Kilachand’s son sold his share in Kilachand House for Rs 75 lakh in 1983, but sale agreement was not executed; Bombay HC rules in favour of developer, asks for deal to be wrapped up by Nov 2.Good investments pay rich dividends over time. Om Builder Pvt Ltd proved that last week when it won a case in the Bombay High Court against one of the factions of Devchand Kilachand’s four sons, enabling the builder to acquire rights over onefourth of the Kilachand House for just Rs 15 crore. The market value of the entire property, which measures over 1 lakh sq.ft., is said to be in the region of Rs 700 crore.Chinubhai Kilachand, one of the four sons of Devchand Kilachand, had signed an agreement with the developer to sell his share in the property in 1983. The sale price agreed upon at that time was Rs 75 lakh for a share of over 25,000 sq ft of the property. The developer proved in court that money was paid to the seller. However, when the agreement was not executed, the developer filed a suit in 1988.Kilachand House, a sprawling three-storeyed bungalow which used to be the residence of the Maharaja of Patiala, is believed to be the largest property acquired by Devchand Kilachand. He bought it in the 1940s.Justice Roshan Dalvi, while pronouncing the order last week, observed, “The plaintiff (Om Builders) is a developer and requires to make a decent profit from his development and investment. He cannot be made to pay the precise market price at such distance of time when the original defendant did not and the present defendants (Chinubhai’s descendants) would not comply with terms of the contract.”The amount of Rs 15 crore was arrived at on the basis of an offer made by the developer to pay 10 to 20 times of the original price after taking inflation into account. The court accepted the offer and relied on an earlier Supreme Court judgement to observe that the court “must bear in mind who was the defaulting party and who took undue advantage over the other whilst balancing equities alongside the hardship to the defendant by directing specific performance”.The court observed that while the developer was willing to “complete the sale at all the times,” Chinubhai did not or could not complete it and “after his death his descendants refused to complete it.”The main contention raised on behalf of Chinubhai’s descendants was that it was not binding on them as the agreement was “conditional” and that the condition had not been fulfilled. The descendants argued that the agreement was enforceable only after the developer got other coowners (other three sons of Devchand) to sell their shares of the property. The court, however, ruled that there was no such provision in law by which a person could not sell his/her “undivided share” in a property to a person, unless that person bought the remaining share as well. Therefore the issue was not relevant to the case at all, the court observed.It observed that in case of a property where it is a residential premises, the purchaser of a part of the property would need consent of other owners to seek possession, but consent would not be required for purchase.The developer also produced evidence to show that payment was being made to Chinubhai not only after the execution of the agreement but before that as well. Letters/receipts/vouchers to show payment of over Rs 4 lakh was produced before the court. The court also believed the deposition of Chinubhai’s Chartered Accountant, who said that he was witness to the execution of the agreement as well as to the payments made to Chinubhai on certain occasions.Chinubhai’s descendants submitted that the CA’s evidence could not be relied upon since he was deposing against the family as he had fallen out of favour with Chinubhai’s son. But the court rejected this argument saying the CA had worked with Chinubhai for over four decades, and his father had worked with Chinubhai’s father Devchand for almost five decades and, therefore, was a credible witness.The court observed that evidence given by a Director of the developer’s firm and the CA was credible and that the Kilachands were unable to discredit them during cross-examination in court.The court has directed that the payment and execution of the sale deed be completed by November 2.