Author: Pratibha Rakesh Singh, Student at MNLU, Aurangabad.
In India Specific Performance is given as a relief against the defendant. The remedy of Specific Performance is same as that of the remedy of the breach of contract which gives compensation of not completing the duty or performance. Partition which was seen as main point of the case, seen being agreed by two out of three judges. Partition allows the co-ownership among the owners of the land.
In the case give the appellant M.S. Bansal (Pvt.) Ltd files a suit for Specific performance against the defendant Bhagwan Swarup Mathur And Ors. The appellant was sent a notice by the defendant to remove all the construction work. The respondent also filed a case after 11months for the partition of land. Here, clearly seen that the judges denied the suit for Specific Performance and hence the case from the appellant was dismissed. The partition suit which was filed by the respondent who was the eldest brother Bhagwan Swarup Mathur was found that there was a conflict among the judges regarding the matter. The later in the Trival Court had a majority stating that as there was no equity in the favor of Bansals and the amount he spends on the construction and renovation was done without informing the respondents and hence it was mere an oral agreement of the selling of the shares. It then later allowed the respondents who were the appellants in this case to have partition of the land. The later was appealed to HC whereas the appeal was dismissed from the side of appellants and the court asked partition of the land.
The latter case was appealed in the HC wherein the appellant tried to show the equity in their own favor by purchasing ½ share of one of the brothers among three with an oral agreement and part payment. Stating that the amount of money spent on the construction and renovation if removed will result in great loss for the appellant as in the lease was mentioned that after the expiry of the lease it will give the land as it is removing all the construction work. As long as the lease exists the appellant is allowed to any sort of construction work required there. The equity which was earlier proved to be in the favor of the respondent, here is been to be in the favor of the respondent. HC went on further stating that the partition as said by the respondent should take place without any construction work done on the land which is in dispute. HC dismissed the appeal made by the appellant.
There was a land in dispute which was situated at Aligarh, Grand Trunk Road and was of 1731 1/9 sq. yds. The collector conceded a lease of land to M.S Bansal for 10 years at the lease of Rs.15 per month for the development of cinema hall house ashore. Before the expiry of the initial lease another lease for 30years was given by the authority to M.S Bansal at a lease of Rs. 19 every month. Throughout the means of these leases, Roop Narain, the grandparent of the respondents turned into the proprietor of this land. He executed a will regarding which one half offer in the aforementioned plot was granted to the respondents and the excess half offer to Rajendra Narain. After the demise of Roop Narain, the half share in the plot of question was sold by Rajendra Narain for Rs.8,000/- to Bansals.
A condition was given that after the expiry of the leases it should be restored to it’s original condition and construction has to be removed from the ground. In 1961, there was an oral agreement of selling the half portion of Mathur Brothers who were the respondents for which an amount of Rs.2,500 was paid as the consideration of Rs.20,000. The appealing party denied and recorded a suit for specific performance of sale agreement. The respondent filed a suit for partition. Remedy here in this case given by the judge was compensation. This was filed by the appellant. The respondent filed for a partition which stated of the estate of the co-owners to be divided.
Oral Agreement which was highlighted, there was no written agreement on the selling of the share to the Bansal Brothers. The Bansals were sent a notice to remove all the construction and renovation work before the expiry, as they did not have the equity to do so. Respondents filed for partition and the Appellant filed a suit for specific performance.
- In a suit for partition between co-proprietors one of whom has built on the structures at considerable cost, Should the remedy be the partition of land or financial pay as per the Market Value?
The HC dismissed the case under Section 10 Specific Relief Act, 1963 states “ Cases in which specific performance of contract enforceable. Which tells that when the act which is consented to be done is with the end result that pay in cash (monetary compensation) for its presentation would not manage the cost of adequate relief. Compensation can’t be adequate to give relief. Under which the HC dismissed the case. It went in the favor of the respondent
The High Court found that the litigant purposely attempted to make an equity in his favor by its subsequent, for buying ½ of the offer and again by spending enormous wholes in redesigning, developing and constructing the cinema hall. The appellants, Taking an advantage of money paid to the senior kin to set up a case which was of oral consent to purchase the land. The court found that the amount was not a loan and hence part payment was done. Hence there was no justification that the equity was in the favor of the appellant and hence the appeal was dismissed.
REVIEW OF LITERATURE
Law Express Question and Answer: Equity and Trusts by John Duddington : Helps to take a review over the equity based concepts which has been clarified and made is easy to intrepet the case and give a personal reasoning to the same
The Property Law of India: Indian Law Series by Shubham Sinha: Talks about the property related matters which are in india to focus more on Partition which has been the main focus of this entire case.
Alastair Hudson’s Equity and Trusts: Based on the definations in the given book it talks about thr equity related matters which further adds up on making the judgemnent given by the courts to be strong and supporting.
In the present case, the ruling of the judges was based in the favor of the respondents, as the equity completely lies with the respondents. By showing mere purchasing of land with the oral agreement. The court said that there was no equity made in the favor of the Bansals. As only part payment was done and while constructing and renovating the land no notice was sent to make the respondent aware about the changes which were being bought on the land. According to the Partition Act, 1893, Section 9 which gives the power to the court to distribute the property equally and make the sale of property. Hence the decision which was given was in the favor of the respondent
The appellant had one judgement by a judge in it’s favor stating that the other two out of three property holders agreed to sell the land by an oral agreement and has also made all the construction and necessary re-constructions which later said the equity was in the favor of the Bansals. Hence removing all the constructions and renovations would end up in resulting huge loss to the appellant he gave the judgment stating that only compensation was the remedy to this case. It further added that the majority of the brothers stood for the sale of the property to the Bansals brothers.
In my opinion, the judges while taking the facts and circumstances into consideration for deciding whether the party is entitled to get the compensation according to Section 9 of the Partition Act stating that the court should allow distribution of the property. The equity which is clearly seen is not in the favor of the appellant yet trying to take the defense of the amount he spend on the construction and renovation is not valid to not take place the partition. The Appellants had this duty to send a notice to the respondents while making renovations and spending a huge amount of money. Mere oral agreement is not sufficient and the appellant should have made a written agreement which could have stood by their side. Hence, I feel that the decision given by the trivial court and HC which had the same jist of reasons stating that no equity was in the favor of Bansals which was clearly evident by the given facts. The appealed case had to be dismissed and which was a fair judgement given.
- Registration Act (1908)
- Specific Relief Act (1963)
- Property Act (1882)
- Property Partition Laws in India, Prachi Darji, 19th September,2019 (https://www.myadvo.in/blog/family-partition-a-legal-perspective/) Last accessed on 20th December, 2020.
- Partition under Hindu Joint Family Properties,Sakshi Raje,30th December,2018(https://lawtimesjournal.in/partition-under-hindu-joint-family-properties/) Last accessed on 20th December, 2020.
- Webster’s Third New International Dictionary.
- Encyclopedia Britannica, 15th Edition.