KRISHNAN CHELLAPPAN v. KUTTY KUNJAMMA — 1988 DIGILAW 405 (KER)

Judgment :- 1. This Second Appeal came before us on an order of reference passed by Bhaskaran Nambiyar, J. under S.3 of the High Court Act. 2. The second appeal arises out of a suit O.S. No.210 of 1977 on the file of the Munsiff's Court. Karunagappally filed by the appellant, for specific performance of a contract with alternative prayer for return of money advanced by the plaintiff. The 1st defendant who is the 1st respondent herein is the mother and defendants 2 and 3 are her major children. The plaint-A schedule property belonged to defendants 2 and 3 and the other minor children of the 1st defendant on the strength of a registered document No.2595 of 1974 executed by the 1st defendant. Plaint B-schedule property and the building and well existing therein belonged to the defendants and the abovesaid minors as having obtained under sale deed No. 861 of 1964. The father and mother of the 1st defendant had life interest over B-schedule property. The total extent of both the items is 20 cents. The defendants entered into an agreement with the plaintiff for sale of 20 cents of the plaint property including the building and well for a consideration of Rs. 7000/-, on 30-4-1976 as per Ext. Al document. Part of the total consideration of Rs. 7000/-, Rs. 2000/-formed consideration of the building and well. The defendants received an amount of Rs. 1000/-towards part of the sale consideration. It was also agreed that the properties will be measured and the sale deed executed within one year and the life interest-holders would also join the execution of the document. It was further agreed that the properties purchased in the name of minors would be offered as security in the sale deed. Subsequently on 14-3-1977 the defendants received a further advance of Rs. 500/- from the plaintiff, but thereafter they did not do anything to perform their part of the contract inspite of repeated requests made by the plaintiff. Thereupon the plaintiff issued a registered notice requiring the defendants to go over to the Sub Registry Office on 27-4-1977 and to execute the document after receiving the balance of sale consideration. That was also not heeded to by the defendants. The defendants had only 1/3 right in A-schedule property and 3/7 share in the B-schedule property. Thereupon the plaintiff issued a registered notice requiring the defendants to go over to the Sub Registry Office on 27-4-1977 and to execute the document after receiving the balance of sale consideration. That was also not heeded to by the defendants. The defendants had only 1/3 right in A-schedule property and 3/7 share in the B-schedule property. The plaintiff was willing to purchase the shares of the defendants in the property even excluding the building and the well, and the defendants were informed that if the defendants were prepared to purchase other property in the name of the minors and get the consent of the life-interest-holders, the plaintiff was willing to take the sale deed for the entire plaint schedule properties. On these allegations the plaintiff filed the suit for directing the defendants to execute the sale deed for their 1/3 and 3/7 shares respectively in the plaint A and B schedule properties, receiving the balance of sale consideration and to allow the plaintiff to take separate possession of the respective shares after effecting a division by metes and bounds. The plaintiff alternatively prayed for a decree allowing the plaintiff to recover a sum of Rs. 1500/- paid as advance towards the sale consideration from the defendants and charged on their right in the plaint schedule properties. 3. In their written statement the defendants contended that the agreement dated 30-4-1976 was not binding on the plaint schedule properties and the executants thereof had no right to enter into such a contract, and the plaintiff was not entitled to get any relief on the basis of the agreement which is invalid from its very inception. The 1st defendant had no authority to represent the interest of the minors, since she was not the legal guardian of the minors. Similarly it was alleged, that the parents of the 1st defendant who had life interest over B-schedule property were not parties to the agreement. It was admitted that Rs. 1000/- was received as advance by the defendants but the defendants contended that the contract cannot be enforced against the four minors of the 1st defendant and the parents of the 1st defendant who had life interest in B-schedule property, since they were not parties to the contract. The allegation in the plaint that a further sum of Rs. 500/- was advanced was denied. The allegation in the plaint that a further sum of Rs. 500/- was advanced was denied. It was also averred that the plaintiff had not done anything for the performance of the contract and the notice alleged to have been issued had not been received by the defendants. 4. The plaintiff was examined as P.W.1 and Ext. Al to A2 (a) were. marked. On behalf of the defendants the 1st defendant was examined as D.W.1. 5. The lower court held that Ext. Al agreement cannot be enforced either wholly or partly and that the plaintiff is not entitled to the relief of specific performance. But it was held that the plaintiff is entitled to get back the amount of Rs. 1000/- paid under Ext. Al agreement, together with 6% interest from the date of suit till realisation. The plaintiff was also allowed to recover proportionate costs of the suit from the defendants. 6. In this appeal, the counsel for the plaintiff contended that the lower court was not justified in not granting relief of specific performance as prayed for. The learned Munsiff took the view that since the agreement is void in so far as it relates to the shares of the minors the contract is not enforcible in law against any of the executants of the agreement. It is in this view of the matter, the learned Munsiff granted a decree only for recovery of the money found to be advanced. On appeal, the learned District Judge relied on S.56 of the Indian Contract Act and held that an agreement to do an act impossible in itself is void and upheld the judgment and decree of the learned Munsiff. 7. Before dealing with the question whether S.12 of the Specific Performance Act provides for specific performance in a situation as arising in this case, we have to identify the nature of rights of the executants in the plaint schedule properties. We are referring to this aspect inasmuch as in the reference order, it has been stated that the respondents contended that the property belonged to the thavazhi of the defendants and since defendants are governed by the Nair Act, Ext. Al was void as offending S.39 of the Nair Act. At the outset we may state that the respondents have not raised such a contention in the courts below. Al was void as offending S.39 of the Nair Act. At the outset we may state that the respondents have not raised such a contention in the courts below. In the written statement also, the defendants proceeded on the basis that the defendants and minors are enjoying the property as tenants-in-common. The only contention raised was that since the agreement is void in so far as it relates to the shares of minors, the entire agreement, is void and unenforceable and consequently no decree for specific performance can be passed in such a case. In the circumstances, no question of violation of S.39 of the Nair Act in executing Ext. Al agreement will arise and the argument of the learned counsel for the respondent and the contention of the learned counsel based on S.36 of the Nair Act has no substance. 8. To understand the respective contentions of the parties, it is necessary to refer to S.12 of the Specific Relief Act, 1963, which reads as follows: "Specific performance of part of contract. (1) Except as otherwise herein after provided in this section, the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either (a) forms a considerable part of the whole,though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may. at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party (1) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), pays or has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all rights to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. Explanation. For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance". The question that has to be considered is whether in view of Sub-section (3) of S.12, a decree for specific performance can be passed in so far as it relates to the snares of defendants 1 to 3. In the instant case, no decree for specific performance of Ext. Al agreement in its entirety can be passed in view of the fact that the agreement cannot bind minors' shares, but the question that has to be considered is whether the plaintiff is entitled to obtain a decree for directing the defendants to perform specifically so much their part of the contract as they could perform on payment of consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed. 9. 9. Sub-section (4) of S.12 provides that when a part of a contract, taken by itself can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. 10. It will be convenient to notice here the difference between sub-s. (3) of S.12 of the Specific Relief Act 1963 and the corresponding S.15 of the Specific Relief Act, 1877. Under S.15 of the Act, where a party to a contract is unable to perform the Whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance, but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation, either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. In other words, under the old section, the plaintiff will have to pay the entire consideration specified in the agreement to enable him to get specific performance of part of the contract and should relinquish of his rights and claims to further performance and right to compensation to enable him to obtain a decree for specific performance of that part of contract which the party is able to perform, But Clause.1 of Sub-s. (3) of S.12 of 1963 Act contemplates payment of agreed consideration for the whole part of the contract reduced by the consideration for the part which must be left unperformed. 11. The learned Munsiff has placed much reliance on the decision reported in Ayissa and another v. Prabhakaran (1971 K. L. T. 331). That case arises out of a suit for return of earnest money on the plea that there was frustration of contract. In that case, an agreement was entered into by the defendants purporting to be on his behalf and on behalf of his minor sisters as their guardian to sell the property to the plaintiff for Rs. 26,500/. Advance of Rs. 1,000/- was paid towards consideration. In that case, an agreement was entered into by the defendants purporting to be on his behalf and on behalf of his minor sisters as their guardian to sell the property to the plaintiff for Rs. 26,500/. Advance of Rs. 1,000/- was paid towards consideration. The defendant could not obtain a certificate from competent Court authorising him as a guardian to alienate the rights of the minor sisters and therefore the plaintiff alleged frustration of contract and filed the suit for recovery of the advance paid. The question whether a part of the contract can be enforced did not arise in that case. It is in that context the court said that in view of S.65 of the Contract Act, the defendants were liable to return the advance paid. In that case, the plaintiff did not want the specific performance of that part of contract, which the defendants could have performed namely transfer of his share but sued only for the refund of the amount on the ground that the contract in respect of purchase of the shares of four sisters of the defendant has frustrated as being impossible of performance by the defendants and therefore he was entitled to refund the amount paid by him as earnest money. That decision has no application to the facts of this case. 12. The learned counsel for the respondent drew our attention to the following observations at page 972 of the Indian Contract and Specific Relief Act by Pollock & Mulla Tenth Edition: "A contract to sell property by a person on behalf of herself and on behalf of somebody else a minor and the contract is not enforceable against that somebody else than the contract cannot specifically be performed in regard to share of the person entering into the contract and neither S.15 nor S.16 are applicable." This observation is made on the basis of the ruling in Babu Rameshwar Prasad Sahi v. Mst. Anandi Devi and another (A.I.R. 1956 Patna 53). Anandi Devi and another (A.I.R. 1956 Patna 53). The learned counsel also brought to our notice another passage at the same page where the learned authors make reference to a ruling of the Supreme Court of Pakistan which held S.15 (of 1877 Act) inapplicable in a case where one of the two co-sharers who agreed to sell his share of the property and promised to get the share of the other co-sharer also conveyed to the buyer failed therein. 13. No doubt the contention of the learned counsel finds support in the decision of a Single Judge of the Patna High Court referred to above. The above Patna decision has followed an earlier Division Bench ruling of Patna High Court in Abdul Haq v. Mohammad Yehia Khan and others (A. I. R.1924 Patna 81), where a similar view was expressed. In Abdul Haq's case (supra) a Division Bench of the Patna High Court considered the question whether the plaintiff was entitled to a decree for specific performance against defendants 1 and 2 in regard to their shares in the property. Dealing with the question, Das J. observed as follows: ".... a contract to be specifically enforced by the Court must, as a general rule, be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Want of mutuality in the contract is a well-recognized defence to a suit for specific performance, and was at the bottom of the decision of the Judicial Committee in the case of Mir. Sarwanjan v. Fakhruddin. The rule is stated in these terms in a recognized work on the subject: "When, therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the contract is incapable of being enforced against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former" (Fry on Specific Performance, Page 219). The contract was, in my opinion, incapable of being enforced against the plaintiff. That being so the plaintiff is incapable of enforcing it against defendants Nos.1 and 2." 14. With great respect, we express our inability to agree with the proposition of law stated by the Patna High Court in the above decisions. The contract was, in my opinion, incapable of being enforced against the plaintiff. That being so the plaintiff is incapable of enforcing it against defendants Nos.1 and 2." 14. With great respect, we express our inability to agree with the proposition of law stated by the Patna High Court in the above decisions. According to us, the view expressed in the above decisions would defeat the very purpose for which, S.14,15 and 16 of Specific Relief Act 1877 and S.12(2), (3) and (4) of the Specific Relief Act, 1963. 15. We shall now examine how other jurisdictions have approached the question. It would be seen that the view that we have taken is fully supported by the Federal Court and other High Courts. 16. In the decision reported in Dwijendra Kumar Roy and others v. Monmohan De and others (A.I.R. 1957 Cal.209) defendants 1 to 4 entered into a contract to settle certain lands belonging to them with the plaintiff at a rental of Rs. 70/-per annum on receipt of a salami of Rs. 700/-. In a suit for specific performance it was found that the contract was not binding on the minor defendant 2 in respect of his 1/4 share in the suit lands. The court held that the plaintiff was entitled to a decree for specific performance in regard to 3/4 shares of the adult contracting defendants without any abatement in the stipulated salami and rent in respect of the sixteen annas share, provided he was prepared to relinquish his claim to further performance and compensation as required by the proviso to S.15. It was also held that the relinquishment can be made by the plaintiff at any stage of the litigation. 17. It was also held that the relinquishment can be made by the plaintiff at any stage of the litigation. 17. It may be noticed that according to the provisions contained in Sub-s. 3 of the Specific Relief Act, 1963, it is open to the plaintiff to pay the consideration for the whole of the contract reduced for the part, which is left unperformed, which right was not available in S.15 of the Specific Relief Act, 1877, which provided that for getting the relief of performance of the contract, directing the performance of the part which could be performed leaving part which could not be performed the plaintiff should relinquish all claim to further performance, and all right to compensation, either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. 18. The same view as in Dwijendra Kumar Roy's case (supra) was taken in Dinnanath Sarma v. Gour Nath Sarma (A.I.R. 1925 Cal. 434), Purnachandra Kukherjee v. Gopendra Krishna (A.I.R. 1926 Cal. 744), Panchananda Kundu v. Rajani Kanta Pal (A.I.R. 1931 Cal. 463), Sharma Charan Kotal v. Kumed Dasi (A.I.R. 1918 Cal. 889), Srinath Bhattacharjee v. Jotindra Mohan Chatterjee (A.I.R. 1962 Cal.445) and Nripendra Chandra Sarkar & ors v. Ekherali Joardar & ors (A.I.R. 1930 Cal. 457). 19. A Full Bench of the Madras High Court considered the question of applicability of S.15 of the old Act (Specific Relief Act, 1877) and held that where a managing member of a Hindu family enters into a contract with an item of family property and that contract is not binding on the other members, specific performance cannot be granted so as to direct execution of conveyance of the entire property but it is open to the purchaser to get specific performance so far as the share of the managing member who executed the agreement is concerned on payment of consideration agreed upon without any abatement. The Full Bench overruled the decision of the Madras High Court in I.L.R. Madras 27 and 32. 20. In Jainarain Ram Lundia v. Surajmull Sagarmull and others (A.I.R. 1949 Federal Court 211) the scope of applicability of S.15 of the old Act came up for consideration of the Federal Court. The Full Bench overruled the decision of the Madras High Court in I.L.R. Madras 27 and 32. 20. In Jainarain Ram Lundia v. Surajmull Sagarmull and others (A.I.R. 1949 Federal Court 211) the scope of applicability of S.15 of the old Act came up for consideration of the Federal Court. In para 20 of the judgment the court observed as follows: "The argument is that the contract being joint and indivisible, it was not open to the plaintiffs to give up one of the defendants and proceed against the other two. In our opinion, S.43, Contract Act is a complete answer to this contention. Unlike English law the Indian law makes all joint liability, joint and several, in the absence of any agreement to the contrary. It is, therefore, open to the promisee to sue any one or some of the joint promisors and it is no defence to such a suit that all the promisors must have been made parties. As the plaintiffs in this case prayed ultimately for specific performance of a part of the contract in the mariner contemplated by S.15, Specific Relief Act, and expressed their readiness to pay the entire consideration for 350 shares, the appellants are not prejudiced in any way." 21. Similarly, in Mahmud Ali and others Yawar Beg (A.I.R. 1915 All. 263) a Division Bench of Allahabad High Court considered the question in a case where the Ist defendant on behalf of himself and as agent of the 2nd defendant agreed to sell a house in which each of the two defendants had one-half share to the plaintiff. The Ist defendant had no authority to sell the half share of the 2nd defendant. The court took the view that the plaintiff would be entitled to a decree for specific performance for half the house on condition of paying the full price agreed upon for the entire house. 22. The foregoing discussion would show that the plaintiff can successfully sue for direction of a specific performance to convey the shares and rights of the defendants in the property. 23. The direction for specific performance sought for in the plaint was only in respect of 1/3 right of the defendants in plaint A schedule property and 3/ 7 rights of the defendants in the plaint B schedule property excluding the building. 23. The direction for specific performance sought for in the plaint was only in respect of 1/3 right of the defendants in plaint A schedule property and 3/ 7 rights of the defendants in the plaint B schedule property excluding the building. The plaintiff has also expressed his willingness to deposit the consideration in respect of these shares. In these circumstances, the courts below went wrong in not granting a decree for specific performance for transfer of the rights of defendants 1 to 3 in the plaint schedule properties. 24. In the result, we allow the Second Appeal and set aside the judgments and decrees of the courts below and pass a decree directing respondents 1 to 3 to execute document transferring their 1/3 right in A schedule property and 3/7 rights in B schedule property excluding the building and subject to the life interest of the parents of the Ist defendant in the B schedule property, or deposit of balance of consideration for their shares within one month from today. In the agreement, the building is separately valued and therefore there is no difficulty to exclude the building and direct specific performance of the shares of defendants 1 to 3 in the plaint A schedule property. The parties will bear their respective costs. Allowed.