Balakrishnan v. Kunjikrishnan — 1980 DIGILAW 234 (KER)

Judgment :- 1. This appeal is by the plaintiff in a suit for specific performance of an agreement to sell immovable property. The plaint schedule item 1 property is an extent of 50 cents in Sy. No. 1662B,' 1662C, 1662D, 1663, 1664 and 1666 of West Kallada village. Plaint item 2 are huts standing on plaint item 1. Plaint item 1 belonged to the first defendant. He agreed to sell this to the plaintiff at the rate of Rs. 275 per cent. An unregistered agreement for sale was executed on 19-2-1975. The date within which the sale was to be taken was agreed as 30-5-1975. An amount of Rs. 2250/-was paid as advance. According to the plaintiff the title deed was also handed over to him along with the agreement. The suit is filed on the allegation that the plaintiff was ready and willing to take the sale and though he issued a notice on 30-4-1975 demanding execution of the sale deed and surrender of possession he found, on enquiries later, that the first defendant had executed a sale deed in favour of the second defendant for the property inclusive of the plaint item 1. According to him the second defendant had taken the sale with the full knowledge of the agreement for sale is favour of the plaintiff, it was not binding on the plaint property and was not taken bona fide for value Conveyance in his favour is sought in the plaint on deposit of the balance purchase money. It is also alleged in the plaint that defendants 5 to 7 were known to have some interest in the property and for that reason they are made parties. The suit was contested by the defendants other than the 4th defendant. Though first defendant filed a written statement he does not seem to have made any -serious contest in the suit. He did not offer himself for examination. According to him defendants 2 and 3 were lessees of the property even on the date of agreement of sale, they having taken a lease of the property from the prior owners. They were said to have been carrying on coir spinning in item 2 shed put up for that purpose. The first defendant took the sale deed for plaint property on 30-3-1972 and according to him thereafter he was receiving rent from defendants 2 and 3. They were said to have been carrying on coir spinning in item 2 shed put up for that purpose. The first defendant took the sale deed for plaint property on 30-3-1972 and according to him thereafter he was receiving rent from defendants 2 and 3. He would allege that he entered into an agreement for sale with the plaintiff under the impression that defendants 2 and 3 would surrender possession but since they were found to be not ready to surrender possession the plaintiff resiled from the agreement to sell to plaintiff. It is said that therefore the property was sold to the second defendant. Defendants 2 and 3 filed a joint written statement contending that the plaint property, 50 cents, is a portion of 1.12 acres in their possession as lessees for the last 20 years, that they constructed two sheds for conducting coir business, that the 3rd defendant is having residence in one of them, that they were ignorant of the agreement for sale in favour of the plaintiff till the date of the suit and that the first defendant who purported to have entered into the agreement with the plaintiff had only nominal right in the property which right he could not have contracted to convey. According to them it was the second defendant who wanted to purchase the property from the previous owner, the second defendant needed funds for such purchase, the 1st defendant who was approached agreed to provide such funds, to serve as security for such advance by him the sale deed was agreed to be taken in his name, it was so taken in his name, and when a sum of Rs. 1000/- was paid to the first defendant be executed a sale deed for 10 cents of property in favour of the 3rd defendant who is the wife of the second defendant. It is further contended that he was bound to convey the balance 80 cents on receiving a consideration of Rs. 7000/-and if that be so he was not competent to enter into a contract with the plaintiff. It is further contended that he was bound to convey the balance 80 cents on receiving a consideration of Rs. 7000/-and if that be so he was not competent to enter into a contract with the plaintiff. When there was some attempt on the part of the 1st defendant to ignore his obligation to convey property to defendants 2 and 3 a suit for injunction was filed as O.S 115 of 1975, an interim injunction was obtained and thereafter at the instance of mediators the first defendant conveyed 80 cents inclusive of the plaint item 1 to the second defendant. Thus it is said that defendants 2 and 3 together are owners of 90 cents inclusive of plaint item and are in possession thereof. They also plead that at the time the sale deed was taken by them they were not aware of the agreement of sale in favour of the plaintiff and hence they were bonafide transferees for consideration. Defendants 5 to 7also are said to be bonafide purchasers for value. These defendants also have entered appearance and they claim to be such bonafide purchasers for value in regard to 40 cents of property. The 4th defendant is conducting a tea shop in a shed in the southern portion of the plaint item. 2. The learned Subordinate Judge who tried the suit found that the first defendant committed breach of contract in not complying with the terms of Ext. Al karar, that defendants 2, 3 and 5 to 7 are found to be bonafide purchasers for value and therefore entitled to protection under S.19 (b) of the Specific Relief Act and that therefore the plaintiff would hot be entitled to specific performance of the agreement. The result was the court decreed the suit only to the extent of allowing recovery of Rs. 2250/- with interest. The plaintiff has thereupon come to this court by way of appeal. 3. The plea of defendants 2 and 3 that the karar Ext. Al is unenforceable for the reason that defendants 2 and 3 were in possession as lessees even prior to the sale deed Ext. A2 taken by the first defendant in 1972 and that the sale deed itself was taken with an obligation to transfer the property to them on payment of consideration is urged before us in answer to the case of the plaintiff for specific performance. A2 taken by the first defendant in 1972 and that the sale deed itself was taken with an obligation to transfer the property to them on payment of consideration is urged before us in answer to the case of the plaintiff for specific performance. We are not impressed with this plea. That is because the case of defendants 2 and 3 in this regard is quite inconsistent and it is very different from the case urged by the same parties when they filed the suit O. S 115 of 1975. In para 3 of the written statement of defendants 2 and 3 in this case it is mentioned that 1.12 acres inclusive of plaint item I is in the joint possession of defendants 2 and 3 for the last 20 years and that was as lessees ft was further mentioned that the first defendant bad only a nominal Jenm right in the 80 cents and that right has also devolved on defendants 2, 3 and 5 to 7, Of course it is not shown in the written statement as to who the lessor was and what the terms of the lease were. Prior to the institution of the suit defendants 2 and 3 had filed a suit O.S. 115 of 1975 before the Adoor Munsiff's Court. Ext. A7 is the certified copy of the plaint in that case It is quite likely that the suit was filed with the knowledge that Ext. Al karar had been executed by the first defendant in favour of plaintiff and to thwart the execution of the sale deed pursuant to that karar. It is seen mentioned therein that 1 acre 12 cents described in the plaint schedule therein belonged to one Sarada Pillai, the vendor under Ext. A2 and that pursuant to an agreement to sell that property to defendants 2 and 3 the said Sarada Pillai had handed over possession of the property five years back to defendants 2 and 3. It is further said that defendants 2 and 3 had possession thereunder for improving the properties planting trees thereon. Reference is made to the understanding between the first defendant and defendants 2 and 3 at the time the first defendant took the sale deed in 1973. It is further said that defendants 2 and 3 had possession thereunder for improving the properties planting trees thereon. Reference is made to the understanding between the first defendant and defendants 2 and 3 at the time the first defendant took the sale deed in 1973. The significant point is that there was no case at that time that defendants 2 and 3 were in possession at any time before surrender of possession by Sarada Pillai It cannot be a case of omission because the plain reading of plaint shows that defendants 2 and 3 came into possession by reason of and only by reason of and under the arrangement they entered into with Sarada Pillai 5 years earlier. Such plea is not consistent with the plea, urged here in the written statement, of possession under a lease taken 20 years prior to the time the written statement was filed in this case. The written statement, it may be seen, was filed sometime in 1975 and therefore it would mean that the lease was sometime in 1955 while the averment in Ext. A7 would show that Sarada Pillai put them in possession sometime in 1970. We find, strangely enough, no mention of any such surrender of possession by Sarada Pillai in the written statement in this case. On the other hand there is only reference to a lease, a lease said to have been granted 20 years ago. Ext. A2 sale deed is attested by the second defendant. That sale deed does not mention any earlier possession by defendants 2 and 3 of the property sold thereunder. It does not refer to any agreement with defendants 2 and 3 by the first defendant that he is taking the sale deed for their benefit though with his funds. There is an attempt to prove the arrangement that defendants had pleaded in the written statement when Dw2, the husband of Sarada Pillai was ' examined as a witness in this case. But the said witness does not in any way advance the case of defendants 2 and 3. He is very vague in his evidence. It would appear that he has a desire not to disoblige defendants 2 and 3 but nevertheless not to commit himself categorically to the case of the lease pleaded in the written statement. But the said witness does not in any way advance the case of defendants 2 and 3. He is very vague in his evidence. It would appear that he has a desire not to disoblige defendants 2 and 3 but nevertheless not to commit himself categorically to the case of the lease pleaded in the written statement. Hesitation to go the whole way with defendants 2 and 3 is what we discern from his evidence. He would say that since property belonging to his wife was far away it was being looked after by the second defendant. That is the only statement we have. He further states: Certainly this is not an averment of lease. This is not an averment of possession. This is not an averment of an arrangement stated in the written statement. This is not an averment of . any arrangement as stated in Ext. A7. Nevertheless counsel for the second defendant wants to read this statement of Dw2 as supporting a case of lease. The limit to which Dw2 was prepared to go in his evidence was to say that second defendant was looking after the property. That would only mean that he was helping in the management. The halting manner in which the witness speaks, with evidently a desire to oblige defendants 2 and 3 makes it unsafe to rely on the witness. It is not as if, as we have already indicated, a case of lease could otherwise be spelt out from the circumstances of the case. 4. There is yet another circumstance which cuts at the very root of the case set up in the written statement. If defendants 2 and 3 were lessees and if they had been lessees for 20 years one wonders why they chose to take the trouble of paying sale price and get a conveyance. They had only to move for purchase of Jenm right. We have yet to come across a case where a lessee has been so generous to bis jenmi as to pay full consideration and effect a purchase instead of moving the Land Tribunal to seek the purchase of the Jenm right. Moreover if there was a lease the Jenm right would have vested in the State on 1-1-1970 and no interest would therefore stand conveyed by a sale taken from the jenmi in the manner seen done here. The conduct in taking Ext. Moreover if there was a lease the Jenm right would have vested in the State on 1-1-1970 and no interest would therefore stand conveyed by a sale taken from the jenmi in the manner seen done here. The conduct in taking Ext. A2 belies any case of lease. At any rate that is abnormal conduct calling for proper explanation. There is none In these circumstances we cannot find that defendants 2 and 3 were lessees, we cannot find that there was any possession of the property sold prior to that sale and we cannot also find that there was any arrangement between the parties to convey the property to defendants 2 and 3 at any future point of time on payment of price. If so Ext. Al karar would be enforceable. 5. Now we come to the question whether defendants 2 and 3 are bonafide purchasers without notice and for value. It is very difficult to accept the case of defendants 2 and 3 that they took it without notice of the agreement of sale. The plea that is set up by them in this case which we have found against would indicate that they have been desiring to get at the properties by some means or other. Ext A7 plaint is soon after the karar in favour of the plaintiff and there is mention therein of an attempt by the first defendant to sell the property and a case of surrender of the property 5 years earlier. All that would indicate that there was an attempt to defeat Ext Al and it is also seen that they were obliged by the first defendant executing a sale deed at a price much lesser than what is agreed upon under Ext. Al. The first defendant would have obtained Rs. 275/-per cent under the sale to the plaintiff, but under the sale to defendants 2 and 3 he obtained a much lesser price Rs. 90/-only per cent. The burden of showing that the purchase was bonafide and without notice of the existing agreement for sale with regard to a property is on the subsequent purchaser. No doubt such burden, in a normal case, would be discharged even by the party swearing in the witness box that he was not aware of any subsisting agreement for sale as observed in Lekh Singh v. Dwarka Nath (AIR. No doubt such burden, in a normal case, would be discharged even by the party swearing in the witness box that he was not aware of any subsisting agreement for sale as observed in Lekh Singh v. Dwarka Nath (AIR. 1929 Lahore 249) and in Venkataravanappa v. Basappa (AIR. 1955 Mysore 3). But it would be a question of fact in each case as noticed by the Mysore decision. Without anything more it may be sufficient that the party refutes knowledge of the previous agreement. He could not be expected to do anything more by way of proving that he took the sale without notice. But in a case where there are other circumstances which reflect upon the case of bona fides of the subsequent purchaser mere denial may not be sufficient. The court would be obliged to assess the overall weight of the evidence in the case. That is how the case set up by defendants land 3 in this ease becomes relevant. The conduct of defendants 2 and 3 in filing the earlier suit on averments which are seen to be entirely different from and inconsistent with what are stated in the written statement here becomes relevant. Even the quantum of consideration said to have been paid under the sale Ext. B8 becomes relevant. In these circumstances we cannot agree with the court below that second defendant obtained Ext. B8 sale without notice of Ext. Al. The circumstances indicate that he was aware of the agreement Ext. Al and the sale deed B8 was taken with such notice. We are not really concerned with the sale of 10 cents, for, it is said that the plaint 50 cents is comprised in the property covered by Ext. B8 sale. 6. What we have said about defendants 2 and 3 cannot be said about defendants 5 to 7. They are subsequent purchasers. They have purchased 40 cents from defendants 2 and 3 under sale deeds Exts. Bl and B10 each being for 20 cents. Defendants 5 to 7 are strangers. Defendants 5 and 6 are staying in one of the huts and the 7th defendant in another hut in the property. When they take the sale from defendants 2 and 3 they would naturally rely on the title of their vendor. Bl and B10 each being for 20 cents. Defendants 5 to 7 are strangers. Defendants 5 and 6 are staying in one of the huts and the 7th defendant in another hut in the property. When they take the sale from defendants 2 and 3 they would naturally rely on the title of their vendor. It need not be that they were aware of the defect if any in the title of defendants 2 and 3. Defendants 6 and 7 have been examined in this case as pw. 4 and 1 respectively and both of them have sworn to the fact that they-took the sale deed for 20 cents each without notice of Ext. Al agreement of sale. In this context we have to notice that though the agreement related to a sale of immovable property the plaintiff did not take the precaution of having the agreement registered, in which event it could be said that such registration must impute knowledge to others if they care to make due enquiry as they should. Dw4 swears that she enquired whether there was any incuumbrance or obligations in regard to the property she was going to purchase and she found that there was none. Evidently such an enquiry normally would be made at a Sub Registry office and unless there is registration one would not be able to find out the existence of an agreement to sell. Unlike defendants 2 and 3 who have been active in the matter of purchasing 'the property after Ext. Al agreement of sale and in that process resorted to the court tor an injunction with certain averments shown to be false defendants 5 to 7, as the evidence discloses, are strangers who, perhaps by reason of the fact that they are residing in the property, took the purchase deeds for 20 cents each. The significant fact about the case against them is that the plaintiff does not choose to aver that they had taken sale deeds either with notice of Ext. Al or without bonafides and without consideration-It is mentioned in the plaint that these persons were being impleaded because they were understood to have some right under the second defendant. If the plaintiff knew that they were vendees and wanted specific performance as against them too he should have alleged specifically that they were not bonafide purchasers without notice. Al or without bonafides and without consideration-It is mentioned in the plaint that these persons were being impleaded because they were understood to have some right under the second defendant. If the plaintiff knew that they were vendees and wanted specific performance as against them too he should have alleged specifically that they were not bonafide purchasers without notice. If the case is that notwithstanding the averment in para 9 of the plaint plaintiff was not aware of the sale to defendants 5 to 7, such a plea cannot stand in the face of the categorical statement of the plaintiff in the witness box that defendants 5 to 7 were impleaded because they had taken sale deeds. In the face of this statement brought to our notice by counsel for defendants 5 to 7 we must consider the absence of pleadings in regard to the nature of transfers in favour of defendants 5 and 7 as significant. Apart from this even when the plaintiff was examined as a witness there is no case for the plaintiff that defendants 5 to 7 are persons who had notice of the agreement for sale and therefore there is want of bonafides in their purchase. In this background we are inclined to agree with the court below, in so far as it concerns defendants 5 to 7, that the sale deeds taken by them must be found to be without notice of Ext. Al agreement, and were taken bonafide and for value. 7. Now, an interesting question arises in this case. Defendants 2 and 3 having been found to be not bonafide transferees without notice but the subsequent purchasers from them defendants 5 to 7 having been found to be such bonafide transferees without notice could the plaintiff claim specific performance? There are two aspects to this matter. Could the agreement for sale be enforced because defendants 2 and 3 the purchasers have taken the sale Ext. B8 with notice of the same irrespective of the nature of the subsequent transfers to defendants 5 to 7? (2) Assuming that defendants 5 to 7 cannot be compelled to join in a conveyance in regard to 10 cents could the plaintiff insist on conveyance of 10 cents, the balance left with defendants 2 and 3, on payment of proportionate purchase price in accordance with Ext. Al. We will consider these questions in seriatim. 8. (2) Assuming that defendants 5 to 7 cannot be compelled to join in a conveyance in regard to 10 cents could the plaintiff insist on conveyance of 10 cents, the balance left with defendants 2 and 3, on payment of proportionate purchase price in accordance with Ext. Al. We will consider these questions in seriatim. 8. A transferee of immovable property normally obtains whatever rights a transferor has and if there is an encumbrance on the property conveyed to the transferee that passes with the property The transferee does not get any better title than that of the transferor in regard to the burden of such encumbrance. This is so even with regard to an obligation annexed to ownership of land. The exception to this rule is to be found in S.19 of the Specific Relief Act 1963. Sub-clause (b) of S.19 provides that, except as otherwise provided by Chapter II specific performance of a contract may be enforced also against any person other than a party thereto claiming under the party by a title arising subsequent to the contract. But this is subject to the exception that it cannot be so enforced against a transferee for value who has paid his money in good faith and without notice of the original contract. Enforcement of a contract for sale of immovable property is the enforcement of an obligation annexed to ownership of property as the Supreme Court observed in Bal Bosabai v. Mathurdas (AIR. 1980 S. C. 1334). Justice Chinnappa Reddy speaking for the Bench said that in that case at Para.6 of the judgment thus: "The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immovable property, as understood in England is alien to Indian Law which recognises one owner i. e. the legal owner: wide Rambaran Prasad v. Ram Mohit Hazra (1967) 1 SCR. 293: (AIR. 1967 SC. 744) and Narandas Karsen-das v. S. A, Kamtatn (1977) 2 SCR. 341: (AIR. 1977 SC. 744). The ultimate paragraph of S.54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. 293: (AIR. 1967 SC. 744) and Narandas Karsen-das v. S. A, Kamtatn (1977) 2 SCR. 341: (AIR. 1977 SC. 744). The ultimate paragraph of S.54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of S.40 of the Transfer of Property Act makes it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice of the contract or a gratuitous transferee of the property .Thus, the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which maybe enforced against a transferee with notice or a gratuitous transferee." This obligation annexed to ownership is liable to be enforced against a transferee with notice as S.19 (b) of the Specific Relief Act 1963 and S.91 of the Indian Trusts Act 1882 indicate. Chapter IX of the Indian Trusts Act deals with obligations in the nature of Trusts. S.91 is one such obligation and that provides that where a person acquires property with notice that another person has entered into an existing contract affecting the property in respect of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract. It does not in terms create a trust but only creates an obligation which has the characteristics of a trust. But S.96 of the Indian Trusts Act is a saving provision which operates to save the rights of a transferee in good faith for consideration from the provisions of Chapter IX. It does not in terms create a trust but only creates an obligation which has the characteristics of a trust. But S.96 of the Indian Trusts Act is a saving provision which operates to save the rights of a transferee in good faith for consideration from the provisions of Chapter IX. Irrespective of whether a person acquiring a property in respect of which specific performance could be enforced is under an obligation to hold the property for the benefit of a party to an agreement for sale in regard to that property, the provisions in S 91 will not operate in case it is shown that the rights sought to be impaired are that of a transferee in good faith for consideration Hence if a property has been acquired by a person with notice of the existence of a previous agreement for sale he holds the property for the benefit of the person who is entitled to enforce the contract unless he is a transferee in good faith for consideration. If property in the hands of a transferee who had notice of the obligation under an earlier agreement for sale is purchased by a person in good faith for consideration S.91 will not operate against such person as he will be saved by S.96 of the Indian Trusts Act. The obligation to hold for the benefit of another contemplated in S.91 of the Trusts Act will operate in regard to a person who came into possession by a purchase with notice of the contract of sale but not a person who came into possession subsequently without such notice. In the hands of the person holding the property with notice the obligation will exist but the obligation will not operate in the hands of a person who has no such notice. We have to remember that what is created by S.91 is not a trust as such. It does not affect ownership or title as such That it is only an obligation has been noticed by Lindley L. J. in Lister v. Stubbs (1880 (45) C. D. I). Sadasiva Aiyar J. in Rajah of Ramnad v. Arunachalam Chettiar (AIR. 1916 Madras 350 at 355) has considered the nature of the obligation arising under Chapter IX of the Indian Trusts Act and has made particular reference to S.91 of the Indian Trusts Act read with S.96 thereof. Sadasiva Aiyar J. in Rajah of Ramnad v. Arunachalam Chettiar (AIR. 1916 Madras 350 at 355) has considered the nature of the obligation arising under Chapter IX of the Indian Trusts Act and has made particular reference to S.91 of the Indian Trusts Act read with S.96 thereof. In that context the learned Judge observed thus: "The wide phrases "hold the property" (S. 86) or "hold the advantage" (S. 89) "for the benefit" of the transferor, cannot be held to create at once an enforceable as distinguished from an establishable trust in favour of the transferor. The Chapter itself in which these sections occur, is headed thus; "Of certain obligations in the nature of trusts." If a trust obligation has to be created and if the law requires that the creation of the trust itself (not an inchoate obligation in the nature of a trust) should be the act of the Court regularly invoked for that purpose the person who wants to benefit by the provisions of the Trusts Act ought to so invoke the aid of the Court for the effective creation of the trust within the time limited by law. I entirely agree with my learned brother that that is the effect of the last clause in S.96 of the Trusts Act. That the contention of the appellant's side would lead to startling and analogous results which could not have been intended by the Legislature, might be shown easily by a reference to S.91 of the Trusts Act. I entirely agree with my learned brother that that is the effect of the last clause in S.96 of the Trusts Act. That the contention of the appellant's side would lead to startling and analogous results which could not have been intended by the Legislature, might be shown easily by a reference to S.91 of the Trusts Act. That Section is as follows: "Where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract." Can it be argued on this section that, because A the purchaser under a registered deed of sale with notice of a previous contract of sale with contract of sale in favour of B "must hold the property for the benefit" of B. (the prior promisee from the vendor), A became a complete trustee for B. on the date of A.'s sale-deed itself, and hence B, need not bring a suit for specific performance within three years of the date fixed for the performance (Article 113 of the Limitation Act), but might bring a suit within 12 years, may, after any length of time, for possession of the lands against A. (the subsequent purchaser) as if A had been created an express trustee for B. by the effect of S.91 of the Trusts Act from the date of A.'s sale-deed? If such construction of S.91 of the Trusts Act is correct, S.12 of the Specific Relief Act, which gives a discretion to the Court to give specific relief (in the above case, the relief would be the compelling of B. to execute a registered conveyance to A.) the provisions of the Transfer of Property Act requiring a registered conveyance to transfer property (See Immudipattam Tirugnana Kondama Naick v Periya Dorasami (13) the provisions of the Evidence Act, S.92, excluding oral proof of the setting aside of a registered document and requiring proof of such to be in writing, the provisions of S.26 of the Specific Relief Act, requiring the Court to decree specific performance only subject to a variation in certain circumstances, might all be evaded and set at naught, as the Trusts Act, S.91 merely uses the general expression that, if specific performance could be enforced (with or without variation and with or without conditions), A, must hold the property for the benefit of B. There might be cases coming under a few sections of Chapter IX, where a judicial declaration of trust might be unnecessary even when the beneficiary comes in as plaintiff, but the present is not such a case. Property in the hands of a mere constructive trustee does not become the property of the beneficiary under the constructive trust so as to enable him to treat it as such without a judicial declaration of the trust. As said in Lewin on Trusts, Chapter X, Para.18; "Until some judgment or decree has been obtained, the money" (in the possession of the person who obtained a pecuniary advantage by unfair use of fiduciary relation) "cannot be said to be the money of the principal." As said by Lindley, L. J., in Lister v. Stubbs (14) of such an argument, "the unsoundness of it consists in confounding ownership with obligation." It therefore follows that in the case of defendants 5 to 7 the property transferred to them (40 cents) cannot be found to be held by them for the benefit of the plaintiff. This is consistent with the provisions in S.19(b) of the Specific Relief Act. 9. If S.19(b) operates to save bonafide transferees for consideration without notice defendants 5 to 7 in this case must be found to be persons who are not bound by the agreement for sale, Ext. Al. This is consistent with the provisions in S.19(b) of the Specific Relief Act. 9. If S.19(b) operates to save bonafide transferees for consideration without notice defendants 5 to 7 in this case must be found to be persons who are not bound by the agreement for sale, Ext. Al. That would mean that the agreement cannot be enforced as against these defendants. Necessarily therefore the other question is could the agreement be enforced in regard to 10 cents left with defendants 2 and 3? 10. S.12 of the Specific Relief Act 1963 is a specific provision concerning specific performance of part of a contract. It may be that part of a contract taken by itself can and ought to be specifically performed In that event such part of the contract stands on a separate and independent footing from another part of the same contract which cannot 'and ought not to be specifically performed. The part of the contract which can and ought to be performed could be directed to be specifically performed in such an event. As an instance one can conceive of a case where A agrees to sell item 'X' to a person at a certain price, item 'Y' to the same person or another at another price and item 'Z' at yet another price. It may be that sale by A of X or Y or Z could not be specifically performed for some reason or other. But still that part of the contract which could be performed could be directed to be specifically performed because it stands as a separate and independent footing, (sub-section 4 of S.12). 11. If the whole of a contract could not be performed and the part to be left unperformed bears only a small proportion to the whole in value and admits of compensation in money specific performance could be directed of that portion of the contract as can be performed. For the non-performance in regard to the balance the court could award compensation in money, (sub-section (2). But where the part which a party to a contract is unable to perform is a considerable part of the whole and the portion left unperformed admits of compensation money specific performance may be granted by the court if the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed is paid. If the portion left unperformed does not admit of compensation money the decree for specific performance could be granted on the consideration for the whole contract without any abatement being made. There is a further provision that in either case parties seeking specific performance relinquish all claim to the performance of the remaining part of the contract and all right to compensation (sub-section 3). In a case such as the one before us where the agreement is to sell 50 cents of land and the value of such land has been fixed with reference to the rate per cent the contract is not an independent contract to sell each cent of land or specific portions of the 50 cents. The contract is one and indivisible and that is to sell the 50 cents The rate of Rs. 275/-is fixed so that the consideration to be paid may be determined in accordance therewith. Even in such a case part performance would be permissible either under sub-section 2 of S.12 or under sub-section 3 of S.12. Sub-section 2 will be attracted only if the portion to be left unperformed bears only a small proportion to the whole. The case before us cannot fall under S.12 (2) because it is only 10 cents that could be sold out of 50 cents. Where the part which has to be left unperformed forms a considerable part it is sub-section 3 that should apply. We have necessarily to consider whether it is clause (a) or (b) of sub-section (3) of S.12 that should apply. Clause (a) would be attracted only on two requisites being shown, (1) the part to be left unperformed is a considerable part of the whole and (2) the part left unperformed must admit of compensation money. Clause (b) applies where the part which must be left unperformed does not admit of compensation money. As noticed in the Law of Specific Performance (Tagore Law Lectures) by Dr. Clause (b) applies where the part which must be left unperformed does not admit of compensation money. As noticed in the Law of Specific Performance (Tagore Law Lectures) by Dr. Banerjee: "The phrase 'admits of compensation' implies that (i) there are date for ascertaining a fair and reasonable amount as the money value of the difference between what can be performed and the express subject-matter of contract; and (ii) there has been no fraud or misrepresentation." If the case falls under clause (a) to sub-section (3) of S.12 then performance could be sought provided the plaintiff relinquishes all claims to the, remaining part of the contract and all right to compensation and also pays or agrees to pay the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed. If the case falls in clause (b) on the ground that the part left unperformed does not admit of compensation money then again the plaintiff in order to seek relief in regard to that portion which can be performed may have to relinquish all claims to the performance of the remaining part of the contract and must pay consideration for the whole of the contract without any abatement. Of course the plaintiff has not expressed any willingness to pay the whole of the consideration without any abatement and that is. not the plaintiff's case even at the hearing. Naturally so 12. Whatever that be when the court finds that only a small portion of the contract could be performed, whether the relief of specific performance is to be granted or not cannot be determined automatically in a suit where the plaintiff pleads only for the specific performance of the whole contract. If the plaintiff seeks performance, in the alternative of that part of the contract that could still be performed however small that part be, he must plead appropriately, for, it is only on such pleadings that questions calling for decision within the scope of S.12(3) can be decided by the court. If the plaintiff seeks performance, in the alternative of that part of the contract that could still be performed however small that part be, he must plead appropriately, for, it is only on such pleadings that questions calling for decision within the scope of S.12(3) can be decided by the court. Whether the part which must be left unperformed admits of compensation in money or not, if it admits of compensation what should be the reduction by way of consideration for the part which must be left unperformed and if it admits of compensation in money whether the plaintiff is willing to pay the whole consideration and whether in either case he relinquishes all claims to performance of the remaining part of the contract and all rights to compensation are all matters to be pleaded. On appropriate pleading by the plaintiff they will have to be answered by the defendant. This has been appropriately said by the High Court of Bombay in Bhaurao v. Mahadeo (AIR. 1979 Bom. 208 at 213). The learned Judge said thus: "In this view of the matter, it is not necessary to consider whether the Courts below should have directed specific performance of the agreement in so far as it related to the share of the respondent in the suit filed. In this connection it may be pertinent to note that sub-section (3) of S.12 of the Specific Relief Act, 1963 provides that where a party to a contract is unable to perform the whole or his part of it, he is not entitled to obtain a decree for specific performance if the part which must be left unperformed forms a considerable part of the whole, though admitting of compensation in money or if the part which must be left unperformed does not admit of compensation in money. However, at the suit of the other party, the Court may direct such a party in default to perform specifically so much of his part of the contract as he can perform if the party bringing the suit, that is the plaintiff, fulfills the conditions laid down in cis. (i) and (ii) of that subsection. However, at the suit of the other party, the Court may direct such a party in default to perform specifically so much of his part of the contract as he can perform if the party bringing the suit, that is the plaintiff, fulfills the conditions laid down in cis. (i) and (ii) of that subsection. These conditions are firstly that in the case in which the part which must be left unperformed forms a considerable part of the whole and admits of compensation in money, the plaintiff must pay the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed. While in the case in which the unperformed part does not admit of compensation in money, the plaintiff must pay consideration for the whole of the contract without any abatement. The second condition is that in either of the above two cases, the plaintiff must relinquish all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. It would be thus evident that a party to a contract which brings the suit under the provisions of sub-sec. (3) of S.12 of the Specific Relief Act 1963, for specific performance of part of the contract, must frame its suit in the light of that sub-section incorporating the required averments to bring its case within its four corners. In other words, the frame of a suit for specific performance of the whole contract is distinct from that for specific performance of part of it, as different considerations arise in the two suits. Moreover the defendant must have an opportunity by pleading and if necessary by adducing evidence, to show that the plaintiff is not entitled to specific performance of part of the contract. This he can do if there is a pleading on the part of the plaintiff bringing his case within the purview of the said subsection. It may be that the plaintiff can make an alternate claim for specific performance of the whole contract or only for a part of it, but if be intends to do so it must be clear from the plaint so as to give notice of it to the defendant. It may be that the plaintiff can make an alternate claim for specific performance of the whole contract or only for a part of it, but if be intends to do so it must be clear from the plaint so as to give notice of it to the defendant. He cannot bring the suit merely for specific performance of the whole contract and realising at the conclusion of the trial that that is not possible to turn round and tell the Court that he may be granted decree for specific performance of that part only which is possible. This is what the appellants want to do in the matter and that too at the stage of second appeal. In my opinion, for the reasons stated above, the appellants could not press for the specific performance of the agreement in so far as it relates to the share of the respondent in the suit property." In this case there is no pleading which would justify any relief with regard to enforcement of the agreement for sale of a portion only of the plaint property. Learned counsel for the plaintiff made a plea that he may be allowed to amend the suit so as to raise this contention in the suit. We do not think that at the fag end of this case we must permit such amendment so as to reopen the suit. We do not think that circumstances warrant any such relief at the hands of this Court. The consequence is that the decision of the court below must be upheld though on a different approach. In the result the appeal is dismissed with costs. Dismissed. An oral application has been made by counsel for the appellant for certificate of leave to appeal to the Supreme Court under Art.134A of the Constitution. We do not think that any question of law of general importance which needs to be decided by the Supreme Court arises in this case. Leave refused.