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Birma Devi & Ors. vs. Subhash & Anr.

Not available · 2024 INSC 949Decided 6 Dec 2024
Not available
Justice J.B. Pardiwala · Justice R. Mahadevan

Background

The respondents had won a civil suit for specific performance of a property sale agreement, but the trial court's decree did not expressly say anything about handing over possession of the property. When the respondents tried to get possession through execution proceedings, the executing court refused, reasoning that since the decree was silent on possession, it could not order it. The High Court reversed this and directed that possession be handed over. The petitioners, who claimed to have subsequently purchased the same property from the original seller, challenged the High Court's order before the Supreme Court.

Decision Breakdown

The Supreme Court relied on its earlier decision in Babu Lal v. Hazari Lal Kishori Lal, which held that where the seller has exclusive possession of the property being sold, a decree for specific performance, even without expressly mentioning possession, carries with it an implied right for the buyer to obtain possession, because Section 55(1) of the Transfer of Property Act already obliges the seller to hand over possession upon transfer. Since the property here was in the original seller's exclusive possession, no separate claim for possession was needed. The Special Leave Petition was accordingly dismissed, and the High Court's direction to issue a warrant of possession was upheld.

Lesson Learnt

Winning a suit for specific performance of a property sale agreement can itself carry an implied right to take possession of the property, even if the possession was not separately and expressly claimed or granted in the decree, so long as the seller held it exclusively.

Official source (sci.gov.in)View Judgment (PDF)

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