Pachan Sivadasan v. Indira — 1994 DIGILAW 73 (KER)

Judgment :- The unsuccessful plaintiff in a suit for specific performance of an agreement for sale of immovable property is the appellant. He entered into an agreement with the first defendant - first respondent on 2-7-1981 by which she agreed to sell 65 cents of land for a total consideration of Rs. 20.000/- of which an amount of Rs. 10,000/- was paid as advance. The balance was agreed to be paid and the transaction completed on or before the 28-2-82. Though plaintiff informed the first defendant about his readiness and willingness, first defendant was not prepared to perform her part of the contract. On enquiry plaintiff came to understand that out of the property agreed to be sold 15 cents on the southern side had already been sold to another person and the remaining area of 50 cents alone was available. There was also encumbrance charged over the property. Phi in tiff therefore wanted a sale deed to be executed in respect of 50 cents of land on a proportionate consideration of Rs. 15,385/-. He expressed willingness to deposit the balance amount of Rs. 5385/-. In the alternative he sought a decree for return of the amount advanced with interest at 15% per annum. Second defendant is the Land Mortgage Bank, Nedumangad to whom the property is alleged to have been mortgaged by first defendant. 2. The suit was resisted by the first defendant who admitted execution of a document on 2-7-1981 but contended that she was misled by one Kuttan Balakrishnan who was living with her as husband though he is not her legally wedded husband. She was taken to the Sub Registry Office on representation that he was executing a security bond. She came to know of the real nature of the document only on receipt of the notice issued by plaintiff. She denied having received any consideration. She admitted that an area of 15 cents had been sold even prior to the date of this document. According to her the consideration shown is inadequate and the property would have fetched atleast Rs. 1,00,000/-. 3. Plaintiff was examined as PW-1 and one of the attestors to Exhibit A1 agreement was also examined on his side. First defendant got herself examined as DW-1. Kuttan Balakrishnan was examined as DW-2. DW-3 is the Commissioner who valued the properly. According to her the consideration shown is inadequate and the property would have fetched atleast Rs. 1,00,000/-. 3. Plaintiff was examined as PW-1 and one of the attestors to Exhibit A1 agreement was also examined on his side. First defendant got herself examined as DW-1. Kuttan Balakrishnan was examined as DW-2. DW-3 is the Commissioner who valued the properly. On a consideration of the documents and evidence the court below accepted lie contention of the first defendant and dismissed the suit holding that plaintiff was misled by Kuttan Balakrishnan to execute a document of this nature and that she had not received any consideration thereunder. Hence the appeal by the plaintiff. 4. When the appeal came up for hearing a contention was raised on behalf of the defendants that the suit it self is not maintainable since the claim is for part performance of a contract and the provisions contained in S.12 of the Sped fie Relief Act had not been complied with. A petition was thereafter filed by supplemental appellants 2 to 4, the legal representatives of deceased first appellant seeking deletion of paragraph 5 of the plaint and substitution of that paragraph by incorporating the averments contained in that petition. By that averment plaintiff had expressed willingness to pay the entire balance consideration of Rs. 10,000/- and had also relinquished all his claims in respect of the part which cannot be specifically enforced. Notice was given to the counsel appearing for the first respondent. 5. Heard counsel on both sides. 6. The first question that arises for consideration is whether the 'request for amendment can be allowed. It is strenuously contended by learned counsel for the first respondent that the request has come 12 years after suit and that too at the appellate stage. The suit as it now stands is for specific performance of a part of a contract. Plaintiff has bargained for sale of a property having an area of 65 cents for a total consideration of Rs. 20,000/- of which Rs. 10,000/- was paid as advance. In the plaint relief is sought only in respect of 50 cents alleging that the remaining area of 15 cents was not available, the same having been sold by the first defendant even before the date of Ext. A1 agreement. Plaintiff has expressed willingness to pay only the proportionate balance consideration and not the balance amount of Rs. In the plaint relief is sought only in respect of 50 cents alleging that the remaining area of 15 cents was not available, the same having been sold by the first defendant even before the date of Ext. A1 agreement. Plaintiff has expressed willingness to pay only the proportionate balance consideration and not the balance amount of Rs. 10,000/- as agreed to by the parties. The plaint does not contain an averment relinquishing all claims in respect of the part which the first defendant is unable to perform. 7. S.12(3) of the Specific Relief Act directs that 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 direct the party in default to perform specifically so much of his part of the contract as he can perform at the suit of the other party. In order to maintain such a suit the conditions embodied in sub-section (3) of S.12 are to be fulfilled. In a case failing under clause (a) above the other party should have paid or shall pay the agreed consideration for the whole of the contract reduced by consideration for the part which must be left unperformed and in a case falling under clause (b) the consideration for the whole of the contract should be paid without any abatement. In either case the party should relinquish all claims to the performance of the remaining part of the contract and all rights to compensation. Admittedly plaintiff has not relinquished his claim for compensation in respect of the unperformed part nor had he expressed willingness to deposit the entire consideration without any abatement. This defect was sought to be corrected by filing CM.P. 548/94. The question arises whether the request can be entertained at the appellate stage. 8. The question whether relinquishment of the claim to further performance of the part which the other party is unable to perform had come up for consideration before the Supreme Court' mKnlyanpiirLime Works.v. State of Bihar (MR. 1954 SC 165). In that case the suit was for specific performance of a contract for lease. 8. The question whether relinquishment of the claim to further performance of the part which the other party is unable to perform had come up for consideration before the Supreme Court' mKnlyanpiirLime Works.v. State of Bihar (MR. 1954 SC 165). In that case the suit was for specific performance of a contract for lease. It was found that an earlier lease in favour of another company was in force and could not be. forfeited. Government was therefore not in a position to grant lease of the properly to the lime company. At the appellate stage the lime company made an application claiming benefit of the provisions of old S.15 of the Specific Relief Act and prayed grant of the lease for a period of 5 years which remained after the expiry of the period of lease of the other company. The Supreme Court held: "Relinquishment of the claim to further performance can be made at any stage of the litigation" 9. The Supreme Court referred with approval the decision of the Lahore High Court in Waryam Singh v. Gopi Chanel (AIR 1930 Lahore 34). In that case plaintiff wanted specific performance of the whole contract and requested that defendants be asked to make good the deficiency from the other land belonging to them. At the time of arguments plaintiff moved an application claiming benefit of old S.15 of Specific Relief Act in case it was held that defendants were incompetent to sell the whole of the land. The Lahore High Court Held: "It is open to the plaintiff to relinquish his claim to any part of the property in suit on the conditions specified in S.15 at any time before the suit is finally decided by the court of appeal". 10. A Division Bench of the Allahabad High Court had considered the question in Rain Nivas v. Onikari (AIR 1983 Allahabad 310) after referring to the decision of the Supreme Court in AIR 1954 SC 165 and the Lahore High Court in AIR 1930 Lahore 34. The Allahabad High Court held that relinquishment could be made at any stage of the litigation including the appellate stage. It is observed that the claim of the plaintiff-appellant for grant of benefit under S.12(3) cannot be rejected on the simple ground that it was not made at the trial stage and has been made for the first time at the appellate stage. It is observed that the claim of the plaintiff-appellant for grant of benefit under S.12(3) cannot be rejected on the simple ground that it was not made at the trial stage and has been made for the first time at the appellate stage. It was further held that the claim can also not be rejected on the short ground that it was not incorporated in the plaint or was not set forth in writing before the trial court. The question whether the delay in making the claim would or would not disentitle a plaintiff from grant of such relief is an entirely separate and different question the decision of which would depend on a consideration of the facts and circumstances of each case. It is observed that the delay should not by itself be taken as sufficient to disentitle the plaintiff from obtaining relief. 11. Following the decision of the Supreme Court in Kalyunpur Lime Works's case and agreeing with the view expressed by the Lahore High Court in Wfiiycim Singh's cusv aril the Allahabad High Court in Rain Niwas's case 1 hold that relinquishment of the claim to further performance of the remaining part can be made at any stage of the litigation and it is open to the plaintiff to relinquish his claim to that part of the properly before the suit is finally decided by the appellate court. 12. Learned counsel for first respondent draws attention to a Bench decision of this court in Balakrishnan v. Kunhikrishnan (1981 KLT 463) where a similar question arose for consideration. In that case there was no pleading which would justify any relief with regard to enforcement of the agreement for sale of a portion only of the plaint schedule property. The request for amendment 'of the plaint was declined by the Bench observing that the circumstances do not warrant any such relief. Placing considerable reliance on this observation it is contended that the request for amendment of the plaint relinquishing all claims relating to the part which cannot be performed and expressing readiness and willingness to deposit the entire balance consideration cannot be entertained at the stage of appeal. There is nothing in the decision in Balakrisluian's case to suggest that a plea for amendment cannot be entertained at the appellate stage. This court has refused to entertain that plea on the circumstances of that case. There is nothing in the decision in Balakrisluian's case to suggest that a plea for amendment cannot be entertained at the appellate stage. This court has refused to entertain that plea on the circumstances of that case. The decision of the Supreme court in Kalyanpur Lime Work's case is not seen to have been brought to the attention of the Bench nor did not court advert to the decision of the Lahore High Court and the Bench decision of the Allahabad High Court in Ram Niwas's case. The decision in Bulakrislman 's case is therefore of no assistance to first respondent. The result is that the request for amendment can be entertained in appeal. . 13. That leads us to the further question whether the request for amendment is unnecessarily delayed. Delay by itself is no reason to reject the request unless it has caused prejudice to the defendant. No such prejudice is caused in the present case since first defendant was aware of the assignment of a portion of the properly which would disable her to perform her part of the contract in respect of the entire properly. It would appear that first defendant has suppressed the fact of assignment from the plaintiff who came to know of it only at the lime of suit. It was for this reason that he claimed relief in respect of the remaining portion retained by the first defendant. In the circumstances there is sufficient reason for the plaintiff to confine his relief to the portion of the property left with the first defendant and to offer proportionate balance consideration in respect of that portion. The delay is therefore of no consequence and will not disentitle appellant from relinquishing his claim in respect of the part of the properly which cannot be performed by the first defendant. Learned counsel has also drawn attention to the decision of the Supreme Court in GajananJ. Joshi v. Prabhakar M. Kalwar (1990) I SCC 166) where the Supreme Court allowed an amendment of plaint in a suit for specific performance by incorporating the requisite averment contained in sub-section (c) of S.16 of the Specific Relief Act. C.M.P. 548/94 is allowed and appellant is permitted to make the necessary amendment to the plaint. The suit for performance of a part of the contract is there fore now maintainable. 14. C.M.P. 548/94 is allowed and appellant is permitted to make the necessary amendment to the plaint. The suit for performance of a part of the contract is there fore now maintainable. 14. The further question that falls for consideration is whether appellant is entailed to gel the agreement enforced. The execution of the document is admitted by the first defendant. But according to her she was misled by one Kultan Balakrishnan who was living with her as husband, though there had not been a marriage between them. Her contention was that she was made to understand that a security bond was executed. She also pretends to he illiterate and unfamiliar with transactions of this nature. But it is pointed out by learned counsel for the appellant that she had purchased the property by a registered document, and had purported to assign a portion even before the date of Exhibit Al. She was thus aware of the procedure in the Sub Registry Office and the transactions in respect of immovable properties. Though Kutlan Balakrishnan is alleged to have been driven out of the house by the first defendant knowing about the real nature of the agreement it is admitted by first defendant as DW-1 that he had thereafter begun to reside with her. The relationship, though strained for a short period, still continues. From the evidence of Kultan Balakrishnan who was examined as DW-2 it would appear that he owed money to the plaintiff. It is also in evidence that he was indebted to other persons also. He is having wife and two children. There is therefore reason to believe that he would have misled the first defendant making use of his relationship with her to get a document of this nature. Such an inference has to be drawn especially for the reason that first defendant has no other property and her dwelling house is situated in this property. First defendant would be thrown out of the house in case the agreement is directed to be enforced. She has also a further case that the advance mentioned in Ext. A1 was not received by her. In this connection the witness examined on the side of plaintiff would say that the advance amount was paid to the first defendant before the Sub Registrar. But no such endorsement is seen made in the document. She has also a further case that the advance mentioned in Ext. A1 was not received by her. In this connection the witness examined on the side of plaintiff would say that the advance amount was paid to the first defendant before the Sub Registrar. But no such endorsement is seen made in the document. The testimony of PW-2 in this regard does not appear to be true. That also is an indication regarding the non receipt of consideration by the first defendant. A dairy maintained by DW-2 was produced to show that he owed money to the plaint! ff. It is spoken to by him that he owed money to plaintiff who wanted some security and hence the reason why he persuaded first defendant to execute this document. On a consideration of the facts and circumstances, the version of DW-1 that she was made to believe that a security bond was executed appears to be true. The learned subordinate judge has stated that first defendant appeared to be an innocent witness. It is also stated that she was weeping throughout from the witness box. That by itself is no reason to believe her testimony.' In order to deprive the plaintiff of his legitimate right under Ext. A1 she might have resorted to this behaviour. But in the normal course one would not expect her to part with the only properly she had including herd walling house. It has also to be noted that she has nobody to fall back upon except DW-2 who is having wife and two children. In the circumstances the case set up by the first defendant appears to be true. Moreover the performance of the contract would involve hardship on the first defendant which he did not foresee. On the other hand, the nonperformance would involve no such hardship on the plaintiff. The discretionary relief of specific performance has therefore to be denied to the plaintiff. The court below has not committed any error in denying that relief to plaintiff. No interference is therefore called for in that regard. 15. While denying the relief of specific performance the court below should have decreed the suit for the amount advanced by the plaintiff. Admittedly DW-2 owed money to plaintiff and it was at his instance that Ext. A1 was executed. That first defendant is illiterate is not reason to deny plaintiff the amount advanced by him. 15. While denying the relief of specific performance the court below should have decreed the suit for the amount advanced by the plaintiff. Admittedly DW-2 owed money to plaintiff and it was at his instance that Ext. A1 was executed. That first defendant is illiterate is not reason to deny plaintiff the amount advanced by him. The first defendant is always answerable for the receipt of the amount of Rs. 10,000/-mentioned in Ext. Al. The amount might have been utilised by DW-2. But that is no reason to disclaim the liability under Ext. A1. First defendant is there fore liable to return the amount of Rs. 10,000/- advanced by plaintiff under Ext. A1. A Decree for this amount should have been given in favour of plaintiff. To that extend the judgment of the court below is erroneous. For the reasons stated above the appeal is allowed in part and first defendant is directed to pay the plaintiff an amount of Rs. 10,000/- with interest at 6% per annum from the dale of Ext. A1 till the date of realisation. First defendant shall also pay the costs incurred by plaintiff in this court and in the court below. The judgment and decree of the court below refusing the relief of specific performance are sustained.