TaxTMI 
TaxTMI 
2024 (3) TMI 1539
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....ta Verma, Adv. JUDGMENT ABHAY S. OKA, J. FACTUAL ASPECTS 1. This appeal takes an exception to the judgment of the High Court in the second appeal preferred by the appellants. Appellant no.1 was the first plaintiff, and appellant no. 1(ii), (iii) and (iv), as well as appellant no. 2 were the co-plaintiffs. The original first respondent was the defendant in the suit. For convenience, we are referring to the parties with reference to their status before the Trial Court. 2. The defendant (Brij Bhushan Chaudhary) executed an agreement for sale dated 16th January 1980 (for short, 'the suit agreement') in favour of plaintiff no.1 (Major General (retd) Darshan Singh) in respect of plot of land admeasuring approximately 2438 sq. yards....
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....80, as desired by the defendant. According to the plaintiffs' case, the defendant changed his mind as there was a price rise of the properties in the vicinity of the suit property. Therefore, a telegraphic notice was issued by the plaintiffs to the defendant on 26th August 1980, calling upon him to remain present in the office of the Sub-Registrar at Chandigarh on 29th August 1980 between 10 am and 4 pm for registration of the sale deed. The case of the plaintiffs is that notwithstanding the service of the said notice, the defendant neither replied nor remained present before the Sub-Registrar for registration of the sale deed. Therefore, a suit for specific performance was filed by the plaintiffs. In the alternative, the plaintiffs cla....
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....s, the Trial Court held that as the plaintiffs had kept the Demand Draft in the sum of Rs. 2,60,000/- ready, it cannot be held that they were not ready and willing to perform their part of the agreement. 6. The appeal filed by the appellants before the District Court was dismissed. The District Court held that though, even according to the case of plaintiff no.1, the suit property was HUF property, there was no pleading that there was a legal necessity for the sale of the HUF property. Moreover, the cosharers of the defendant were not made parties, and the plaintiffs had not given up their claim against the co-sharers of the defendant. While dismissing the appeal, the District Court held that the trial court's finding on the issue of....
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....(2001) 8 SCC 173], a direction can be issued to the defendant to perform specifically so much of his part of the contract as he can perform. Therefore, the Trial Court ought to have moulded the relief by granting a decree of specific performance concerning the undivided share of the defendant. He submitted that a part of the contract can always be ordered to be performed based on the principles laid down in Section 12 of the 1963 Act. He submitted that the suit property can always be subjected to a partition. If it cannot be subjected to a partition, the shares of the co-sharers can be auctioned. Therefore, the Trial Court ought to have passed a decree for specific performance limited to the undivided share of the defendant. 8. The learn....
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....d the suit agreement in his capacity as the Karta of HUF and that the suit property was HUF property. This is very relevant as in the draft sale deed relied upon by the plaintiffs themselves; the defendant has been described as the Karta of HUF. In the written statement filed by the defendant, in paragraph 3, specific reliance was placed on the fact that the suit property was HUF property. In fact, it is specifically pleaded that as partition was not permissible, three members of HUF were in joint possession thereof. The plaintiffs pleaded in paragraph no. 3 of the replication that the suit property was an individual property of the defendant, and he was under obligation to sell the same to the plaintiffs. Thus, in the pleadings, the plaint....
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....uted, the possession of the suit property was delivered to the plaintiffs. This assertion has been specifically denied in the written statement. In paragraph 2 of replication, the plaintiffs reiterated that the suit agreement was superseded and the novated contract of 18th March 1980 exists between the parties. In paragraph 3, the plaintiffs reiterated that they were put in possession. However, in the cross-examination, the first plaintiff specifically admitted that he never took possession of the suit property on 18th March 1980. He was confronted with his affidavit dated 18th October 1980. He explained the statements in the affidavit to mean he could get possession whenever he liked. He admitted that though he had not received possession,....