VIJAY A. MITTAL & ORS. versus KULWANT RAI (DEAD) THR. LRS. & ANR. on 28 January 2019

[2019] 2 S.C.R. 507

VIJAY A. MITTAL & ORS.

v.

KULWANT RAI (DEAD) THR. LRS. & ANR.

(Civil Appeal No.5177 of 2009)

JANUARY 28, 2019

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Suit – Specific performance of agreement – Agreement dated12.06.1979 between the plaintiffs-respondents and the defendantno.1 (now represented by his legal representatives, appellant nos. 1to 4 and 7) for sale of the suit property for Rs.46,000/- – Plaintiffsfiled suit for specific performance alleging that they paid earnestmoney to defendant no.1 and were ready to perform their part ofthe agreement, however defendant no.1 sold the suit property todefendant nos.2 and 3 (appellant nos.5 & 6, respectively) forRs.48,000/- – Trial Court though held that the plaintiffs were readyand willing to perform their part of the agreement but, dismissedthe suit – Plaintiffs filed appeal before the First Appellate Court,which was allowed – Challenged by the defendants – High Courtdismissed the second appeal – On appeal, held: Finding on theissue of readiness and willingness is one of the important andrelevant findings in suit for specific performance of an agreement– Once recorded, it becomes a finding of fact – When the threeCourts below held against the defendants and in favour of theplaintiffs that they were ready and willing to perform their part ofthe agreement, this finding was binding on the High Court and alsoon this Court – Defendants failed to challenge its legality at thefirst appellate stage in appeal filed by the plaintiffs – High Courtupheld it by dismissing defendants’ second appeal – Sale made bydefendant no.1 in favour of defendant nos.2 and 3 was a collusivesale to avoid the agreement of the plaintiffs – The agreement dated12.06.1979 was binding on the legal heirs of defendant no.1 –Defendants failed to make out any case for interference in theimpugned judgment – With a view to end litigation between theparties, pending since 1982 and also to balance the equities amongstthe parties, defendant no.1 through his legal representatives toreturn the sum of Rs.48,000/- to the legal representatives of

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Adefendant 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) – Constitutionof India – Art.142 – Decree.

Family Law – Joint Hindu Family Property – Powers of KartaB– Held: Power of Karta to sell the Joint Hindu Family property isinherent in him – However, it is subject to certain restrictions, namely,the sale should be for the legal necessity and for the benefit of thefamily.

Disposing of the appeal, the CourtC

HELD: 1.1 When the three Courts below held against thedefendants and in favour of the plaintiffs that the plaintiffs wereready and willing to perform their part of the agreement, thisfinding was binding on the High Court and also on this Court. Afinding on the issue of readiness and willingness is one of theDimportant and relevant findings in a suit for specific performanceof an agreement. It is a finding based on facts and once it isrecorded, 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 foundEto be against the pleadings or contrary to the evidence or the lawgoverning the issue, it is binding on the High Court and also onthis Court. Appellants were not able to point out any infirmity orillegality in this finding. It is apart from the fact that the appellants(defendants) failed to challenge its legality and correctness atthe first appellate stage in an appeal filed by the plaintiffs, whichFwas the appropriate stage to challenge. It is, therefore, bindingon this Court. [Paras 22, 23] [514-B-C]

1.3 The sale made by defendant no.1 in favour of defendantnos.2 and 3 was a collusive sale made to avoid the agreement ofthe plaintiffs. The Courts below were justified in holding that theGagreement dated 12.6.1979 was binding on the legal heirs ofdefendant no.1. [Paras 36, 42] [516-A-B; 517-C-D]

1.4 One cannot dispute the power of a Karta to sell theJoint Hindu Family property. It is, indeed, inherent in him.However, it is subject to certain restrictions, namely, the saleH

should be for the legal necessity and for the benefit of the family.Defendant no.1 had obtained the consent of the legal heirs beforeentering into an agreement for sale of the suit property to theplaintiffs. The very fact that one son of defendant no.1 was asignatory to the agreement was sufficient to draw a presumptionthat the agreement to sell was made by defendant no.1 with theconsent of other coparceners. It is also for the reason becausenone of the coparceners had raised any objection till the filing ofwritten statement in the suit. The very fact that defendant no.1sold the suit property to defendant nos. 2 and 3 and which wasnot objected to by his legal heirs showed that the plea regardinglegal necessity had no factual basis to sustain. The appellants(defendants) have failed to make out any case so as to call for anyinterference 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 endthis litigation between the parties, which is pending since 1982and also to balance the equities amongst the parties that defendantNo.1 through his legal representatives (Appellant Nos. 1-4 & 7herein) would return a sum of Rs.48,000/- to the legalrepresentatives of defendant no.2 (Appellant No.5 herein) anddefendant no. 3 (Appellant No.6 herein). This direction is givento do complete justice between the parties to the lis because onedoes not want another round of litigation to go on for years infuture 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:

(i) The legal representatives of defendant no.1 (AppellantNos.1-4 and 7) shall deposit a sum of Rs. 48,000/- in the executingCourt for being paid to the legal representatives of defendantno.2 and defendant no.3 (Appellant No.6 herein) within threemonths as an outer limit.

(ii) The legal representatives of original Plaintiff No.1(respondent no.1 herein) and plaintiff no.2 (respondent no.2herein) shall deposit in the executing Court a sum ofRs.41,000/- for being paid to the legal representatives of originaldefendant no.1 (Appellant Nos.1 to 4 and 7 herein) within threemonths as an outer limit.

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A(iii) The original defendant no.1, now represented by hislegal representatives (Appellant Nos.1-4 & 7) along with legalrepresentatives of original defendant no. 2 and defendant no. 3(Appellant No.6 herein) will jointly execute the sale deed in favourof legal representatives of original plaintiff No.1 (respondent No.1herein) and plaintiff No.2 (respondent No.2 herein) and hand overBthe possession of the suit property to them simultaneously andthen will withdraw the money deposited for them in Court.[Para 53] [520-A-D]

Sunil Kumar & Anr. v. Ram Parkash & Ors.(1988) 2SCC 77 : [1988] 2 SCR 623 ;Lala Durga Prasad &CAnr. v. Deep Chand & Ors.AIR 1954 SC 75 :[1954] SCR 360 – relied on.

Case Law Reference

[1988] 2 SCR 623 relied onPara 41

D[1954] SCR 360 relied onPara 50

CIVIL APPELLATE JURISDICTION : Civil Appeal No.5177of 2009.

From the Judgment and Order dated 21.12.2007 of the High Courtof Punjab and Haryana at Chandigarh in R.S.A. No.1537 of 1993.

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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. TanyaSwarup, Ajay Kumar, Advs. for the Respondents.

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The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 21.12.2007 passed by theHigh Court of Punjab & Haryana at Chandigarh in RSA No.1537 of1993 whereby the Single Judge of the High Court dismissed the regularGsecond 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 of15.02.1992.

2. In order to appreciate the controversy involved in this appeal, itis necessary to set out the relevant facts hereinbelow.H

3. Appellant Nos.1 to 4 and 7 are the legal representatives of theoriginal defendant No.1-Amar Nath. Appellant No.5 (Yash Pal Mittal),who was the original defendant No.2 also died and he is now representedby his legal heirs (i) Rita Mittal (ii) Akanksha and (iii) Akshay Mittal andAppellant No.6 (Sunil Mittal) is the original defendant No.3 whereasrespondent No.1 (Kulwant Rai) is the original plaintiff, who also diedand is now represented by his legal heirs (i) Sudesh Goel, (ii) Ajay Goeland (iii) Sanjay K. Goel and respondent No.2 (Atul Kumar) is the originalplaintiff No.2 in the civil suit out of which this appeal arises.

4. In short, the civil suit out of which this appeal arises wasoriginally filed by one - Kulwant Rai as plaintiff No.1 and Atul Kumar asplaintiff No.2 against the defendants, namely, (1) Amar Nath, (2) YashPal Mittal, (3) Sunil Mittal and (4) Bal Kishandas.

5. During the pendency of the civil suit, Kulwant Rai (PlaintiffNo.1), Amar Nath (defendant No.1) and Yashpal Mittal (defendant No.2)died and, therefore, their legal representatives, on whom the right to suedevolved as detailed above, were brought on record in places of theoriginal plaintiff/defendants in the civil suit to enable them to continuethe lis on behalf of those who died.

6. As mentioned above, two aforementioned plaintiffs (respondentsherein) filed a civil suit against the aforementioned four defendants(appellants herein) on 19.03.1982 claiming a relief of specific performanceof the agreement dated 12.06.1979 in relation to the suit property (asdetailed in the plaint) situated at Narain Dass Building, Durga CharanRoad, Ambala Cantt.

7. The suit was founded on the agreement dated 12.06.1979entered into between the plaintiffs and the defendant No.1 (Amar Nath)for sale of the suit property for a sum of Rs.46,000/-. According to theplaintiffs, they paid a sum of Rs.5,000/- by way of earnest money todefendant No.1 (Amar Nath) and the sale deed in relation to the suitproperty 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 considerationbefore the sub-Registrar.

8. It was alleged that defendant No.1 (Amar Nath) instead ofselling the suit property to the plaintiffs in terms of agreement dated12.06.1979 sold it to defendant Nos. 2 and 3 on 27.11.1981. The plaintiffs A

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Aalleged that they were ready to perform their part of the agreement butit was defendant No.1 (Amar Nath) who failed to perform his part andcommitted breach by selling the suit property to defendant Nos. 2 and 3on a higher price and, therefore, the plaintiffs were constrained to filethe suit for seeking specific performance of the agreement dated12.06.1979.B

9. Defendant No.1 (Amar Nath) died and, therefore, he could notfile his written statement. His legal representatives, however, filed thewritten statement. Their defense was three-fold.

10. First – Amar Nath (defendant No.1) was not the absoluteCowner of the suit property because the suit property was a Joint HinduFamily property; Second, Amar Nath (defendant No.1) was, therefore,not competent to enter into an agreement to sell the suit property; andthe Third, the sale in question was not for any legal necessity and,therefore, it was bad in law and not binding on the legal representativesbecause their consents were not obtained by Amar Nath (defendantDNo.1) prior to entering into an agreement of sale.

11. So far as defendant Nos. 2 to 4 are concerned, they filed theirwritten statement. They admitted that the suit property belonged to AmarNath(defendant No.1). They averred that they purchased the suitproperty from Amar Nath pursuant to the agreement, which they hadEentered into with him somewhere in the year 1978. They alleged thatthey 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 dismissedthe suit. It was held that the agreement dated 12.06.1979 is proved; theFplaintiffs were ready and willing to perform their part of the agreementbut since Amar Nath was not competent to enter into the agreementwith the plaintiffs because the suit property was a Joint Hindu Familyproperty and Amar Nath was only a Karta; and lastly, the Plantiffs failedto aver that the sale was for the legal necessity and for the benefit of theGfamily.

13. The plaintiffs felt aggrieved and filed appeal before the FirstAppellate Court. By judgment/decree dated 15.04.1993, the FirstAppellate Court allowed the appeal, set aside the judgment/decree ofthe Trial Court and decreed the plaintiffs’ suit.

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14. The First Appellate Court held that the sale deed executed byLate Amar Nath in favour of defendant Nos. 2 and 3 was bad in lawinasmuch as the same was obtained by a collusion so as to deprive theplaintiffs of the fruits of their agreement dated 12.06.1979. It was alsoheld that defendant Nos. 2 and 3 were not bona fide purchaser of thesuit property. It was also held that the suit property was Joint Hindufamily property and Amar Nath was its Karta. It was also held that theagreement of sale entered into by Amar Nath was binding on allcoparceners.

15. The defendants, therefore, felt aggrieved and filed the secondappeal before the High Court. By impugned order, the High Courtdismissed the second appeal and upheld the judgment/decree of the firstAppellate Court.

16. It was held that Amar Nath executed the agreement dated12.06.1979 as a Karta of Joint Hindu Family. It was also held that theagreement was binding on Amar Nath and his legal representatives.

17. It is against this order, the defendants have carried the matterto this Court in special leave to appeal.

18. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in this appeal.

19. In the first place, in our considered opinion, when the threeCourts below have held against the defendants and in favour of theplaintiffs that the plaintiffs were ready and willing to perform their partof the agreement, this finding was binding on the High Court and also onthis Court.

20. Indeed, the Trial Court had already recorded this finding inplaintiffs’ favour but since the Trial Court dismissed the suit on othergrounds, the defendants had a right to challenge this finding by filingcross objection before the First Appellate Court in plaintiffs’ appeal butthe defendants did not do so and accepted this finding. The First AppellateCourt while decreeing the plaintiffs’ suit upheld this finding being notunder challenge and the High Court upheld it by dismissing defendants’second appeal.

21. A finding on the issue of readiness and willingness is one ofthe important and relevant findings in a suit for specific performance of A

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Aan agreement. It is a finding based on facts and once it is recorded, itbecomes a finding of fact.

22. In this view of the matter, unless such finding is found to beagainst the pleadings or contrary to the evidence or the law governingthe issue, it is binding on the High Court and also on this Court.

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23. Learned counsel for the appellants was not able to point outany infirmity or illegality in this finding. It is apart from the fact that theappellants (defendants) failed to challenge its legality and correctness atthe first appellate stage in an appeal filed by the plaintiffs, which was theappropriate stage to challenge. It is, therefore, binding on this Court.

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24. The other argument of learned counsel for the appellants(defendants) was that since the respondents (plaintiffs) got impleadedonly some legal representatives out of eight legal representatives of lateAmar Nath in their first appeal and remaining legal representatives werenot impleaded, the decree of the Trial Court dismissing the civil suit quaDthose legal representatives, who were not made parties in the appeal,had become final.

25. It was, therefore, urged that the First Appellate Court byallowing the appeal filed by the plaintiffs and decreeing their suit haspassed two conflicting decrees-one against some which has decreedEthe suit and other against some which has resulted in dismissal of thesuit. It is not legally permissible.

26. This submission was dealt with by the High Court whileanswering 5[th] substantial question and was rejected. In our view, theHigh Court was right for the following reasons.

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27. First, all the legal representatives of late Amar Nath werealready on record in the Trial Court in the suit and all had taken similardefense in support of their case against the plaintiffs. In other words,there was no conflict of interest amongst them either inter se or qua theplaintiffs.

28. Second, those legal representatives, who filed the writtenstatement, had filed a joint and common written statement whereas those,who did not file the written statement, had given their power of attorneyin favour of the legal representatives, who had filed the written statement.

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29. Third, one legal representative, who did not file his writtenstatement remained ex-parte. In these circumstances, it was notnecessary 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 onmerits, it is not necessary to bring other legal representatives on record.The reason is that the estate and the interest of the deceased devolvedon the legal representatives is sufficiently represented by those who arealready on record.

31. Fifth, the defendants, who were respondents in the first appeal,did not raise any objection before the First Appellate Court. Had suchobjection been raised, the appellants (plaintiffs) would have cured thedefect by impleading them as party respondents before the First AppellateCourt.

32. As rightly argued by the counsel for the respondents, the reasonfor not impleading some legal representatives in the first appeal was thattheir names were not shown in the decree of the Trial Court. It was forthis reason, the first appeal was filed by the plaintiffs only against thoselegal representatives whose names were shown in the decree.

33. In the light of this factual scenario and the reasons set outabove, we are of the considered opinion that no case was made out bythe appellants to challenge the decree before the High Court on theground that the impugned decree has resulted in passing any conflictingdecree by the First Appellate Court - one of dismissal of the suit by theTrial Court and the other decreeing the suit by the First Appellate Court.

34. Learned counsel for the appellants (defendants) then arguedthat the two Courts below were not justified in declaring the sale madein 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 bonafide sale for consideration without notices to the agreement of the plaintiffwith defendant No.1.

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 recordedagainst the appellants by the Appellate Court and the High Court, thesame is binding on this Court.

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A36. Second, the finding apart from being concurrent is otherwisenot liable to be interfered with for the reason that the sale made bydefendant No.1 in favour of defendant Nos. 2 and 3 was on the face ofit, a collusive sale made to avoid the agreement of the plaintiffs.

37. Third, defendant Nos. 2 and 3 did not adduce any evidence toBprove that their agreement was prior in point of time as against theagreement of the plaintiffs and, therefore, they were entitled to get thesale deed executed pursuant to their prior agreement.

38. Fourth, the legal representatives of Amar Nath having steppedinto his shoes were entitled to raise that defense which was available toCAmar Nath against the plaintiffs in addition to one which was appropriateto their character as legal representatives as provided under Order 22Rule 4(2) of the Code of Civil Procedure, 1908.

39. Fifth, the plaintiffs were only entitled to prove the existence ofthe valid agreement with the defendant No.1 – Amar Nath and itsDperformance by the plaintiffs qua him. This finding of readiness andwillingness was recorded in plaintiffs’ favour throughout.

40. The Trial Court had framed two Issues (7 and 8) on the questionsas to whether the suit property was a Joint Hindu Family property ofAmar Nath and, if so, whether Amar Nath was its Karta or not. TheETrial Court held that the suit property was the Joint Hindu Family propertyof 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 aKarta while dealing with the Joint Hindu Family property in the followingwords.F

“6. In this appeal we are called upon to decide the onlyquestion whether a suit for permanent injunction restrainingthe Karta of the joint Hindu family from alienating the houseproperty belonging to the joint Hindu family in pursuanceof the agreement to sell executed already in favour of theGpredecessor of the appellants, Jai Bhagwan, since deceased,is maintainable. It is well settled that in a Joint HinduMitakshara Family, a son acquires by birth an interest equalto that of the father in ancestral property. The father byreason of his paternal relation and his position as the head H

of the family is its Manager and he is entitled to alienatejoint family property so as to bind the interests of both adultand minor coparceners in the property, provided that thealienation is made for legal necessity or for the benefit ofthe estate or for meeting an antecedent debt. The powerof the Manager of a joint Hindu family to alienate a jointHindu family property is analogous to that of a Manager foran infant heir as observed by the Judicial Committee inHunoomanpersaud Panday v. Mussumat Babooee MunrajKoonweree (1856) 6 Moo Ind App 393)”

42. Keeping in view the aforementioned principle of law andapplying the same to the facts of the case at hand, we are of theconsidered opinion that the Courts below were justified in holding thatthe agreement dated 12.6.1979 was binding on the legal heirs of AmarNath 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 AppellateCourt while allowing the plaintiffs’ appeal recorded a categorical findingthat one son of Amar Nath had signed the agreement in question and,therefore, it was a case where legal representatives of Late Amar Nathwere aware of the existence of the agreement and also had given theirconsent; and Third, this finding was upheld by the High Court whiledismissing the defendants’ appeal.

44. One cannot dispute the power of a Karta to sell the JointHindu Family property. It is, indeed, inherent in him. However, it issubject to certain restrictions, namely, the sale should be for the legalnecessity and for the benefit of the family.

45. It is clear that Amar Nath had obtained the consent of thelegal heirs before entering into an agreement for sale of the suit propertyto the plaintiffs. The very fact that one son of Amar Nath was a signatoryto the agreement was sufficient to draw a presumption that the agreementto sell was made by Amar Nath with the consent of other coparceners.It is also for the reason because none of the coparceners had raised anyobjection till the filing of written statement in the suit. The very fact thatAmar Nath sold the suit property to defendant Nos. 2 and 3 and whichwas not objected to by his legal heirs showed that the plea regardinglegal necessity had no factual basis to sustain.

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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 anyinterference in the impugned judgment.

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47. This takes us to examine another question which arises in thiscase but was not taken note of by the Courts below while decreeing theBsuit. It relates to the nature of decree to be passed in this case.

48. The question arises in this way. The effect of the decreepassed in this case is that the original defendant No.1, now representedby his legal representatives (Appellant Nos.1-4 & 7) along with legalrepresentatives of original defendant No. 2, i.e., (i) Rita Mittal, (ii)CAkanksha and (iii) Akshay Mittal, and defendant No. 3 (Appellant No.6herein) are required to execute the sale deed in favour of legalrepresentatives of original plaintiff No.1, i.e., respondent No.1(i) SudeshGoel, (ii) Ajay Goel and (iii) Sanjay K. Goel and Atul Kumar, plaintiffNo.2 (respondent No.2 herein) jointly.

D49. Yet another effect of the decree is that the transaction of saleof suit property between original defendant No.1, now represented byhis legal representatives (Appellant Nos.1-4 & 7) and defendant No.2(Appellant No.5 herein), now represented by his legal representativesand defendant Nos.3(Appellant No.6 herein) is declared bad in law andstands nullified. As a consequence thereof, legal representatives ofEdefendant No.1(Appellant Nos.1-4 & 7) are required to return Rs.48,000/- to original defendant No.2 (appellant No.5 herein), now representedby his legal representatives and defendant No.3 (appellant No.6 herein)in the absence of any contract to the contrary in this behalf between theparties. The reason being that once the sale is declared bad, theFtransaction of sale fails and, therefore, the seller(defendant No.1) hasno right to retain the sale consideration with himself and has to refundthe sale consideration to the buyers(defendant Nos.2 & 3) [See Section65 of the Indian Contract Act].

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50. The question arose before this Court in the case of LalaGDurga Prasad & Anr. Vs. Deep Chand & Ors., AIR 1954 SC 75 asto what form of decree should be passed in the case of specificperformance 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 suffersa decree for specific performance of contract directing him to transferthe suit property to the plaintiff in term of contract.H

51. The learned Judge-Vivian Bose, J. examined this issue andspeaking for the Bench in his inimitable style of writing, held as under:

“Where there is a sale of the same property in favour of aprior and subsequent transferee and the subsequenttransferee has, under the conveyance outstanding in hisfavour, paid the purchase-money to the vendor, then in asuit for specific performance brought by the priortransferee, in case he succeeds, the question arises as tothe proper form of decree in such a case. The practice ofthe Courts in India has not been uniform and three distinctlines of thought emerge. According to one point of view,the proper form of decree is to declare the subsequentpurchase void as against the prior transferee and directconveyance by the vendor alone. A second considers thatboth vendor and vendee should join, while a third wouldlimit execution of the conveyance to the subsequentpurchaser alone. According to the Supreme Court, theproper form of decree is to direct specific performance ofthe contract between the vendor and the prior transfereeand direct the subsequent transferee to join in theconveyance so as to pass on the title which resides in himto the prior transferee. He does not join in any specialcovenants made between the prior transferee and hisvendor; all he does is to pass on his title to the priortransferee.”

52. We, therefore, consider it just and proper and with a view toend this litigation between the parties, which is pending since 1982 andalso to balance the equities amongst the parties that defendant No.1through his legal representatives (Appellant Nos. 1-4 & 7 herein) wouldreturn a sum of Rs.48,000/- to the legal representatives of defendantNo.2 (Appellant No.5 herein) and defendant No. 3 (Appellant No.6herein). This direction we give by taking recourse to our powers underArticle 142 of the Constitution of India to do complete justice betweenthe parties to the lis because we do not want another round of litigationto go on for years in future between the defendants inter se for recoveryof this amount.

53. In the light of the foregoing discussion, the appeal is disposedof by modifying the judgment and decree as under:

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(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 forbeing paid to the legal representatives of defendant No.2, i.e., (i) RitaMittal, (ii) Akanksha and (iii) Akshay Mittal and Defendant No.3(Appellant No.6 herein) within three months as an outer limit.

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B(ii) The legal representatives of original Plaintiff No.1,(respondentNo.1 herein) i.e., (i) Sudesh Goel, (ii) Ajay Goel, and (iii) Sanjay K. Goeland Atul Kumar, plaintiff No.2 (respondent No.2 herein) shall deposit inthe executing Court a sum of Rs.41,000/- for being paid to the legalrepresentatives of original Defendant No.1 (Appellant Nos.1 to 4 and 7herein) within three months as an outer limit.C

(iii) The original defendant No.1, now represented by his legalrepresentatives (Appellant Nos.1-4 & 7) along with legal representativesof original defendant No. 2 and defendant No. 3 (Appellant No.6 herein)will jointly execute the sale deed in favour of legal representatives oforiginal plaintiff No.1, i.e., respondent No.1 herein (i) Sudesh Goel, (ii)DAjay Goel and (iii) Sanjay K. Goel and Atul Kumar, plaintiff No.2(respondent No.2 herein) and hand over the possession of the suit propertyto them simultaneously and then will withdraw the money deposited forthem in Court.

54. The executing Court will ensure completion of proceedingsEwithin the time fixed and record due satisfaction of the decree inaccordance with law. In case of any default, the parties will be entitledto put the decree in execution for enforcement of the terms of the decreeof this Court amongst the defaulting parties.

55. In view of the foregoing discussion, the appeal standsFdisposed of.

Divya Pandey

Appeal disposed of.

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