VIJAY A. MITTAL & ORS.versusKULWANT RAI (DEAD) THR. LRS. & ANR.

                        [2019] 2 S.C.R. 507                              507


                    VIJAY A. MITTAL & ORS.                               A
                                  v.
           KULWANT RAI (DEAD) THR. LRS. & ANR.
                   (Civil Appeal No.5177 of 2009)
                        JANUARY 28, 2019                                 B
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
       Suit – Specific performance of agreement – Agreement dated
12.06.1979 between the plaintiffs-respondents and the defendant
no.1 (now represented by his legal representatives, appellant nos. 1
                                                                         C
to 4 and 7) for sale of the suit property for Rs.46,000/- – Plaintiffs
filed suit for specific performance alleging that they paid earnest
money to defendant no.1 and were ready to perform their part of
the agreement, however defendant no.1 sold the suit property to
defendant nos.2 and 3 (appellant nos.5 & 6, respectively) for
Rs.48,000/- – Trial Court though held that the plaintiffs were ready     D
and willing to perform their part of the agreement but, dismissed
the suit – Plaintiffs filed appeal before the First Appellate Court,
which was allowed – Challenged by the defendants – High Court
dismissed the second appeal – On appeal, held: Finding on the
issue of readiness and willingness is one of the important and
                                                                         E
relevant findings in suit for specific performance of an agreement
– Once recorded, it becomes a finding of fact – When the three
Courts below held against the defendants and in favour of the
plaintiffs that they were ready and willing to perform their part of
the agreement, this finding was binding on the High Court and also
on this Court – Defendants failed to challenge its legality at the       F
first appellate stage in appeal filed by the plaintiffs – High Court
upheld it by dismissing defendants’ second appeal – Sale made by
defendant no.1 in favour of defendant nos.2 and 3 was a collusive
sale to avoid the agreement of the plaintiffs – The agreement dated
12.06.1979 was binding on the legal heirs of defendant no.1 –
                                                                         G
Defendants failed to make out any case for interference in the
impugned judgment – With a view to end litigation between the
parties, pending since 1982 and also to balance the equities amongst
the parties, defendant no.1 through his legal representatives to
return the sum of Rs.48,000/- to the legal representatives of
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                                 507
508            SUPREME COURT REPORTS                          [2019] 2 S.C.R.


A     defendant no.2 (appellant no.5) and defendant no.3 (appellant no.6)
      – Decree further modified as directed – Indian Contract Act, 1872
      – s.65 – Code of Civil Procedure, 1908 – Or.22, r.4(2) – Constitution
      of India – Art.142 – Decree.
            Family Law – Joint Hindu Family Property – Powers of Karta
B     – Held: Power of Karta to sell the Joint Hindu Family property is
      inherent in him – However, it is subject to certain restrictions, namely,
      the sale should be for the legal necessity and for the benefit of the
      family.
            Disposing of the appeal, the Court
C           HELD: 1.1 When the three Courts below held against the
      defendants and in favour of the plaintiffs that the plaintiffs were
      ready and willing to perform their part of the agreement, this
      finding was binding on the High Court and also on this Court. A
      finding on the issue of readiness and willingness is one of the
D     important and relevant findings in a suit for specific performance
      of an agreement. It is a finding based on facts and once it is
      recorded, it becomes a finding of fact. [Paras 19, 21] [513-E-F,
      G-H; 514-A]
             1.2 In this view of the matter, unless such finding is found
E     to be against the pleadings or contrary to the evidence or the law
      governing the issue, it is binding on the High Court and also on
      this Court. Appellants were not able to point out any infirmity or
      illegality in this finding. It is apart from the fact that the appellants
      (defendants) failed to challenge its legality and correctness at
      the first appellate stage in an appeal filed by the plaintiffs, which
F     was the appropriate stage to challenge. It is, therefore, binding
      on this Court. [Paras 22, 23] [514-B-C]
            1.3 The sale made by defendant no.1 in favour of defendant
      nos.2 and 3 was a collusive sale made to avoid the agreement of
      the plaintiffs. The Courts below were justified in holding that the
G     agreement dated 12.6.1979 was binding on the legal heirs of
      defendant no.1. [Paras 36, 42] [516-A-B; 517-C-D]
            1.4 One cannot dispute the power of a Karta to sell the
      Joint Hindu Family property. It is, indeed, inherent in him.
      However, it is subject to certain restrictions, namely, the sale
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   VIJAY A. MITTAL v. KULWANT RAI (DEAD) THR. LRS.                     509


should be for the legal necessity and for the benefit of the family.   A
Defendant no.1 had obtained the consent of the legal heirs before
entering into an agreement for sale of the suit property to the
plaintiffs. The very fact that one son of defendant no.1 was a
signatory to the agreement was sufficient to draw a presumption
that the agreement to sell was made by defendant no.1 with the
                                                                       B
consent of other coparceners. It is also for the reason because
none of the coparceners had raised any objection till the filing of
written statement in the suit. The very fact that defendant no.1
sold the suit property to defendant nos. 2 and 3 and which was
not objected to by his legal heirs showed that the plea regarding
legal necessity had no factual basis to sustain. The appellants        C
(defendants) have failed to make out any case so as to call for any
interference in the impugned judgment. [Paras 44-46] [517-F-H;
518-A]
       1.5 It is considered just and proper and with a view to end
this litigation between the parties, which is pending since 1982       D
and also to balance the equities amongst the parties that defendant
No.1 through his legal representatives (Appellant Nos. 1-4 & 7
herein) would return a sum of Rs.48,000/- to the legal
representatives of defendant no.2 (Appellant No.5 herein) and
defendant no. 3 (Appellant No.6 herein). This direction is given
to do complete justice between the parties to the lis because one      E
does not want another round of litigation to go on for years in
future between the defendants inter se for recovery of this amount.
[Para 52] [519-F-G]
      1.6 The judgment and decree is modified as under:
                                                                       F
      (i) The legal representatives of defendant no.1 (Appellant
Nos.1-4 and 7) shall deposit a sum of Rs. 48,000/- in the executing
Court for being paid to the legal representatives of defendant
no.2 and defendant no.3 (Appellant No.6 herein) within three
months as an outer limit.
                                                                       G
      (ii) The legal representatives of original Plaintiff No.1
(respondent no.1 herein) and plaintiff no.2 (respondent no.2
herein) shall deposit in the executing Court a sum of
Rs.41,000/- for being paid to the legal representatives of original
defendant no.1 (Appellant Nos.1 to 4 and 7 herein) within three
months as an outer limit.                                              H
510             SUPREME COURT REPORTS                           [2019] 2 S.C.R.


A           (iii) The original defendant no.1, now represented by his
      legal representatives (Appellant Nos.1-4 & 7) along with legal
      representatives of original defendant no. 2 and defendant no. 3
      (Appellant No.6 herein) will jointly execute the sale deed in favour
      of legal representatives of original plaintiff No.1 (respondent No.1
      herein) and plaintiff No.2 (respondent No.2 herein) and hand over
B
      the possession of the suit property to them simultaneously and
      then will withdraw the money deposited for them in Court.
      [Para 53] [520-A-D]
            Sunil Kumar & Anr. v. Ram Parkash & Ors. (1988) 2
            SCC 77 : [1988] 2 SCR 623 ; Lala Durga Prasad &
C           Anr. v. Deep Chand & Ors. AIR 1954 SC 75 :
            [1954] SCR 360 – relied on.
                                Case Law Reference
            [1988] 2 SCR 623               relied on               Para 41
D           [1954] SCR 360                 relied on               Para 50
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.5177
      of 2009.
            From the Judgment and Order dated 21.12.2007 of the High Court
      of Punjab and Haryana at Chandigarh in R.S.A. No.1537 of 1993.
E
            R.K. Kapoor, Ms. Kheyali, Rajat Kapoor, Ms. Shweta Kapoor,
      Anis Ahmed Khan, Advs. for the Appellants.
           Jagjit Singh Chhabra, Manoj Swarup, Ankit Swarup, Ms. Tanya
      Swarup, Ajay Kumar, Advs. for the Respondents.
F           The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
      against the final judgment and order dated 21.12.2007 passed by the
      High Court of Punjab & Haryana at Chandigarh in RSA No.1537 of
      1993 whereby the Single Judge of the High Court dismissed the regular
G     second appeal filed by the appellants herein and upheld the judgment/
      decree dated 15.04.1993 of the First Appellate Court in C.A. No.7 of
      15.02.1992.
             2. In order to appreciate the controversy involved in this appeal, it
      is necessary to set out the relevant facts hereinbelow.
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   VIJAY A. MITTAL v. KULWANT RAI (DEAD) THR. LRS.                             511
              [ABHAY MANOHAR SAPRE, J.]

       3. Appellant Nos.1 to 4 and 7 are the legal representatives of the      A
original defendant No.1-Amar Nath. Appellant No.5 (Yash Pal Mittal),
who was the original defendant No.2 also died and he is now represented
by his legal heirs (i) Rita Mittal (ii) Akanksha and (iii) Akshay Mittal and
Appellant No.6 (Sunil Mittal) is the original defendant No.3 whereas
respondent No.1 (Kulwant Rai) is the original plaintiff, who also died
                                                                               B
and is now represented by his legal heirs (i) Sudesh Goel, (ii) Ajay Goel
and (iii) Sanjay K. Goel and respondent No.2 (Atul Kumar) is the original
plaintiff No.2 in the civil suit out of which this appeal arises.
       4. In short, the civil suit out of which this appeal arises was
originally filed by one - Kulwant Rai as plaintiff No.1 and Atul Kumar as
plaintiff No.2 against the defendants, namely, (1) Amar Nath, (2) Yash         C
Pal Mittal, (3) Sunil Mittal and (4) Bal Kishandas.
        5. During the pendency of the civil suit, Kulwant Rai (Plaintiff
No.1), Amar Nath (defendant No.1) and Yashpal Mittal (defendant No.2)
died and, therefore, their legal representatives, on whom the right to sue
devolved as detailed above, were brought on record in places of the            D
original plaintiff/defendants in the civil suit to enable them to continue
the lis on behalf of those who died.
       6. As mentioned above, two aforementioned plaintiffs (respondents
herein) filed a civil suit against the aforementioned four defendants
(appellants herein) on 19.03.1982 claiming a relief of specific performance    E
of the agreement dated 12.06.1979 in relation to the suit property (as
detailed in the plaint) situated at Narain Dass Building, Durga Charan
Road, Ambala Cantt.
       7. The suit was founded on the agreement dated 12.06.1979
entered into between the plaintiffs and the defendant No.1 (Amar Nath)         F
for sale of the suit property for a sum of Rs.46,000/-. According to the
plaintiffs, they paid a sum of Rs.5,000/- by way of earnest money to
defendant No.1 (Amar Nath) and the sale deed in relation to the suit
property was to be executed on or before 31.12.1979 by defendant No.1
(Amar Nath) in favour of the plaintiffs on paying the balance consideration    G
before the sub-Registrar.
       8. It was alleged that defendant No.1 (Amar Nath) instead of
selling the suit property to the plaintiffs in terms of agreement dated
12.06.1979 sold it to defendant Nos. 2 and 3 on 27.11.1981. The plaintiffs
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512             SUPREME COURT REPORTS                           [2019] 2 S.C.R.


A     alleged that they were ready to perform their part of the agreement but
      it was defendant No.1 (Amar Nath) who failed to perform his part and
      committed breach by selling the suit property to defendant Nos. 2 and 3
      on a higher price and, therefore, the plaintiffs were constrained to file
      the suit for seeking specific performance of the agreement dated
      12.06.1979.
B
             9. Defendant No.1 (Amar Nath) died and, therefore, he could not
      file his written statement. His legal representatives, however, filed the
      written statement. Their defense was three-fold.
            10. First – Amar Nath (defendant No.1) was not the absolute
C     owner of the suit property because the suit property was a Joint Hindu
      Family property; Second, Amar Nath (defendant No.1) was, therefore,
      not competent to enter into an agreement to sell the suit property; and
      the Third, the sale in question was not for any legal necessity and,
      therefore, it was bad in law and not binding on the legal representatives
      because their consents were not obtained by Amar Nath (defendant
D     No.1) prior to entering into an agreement of sale.
             11. So far as defendant Nos. 2 to 4 are concerned, they filed their
      written statement. They admitted that the suit property belonged to Amar
      Nath(defendant No.1). They averred that they purchased the suit
      property from Amar Nath pursuant to the agreement, which they had
E     entered into with him somewhere in the year 1978. They alleged that
      they had no knowledge of the agreement of the plaintiffs and, therefore,
      they were bona fide purchasers of the suit property.
             12. The Trial Court by judgment/decree dated 22.11.1991 dismissed
      the suit. It was held that the agreement dated 12.06.1979 is proved; the
F     plaintiffs were ready and willing to perform their part of the agreement
      but since Amar Nath was not competent to enter into the agreement
      with the plaintiffs because the suit property was a Joint Hindu Family
      property and Amar Nath was only a Karta; and lastly, the Plantiffs failed
      to aver that the sale was for the legal necessity and for the benefit of the
G     family.
             13. The plaintiffs felt aggrieved and filed appeal before the First
      Appellate Court. By judgment/decree dated 15.04.1993, the First
      Appellate Court allowed the appeal, set aside the judgment/decree of
      the Trial Court and decreed the plaintiffs’ suit.
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   VIJAY A. MITTAL v. KULWANT RAI (DEAD) THR. LRS.                            513
              [ABHAY MANOHAR SAPRE, J.]

       14. The First Appellate Court held that the sale deed executed by      A
Late Amar Nath in favour of defendant Nos. 2 and 3 was bad in law
inasmuch as the same was obtained by a collusion so as to deprive the
plaintiffs of the fruits of their agreement dated 12.06.1979. It was also
held that defendant Nos. 2 and 3 were not bona fide purchaser of the
suit property. It was also held that the suit property was Joint Hindu
                                                                              B
family property and Amar Nath was its Karta. It was also held that the
agreement of sale entered into by Amar Nath was binding on all
coparceners.
      15. The defendants, therefore, felt aggrieved and filed the second
appeal before the High Court. By impugned order, the High Court
dismissed the second appeal and upheld the judgment/decree of the first       C
Appellate Court.
      16. It was held that Amar Nath executed the agreement dated
12.06.1979 as a Karta of Joint Hindu Family. It was also held that the
agreement was binding on Amar Nath and his legal representatives.
                                                                              D
       17. It is against this order, the defendants have carried the matter
to this Court in special leave to appeal.
       18. Having heard the learned counsel for the parties and on perusal
of the record of the case, we find no merit in this appeal.
       19. In the first place, in our considered opinion, when the three      E
Courts below have held against the defendants and in favour of the
plaintiffs that the plaintiffs were ready and willing to perform their part
of the agreement, this finding was binding on the High Court and also on
this Court.
       20. Indeed, the Trial Court had already recorded this finding in       F
plaintiffs’ favour but since the Trial Court dismissed the suit on other
grounds, the defendants had a right to challenge this finding by filing
cross objection before the First Appellate Court in plaintiffs’ appeal but
the defendants did not do so and accepted this finding. The First Appellate
Court while decreeing the plaintiffs’ suit upheld this finding being not
                                                                              G
under challenge and the High Court upheld it by dismissing defendants’
second appeal.
      21. A finding on the issue of readiness and willingness is one of
the important and relevant findings in a suit for specific performance of
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514             SUPREME COURT REPORTS                             [2019] 2 S.C.R.


A     an agreement. It is a finding based on facts and once it is recorded, it
      becomes a finding of fact.
             22. In this view of the matter, unless such finding is found to be
      against the pleadings or contrary to the evidence or the law governing
      the issue, it is binding on the High Court and also on this Court.
B             23. Learned counsel for the appellants was not able to point out
      any infirmity or illegality in this finding. It is apart from the fact that the
      appellants (defendants) failed to challenge its legality and correctness at
      the first appellate stage in an appeal filed by the plaintiffs, which was the
      appropriate stage to challenge. It is, therefore, binding on this Court.
C           24. The other argument of learned counsel for the appellants
      (defendants) was that since the respondents (plaintiffs) got impleaded
      only some legal representatives out of eight legal representatives of late
      Amar Nath in their first appeal and remaining legal representatives were
      not impleaded, the decree of the Trial Court dismissing the civil suit qua
D     those legal representatives, who were not made parties in the appeal,
      had become final.
             25. It was, therefore, urged that the First Appellate Court by
      allowing the appeal filed by the plaintiffs and decreeing their suit has
      passed two conflicting decrees-one against some which has decreed
E     the suit and other against some which has resulted in dismissal of the
      suit. It is not legally permissible.
            26. This submission was dealt with by the High Court while
      answering 5th substantial question and was rejected. In our view, the
      High Court was right for the following reasons.
F            27. First, all the legal representatives of late Amar Nath were
      already on record in the Trial Court in the suit and all had taken similar
      defense in support of their case against the plaintiffs. In other words,
      there was no conflict of interest amongst them either inter se or qua the
      plaintiffs.
G            28. Second, those legal representatives, who filed the written
      statement, had filed a joint and common written statement whereas those,
      who did not file the written statement, had given their power of attorney
      in favour of the legal representatives, who had filed the written statement.


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    VIJAY A. MITTAL v. KULWANT RAI (DEAD) THR. LRS.                                  515
               [ABHAY MANOHAR SAPRE, J.]

      29. Third, one legal representative, who did not file his written              A
statement remained ex-parte. In these circumstances, it was not
necessary to implead him as party respondent in the first appeal.
       30. Fourth, it is a trite law that if out of all the legal representatives,
majority of them are already on record and they contested the case on
merits, it is not necessary to bring other legal representatives on record.          B
The reason is that the estate and the interest of the deceased devolved
on the legal representatives is sufficiently represented by those who are
already on record.
       31. Fifth, the defendants, who were respondents in the first appeal,
did not raise any objection before the First Appellate Court. Had such               C
objection been raised, the appellants (plaintiffs) would have cured the
defect by impleading them as party respondents before the First Appellate
Court.
       32. As rightly argued by the counsel for the respondents, the reason
for not impleading some legal representatives in the first appeal was that           D
their names were not shown in the decree of the Trial Court. It was for
this reason, the first appeal was filed by the plaintiffs only against those
legal representatives whose names were shown in the decree.
       33. In the light of this factual scenario and the reasons set out
above, we are of the considered opinion that no case was made out by                 E
the appellants to challenge the decree before the High Court on the
ground that the impugned decree has resulted in passing any conflicting
decree by the First Appellate Court - one of dismissal of the suit by the
Trial Court and the other decreeing the suit by the First Appellate Court.
       34. Learned counsel for the appellants (defendants) then argued               F
that the two Courts below were not justified in declaring the sale made
in favour of defendant Nos. 2 and 3 by defendant No.1 as bad in law.
According to the learned counsel, it should have been held to be a bona
fide sale for consideration without notices to the agreement of the plaintiff
with defendant No.1.
                                                                                     G
        35. We find no merit in this submission for more than one reason.
First, the finding on this issue being a concurrent finding of fact recorded
against the appellants by the Appellate Court and the High Court, the
same is binding on this Court.

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516             SUPREME COURT REPORTS                           [2019] 2 S.C.R.


A             36. Second, the finding apart from being concurrent is otherwise
      not liable to be interfered with for the reason that the sale made by
      defendant No.1 in favour of defendant Nos. 2 and 3 was on the face of
      it, a collusive sale made to avoid the agreement of the plaintiffs.
             37. Third, defendant Nos. 2 and 3 did not adduce any evidence to
B     prove that their agreement was prior in point of time as against the
      agreement of the plaintiffs and, therefore, they were entitled to get the
      sale deed executed pursuant to their prior agreement.
             38. Fourth, the legal representatives of Amar Nath having stepped
      into his shoes were entitled to raise that defense which was available to
C     Amar Nath against the plaintiffs in addition to one which was appropriate
      to their character as legal representatives as provided under Order 22
      Rule 4(2) of the Code of Civil Procedure, 1908.
            39. Fifth, the plaintiffs were only entitled to prove the existence of
      the valid agreement with the defendant No.1 – Amar Nath and its
D     performance by the plaintiffs qua him. This finding of readiness and
      willingness was recorded in plaintiffs’ favour throughout.
             40. The Trial Court had framed two Issues (7 and 8) on the questions
      as to whether the suit property was a Joint Hindu Family property of
      Amar Nath and, if so, whether Amar Nath was its Karta or not. The
E     Trial Court held that the suit property was the Joint Hindu Family property
      of which Amar Nath was its Karta.
            41. This Court in a case Sunil Kumar & Anr. vs. Ram Parkash
      & Ors., (1988) 2 SCC 77 examined the status and the powers of a
      Karta while dealing with the Joint Hindu Family property in the following
F     words.
            “6. In this appeal we are called upon to decide the only
            question whether a suit for permanent injunction restraining
            the Karta of the joint Hindu family from alienating the house
            property belonging to the joint Hindu family in pursuance
            of the agreement to sell executed already in favour of the
G
            predecessor of the appellants, Jai Bhagwan, since deceased,
            is maintainable. It is well settled that in a Joint Hindu
            Mitakshara Family, a son acquires by birth an interest equal
            to that of the father in ancestral property. The father by
            reason of his paternal relation and his position as the head
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   VIJAY A. MITTAL v. KULWANT RAI (DEAD) THR. LRS.                               517
              [ABHAY MANOHAR SAPRE, J.]

       of the family is its Manager and he is entitled to alienate               A
       joint family property so as to bind the interests of both adult
       and minor coparceners in the property, provided that the
       alienation is made for legal necessity or for the benefit of
       the estate or for meeting an antecedent debt. The power
       of the Manager of a joint Hindu family to alienate a joint
                                                                                 B
       Hindu family property is analogous to that of a Manager for
       an infant heir as observed by the Judicial Committee in
       Hunoomanpersaud Panday v. Mussumat Babooee Munraj
       Koonweree (1856) 6 Moo Ind App 393)”
      42. Keeping in view the aforementioned principle of law and
applying the same to the facts of the case at hand, we are of the                C
considered opinion that the Courts below were justified in holding that
the agreement dated 12.6.1979 was binding on the legal heirs of Amar
Nath for the following reasons:
       43. First, no issue was framed on the question of “legal necessity”.
In our opinion, it should have been framed; Second, yet the First Appellate      D
Court while allowing the plaintiffs’ appeal recorded a categorical finding
that one son of Amar Nath had signed the agreement in question and,
therefore, it was a case where legal representatives of Late Amar Nath
were aware of the existence of the agreement and also had given their
consent; and Third, this finding was upheld by the High Court while              E
dismissing the defendants’ appeal.
      44. One cannot dispute the power of a Karta to sell the Joint
Hindu Family property. It is, indeed, inherent in him. However, it is
subject to certain restrictions, namely, the sale should be for the legal
necessity and for the benefit of the family.                                     F
        45. It is clear that Amar Nath had obtained the consent of the
legal heirs before entering into an agreement for sale of the suit property
to the plaintiffs. The very fact that one son of Amar Nath was a signatory
to the agreement was sufficient to draw a presumption that the agreement
to sell was made by Amar Nath with the consent of other coparceners.             G
It is also for the reason because none of the coparceners had raised any
objection till the filing of written statement in the suit. The very fact that
Amar Nath sold the suit property to defendant Nos. 2 and 3 and which
was not objected to by his legal heirs showed that the plea regarding
legal necessity had no factual basis to sustain.
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518             SUPREME COURT REPORTS                            [2019] 2 S.C.R.


A            46. It is for all these reasons, we are of the view that the appellants
      (defendants) have failed to make out any case so as to call for any
      interference in the impugned judgment.
             47. This takes us to examine another question which arises in this
      case but was not taken note of by the Courts below while decreeing the
B     suit. It relates to the nature of decree to be passed in this case.
            48. The question arises in this way. The effect of the decree
      passed in this case is that the original defendant No.1, now represented
      by his legal representatives (Appellant Nos.1-4 & 7) along with legal
      representatives of original defendant No. 2, i.e., (i) Rita Mittal, (ii)
C     Akanksha and (iii) Akshay Mittal, and defendant No. 3 (Appellant No.6
      herein) are required to execute the sale deed in favour of legal
      representatives of original plaintiff No.1, i.e., respondent No.1(i) Sudesh
      Goel, (ii) Ajay Goel and (iii) Sanjay K. Goel and Atul Kumar, plaintiff
      No.2 (respondent No.2 herein) jointly.

D            49. Yet another effect of the decree is that the transaction of sale
      of suit property between original defendant No.1, now represented by
      his legal representatives (Appellant Nos.1-4 & 7) and defendant No.2
      (Appellant No.5 herein), now represented by his legal representatives
      and defendant Nos.3(Appellant No.6 herein) is declared bad in law and
      stands nullified. As a consequence thereof, legal representatives of
E     defendant No.1(Appellant Nos.1-4 & 7) are required to return Rs.48,000/
      - to original defendant No.2 (appellant No.5 herein), now represented
      by his legal representatives and defendant No.3 (appellant No.6 herein)
      in the absence of any contract to the contrary in this behalf between the
      parties. The reason being that once the sale is declared bad, the
F     transaction of sale fails and, therefore, the seller(defendant No.1) has
      no right to retain the sale consideration with himself and has to refund
      the sale consideration to the buyers(defendant Nos.2 & 3) [See Section
      65 of the Indian Contract Act].
              50. The question arose before this Court in the case of Lala
G     Durga Prasad & Anr. Vs. Deep Chand & Ors., AIR 1954 SC 75 as
      to what form of decree should be passed in the case of specific
      performance of contract where the suit property is sold by the defendant,
      i.e., the owner of the suit property to another person and later he suffers
      a decree for specific performance of contract directing him to transfer
      the suit property to the plaintiff in term of contract.
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   VIJAY A. MITTAL v. KULWANT RAI (DEAD) THR. LRS.                           519
              [ABHAY MANOHAR SAPRE, J.]

      51. The learned Judge-Vivian Bose, J. examined this issue and          A
speaking for the Bench in his inimitable style of writing, held as under:
      “Where there is a sale of the same property in favour of a
      prior and subsequent transferee and the subsequent
      transferee has, under the conveyance outstanding in his
      favour, paid the purchase-money to the vendor, then in a               B
      suit for specific performance brought by the prior
      transferee, in case he succeeds, the question arises as to
      the proper form of decree in such a case. The practice of
      the Courts in India has not been uniform and three distinct
      lines of thought emerge. According to one point of view,
      the proper form of decree is to declare the subsequent                 C
      purchase void as against the prior transferee and direct
      conveyance by the vendor alone. A second considers that
      both vendor and vendee should join, while a third would
      limit execution of the conveyance to the subsequent
      purchaser alone. According to the Supreme Court, the                   D
      proper form of decree is to direct specific performance of
      the contract between the vendor and the prior transferee
      and direct the subsequent transferee to join in the
      conveyance so as to pass on the title which resides in him
      to the prior transferee. He does not join in any special
      covenants made between the prior transferee and his                    E
      vendor; all he does is to pass on his title to the prior
      transferee.”
       52. We, therefore, consider it just and proper and with a view to
end this litigation between the parties, which is pending since 1982 and
also to balance the equities amongst the parties that defendant No.1         F
through his legal representatives (Appellant Nos. 1-4 & 7 herein) would
return a sum of Rs.48,000/- to the legal representatives of defendant
No.2 (Appellant No.5 herein) and defendant No. 3 (Appellant No.6
herein). This direction we give by taking recourse to our powers under
Article 142 of the Constitution of India to do complete justice between      G
the parties to the lis because we do not want another round of litigation
to go on for years in future between the defendants inter se for recovery
of this amount.
      53. In the light of the foregoing discussion, the appeal is disposed
of by modifying the judgment and decree as under:                            H
520             SUPREME COURT REPORTS                           [2019] 2 S.C.R.


A           (i) The legal representatives of defendant No.1 (Appellant Nos.1-
      4 and 7) shall deposit a sum of Rs. 48,000/- in the executing Court for
      being paid to the legal representatives of defendant No.2, i.e., (i) Rita
      Mittal, (ii) Akanksha and (iii) Akshay Mittal and Defendant No.3
      (Appellant No.6 herein) within three months as an outer limit.
B           (ii) The legal representatives of original Plaintiff No.1,(respondent
      No.1 herein) i.e., (i) Sudesh Goel, (ii) Ajay Goel, and (iii) Sanjay K. Goel
      and Atul Kumar, plaintiff No.2 (respondent No.2 herein) shall deposit in
      the executing Court a sum of Rs.41,000/- for being paid to the legal
      representatives of original Defendant No.1 (Appellant Nos.1 to 4 and 7
      herein) within three months as an outer limit.
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             (iii) The original defendant No.1, now represented by his legal
      representatives (Appellant Nos.1-4 & 7) along with legal representatives
      of original defendant No. 2 and defendant No. 3 (Appellant No.6 herein)
      will jointly execute the sale deed in favour of legal representatives of
      original plaintiff No.1, i.e., respondent No.1 herein (i) Sudesh Goel, (ii)
D     Ajay Goel and (iii) Sanjay K. Goel and Atul Kumar, plaintiff No.2
      (respondent No.2 herein) and hand over the possession of the suit property
      to them simultaneously and then will withdraw the money deposited for
      them in Court.
             54. The executing Court will ensure completion of proceedings
E     within the time fixed and record due satisfaction of the decree in
      accordance with law. In case of any default, the parties will be entitled
      to put the decree in execution for enforcement of the terms of the decree
      of this Court amongst the defaulting parties.
            55. In view of the foregoing discussion, the appeal stands
F     disposed of.


      Divya Pandey                                               Appeal disposed of.



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