Sasidharan Pillai v. Devaky Amma — 1990 DIGILAW 567 (KER)

Judgment :- Plaintiff in a suit for specific performance is the appellant. These are the facts: The 1st defendant is the mother of defendants 2 to 4. Defendants 2 to 4 are minors. The plaint schedule properties originally belonged to Bhaskaran Pillai -father of defendants 2 to 4 and husband of the 1st defendant. Bhaskaran Pillai got the property under a partition deed No.6283 of 1950 of the Sub Registry Office, Chadayamangalam. Bhaskaran Pillai died intestate. So the properties devolved on defendants 1 to 4 in equal shares. 2. The defendants wanted to sell the plaint schedule properties to secure a job for the 1st defendant in the best interest of minor defendants 2 to 4. Ext Al agreement was executed by the plaintiff and the 1st defendant acting for herself and for and on behalf of defendants 2 to 4. Plaintiff agreed to purchase plaint A schedule property for a price of Rs.46,700/- and paid Rs.25,000/- on 21-7-1981. Since a litigation O.P.No. 70 of 1981- was pending in regard to plaint A schedule property, the date for executing the sale deed was fixed to a date within 30 days from the disposal of O-P. No. 70 of 1981. Plaintiff was willing to purchase the property and he got ready with the balance sale consideration of Rs.21,700/-. O.P.No. 70 of 1981 was disposed of on 3-3-1983. Plaintiff was willing to purchase the property from that day onwards, viz., 3-3-1983 by paying the balance sale consideration. He has stated in the plaint that he waA always willing and continue to be willing even on the date of filing the suit to purchase the property as agreed to in the agreement, Ext.A1. The 1st defendant refused to execute the sale deed and that necessitated the institution of the suit. 3. It was contended that the plaintiff is not entitled to a decree for specific performance, since the agreement was executed exerting fraud on the 1st defendant. In fact, the 1st defendant has not agreed to sell plaint A schedule property to the plaintiff. It was further contended that the 1st defendant has not received Rs.25,000/- as per Ext Al agreement. Defendants also contended that the plaintiff had no money to pay the consideration as alleged in the plaint. Defendants prayed that the court should dismiss the suit. 4. It was further contended that the 1st defendant has not received Rs.25,000/- as per Ext Al agreement. Defendants also contended that the plaintiff had no money to pay the consideration as alleged in the plaint. Defendants prayed that the court should dismiss the suit. 4. The court below raised the necessary issues in the case after examining the witnesses and admitting the documents produced by the parties. Finally, the court found that allowing the prayer for specific performance of contract for sale with respect to the 1st defendant's 1/4th right in the property will create prejudice to the minors and so "declined to decree the suit for specific performance. But in respect of all other issues, the court below found in favour of the plaintiff and so the court held that the plaintiff is entitled to get the advance amount ofRs.25,000/- paid with interest at 12% from the date of the agreement till date of suit and thereafter at 6% interest till realisation from the 1st defendant and her assets. A decree to that effect was passed. Now plaintiff appeals. 5. As regards the contentions raised by the defendants to resist the suit for specific performance, the court below found that those contentions are unsustainable in the light of the evidence adduced in the case. In fact, the court below found that the contentions raised by the defendants are totally unfounded and that there was a valid agreement - Ext A1- executed by the 1st defendant after receiving an advance amount of Rs.25,000/- from the plaintiff. The court below also rightly found that the agreement is not binding on the minors and so as per the agreement, plaintiff cannot insist for the sale of the property belonging to the minors. In short, the agreement is valid only with respect to 1/4th share of the 1st defendant and there is absolutely no contention for the 1st defendant to resist the suit in respect of her 1/4th share. The court below refused to decree specific performance only on the ground that the transfer of the 1st defendant's 1/4th right to the plaintiff will cause hardship to the minors right in the property and that a decree for specific performance of contract for sale with respect to the 1st defendant's 1/4th right in the property will create prejudice to the minors. 6. 6. The chief question that has to be considered in this case is whether the above said reason for declining specific performance of the agreement for sale with respect to 1/4th right of the 1st defendant in the property is sustainable in law and that whether the court below has exercised its discretion in a reasonable and judicial manner. I say so because in regard to the other contentions, the court below has found rightly against the defendants. Counsel for the respondents was not able to point out any error in those findings. So the only question that remains for consideration in this appeal is as to whether the refusal to decree specific performance of the agreement with regard to I/ 4th right of the 1st defendant in the property is correct or not. S.12 of the Specific Relief Act reads thus: "12. Specific performance of part of contract.--(1) Except as otherwise hereinafter 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) When 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 - (i) 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". In AIR 1973 Madras 393 (Subramani v. Kannappa Reddiar & Ors.) the whole question was considered elaborately and the court ultimately found "A decree for specific performance of a part of a contract must not necessarily be against the same body of persons who had entered into the contract. Thus it cannot be said that the Court has no power to pass decree of specific performance of part of a contract on the ground that the contract in so far as one of the parties is concerned, is void or invalid or inoperative." The case considered also involved the right of a minor in the property agreed to be sold. 7. 7. In the repealed Act the provision for specific performance in a case where the purchaser is not entitled to obtain the entire property and the rights of the parties who have contracted to sell the property was that the purchaser should pay the entire price even though specific performance of part of a contract was alone granted. This was a stringent and unrealistic condition. Significantly this part of the provision was an unreasonable change from English Law. Now the present law on specific performance under the Specific Relief Act, 1963 has eliminated that provision and the law has been brought into conformity with English Law. As early as in 1915 Viscount Haldane in 1915 AC 866 (Rutherford v. Acton adams ) observed: " If it is the purchaser who is suing, the Court holds him to have an even larger right. Subject to considerations of hardship, he may elect to take all he can get and to have a proportionate abatement from the purchase money". 8. S.12(3) of the Specific Relief Act makes the position very clear and I have no hesitation to hold that the law has been updated by introducing a very salutary provision that when a Court feels that a decree for specific performance has to be given in regard to the rights of one or some of the parties, who have contracted to sell the property, even though the contract is not binding on the other parties, specific performance can be decreed on reasonable terms, viz., by giving the purchaser a right to have a proportionate abatement from the purchase money. I may also refer to certain decision which have taken the view that if there are no other circumstances which would persuade the Court to decline specific performance in regard to what purchaser can take out of the contract, which was found to be not binding on certain parties to the contract, the Court has to decree specific performance against the party, whose right in the property can be transferred to the purchaser-see (1910) ILR 33 Madras 359 (Porakka Subbarami Reddy v. Vadlamudi Seshachalam Chetty), AIR 1914 Madras 456 (Nagiah v, Venka-trama sastrulu ), AIR 1915 All 263 (Mahmud All v, Yawar beg), AIR 1921 Madras 172 (Baluswami Aiyar v. LakshmanaAiyer), MR 1925 PC 45 (William Graham v. Krishna Chandra Dey), AIR 1949 PC 211 Gainarain v. Surajmull) and AIR 1957 Cal. 209 (Dwijendra Kumar v. Mohmohan). The Supreme Court also has taken the same view in AIR 1954 S.C. 75 (Durga Prasad and another v. Deep Chand and others). 9. A Division Bench of this Court in the decision reported in 1988 (2) K.L.J. 371 (Krishnan Chellappan v. Kutty Kunjamma & 2 others) also considered the question whether the plaintiff is entitled to specific performance in an agreement for sale of property comprising shares of minors. The Court said thus: "It may be noticed that according to the provisions contained in sub-section 3 of S.12 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 claims 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. The plaintiff can successfully sue for direction of a specific performance to convey the shares and rights of the defendants in the property". Considering the question whether a plaintiff who sued for specific performance to an agreement as a whole can elect to have specific performance of the agreement with respect to that part of the agreement which is binding on one among the contracting parties agreed to sell the property, the election or option can be made at any stage of the litigation. Padmanabhan, J. held in 1990 (2) K.L.T. 795 (Krishnan Sathyadas v, Lakshmikutty amma ) thus: "It is true that normally the plaintiff may not be entitled to specific performance if the part of the contract incapable of performance forms a considerable part of the whole and does not bear only a small proportion, whether it admits of compensation in money or not. But, in such cases also, the court can direct specific performance of the part capable of performance. In such a situation, if the part of the contract incapable of performance is capable of being compensated in money, the plaintiff will have to pay the consideration reduced by that of the part incapable of performance. But, in such cases also, the court can direct specific performance of the part capable of performance. In such a situation, if the part of the contract incapable of performance is capable of being compensated in money, the plaintiff will have to pay the consideration reduced by that of the part incapable of performance. If it does not admit of compensation in money, the entire compensation without any reduction has to be paid. In either case, the plaintiff must relinquish all claims of performance of the remaining part and all rights to compensation. Such relinquishment can be had at any stage of the litigation, including the appellate stage. It is not necessary that such relinquishment should be in writing incorporated in the plaint or set forth in the trial court itself. 10. Before me counsel for the appellant submitted that the appellant is prepared to purchase the share of the 1st defendant in the property agreed to be sold. In view of S.12(3) of the Specific Relief Act, plaintiff is entitled to purchase 1/4th right of the 1st defendant by paying 1/4th consideration agreed to in the agreement for sale. I see no reason to decline the plaintiff a decree for specific performance of the agreement in regard to 1/4th right of the 1st defendant in the property. 11. In the result, I set aside the judgment of the court below and decree the suit directing specific performance of the agreement with regard to 1/4th right of the 1st defendant over the property. Plaintiff is entitled to specific performance for the sale of 1/4th right in the A schedule property agreed to be sold on paying a consideration of 1/4th of the total consideration agreed to by the parties for the entire property. The amount of advance can be adjusted towards the sale consideration in regard to 1/4th share of the property. There will also be a decree for recovery of balance amount if any, paid as advance after deducting the sale consideration for the 1/4th share of the 1st defendant as stated above from the 1st defendant with 6% per annum from the date of suit till recovery. Appeal is allowed. There will be no order as to costs.