Judgment : 1. This appeal is focused by the second defendant as against the judgment and decree dated 29.4.2008 passed by the learned Principal District Judge, Thiruvallur, in O.S.No.69 of 2007. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Heard both sides. 3. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus. 4. The case of the plaintiff as stood exposited from the plaint could pithily and precisely be set out thus: The defendants, who happened to be the owners of the suit property described in the schedule to the plaint, entered into an agreement to sell with the plaintiff, whereby the defendants agreed to sell the suit property in favour of the plaintiff for a total consideration of Rs.6,30,000/- and a sum of Rs. 1 lakh was paid as advance. Time stipulated for performance of the agreement was six months so to say up to 13.2.2007. Before the expiry of the period contemplated in the agreement to sell, in three installments totally a sum of Rs.3,50,000/- was paid additionally by the plaintiff to the land owner’s relatives, so to say, the first two instalments were paid @ Rs.1,00,000/- each to one Prasad-D5 the husband of D3 and the third instalment of Rs.1,50,000/- was paid on 10.2.2007 by the plaintiff to D4 so to say, D3’s husband. As such according to the plaintiff totally a sum of Rs.4,50,000/- was paid in favour of the defendants under the agreement to sell and only the remaining sum of Rs.1,80,000/-was yet to be paid out of the total sale consideration. In fact the plaintiff also went to the extent of averring in para No.6 of the plaint that if for any reason out of Rs.4,50,000/- a sum of Rs.1,50,000/-is disputed, that amount also would be deposited in court by the plaintiff for getting the sale executed in his favour. 5. It is the precise case of the plaintiff that the defendants even after issuing their pre suit notice ExA5 dated 23.3.2007 refused to come forward to execute the sale deed which necessitated the plaintiff to file the suit. 6. 5. It is the precise case of the plaintiff that the defendants even after issuing their pre suit notice ExA5 dated 23.3.2007 refused to come forward to execute the sale deed which necessitated the plaintiff to file the suit. 6. Only D2 resisted the suit by filing written statement, the nitty gritty of it would run thus: D2 is the absolute owner of the suit property and other defendants are having nothing to do with it. In fact, the plaintiff got the signatures of D2 in blank papers under the pretext that he would secure more amount from one Peethambara Raju who purchased an extent of 25 cents for a song from D2, vide sale deed Ex.B2 dated 19.4.2004. D2 at no point of time agreed to sell the suit property in favour of the plaintiff. The plaintiff fraudulently cooked up Ex.A1, the agreement to sell and tried to grab the property of D2. No amount was received by D2 from the plaintiff. Accordingly D2 would pray for the dismissal of the suit. 7. Ultimately the trial court framed the relevant issues. During trial on the side of the plaintiff he examined himself as P.W.1 along with P.W.2/Subramanian and P.W.3/E. Venkatesalu and Exs.A1 to A7 were marked. On the side of the defendants, the second defendant examined himself as D.W.1 along with D.W.2 Subramania Naidu. 8. Ultimately, the trial court decreed the suit in entirety. Being aggrieved by and dissatisfied with the Judgment and decree of the trial court D2 filed this appeal on various grounds, inter alia thus: The judgment and decree of the trial Court against the principles governing granting of decree for specific performance. The alleged three instalments paid to D4 and D5 can never be taken as the ones paid to D2. In fact under ex.2 an amount was paid to D2. By virtue of the will executed by D2’s father, D2 became the absolute owner and in such a case, the contention of the plaintiff that all the defendants had ownership right over the suit property is a bare faced lie. But the trial court simply ignored the evidence of D.W.2 one of the attesting witnesses to the will and held as though the will was not a genuine one. 9. But the trial court simply ignored the evidence of D.W.2 one of the attesting witnesses to the will and held as though the will was not a genuine one. 9. Thepoints for consideration are as under: (1) Whether the second defendant was justified in contending in the written statement quite against the averments made in Ex.A5 the pre suit notice issued by D1 to D3 on 23.3.2007 to the plaintiff? (2) Whether the contention of the second defendant that she did not receive any amount much less a sum of Rs.4,50,000/- under Ex.A1 is tenable? (3) Whether the plaintiff is entitled to seek for specific performance relating to the entire suit property even though as revealed by Ex.B2 the Xerox copy of the sale deed dated 19.4.2004 an extent of 25 cents out of the suit property was sold by metes and bounds to one Peethambara Raju? (4) Whether there was any laches on the part of the plaintiff in performing his part of the contract? (5) Whether there is any perversity or illegality in the judgment and decree of the trial Court? 10. The learned counsel for the appellant/D2 in all fairness would submit that D2 along with D1 and D3 sent Ex.A5 the pre litigation notice dated 23.03.2007 to the plaintiff admitting virtually the contents of Ex.A1 and also the receipt of a sum of Rs.3 lakhs. However, he would hasten to add that his client knew only Telugu language and nothing more than that. 11. The learned counsel for the respondents would specifically point out that Ex.A5 has not been challenged by D2 herself. It is an important document in this case. a mere poring over and perusal of Ex.A5 would unambiguously unequivocally indicate and exemplify that D2 along with D1 and D3 instructed their Advocate whence, the said notice was issued admitting Ex.A1 the agreement to sell and also the receipt of Rs.3 lakhs, which includes the sum of Rs.1 lakh received under Ex.A1 and also a sum of Rs.1 lakh each on two different occasions, so to say on 16.09.2006 (The date 19.06.2006 is presumably an error in Ex.A1 and it must be 16.09.2006) and 12.12.2006. In Ex.A5, D2 also candidly and categorically admitted that in the extent of 25 cents of land sold out of the total extent of the suit property, to Peethambara Raju one terraced house also is situated. In Ex.A5, D2 also candidly and categorically admitted that in the extent of 25 cents of land sold out of the total extent of the suit property, to Peethambara Raju one terraced house also is situated. In such a case, it is crystal clear that D2’s plea in the written statement, as though the plaintiff got her signature in certain blank sheets and concocted Ex.A1 turns out to be an utter falsehood and it is nothing but a load of baloney. As such the trial court’s finding that Ex.A1 is a genuine document warrants no interference. 12. One important point was failed to be noticed by the trial court. Indubitably and indisputably Ex.B2 which was marked without any objection from the plaintiff’s side, would exemplify and demonstrate that the following property was sold by D2 in favour or Peethambara Raju; (LANGUAGE) 13. Adhering to the precedent in (2010) 8 SCC 423 (Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries and others)) an except from which would run thus: 10….An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend the document being endorsed admitted or not admitted in evidence. In support of the submission he relied upon a decision of this court in R.V.E. Venkatachala Gounder vs. Arulmigu Visweswaraswami & V.P. Temple where it was observed as follows: (SCC p.764, para 20) “20. The objections as to admissibility of documents in evidence may be classified into two classes: (1) anobjection that the document which is sought to be provided is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the first case, merely because a document has been marked as an exhibit an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit the objection that it should not have been admitted in evidence or that the more adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection if taken at the appropriate point of time would have enabled the party tendering the evidence to cure the defect and resort to such mode of the proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand a prompt objection does not prejudice the party tendering the evidence for two reasons. Firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode of method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties out of the two types of objections referred to hereinabove in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection is a superior court”. (emphasis in original) 15.) On a careful consideration of the whole matter we feel that serious mistakes were committed in the case at all stages. In the first case, acquiescence would be no bar to raising the objection is a superior court”. (emphasis in original) 15.) On a careful consideration of the whole matter we feel that serious mistakes were committed in the case at all stages. The trial court should not have marked as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means to proposed rather than leaving the issue of admissibility of those copies open and hanging by marking them as exhibits subject to objection of proof and admissibility. The appellant therefore, had a legitimate grievance in appeal about the way the trail proceeded.” This court could rely on Ex.B2 as without any demur or objection Ex.B2 was marked. Had it been challenged the defendants would have produced better evidence. 14. Both sides in unison in the course of trial, would admit that there is a House situated in the 25 cents of land, so to say, within the four boundaries specified in Ex.B2, there exists a terraced house which constituted only a small portion in the bigger extent of the suit property. As such the said 25 cents of land with the building thereon cannot be the subject matter of specific performance and that should necessarily be excluded. But the trial court, on some assumptions and presumptions simply based on D2’s unfounded allegations, held as though Ex.B2 should be ignored. Taking into consideration, Section 12 as well as Section 28(3)(b) of the Specific Relief Act, even after excluding the said 25 cents of land, specific performance could be ordered. The relevant provisions of law are extracted for ready reference 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. The relevant provisions of law are extracted for ready reference 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 proposition 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 and 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 failing 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 failing 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 be the performance of the remaining part of the contract and all right to compensation either for the deficiency or for the loss of 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. 28. Rescission in certain circumstances of contracts for the sale of lease of immovable property the specific performance of which has been decreed. 28. Rescission in certain circumstances of contracts for the sale of lease of immovable property the specific performance of which has been decreed. (1) … (2) … (3) If the purchaser of lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1) the court may on application made in the same suit award the purchaser or lessee such further relief as he may be entitled to including in appropriate cases all or any of the following reliefs, namely:- (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease.” 15. At this juncture, I would like to recollect the following maxim. Id certum est quod certum redid potest:. That which can be made certain is certain. 16. Here in Ex.B2, by metes and bounds the said 25 cents of land is found specified and it is capable of being identified end excluded from specific performance. 17. The learned counsel for D2 would venture to put forth a plea that there were latches on the part of the plaintiff in getting the sale deed executed under Ex.A1 for which the learned counsel for the plaintiff would convincingly and correctly reply that the period contemplated under Ex.A1 got expired by 13.02.2007 and the suit itself was filed on 26.3.2007 so to say within a period of a month and half after the expiry of the period stipulated in the agreement for performance. In such a case, even by phantasmagorical thoughts it cannot be visualized that there were latches on the part of the plaintiff in getting the sale deed executed in his favour. Hence, in this factual matrix, it is clear that the finding of the trial court warrants no interference except to the extent that the trial court simply ordered specific performance without excluding the property covered under Ex.B2 which should have been excluded from specific performance as already held supra; on that aspect alone the trial court cannot see the wood for trees and mislead itself. The plaintiff getting affected monetarily in view of he unable to get the said 25 cents of land, does not in any way deter him, to seek for specific performance of the remaining extent in the suit property even by foregoing the proportionate sale consideration concerning the said small extent of land. 18. Wherefore consideration is concerned, the learned counsel for the plaintiff would submit that the plaintiff is not in any way least interested in getting any deduction proportionately for the said 25 cents of land which cannot be the subject matter of specific performance and he even deposited the entire sale consideration which the defendants are entitled to withdraw from the court. Hence in these circumstances the aforesaid points are answered as under. 19. The learned counsel for D2 would contend that the trial court unnecessarily gave a finding that the will executed by D2’s father in her favour was fraudulently created by D2 so as to cheat the plaintiff. In Ex.A5 D2 herself candidly and categorically admitted that D1 to D3 are the owners of the suit property and in such a case, in my considered opinion, no such finding was necessary relating to the Will for the disposal of this case. 20. Point No.1 is answered to the effect that second defendant was not justified in contenting in the written statement quite against the averments made in Ex.A5 the pre suit notice given by D1 to D3 on 23.03.2007 to the plaintiff. 21. Point No.2 is answered to the effect that the contention of the second defendant that she did not receive any amount much less a sum of Rs.4,50,000/- under Ex.A1 is not tenable. 22. Point No.3 is answered to the effect that the plaintiff is entitled to seek for specific performance in the entire suit property except for the 25 cents of land contemplated in Ex.B2. 23. Point No.4 is answered to the effect there were no laches on the part of the plaintiff in performing his part of the contract. 24. Point No.5 is answered to the effect that there is no perversity or illegality in the judgment of the trial court except inclusion of the property described in Ex.B2 for specific performance. 25. 23. Point No.4 is answered to the effect there were no laches on the part of the plaintiff in performing his part of the contract. 24. Point No.5 is answered to the effect that there is no perversity or illegality in the judgment of the trial court except inclusion of the property described in Ex.B2 for specific performance. 25. In the result, the appeal is party allowed as under: The judgment and decree of the trial Court is confirmed subject to modification that out of the suit property described in the schedule of the plaint, the property described in Ex.B2 should be excluded from specific performance. The sale deed should emerge accordingly as per this judgment, whereupon the interested party is at liberty to file necessary application citing necessary parties under section 28(3) of the specific relief act to get carved out the area covered by the specific performance and take delivery of the same. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.