgment dated 12.7.2006 dismissed O.S. No
267/95, in so far as the main relief for the specific performance
of sale is concerned. The Trial Court has directed the
defendants to refund Rs.5000/- with interest at the rate of 12%
p.a. from 5.03.1993 till the date of realization and Rs.10,000/-      F
with the interest rate at 12% p.a. from 6.08.1993 till the date of
realization.

      8. The Trial Court after considering the oral and
 documentary evidence on record, observed that as the suit            G
 schedule property is adjacent to the plaintiffs property, taking
.advantage of the financial difficulties. of defendant Nos. 1 and
 2, the plaintiffs attempted to grab the suit schedule property and
 dragged the defendants to the court of law.

      9. The Trial Court further held that the Agreement of Sale      ·1
    1072     SUPREME COURT REPORTS                   [2014] 7 S.C.R.


A was not valid as the defendant Nos.3 to 6 and their mother did
  not give consent to sell the suit schedule property to the plaintiffs.
  Accordingly, the main relief for specific performance was
  rejected and the defendants were directed to refund the amount
  of advance sale consideration to the plaintiffs with interest at
B the rate of 12% p.a.

        10. Being aggrieved by the judgment and decree dated
  12. 7 .2006 of the Trial Court, the plaintiffs filed an appeal being
  A.S. No. 269 of 2006 before the Court of 3rd Additional District
C Judge, Kakinada, the First Appellate Court.

       11. On 28.04.2010 the First Appellate Court allowed the
  appeal partly, directing the defendant Nos. 1, 2, 4 and 5 to
  execute the registered sale deed in favour of the plaintiff's
  Association in respect of their 1/6th share. each i.e. 4/6th share
D by receiving their respective shares of the balance sale
  consideration from the plaintiffs and modified the decree for
  specific performance of Agreement of Sale.

       12. The First Appellate Court vide its order dated
E 28.4.2010 held that the transaction between the parties is real
  sale transaction and not mere money transaction and the sale
  agreement is va1id and binding between the parties and the
  plaintiffs are entitled for the first main relief of specific
  performance and directed defendant Nos. 1, 2, 4 and 5 to
  execute sale deed in respect of their 4 shares of the suit
F schedule property ·after receiving proportionate sale price.

       13. Being aggrieved by the judgment and decree dated
  28.04.2010 of the First Appellate Cour!, the defendants
  preferred Second Appeal being S.A. No. 815 of 2011 before
G the High Court of Judicature of Andhra Pradesh at Hyderabad
  whereby the High Court vide order dated 4.11.2011 dismissed
  the Second Appeal which is impugned in this appeal.

      14. The High Court held that the approach of the First
H Appellate Court in granting the relief of specific performance
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1073
    ASSOCIATION [V. GOPALA GOWDA, J.]
directing defendants 1, 2, 4 and 5 to execute sale deed in            A
respect of their shares, i.e. 4/6th share of the suit schedule
property in favour of the plaintiffs on receipt of their respective
balance consideration which stood deposited in the court,
cannot be faulted with.
                                                                      B
     15. It was further held by the High Court that the mother of
the defendants was alive when the suit was instituted in 1995
and she died on 29.09.2005. She had one share and after her
death, the property would be divided into 6 shares and the
agreement was held as binding on the defendants 1, 2, 4 and           C
5. Therefore, the High Court upheld the decision of the First
Appellate Court and moulded the relief in the above terms while
granting decree of specific performance of the Agreement of
Sale by executing the sale deed of their share in the property
in favour of the plaintiffs.
                                                                      D
     16. The following submissions were made by the learned
counsel for both the parties in support of their claim and counter
claim.

      17. On behalf of the defendant Nos.1 & 2, it is contended       E
that their father Pemmada Venkateswara Rao was engaged
in lathe works which incurred heavy loss and he was allegedly
indebted to various creditors. They approached one Murali
Krishna (who had acquaintance with them) who was the
Secretary of the plaintiff Association to borrow some money.          F
Taking advantage of their situation, the Secretary and the
President of the Plaintiff Association obtained the signatures
of defendant Nos. 1 and 2 on a blank sheet of paper and gave
Rs.5000/- on 3.5.1993 and Rs.10,000/- on 6.8.1993 to them.

     18. It was further contended by the learned counsel that the     G
defendants never intended to sell the suit schedule property and
the transaction with the plaintiffs Association was only money
transaction and was not a sale transaction with it. A separate
written statement was filed by the 4th defendant to the same
~ct                                                                   H
    1074      SUPREME COURT REPORTS                   [2014] 7 S.C.R.


A         19. It was further contended by defendant Nos. 1 to 6 that
    even on the date of execution of Agreement of Sale their
    mother was very much alive and, therefore in the absence of
    execution of Agreement of Sale by all the seven co-sharers of
    the suit schedule property the suit for specific performance does
s   not lie. The learned counsel for the defendants placed reliance
    on the decisions of Andhra Pradesh High Court and this Court
    in the cases of Kommisetti Venkatasubbayya v. Karamestti
    Venkateswarlu 1 and Lourdu Mari David & Ors. v. Louis
    Chinnaya Arogiaswamy & Ors2• in support of their claim.
c       20. Further, they placed reliance upon the case of this
    Court in Rameshwar & Ors. v. Jot Ram & Anr. 3 . In the said
    authority it has been held as follows:

         "9 ... First, its bearing on the right of action, second, on the
D        nature of the relief and third, on its impotence to create or
         destroy substantive rights. Where the nature of the relief,
         as originally sought, has become obsolete or
         unserviceable or a new form of relief will be more
         efficacious on account of developments subsequent to the
E        suit or even during the appellate stage, it is but fair that
         the relief is moulded, varied or reshaped in the light of
         updated facts. Patterson illustrates this position. It is
         important that the party claiming the relief or change of
         relief must have the same right ftom which either the first
F        or the modified remedy may flow. Subsequent events in
         the course of the case cannot be constitutive of
         substantive rights enforceable in that very litigation except
         in a narrow category (later spelt out) but may influence the
         ~quitable jurisdiction to mould reliefs. Conversely, where
         rights have already vested in a party, they cannot be
G
         nullified or negated by subsequent events save where
         there is a change in the law and ~t is made applicable at
    1.   A.l.R. 1971AP279.
    2.   (1996) 5 sec 589.
H 3. (1976) 1 sec 194.
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1075
    ASSOCIATION [V. GOPALA GOWDA, J.]
    any stage. Lachmeshwar Prasad Shuku/ v. Keshwar Lal              A
    Chaudhuri falls in this category. Courts of justice may,
    when the compelling equities of a case oblige them, shape
    reliefs - cannot deny rights - to make them justly
    relevant in the updated circumstances. Where the relief
    is discretionary, courts may exercise this jurisdiction          8
    to avoid injustice. Likewise, where the right to the
    remedy depends, under the statute itself, on the
    presence or absence of certain basic facts at the time
    the relief is to be ultimately granted, the Court, even
    in appeal, can take note of such supervening facts               C
    with fundamental impact... "

                                           (Emphasis supplied)

     21. The High court held that defendants pleaded'falsehood
at the time of execution of the Agreement of Sale by stating         o
that their mother had predeceased their father. The agreement
and the endorsement thereon made by defendant Nos.1 and
2 had swayed discretion of the High Court in favour of the
plaintiffs which is an Association engaged in the welfare of the
community.                                                           E

     22. The High Court further held that the suit schedule
property was not purchased for unlawful gain of an individual
and that the First Appellate Court considered the entire
evidence on record and exercised its sound jurisdiction and
modified the judgment of the Trial Court by granting a decree        F
of specific performance as per the terms stipulated therein.

      23. The High Court dismissed the second appeal without
 adverting to the substantial questions of law that were framed
 in the second appeal at the admission stage itself stating that     G
 there is no substantial question of law for its adjudication. The
'first Appellate Court and the Second Appellate Court
 committed serious error in law in not noticing the relevant
 important findings of fact recorded by the Trial Court on the
  contentious issues on proper appreciation of pleadings and         H
    1076         SUPREME COURT REPORTS                [2014] 7 S.C.R.


A evidence on record with reference to the legal submission made
   on beh.alf of the parties. The Trial Court after proper
   appreciation of evidence on record, particularly, Ex.-A 1, the
  Agreement of Sale, has held that it is ·not a valid agreement
  and no rights can flow from it in favour of the plaintiffs in the
8 light of the fact that the signature~ of defendant Nos. 1 and 2
  were obtained on different dates on blank papers as they were
  in financial crisis and that fact is proved by producing Exs.-81
  to B-8 to show that the entire family (defendant Nos. 1 to 6) were
  in financial crisis and they were forced to pay the debts to their
C creditors. Therefore, they were in urgent need of money and .
  they approached the PW-1 for financial help, who obtained the
  signatures of defendant Nos. 1 and 2 on blank paper and the
  same was fabricated as a receipt. The said receipt was not
  signed by defendant Nos. 3 to 6. The mother of the defendant
  Nos. 1. and 2 is one of the co-sharers of the suit schedule
D property as a class-I legal heir to succeed to the intestate
  property of her deceased husband, which was his self acquired
  property left by him, as he had purchased the same vide Sale-
  Deed document No. 5174/1970 dated 24.11.1970 from his
  vendors. In fact, there is a reference made in this regard in the
E Agreement of Sale executed by defendant Nos. 1 and 2 to the
  effect that after demise of Pemmada Venkateswara Rao, the
  father of defendant Nos. 1 to 6, the property devolved upon
  them jointly and they are enjoying with absolute rights. As per
  Section 8 of the Hindu Succession Act, 1956 the general rules
F of succession would be applicable in the case of a male Hindu
  dying intestate; relevant portion of which reads as under :-

        "8. General rules of succession in the case of males.-
        The property of a male Hindu dying intestate shall devolve
G
        according to the provisions of this Chapter-

           (a)    Firstly, upon the heirs, being the relatives specified
                  in class I of the Schedule;

                  xxx           xxx                              XXX"
H
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1077
    ASSOCIATION [V. GOPALA GOWDA, J.]
      In the Schedule of the said Act, class I heirs are son,        A
daughter, widow, mother and others. In view of the enumeration
of the class I heirs in the Schedule, the mother and sisters of
the defendant Nos. 1 and 2 are also co-sharers of the property
left intestate by the deceased Pemmada Venkateswara Rao.
As could be seen from the Agreement of Sale-Ex.-A 1                  8
undisputedly, the third brother and 3 sisters, (defendant Nos. 3
to 6) and their mother· have not executed the Agreement of
Sale in favour of the plaintiffs. Therefore, the same .is not
enforceable under Section 17 of the Specific Relief Act, 1963.
The mother lived upto September, 2005, the aforesaid legal           c
heirs of deceased Pemmada Venkateswara Rao got equal
shares in the suit schedule property.

     24. It is further contended on behalf of the defendants that
the First Appellate Court and the High Court have failed in not
applying the legal principle laid down by this Court in the case     D
of Lourdu Mari David & Ors. (supra), wherein this Court held
that the party who seeks to avail of the equitable jurisdiction of
a court and specific performance decree being equitable relief
must come to the court with clean hands. In other words, the
party who makes false allegations against the defendants does        E
not come with clean hands and therefore, it is not entitled to
the equitable relief of specific performance decree frc:im the
court.

     25. Another legal contention urged on behalf of the             F
defendants is that the High Court has erroneously come to the
conclusion on facts and evidence on record and it has affirmed
the divergent findings of fact recorded by the First Appellate
Court without examining and answering the substantial
questions of law framed in the Second Appeal and it has              G
erroneously dismissed the appeal holding that the suit schedule
property was not purchased by the plaintiffs for unlawful gain
of an individual. The said property is probably purchased by
the plaintiffs to put it to use for the purpose of the community.
The High Court without considering the legal submissions urged       H
    1078     SUPREME COURT REPORTS                 [2014] 7 S.C.R.

A on behalf of the defendants adjudicated the rights of the parties
  ignoring certain facts, evidence on record and legal contentions
  urged. It has erroneously held that the plaintiffs are entitled for
  the relief of specific performance while the Agreement of Sale
  is not enforceable under Section 17 of the Specific Relief Act,
B 1963, in view of the fact that all the legal heirs of the decea~ed
  Pemmada Venkateswara Rao are not parties to the Agreemiilnt
  of Sale and the defendant Nos. 1 and 2 do not have absolute
  title and right upon the entire suit schedule property. Even
  assuming for the sake of argument that the Agreement of Sale
c {s valid, the same could not have been enforced against the
  defendants as the plaintiffs have committed breach of the
  contract as agreed upon by them as per clause 2 of the
  penultimate paragraph Nos. 2 and 3 of the Agreement of Sale.
   The plaintiffs gave a sum of Rs.5,000/- & Rs. 10,000/- as an
   advance amount towards sale consideration and the remaining
0
   sale consideration, i.e.(i)an amount of Rs.1,70,000/-which was
   to be paid within 1Odays from the day of vacating the tenants
   in the property, (ii) Rs.50,000/- to be paid on 30.11.1993 and
   the remaining sale consideration of Rs.1,50,000/- to be paid
E on or before 30.3.1994 was not paid to the defendant Nos. 1
   and 2.

        26. It is also contended by the learned counsel that the
  First Appellate Court and the Second Appellate Court have not
  exercised their discretionary powers as required under Section
F 20(2) of the Specific Relief Act for decreeing the specific
  performance in favour of the plaintiffs, even though, the.
   defendants have made out a case before the Trial Court that
  the plaintiffs are not entitled for the decree for specific
  performance. Therefore, the First Appellate Court and the
G Second Appellate Court have gravely erred in not exercising
  their discretionary power under Section 20(2) of the Specific
  Relief Act at the time of passing decree for specific
  performance in favour of the plaintiffs, which is not only
  erroneous in law but also vitiated in law and therefore, the same
H is liable to be set aside.
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1079
    ASSOCIATION [V. GOPALA GOWDA, J.]

      27. On the contrary, the learned counsel for the plaintiffs A
has sought to justify the impugned judgment contending that the
Second Appellate Court in exercise of its appellate jurisdiction
after examining the facts and evidence on record has held that
the substantial questions of law framed by the defendants in
the second appeal, on the divergent findihgs of fact recorded B
by the First Appellate Court would not arise. Decreeing the suit
by the First Appellate Court as prayed by the plaintiffs is correct
as it has set aside the decree of the Trial Court. It is further urged
that the High Court is right in dismissing the second appeal and
therefore, the same does not call for interference by this Court     c
as ther~ is no substantial question of law which would arise for•
consideration. Therefore, the learned counsel for the
respondent-plaintiffs prayed for dismissal of this civil appeal as .
the same is devoid of merit.

     28. With refereRce to the above said rival contentions, the     D
following points would arise for our consideration :-

      (1)   Whether the plaintiffs are entitled for the decree for
            specific performance of the Agreement of Sale
            (Ex.-A 1) when Agreement of Sale entered between         E
            the plaintiffs and defendant Nos. 1 and 2 who do
            not have absolute title to the property?

      (2)   Whether in the absence of execution of the
            Agreement of Sale-Ex.-A1 by the other defendants/        F
            co-sharers is it valid, even assuming that
            Agreement of Sale is valid, there is breach of terms
            and conditions of the Contract on the part of the
            plaintiffs in not paying the sale consideration
            amount of Rs. 1, 70,000/- within 10 days from the
            day of vacating the tenants, Rs.50,000/- on              G
            30.11.1993 and an amount of Rs.1,50,000/- on ot
            before 30.3.1994 to the defendants and plaintiffs
            are entitled for decree of specific performance of
            the Agreement of Sale?
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    1080         SUPREME COURT REPORTS               [2014] 7 S.C.R.


A          (3)    Whether the plaintiffs are entitled for discretionary
                  ,relief of specific performance under Section 20(2)
                  of the Specific Relief Act when it has not
                   approached the court with clean hands?

           (4)    What relief?
B
    Answer to Point No. 1

         29. It is an undisputed fact that the suit schedule property
   is self ~cquired property by late Pemmada Venkateswara Rao
c  as he had purchased the said property vide Sale-Deed
   Document No.5174 of 1970 dated 24.11.1970 from his
  ·vendors. It is also an undisputed fact that the said property is
   intestate property. He is survived by his wife, 3 sons and 3
   daughters. The said property devolved upon them in view of
D Section 8 of Chapter 2 of the Hindu Succession Act as the
   defendants are class I legal heirs in the suit schedule property.
   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
E the Ag·reement 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
F 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
G or lessor who does not have absolute title and right upon the
                                                            '
    party. It is worthwhile to extract Section 17 of the Specific Relief
    Act, 1963 here :-

           "17 .-Contract to sell or let property by one who has
H          no title, not specifically enforceable.- A contract to sell
 PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1081
    ASSOCIATION [V. GOPALA GOWDA, J.]
    or let any immovable property cannot be specifically              A
    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              8
            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."                                                   C

     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. This aspect     o
of the matter has not been properly appreciated and
considered by both the First Appellate Court and the Second
Appellate Court. Therefore, the impugned judgment is vitiated
in law.

      30. Even assuming for the sake of argument that the             E
agreement is valid, the names of three sons are mentioned in
Agreement of Sale, out of whom the agreement is executed by
defendant Nos. 1 and 2 and they assured that they would get
the signatures of the 3rd brother namely, Srinivasa Rao and
also the remaining 3 sisters. At the time of execution of this        F
agreement signatures were not obtained. Therefore, the
agreement is not executed by all the co-sharers of the property
which fact is evident from the recitals of the document itself.
Hence, the plaintiffs are not entitled for specific performance
decree. This vital factual and legal aspect has been ignored          G
by both the First Appellate Court and the Second Appellate
Court. Therefore, the impugned judgment is vitiated both on
facts and law. Accordingly, the point No. 1 is answered in favour
 of the defendants.
                                                                      H
    1082     SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A Answer to Point No. 2
        31. The second point is also required to be answered
    against the plaintiffs for the following reasons:-

      As could be seen from the Agreement of Sale document
B marked as Ex.-A 1 and the pleadings of the parties payment of
  sale consideration was agreed to be paid to the defendant
  Nos. 1 and 2 as per following terms of the agreement:-

        "... (i) an amount of Rs.1,70,000/- shall be paid by Vendee
c       to Vendors within 10 days from the day of vacating the
        tenants in the property, (ii) Rs. 50,000/- shall be paid on
        30.11.1993., (iii) the remaining sale consideration of
        Rs.1,50,000/- shall be paid on or before 30.3.1994."

        32. It is an undisputed fact that except payment of Rs.5,000/
D - and Rs.10,000/- paid by the purchaser-plaintiff No.1 to the
  defendant Nos. 1 and 2 according to the Agreement of Sale,
  the remaining installment i.e. an amount of Rs.1,70,000/- which
  was to be paid to the Vendors within 10 days from the day of
  vacating the tenants in the property was not paid. Even
E assuming that the amount could have been paid had the tenants
  vacated the schedule property then the remaining part of the
  sale consideration agreed to be paid as notified under clauses
  (ii) and (iii) as per aforesaid paragraph of the Agreement of
  Sale undisputedly not paid to the defendant Nos. 1 and 2.
F Therefore, there is breach of contract on the part of the plaintiffs
  as could be seen from the agreement of sale regarding the
  payment of part sale consideration amount. For this reason
  itself plaintiffs are not entitled for a decree of specific
  performance.
G
  Answer to the Point Nos. 3

        33. Point No. 3 is also answered in favour of the
    defendants for the following reasons:-

H        It is an undisputed fact that the plaintiffs have not
  PEMMADA PRABHAKAR v. YOUNGMEN'S VYSYA 1083
     ASSOCIATION [V. GOPALA GOWDA, J.]
 approached the Trial Court with clean hands. It is evident from A
 the pleadings of the Agreement of Sale which is produced for
 the decree for specific performance of Agreement of Sale as
 the plaintiffs did not obtain the signatures of all the co-sharers
 of the property namely, the mother of the defendants, the third
 brother and 3 sisters. Therefore, the agreement is not B
 enforceable in law as the persons who have executed the sale
 deed, did not have the-absolute title of the property. Apart from
 the said legal lacuna, the terms and conditions of the
 Agreement of Sale for payment of sale consideration agreed
-to be paid by the first plaintiff in installments within the period c
 stipulated as indicated above were not paid. The First Appellate
 Court and the High Court have not exercised their power under
 Section 20(2) of the Specific Relief Act which by itself is• the
 substantial question of law which fell for consideration oefore
 the High Court as the First Appellate Court failed to consider
                                                                       0
 this important aspect of the matter and exercised its power
 while determining the rights of the party, particularly, in the light
 of the unenforceable contract between the plaintiffs against the
 defendants as all of them are not parties to the Agreement of
  Sale document (Ex.-A1) and the executants viz. defendant Nos.
  1 and 2 have not acquired absolute title to the property in E
 question. Therefore, the impugned judgment is vitiated and
  liable to be set aside.

Answer to Point No. 4
                                                                      F
       34. Though we have answered the questions of law framed
 in this appeal in favour of the defendants, the learned counsel
 for the defendants during the course of arguments, has offered
 some monetary compensation in favour of the plaintiffs if this
 Court set aside the impugned judgment and decree of specific         G
 performance granted in their favour. Though, the defendants on
 merits have succeeded in this case for the reasons recorded
 by us on the substantial questions of law that have been framed
 by us on appreciation of facts and legal evidence on record,
  having regard to the peculiar facts and circumstances of the
                                                                      H
    1084        SUPREME COURT REPORTS             [2014] 7 S.C.R.


A case particularly, the execution of Agreement of Sale, Ex. A-1
  by defendant Nos. 1 and 2 on 3.5.-1993, after receiving part
  consideration of Rs.15,00.0/-, .and the submission made by the
  learned counsel for the defendants, it would be just and proper
  for this Court to award a sum of Rs.6,00,000/- by lump-sum
B amount of compensation to the plaintiffs within 3 months from
  the date of receipt of a copy of this judgment as provided under
  Section 22 of the Specific Relief Act.

        35. Since, we have answered point Nos. 1 to 4 in favour
   of the defendants and against the plaintiffs, the app'eal of the
C defendants must succeed. Accordingly, the impugned judgment
   and decree pas~ed by the High Court in affirming the judgment
   and decree of 'the First Appellate Court, is set aside. The
   judgment and decree of the Trial Court is restored with
   modification that the defendants shall pay a sum of
D. Rs.6,00,000/- to the plaintiffs as lump-svm compensation within
   3 months from the date of receipt of copy of this order. The
   appeal is allowed in the above said terms. No costs.

   Nidhi Jain                                   Appeal partly allowed.