P. Alagesan v. A Mariadas — 1993 DIGILAW 41 (MAD)

Judgment :- 1. This appeal arises out of the suit for specific performance of the contract entered into by the plaintiff with the first defend ant on 19.11.1981. Defendants 2 to 7 are the children of the first defendant. The agreement was that the plaintiff should pay a sum of Rs. 2,50,000/- as consideration for the purchase and on the date of the agreement, he paid a sum of Rs. 25,000/- by way of advance. It was agreed that the transaction should be completed within three months from the date of agreement and that the first defendant should discharge all the encumbrances over the proper ties. It was also stated in the agreement that the first defendant would bring all his children and make them parties to the sale deed in favour of the plaintiff. It is not in dispute that a total sum of Rs. 2,00,000/- was paid by the plaintiff to the first defendant on different dates and the time for completion of the contract was being extended periodically. Ultimately, the suit was filed when, according to the plaintiff, he came to know that the defendants were taking steps to sell the property to others and thereby deprive the plaintiff of his interest. 2. The prayer in the plaint is for specific performance of the contract or in the alternative for return of the sum of Rs. 2,00,000/- paid as advance by the plaintiff with interest thereon. 3. The first defendant filed a written statement in which he raised a plea that the land in the property belonged to his wife as it was purchased by her under two documents. It was also his plea that a building was constructed and a saw mill was being run which belongs to him. He contended that a rice mill business was being conducted in another portion of the land and that belongs to his wife. Defendants 3 to 7 filed a separate written statement raising the plea that the first defendant was not entitled to the entirety of the property and it belonged to their mother, who died on 23.6.1977. According to them, the rice mill business belonged to their mother and the saw mill building also belonged to her, though the municipal assessment stood in the name of the first defendant, their father. According to them, the rice mill business belonged to their mother and the saw mill building also belonged to her, though the municipal assessment stood in the name of the first defendant, their father. It was their further case that the first defendant did not have any authority to agree to sell the 6/7th share belonging to them. They admitted that the saw mill business belonged to the first defendant. They prayed for the dismissal of the suit. 3a. The plaintiffs power of attorney agent gave evidence in support of the plaintiffs case and on the side of the defendants, the first defendant alone entered the witness box. He admitted in the cross-examination that he agreed to sell the property and he expressed his willingness to execute a document for the share in the property, in favour of the plaintiff. He deposed that the saw mill was put up by him and the said business belonged to him. He deposed that his children had no share in the saw mill. The other defendants did not let in any evidence. 4. The trial court held that the entire suit property belonged to the first defendants wife and on her death it devolved on all the defendants. It held that though defendants 2 to 7 were not parties to the agreement, the first defendant acted as family Manager and they were bound by the agreement. Consequently, the trial court gave a decree in favour of the plaintiff, for specific performance. 5. The finding of the trial court that the entire property belonged to the wife of the first defendant is erroneous. Even the agreement-Exhibit A1 reads that the land alone was purchased by the wife of the first defendant and it belonged to her absolutely. It is also recited that the saw mill was constructed by the first defendant with his own funds. The evidence on record is also to the same effect. Defendants 2 to 7 have not adduced any evidence to prove that they own any interest in the saw mill. Hence there is no difficulty in holding that the first defendant owns 1/7th share in the land and the entirety of the saw mill. 6. The other finding of the trial court that the agreement is binding on defendants 2 to 7 is also unsustainable. No doubt, the first defendant has signed the agreement as family Manager. Hence there is no difficulty in holding that the first defendant owns 1/7th share in the land and the entirety of the saw mill. 6. The other finding of the trial court that the agreement is binding on defendants 2 to 7 is also unsustainable. No doubt, the first defendant has signed the agreement as family Manager. But there is no question of joint family existing as between the defendants, with reference to the property which devolved on them by succession. It was not a joint family property, but it was only a property which belonged to the wife of the first defendant. Hence, the first defendant was not entitled to represent the other members of the family and enter into an agreement with the plaintiff. It is seen that some of the defendants were minors at the time of agreement. But there is no recital in the agreement that the first defendant acted as guardian of such minors or that there was necessity for entering into the transaction. In the circumstances, the contention of the appellants that the agreement is not binding on them is accepted. 7. Learned counsel for the plaintiff refers to the evidence of P.Ws. 1 and 2 and submits that at the time when the advance was paid the first defendants eldest son was present and the consideration was paid to both the first defendant and his son. According to learned counsel, the sons were aware of the transaction and they had consented thereto orally. We cannot accept this contention as evidence on record is wholly insufficient. Even the evidence of P.W. 2 does not go to the extent of proving that the eldest son of the first defendant was a party to the agreement. 8. The only question which remains to be decided is whether the plaintiff is entitled to a decree for specific performance with respect to the part of the property, namely, 1/7th share of the first defendant in the land and the saw mill which belongs to the first defendant. 9. The plaintiff is no more and during the pendency of the appeal, his legal representatives have been brought on record. An affidavit has been filed on behalf of the legal representatives of the plaintiff. 9. The plaintiff is no more and during the pendency of the appeal, his legal representatives have been brought on record. An affidavit has been filed on behalf of the legal representatives of the plaintiff. It is stated in the affidavit that they are prepared to relinquish all claims of other performance of the contract and all rights of compensation either for deficiency or for loss or damages due to the default committed by the defendants. In the affidavit they have also agreed to pay the entire consideration of Rs. 2,50,000/- after deducting the amounts already paid. 10. It is contended on behalf of the first defendant as well as the other defendants that there shall be no decree in favour of the plaintiff for specific performance of any part of the contract. It is argued that the first defendant is entitled only to 1/7th share in the land and it is not known whether the saw mill is situated on that 1/7th share or it is situated on a larger area extending over the 6/7th share of the defendants 2 to 7 also. It is also contended that there will be necessity for further proceedings for partition in the event a decree for specific performance is granted and the court should not exercise its discretion in favour of the plaintiff. 11. Reliance is placed on the judgment of the Supreme Court in Balmukand v. Kamla Wati and others (A.I.R. 1964 Supreme Court 1385), In that case, the plaintiff was holding 17/20th share in certain lands in a village. The remaining 3/20th share belonged to the joint Hindu family of the defendants. The Manager of the family entered into an agreement for selling the 3/20th share to the plaintiff, in the suit for specific performance, it was found that there was no necessity for the sale and that the other members of the family who were adults were not consulted at the time when the contract was entered into. It was also found that they did not agree to the transaction. The courts dismissed the suit for specific performance and in the appeal before the Apex Court, it was found that the courts were right in exercising their discretion against the plaintiff. It was also found that they did not agree to the transaction. The courts dismissed the suit for specific performance and in the appeal before the Apex Court, it was found that the courts were right in exercising their discretion against the plaintiff. It was observed by the court that no doubt, the manager of the family was bound by the contract to the extent of his share and the plaintiff would have been entitled to the benefit of Section 15 of the Specific Relief Act, 1877, but such relief was not given as there was no claim on the part of the plaintiff that he was willing to pay the entire consideration for obtaining a decree against the interest of the Manager alone in the property. The relevant passage in the judgment reads thus:— “In the circumstances we must hold that the Courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance. “However, in the case before us there is no claim on behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindidas alone in the property.” 12. The judgment will not help the defendants to contend that no decree should be passed in favour of the plaintiff for specific performance of a part of the contract. It should be remembered that in this case, the plaintiff got a decree for specific performance as prayed for by him in the trial court. It is only defendants 2 to 7 who have preferred this appeal. There is no appeal by the first defendant. In this appeal the defendants 2 to 7 can only claim that the decree as against them is not sustainable. They cannot seek to have the decree against the first defendant set aside in the appeal. In so far as the first defendant is concerned, there can be no doubt whatever that he is bound by the contract and he is bound to execute the sale deed with reference to his share in the property. He has, in fact, stated in the course of the deposition that he is willing to do so. In so far as the first defendant is concerned, there can be no doubt whatever that he is bound by the contract and he is bound to execute the sale deed with reference to his share in the property. He has, in fact, stated in the course of the deposition that he is willing to do so. In the circumstances of the case, we are of the view that there is no reason for exercising our discretion against the plaintiff and refusing to grant specific performance in his favour particularly when he has succeeded in the trial court. 13. Section 12(3) of the Specific Relief Act, 1963 reads as follows:— “Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left upper formed 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 parry, direct the party in default to perform specifically so much of his part of the con tract as he can perform, if the other Party— (i) In a case falling under Cl. (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 up unperformed and in a case falling under Cl. (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.” 14. In the present case, the parties have filed an affidavit as stated earlier relinquishing their claim for any compensation or damages or performance of the remaining part of the contract. Hence the plaintiff will be entitled to specific performance of that part of the contract which the first defendant is able to perform. In other words, the plaintiff will be entitled to get a sale deed for 1/7th share in the land and the entirety of the saw mill which belongs exclusively to the first defendant. 15. Hence the plaintiff will be entitled to specific performance of that part of the contract which the first defendant is able to perform. In other words, the plaintiff will be entitled to get a sale deed for 1/7th share in the land and the entirety of the saw mill which belongs exclusively to the first defendant. 15. The question of specific performance of a part of the contract has been considered by a Division Bench of this Court in Bolla Narayana Murthy v. Cannamaneedi Madhavavya and another (1947)2 M.L.J. 366 ). In that case, the contract was entered by the elder brother and specific performance was sought with reference to the entirety of the property on the footing that there was a joint family. The plea of the other parties was that there was a partition already and the elder brother was not entitled to represent the other brothers. That plea was upheld by the court. It was found that there was no joint family existing and the contract could not be enforced as against the persons who were not parties thereto. The plaintiff had paid a sum of Rs. 376/- by way of advance. The Court held that Section 15 of the old Act was not applicable as the plaintiff had not relinquished his right to claim performance of the other part of the contract or damages, etc., and granted only a decree for return of the sum of Rs. 376/- and a decree for Rs. 100/- towards damages. In appeal, the Division Bench held that the discretion of the court was properly exercised as the plaintiff had not relinquished his claim for the remaining part of the property, at the appropriate time. After referring to the provisions of S. 15 of the Act, the Bench upheld the refusal to grant specific performance. However, the decree for damages was altered and, the Bench calculated the damages at Rs. 4,000/- being the difference of the value of the property between the date of agreement and the date of the suit. Consequently, the Bench granted decree for Rs. 4,376/-. It is seen from the judgment that the main reason of the Bench was that there was no relinquishment of the claim by the plaintiff as required by Section 15 of the Act as it stood then. 16. Consequently, the Bench granted decree for Rs. 4,376/-. It is seen from the judgment that the main reason of the Bench was that there was no relinquishment of the claim by the plaintiff as required by Section 15 of the Act as it stood then. 16. One of the rulings relied on by the learned judges in the above case was that of the Calcutta High Court in Dinanath Sarma Kataki v. Gour Nath Sarma Kataki and others (A.I.R. 1925 Calcutta, 434). In that case, the plaintiff was given a decree in the trial Court for all that he prayed for in the plaint. On appeal, it was held that the con tract could not be enforced against certain members of the family. The question arose whether Section 15 of the Specific Relief Act should be applied. Though there was no such prayer in the plaint, the court treated the plaint as amended and granted time to the plaintiff to deposit the full consideration and gave a decree in his favour for specific performance for the part which could be enforced. The facts of this case are similar to those in that case. We are of the view that we should pass a preliminary decree in the present case, granting specific performance. 17. Our attention is drawn to the judgment of the Supreme Court in Kartar Singh v. Harjinder Singh and others (A.I.R. 1990 S.C. 854). The respondent in that case entered into an agreement with the appellant for himself and on behalf of his sister who was also owner of the properties. He undertook to get the sale deed registered with reference to his properties as well as those of his sisters properties. The sister refused to sell her property. In the suit for specific performance, a decree was granted in respect of one half share in the property which belonged to the brother. That decree was set aside by the High Court, relying on the provisions of Section 12 of the Specific Relief Act. On appeal, the Supreme Court held that the case was not covered by Section 12 of the Act. That decree was set aside by the High Court, relying on the provisions of Section 12 of the Specific Relief Act. On appeal, the Supreme Court held that the case was not covered by Section 12 of the Act. It was held that there were really two contracts though incorporated in the same paper, one by the brother agreeing to sell his share of the property and the other by the brother to sell his sisters share and agreeing to make her execute the sale deed. The court found that the part of the contract which related to sisters share was not binding on her as she was not a party thereto. Setting aside the judgment of the High Court, the decree of the trial court was restored by the Supreme Court, holding that there was no reason to deny specific performance of the contract to the plaintiff. The relevant passage in the judgment reads thus:— “When the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the joint owners owns a moiety of the property. In the present case, there is neither a pleading nor a contention that the respondent and his sister did not own the property in equal shares. Secondly, the agreement of sale clearly mentions that respondent was entering into the agreement both on behalf of himself and his sister, and that he was, under the agreement, selling the whole of his share and also the whole of the share of his sister in the property. Further in the agreement itself he had stated that he was responsible to get the sale-deed executed by his sister and that he would pursuade her to do so. This being the case, the properties agreed to be sold were clearly distinguishable by the shares of the respective vendors. In the circumstances when the absentee vendor, for some reason or the other, refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share.” 18. In the present case, we do not find any justification to deny specific performance of the contract as against the first defendant. The plaintiff shall deposit the balance of consideration of Rs. In the present case, we do not find any justification to deny specific performance of the contract as against the first defendant. The plaintiff shall deposit the balance of consideration of Rs. 50,000/-on or before the First day of March, 1993, in the trial court. On such deposit, the plaintiff will be entitled to get the sale deed executed by the first defendant and in default by the court. 19. It is brought to our notice that during the pendency of the appeal, the legal representatives of the plaintiff filed C.M.P. No. 1273 of 1990 for a direction to the respondents to pay damages for use and occupation of the saw mill and the land at Rs. 2,000/- per month from the date of decree, namely, 19.1.1985. A division Bench of this Court passed an order on 20.3.1990, directing the first defendant alone to pay a sum of Rs. 2,000/- by way of compensation for use and occupation of the saw mill and the land from 1.3.1990. it is stated that on a further application by the legal representatives of the plaintiff in C.M.P. No. 12268 of 1990, there was a direction by the single Judge to the appellants to deposit a sum of Rs. 2,00,000/- which represented the amounts paid by the plaintiff to the first defendant before suit. Challenging that direction, an appeal was filed by the first defendant under Clause 15 of the Letters Patent. The appeal was disposed of by order dated 14.12.1990. The Division Bench of this Court held that there was no necessity for a direction to deposit the sum of Rs. 2,00,000/- when there was already a direction to pay a sum of Rs. 2,000/- per month by the earlier order of the single Judge. Consequently, the direction to deposit Rs. 2,00,000/- was set aside. The net result is that the direction to pay Rs. 2,000/- per month to the plaintiff by the first defendant continued to be in force. It is stated that the first defendant has been paying such amounts to the plaintiff. Now, learned counsel for the first defendant contends that there should be a direction by this court for restitution of the said amount. It is not possible for us to give any such direction at this stage. It is stated that the first defendant has been paying such amounts to the plaintiff. Now, learned counsel for the first defendant contends that there should be a direction by this court for restitution of the said amount. It is not possible for us to give any such direction at this stage. If an application for restitution is made by the first defendant in the executing court, the question will arise whether he is entitled to such restitution. The executing court will then decide the same. It should be remembered that the plaintiff got a decree for specific performance in 1985 and that was stayed by this court during the pendency of the appeal. Thereby, the plaintiff was prevented from executing the decree and enjoying the benefits thereof. It was only as a matter of compensation for his loss, this court directed the first defendant to pay a sum of Rs. 2,000/- per month to the plaintiff as and byway of damages for use and occupation of the saw mill. 20. The appeal is allowed to the extent indicated above vacating the decree for specific performance as against the appellants. The decree of the court below is modified and there will be a decree for specific performance as against the first defendant, directing him to execute a sale deed for his undivided 1/7th share in the land and the entirety of the saw mill situated on the land. There will be no order as to costs.