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2000 DIGILAW 387 (KER)

Devaki Amma v. Varghese

2000-07-25

G.SIVARAJAN, S.SANKARASUBBAN

body2000
JUDGMENT S. Sankarasubban, J. 1. The above appeal is filed against the judgment and decree in O. S. No. 505 of 1981 on the file of the Sub Court, Thiruvananthapuram. Defendants 1 to 3 are the appellants and the plaintiff is the respondent. The suit was filed by the plaintiff for specific performance of an agreement to sell the plaint schedule property, which is 19 cents in extent with building thereon in Sy. No. 947 of Vanchiyoor Village. 2. In the suit, there were five defendants. Defendants 4 and 5 are not parties to this appeal. First defendant Devaki Amma Balambika Devi is the wife of fifth defendant and defendants 2 to 4 are the daughters of defendants 1 and 5, fourth defendant being minor. The averments in the plaint are as follows: 3. 15 cents out of the 19 cents of the plaint schedule property were obtained by defendants 1 to 3 as per partition deed No. 1598 of 1973. Fourth defendant was born subsequent to the partition and hence, she is entitled to share in the 15 cents. The balance four cents belong to the first defendant on the death of one Narayana Pillai and Devaki Amma. According to the plaintiff, defendants 1 to 3 and 5 agreed to sell the plaint schedule property to the plaintiff or his nominee and executed an agreement for the above purpose on 13.9.1980 in favour of the plaintiff. It was agreed that the plaintiff shall purchase and the defendants shall sell the plaint schedule property for a total consideration of Rs. 5,05,000/- and an amount of Rs. 10,000/- was received by the defendants as advance. Para.6 of the plaint gives the details of the agreement. 4. Plaintiff was always ready and willing to perform his part of the agreement ever since the date of the agreement. But there was a condition in the agreement that the defendants should get the permission from the civil court for sale of the minor's share in the plaint schedule property. Even though petition was filed, so far permission has not been obtained. The permission was not obtained within three months, which was the time fixed in the agreement for sale. Subsequently, extension was granted. Accordingly, before the expiry of the said period of two months, several requests were made to the defendants to perform their part of the contract. Even though petition was filed, so far permission has not been obtained. The permission was not obtained within three months, which was the time fixed in the agreement for sale. Subsequently, extension was granted. Accordingly, before the expiry of the said period of two months, several requests were made to the defendants to perform their part of the contract. Defendants have not obtained permission from the court within the extended period. According to the plaintiff, the defendants purposefully delayed in obtaining the permission in order to defeat the plaintiff. Plaintiff sent a letter to the fifth defendant requesting to execute the sale deed at least with regard to the share of defendant 1 to 3 on receiving the proportionate sale consideration and to execute the sale deed regarding the minor's share after getting permission from the court. The fifth defendant replied to it. Plaintiff had done substantial acts as per the agreement and subsequently, an amount of Rs. 5,00,000/- was deposited in the name of the plaintiff and his wife and children in fixed deposit No. 28517-57-81 in the Federal Bank Limited, Palayam Branch. Plaintiff has suffered loss by the sale deed not being executed in time and the loss was assessed as Rs. 1,00,000/-. finally, the plaintiff issued a registered notice through his advocate demanding the defendants to execute the sale deed. Defendants replied it by saying that the sale deed can be executed after obtaining permission from the court. 5. During the pendency of the suit, O. P. (Guardian and Ward) 160 of 1980 filed by the fifth defendant in the District Court seeking permission to sell the minor's share was dismissed. Hence, Para.15A was added to the plaint. Plaintiff prayed for a decree of specific performance after depositing Rs. 4,95,000/-. Plaintiff also prayed that in case the specific performance of the entire agreement cannot be ordered, he may be allowed to get the sale deed executed through court for part of the agreement and for other reliefs. 6. Written statements were filed by defendants 1, 2, 3 and 5. Defendants 1 and 2 filed written statements on 28.1.1983 and 30.8.1986. In the first written statement they raised the contention that the civil court has refused to grant permission to sell the minor's share. Hence, the performance has become impossible due to reasons beyond their control. 6. Written statements were filed by defendants 1, 2, 3 and 5. Defendants 1 and 2 filed written statements on 28.1.1983 and 30.8.1986. In the first written statement they raised the contention that the civil court has refused to grant permission to sell the minor's share. Hence, the performance has become impossible due to reasons beyond their control. The agreement was to sell the entire 19 cents as one compact plot. The property is not partitioned. None of the parties to the agreement intended to sell any of the shares only to the detriment of the other sharer. The parties never thought of any piecemeal conveyance. Many of the conditions mentioned in the agreement have not been complied with and it was finally stated that the plaintiff is not entitled to any relief. In the additional written statement, the defendants have highlighted the order passed in I.A. No. 1344 of 1981 in O. P. (G&W) No. 160 and also the pendency of the appeal, M.F.A. No. 582 of 1983 before this Court. 7. In the written statement filed by the third defendant, it is stated that the purpose of selling the property was for meeting the marriage expenses of the third defendant. But without selling the property, the parents of the third defendant were able to meet the same. Thus, the very purpose of selling the property has become futile. In the written statement filed by the fifth defendant, it is stated that the suit is not maintainable and that defendants 4 and 5 have not executed any agreement in favour of the plaintiff. Plaintiff has no cause of action against defendants 4 and 5. 8. On the basis of the above pleadings, the court below raised as many as eight issues. PWs. 1 and 2 were examined and Exts. A1 to A17 were marked on the side of the plaintiff. DW1 was examined and Ext. B1 was marked on the side of the defendants and Ext. X1 was produced by PW2. 9. Under issue No. 1, the court below held that defendants 4 and 5 are not parties to the agreement dated 13.9.1980. Under issue No. 8, the court below found that the agreement was not violative of the Town Planning Act. B1 was marked on the side of the defendants and Ext. X1 was produced by PW2. 9. Under issue No. 1, the court below held that defendants 4 and 5 are not parties to the agreement dated 13.9.1980. Under issue No. 8, the court below found that the agreement was not violative of the Town Planning Act. The court below then went on to consider issue No. 2 and additional issue No. 7, i.e., whether the specific performance of the part of the agreement is allowable? The argument advanced on behalf of the appellants was that the agreement has become impossible of performance, because permission could not be obtained from the civil court for the sale of the minor's share. The court below held that the defendants cannot be compelled to execute the sale deed as per the terms of the contract. But the court took the view that the contract has become impossible only with respect to the minor's share and that it could be performed with regard to the share of defendants 1 to 3. The court further found that the plaintiff was ready and willing to perform his part of the contract. It also found that the plaintiff has suffered a loss as a result of the agreement by the defendants. It found that the power of attorney was valid. Finally a decree was granted to the plaintiff as follows: "(1) The 3/4th share of the property of defendants 1 to 3 shall be partitioned from the 15 cents of property which belongs to defendants 1 to 4 as also the 4 cents absolutely belonging to the first defendant. (2) The plaintiff is allowed to apply for passing a final decree for effecting the partition of 3/4th share in the 15 cents of property. (3) The plaintiff is also allowed to apply for issue of a commission to effect partition of 3/4th share of defendants 1 to 3 in 15 cents of property and to ascertain the value of 1/4th share of the minor 4th defendant in the 15 cents of property and to ascertain the value of 1/4th share of the minor 4th defendant in the 15 cents of property. (4) The defendants 1 to 3 are directed to execute the sale deed for their shares in 15th cents plus 4 cents when they will be allotted their shares in the final decree on receiving the sale consideration minus the value of the share of the minor 4th defendant which was ascertained in the final decree proceedings within two months from the date of passing the final decree. (5) The plaintiff is directed to deposit the sale consideration as per the terms of the contract deducting the proportionate value of the minor's share within two months from the date of the final decree ........" It is against the above judgment and decree that this appeal is filed. 10. A cross objection has been filed by the plaintiff stating that the costs ought to have been allowed by the court below. Learned counsel for the appellant Shri. P. G. Parameswara Panicker argued that the agreement of sale was with respect to 19 cents of which 15 cents belong to defendants 1 to 4 and the fourth defendant was minor. The time fixed in the agreement was three months and the executants had applied to get permission from the civil court regarding the sale of the minor's portion. According to him, clause which required permission from the civil court regarding the minor's share was a condition for performance of the contract. According to him, the contract is a contingent one and the contract became impossible of performance. Since permission could not be obtained from the civil Court under the Hindu Minority and Guardianship Act, the contract could not be performed. Shri. Panicker argued that only a valid contract can be enforced for specific performance. Further, he contended that in this case, always the defendants wanted to sell the entire 19 cents of property and not any piecemeal area. Plaintiff had also agreed to purchase the 19 cents. Shri. Panicker contended that the court below was in error in invoking S.12 of the Specific Relief Act. According to him, S.12 of the Specific Relief Act will not apply in this case. 11. On the other hand, learned counsel for the respondent Shri S. V. S. Iyer submitted that the entire contract does not become void for impossible of performance, because of the fact that permission was not obtained for selling the minor's share. According to him, S.12 of the Specific Relief Act will not apply in this case. 11. On the other hand, learned counsel for the respondent Shri S. V. S. Iyer submitted that the entire contract does not become void for impossible of performance, because of the fact that permission was not obtained for selling the minor's share. According to him, S.12 of the Specific Relief Act deals with such contingencies. Under S.12 of the Specific Relief Act, the plaintiff is entitled to get specific performance of part of the contract and that was what has been done by the court below. Hence, according to him, the decree is correct and does not require any interference. Both sides cited a number of decisions. 12. The first issue to be considered is whether the contract has become impossible of performance because of the non obtainment of the permission from the civil court under S.8 of the Hindu Minority and Guardianship Act and whether the condition to obtain consent makes the contract a contingent contract. Ext. A1 is the agreement. Ext. A1 agreement was executed by defendants 1, 2 and 3. No doubt, on the back of the document, the father of the fourth defendant had made an endorsement stating that the fourth defendant is also a party to the document. The agreement is to sell 19 cents of property in favour of the plaintiff. The amount fixed in the agreement is Rs. 5,05,000/-. On the date of the agreement, an advance amount of Rs. 10,000/- has been paid. It further states that if it is found that there is encumbrance on the property, that will be considered by the owner of the property and informed to the plaintiff. So also, if there is any shortage in the area, this will be adjusted in the price. It is further stated that the permission has to be obtained for the sale of the minor's share. Of course, the agreement also refers to the sanction from the Development Authorities. There is no case that the fifth defendant did not approach the civil court for permission. O. P. (G & W) No. 160 of 1980 is a petition filed by the fifth defendant for permission to sell the minor's share in the plaint schedule property. The above petition was filed in 1980 itself. There is no case that the fifth defendant did not approach the civil court for permission. O. P. (G & W) No. 160 of 1980 is a petition filed by the fifth defendant for permission to sell the minor's share in the plaint schedule property. The above petition was filed in 1980 itself. Hence, it cannot be said that the fifth defendant did not apply for permission from the court to sell the minor's share. The petition was dismissed by the District Court. Appeal filed against that was dismissed by this Court. Thus, the defendants are not in a position to comply with the condition in the agreement, viz., to get the sanction from the civil court for the disposal of the minor's share. Now, the question posed for consideration is since the minor's share cannot be sold, can the court give a decree for selling the balance shares belonging to defendants 1 to 3. Learned counsel for the respondent invoked S.12 of the Specific Relief Act for that purpose and also cited many decisions of this Court where such decrees have been passed. 13. The jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the court will not make a contract for them. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation. Thus, unless the contract is valid, specific performance cannot be enforced. Learned counsel for the appellants submitted that the contract is a contingent contract. According to him, the contract entirely rests on obtaining permission from the civil court. He admitted that the court has got power to order sanction as per S.12 of the Specific Relief Act. Learned counsel submitted that so far as the present case is concerned, since the contract was to sell the entire 19 cents, no partial contract can be allowed. 14. Learned counsel highlighted the following facts: The agreement itself mentions that permission should be obtained from the civil court for the sale of the minor's share and the period of contract is three months. Subsequently, when it was found that permission was not obtained, the plaintiff extended the period by two months subject to the receipt of guardian wards certificate, which is evidenced by Ext. A7. Ext. Subsequently, when it was found that permission was not obtained, the plaintiff extended the period by two months subject to the receipt of guardian wards certificate, which is evidenced by Ext. A7. Ext. A8 is a letter issued by the plaintiff to the fifth defendant. In Ext. A8, it is stated thus: "In case any unavoidable delay happens in obtaining the guardian wards certificate from the court, please extend the period of the agreement in writing". Ext. A8 letter shows that the plaintiff wanted to purchase the entire 19 cents of property after obtaining certificate under the Guardian and Wards Act. Ext. A10 is another letter from the plaintiff to the fifth defendant. This is in reply to Ext. P9 letter sent by the fifth defendant to the plaintiff. In that letter, the plaintiff stated thus: "I am prepared to purchase the remaining property after deducting the minor's share measured and demarcated with proportionate road frontage and that the minor's share can be purchased by me after you obtain the certificate of permission from court. Even now I stick on to this suggestion and am prepared to purchase the remaining portion of the property minus the minor's share and am prepared to purchase the minor's share also after obtaining the permission from court". Ext. A10 letter also shows that the plaintiff wanted to purchase the entire property. Ext. A11 is the reply sent by the fifth defendant to the plaintiff. It shows that the defendants are not agreeing for the sale of the portion of the property. Ext. A12 is a notice sent by Advocate Shri. G. S. Raghunath on behalf of the plaintiff. It is dated 31.7.1981. Ext. A12 notice also states that "As there is already inordinate delay in obtaining the certificate of permission to sell the minor's share from the District Court of Trivandrum my client is even ready and willing to take the sale deed immediately regarding the shares of party Nos. 1 to 3 among you on payment of the proportionate sale consideration and that of the minor on payment of its value as and when you obtain the necessary permission from court. Further if you are prepared to give sufficient security in the form of immovable property for the minor's share my client is even ready and willing to take the entire 19 cents and building etc. Further if you are prepared to give sufficient security in the form of immovable property for the minor's share my client is even ready and willing to take the entire 19 cents and building etc. on payment of the full sale consideration agreed". 15. Ext. A13 is the reply to Ext. A12 notice by the second defendant. It shows that the application for permission from the District Court is pending. Ext. A15 is the order in O. P. (G & W) No. 160 of 1980. Ext. A15 order shows that the District Court refused to grant permission. It seems, against Ext. P15 order, an appeal was filed before this Court as M.F.A. No. 582 of 1983 which was also dismissed. The above correspondence between the plaintiff and the defendants will show that the plaintiff always wanted the entire property to be purchased and the defendants also wanted the entire property to be sold. It is in the above context we have to see that the question whether a specific performance of a portion of the contract can be given. 16. In Dalsukh M. Pancholi v. The Guarantee Life and Employment Insurance Co. Ltd. and others AIR 1947 PC 182 , the question that arose is whether a clause in the contract is subject to approval by the attaching court. That was a suit for specific performance. The agreement was executed by Ram Jas - third defendant for himself and as proprietor, Pahlad Das and Bhagwan Das in favour of the appellant. The property was to be sold for Rs. 6,50,000/-. The material portion of the agreement is as follows: "4. The balance consideration money, viz., rupees five lacs and fifty thousand will be paid before the Sub Registrar, Lahore, at the time of registration of the sale deed within thirty days of the approval of the offer by the Court, or as directed by the Court. 5. That possession of the property will be delivered to the purchaser immediately this sale deed is registered". 5. That possession of the property will be delivered to the purchaser immediately this sale deed is registered". Dealing with this question, the Privy Council observed as follows: "As regards the validity of the suit contract, it held that the term "subject to the approval of the Court" was an essential term of the contract, and that even if the contract was a concluded one it was contingent on the approval of the Court; and the approval having been refused it became void and unenforceable. It further held, agreeing with the trial Court, that respondent 1 bought the property with the knowledge of the suit contract." It was further held by the court that on the construction of the contract the provision for approval by the court was not exclusively for the benefit of the plaintiff and he could not by his waiver get rid of the necessity for the court's approval. "The facts of the case show that there was good reason for insisting on this condition for at that time it was well known to the parties that the property was under attachment by various Courts ....... That this was the assumption on which the parties negotiated the transaction is clear, not only from the terms of the letter and the acceptance but also from the evidence given by the parties, the condition being to the advantage of both the parties". 17. A case of similar nature came up for consideration before the Travancore - Cochin High Court in T. V. Kochuvareed and another v. P. Mariappa Gounder and others, AIR 1954 Travancore - Cochin 10. There, the agreement for sale was executed. At the time of execution of the agreement, one of the items, viz., tile factory was in the possession of the lessee. The vendor agreed to sell the property subject to the condition of the lessee agreeing to surrender possession within the time specified for sale. It seems that even though the vendor attempted, it was not possible. The question then arose as to whether the plaintiff can file a suit for specific performance for the entire contract or can a decree be given to him atleast for a portion of the contract. It seems that even though the vendor attempted, it was not possible. The question then arose as to whether the plaintiff can file a suit for specific performance for the entire contract or can a decree be given to him atleast for a portion of the contract. Dealing with this question, Sankaran, J. on behalf of the Full Bench at page 19, held as follows: "S.31, Indian Contract Act defines a contingent contract as a contract to do or not to do something on some event collateral to such contract does or does not happen. S.32 of the same Act lays down that contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened and that if the event becomes impossible such contracts become void." Their Lordships referred to the decision in Dalsukh M. Pancholi v. The Guarantee Life and Employment Insurance Co. Ltd. and others, AIR 1947 PC 182 . On the basis of the above two decisions, viz., AIR 1947 PC 182 and AIR 1954 Travancore - Cochin 10, we are of the view that the condition mentioned in Ext. A1 agreement in the present case to obtain permission from the civil court regarding the minor's share was a condition precedent for the execution of the contract and since permission was not obtained, the contract had failed. 19. Learned counsel for the respondent brought to our notice various decisions under S.12 of the Specific Relief Act, under which specific performance of a part of the contract was enforced even though the entire contract could not be enforced. They included cases where guardians agreeing to sell portion of their minor children also. In those cases, this Court has held that even though the contract to sell the minors portion was void, rest of the contract would be enforced. Basing on the above decisions, the learned counsel for the respondent argued that the decree for portion of the contract can be given. We are afraid, it will not be possible in this case, if we interpret the contract as an integrated one. The specific conditions in the contract is that the party should obtain consent from the civil court for the sale of the minor's share. According to us, this forms an essential term of the contract. We are afraid, it will not be possible in this case, if we interpret the contract as an integrated one. The specific conditions in the contract is that the party should obtain consent from the civil court for the sale of the minor's share. According to us, this forms an essential term of the contract. When the court refused to grant permission, the contract failed. For the application of S.12 of the Specific Relief Act, it is necessary that the entire contract should be subsisting, even though a portion of the contract would have failed. Here, according to us, the entire contract had failed and so, there is no question of enforcing a portion of the contract. 20. The judgment and decree of the court below are set aside. Defendants 1 to 3 are directed to pay a sum of Rs. 10,000/- with interest at 12% per annum from the date of suit till date of realisation to the plaintiff. No costs.