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2014 DIGILAW 1670 (HP)

Hari Krishan Karol v. Surinder Kumar

2014-11-18

RAJIV SHARMA

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge (I), Kangra at Dharamshala, H.P., dated 3.7.2003 passed in Civil Appeal No. 65-K/2001. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff, for the convenience sake), filed a suit for specific performance against the appellant-defendant (hereinafter referred to as the defendant). According to the plaintiff, the defendant entered into agreement to sell the whole land comprised in khata No. 104, khatauni No. 165, 166, khasra Nos. 371, 372, 373, 373/1, 373/2, 374, kita-6, area measuring 202 sq. meters, as entered in the jamabandi for the year 1990-91, situated in Mohal Bohan, Mauza Bohan, Tehsil Dehra, District Kangra, H.P. for consideration of Rs. 30,000/-. The defendant had received a sum of Rs. 15,000/- as earnest money. The defendant has agreed to execute the sale deed on or before 10.7.1993. The defendant had undertaken to get the consent of his brother also to sell his share. It was also agreed that in case his brother refused to execute the sale deed in respect of his share, then the defendant would sell his share in the suit land to the plaintiff for Rs. 15,000/- which had already been received by him. The plaintiff was always willing to perform his part of agreement and asked the defendant to transfer his share in the land by a sale deed, but he put off on one pretext or the other. The plaintiff has served two legal notices dated 12.7.1993 and 29.3.1994, asking him to execute the sale deed, however, the defendant has not even cared to reply those notices. 3. The suit was contested by the defendant. The defendant has admitted that the agreement was entered between the plaintiff and the defendant. He also admitted that he had received Rs. 15,000/-. He admitted that the sale deed was to be executed on or before 10.7.1993. According to him, he has posted two letters to the plaintiff on 14.6.1993 and 16.8.1993 in which he had asked the plaintiff to get the sale deed executed. He denied that the possession of the suit land was ever handed over to the plaintiff rather the land remained in the joint possession of defendant and his brother. According to him, he has posted two letters to the plaintiff on 14.6.1993 and 16.8.1993 in which he had asked the plaintiff to get the sale deed executed. He denied that the possession of the suit land was ever handed over to the plaintiff rather the land remained in the joint possession of defendant and his brother. The issues were framed by the learned Sub Judge Ist Class, Court No. 2, Dehra on 10.3.2000. The learned Sub Judge, decreed the suit of specific performance in favour of the plaintiff vide judgment dated 23.2.2001. The defendant feeling aggrieved by the judgment and decree dated 23.2.2001, preferred appeal before the learned Addl. District Judge(I), Kangra. The learned Addl. District Judge(I), Kangra dismissed the same on 3.7.2003. Hence, this regular second appeal. 4. This regular second appeal was admitted by this Court on 13.7.2004 on the following substantial questions of law: “1. Whether the Courts below have mis-interpreted mis-read and mis-construed Agreement for sale exhibit PW-1/A? 2. Whether in view of the specific Agreement between the Seller and Purchaser in Exhibit PW-1/A, that if seller and his brother Shri Krishan Gopal, evade or refuse to execute sale-deed, therefore, respondent shall be entitled to get double of the amount as received by him, therefore, decree for specific performance could not have been passed?” 5. Mr. G.D.Verma, Sr. Advocate, appearing on behalf of the appellant has vehemently argued that the Courts’ below have mis-read and misconstrued the agreement for sale Ext. PW-1/A dated 10.7.1993. He also argued that the decree of performance could not have been passed. On the other hand, Mr. Bhupinder Gupta, Sr. Advocate, has supported the judgments and decrees passed by both the Courts’ below. 6. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 7. Since the substantial questions of law are inter-related, hence in order to avoid repetition of evidence, these were taken up together for discussion. 8. It is admitted by both the parties that the agreement was entered into on 8.2.1993. The sale deed was to be executed on or before 10.7.1993. The defendant has admitted that he has received a sum of Rs. 15,000/- from the plaintiff. 9. The plaintiff has appeared as PW-1. According to him, the defendant has agreed to sell the suit land to him. The sale deed was to be executed on or before 10.7.1993. The defendant has admitted that he has received a sum of Rs. 15,000/- from the plaintiff. 9. The plaintiff has appeared as PW-1. According to him, the defendant has agreed to sell the suit land to him. The suit was filed for half share of the defendant in the suit land. The defendant was required to get consent of his brother on or before 10.7.1993 to execute sale deed in his favour. The defendant has not performed his part of the agreement. The plaintiff has served two legal notices upon the defendant. The plaintiff has denied that he has received any letters from the defendant. 10. PW-2 Advocate R.G.Dhiman deposed that he has issued legal notice Ext. PW-2/A on 12.7.1997 on the instructions of the plaintiff. The notice came back undelivered. He handed over the acknowledgement Ext. PW-2/B and envelope Ext. PW-2/C to the plaintiff. 11. PW-3 Gian Chand deposed that he had scribed the document Ext. PW-1/A in favour of Surinder Kumar on the instructions of the defendant. The contents of the same were read over and explained to the parties. 12. DW-1 Hari Krishan has deposed that he alongwith his brother was owner of the suit land. He has apprised the plaintiff of this fact. He has also admitted that he received a sum of Rs. 15,000/- from the plaintiff. He has apprised the plaintiff that he could buy his share. He was not interested to give the land to the plaintiff. When the agreement was signed, he was in dire need of money. Towards the end of his examination-in-chief, he deposed that he was neither interested in giving the land nor to refund the money. In his crossexamination, he admitted that as per Ext. PW-1/A, he was owner of the ½ share of land with his brother. He also admitted that he has signed Ext. PW-1/A after understanding the contents of the same. He also deposed in his crossexamination that he was ready and willing for the execution of the sale deed qua his share. He also admitted that he has never issued any legal notice to the plaintiff. 13. He also admitted that he has signed Ext. PW-1/A after understanding the contents of the same. He also deposed in his crossexamination that he was ready and willing for the execution of the sale deed qua his share. He also admitted that he has never issued any legal notice to the plaintiff. 13. Though, the defendant has taken a specific stand that he has written two letters dated 14.6.1993 and 16.8.1993 for the execution of the sale deed, however, the fact of the matter is that these letters were never placed on record. The plaintiff has served the defendant with legal notice Ext. PW-2/A on 12.7.1993. The same came back undelivered. Mr. G.D.Verma, Sr. Advocate, has also argued that the subject matter of the agreement is composite and is not severable or divisible. Thus, the agreement cannot be enforced. However, the fact of the matter is that the defendant has not pleaded this fact in his written statement. He has drawn the attention of the Court to Section 12 of the Specific Reliefs Act, 1963. In the instant case, the share of the defendant was identifiable and severable. The plaintiff could seek decree for specific performance as per the agreement Ext. PW-1/A to the extent of the share of the defendant. The plaintiff was always ready and willing to perform his part as per the agreement. He has served legal notices upon the defendant. The agreement was to be executed on or before 10.7.1993. The execution of the agreement has been admitted by the defendant. He has also admitted that a sum of Rs. 15,000/- was received by him from the plaintiff as earnest money. It is also evident from the plaint that the plaintiff has only asked for specific performance of the agreement dated 8.2.1993 directing the defendant to execute the sale deed in respect of land measuring 101 sq. meters being half share of land comprised in khata No. 104, khatauni No. 165, 166, khasra Nos. 371, 372, 373, 373/1, 373/2, 374, kita-6, area measuring 202 sq. meters, as entered in the jamabandi for the year 1990-91. 14. In the case of Kartar Singh vrs. meters being half share of land comprised in khata No. 104, khatauni No. 165, 166, khasra Nos. 371, 372, 373, 373/1, 373/2, 374, kita-6, area measuring 202 sq. meters, as entered in the jamabandi for the year 1990-91. 14. In the case of Kartar Singh vrs. Harjinder Singh & ors., reported in AIR 1990 SC 854 , their lordships of the Hon’ble Supreme Court have held that when the vendor entered into a written agreement with the appellant for himself and on behalf of his sister for sale of all properties and the sister refused to sell property coming to her share, in a suit of specific performance of agreement, a decree was granted in respect of half share of suit property. It was held as follows: “4. We are afraid that the very foundation of the. reasoning of the Division Bench of the High Court is defective. It was never disputed that the respondent and his sister had each half share in the suit properties. Hence a mere failure to mention in the agreement that they had such share in the property would not entitle one to come to the conclusion that they did not have that share. 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. 5. 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. 5. We are, therefore, of the view that this is not a case which is covered by S. 12 of the Act. It is clear from S. 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sale whole of his property. The two contracts, viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property.” 15. Their lordships of the Hon’ble Supreme Court in the case of Sardar Singh versus Smt. Krishna Devi and another, reported in AIR 1995 SC 491 , have held that when the property was capable of division, justice demanded partial enforcement of contract instead of refusing specific performance in its entirety. Their lordships have held as under: “15. In view of the finding that the appellant had half share in the property contracted to be sold by Kartar Lal, his brother, the agreement of sale does not bind the appellant. The decree for specific performance as against Kartar Lal became final. Admittedly the respondent and her husband are neighbours. The appellant and his brother being co-parceners or co-owners and the appellant after getting the tenant ejected both the brothers started living in the house. As a prudent purchaser Joginder Nath ought to have made enquiries whether Kartar Lal had exclusive title to the property. Evidence of mutation of names in the Municipal Register establishes that the property was mutated in the joint names of the appellant and Kartar Lal and was in joint possession and enjoyment. The Courts below, therefore, have, committed manifest error of law in exercising their discretion directing specific performance of the contract for the entire property. Evidence of mutation of names in the Municipal Register establishes that the property was mutated in the joint names of the appellant and Kartar Lal and was in joint possession and enjoyment. The Courts below, therefore, have, committed manifest error of law in exercising their discretion directing specific performance of the contract for the entire property. The house being divisible and the appellant being not a consenting party to the contract, equity and justice demand partial enforcement of the contract, instead of refusing specific performance in its entirety, which would meet the ends of justice. Accordingly we hold that Joginder Nath having contracted to purchase the property, it must be referable only in respect of half the right, title and interest held by Kartar Lal, his vendor. The The first respondent being successor in interest, becomes entitled to the enforcement of the contract of the half share by specific performance. The decree of the trial Court is confirmed only to the extend of half share in the aforestated property. The appeal is accordingly allowed and the decree of the High Court is set aside and that of the trial Court is modified to the above extent. The parties are directed to bear their own costs throughout.” 16. In the case of Manzoor Ahmed Magray versus Gulam Hassan Aram and others reported in AIR 2000 SC 191 , their lordships of the Hon’ble Supreme Court have held that when the defendant entered into agreement to sell land jointly purchased by him alongwith brother and son who were minors at relevant time and each having one third share, the decree for specific relief with regard to 1/3rd or 2/3rd share owned by defendant and his son for which he could execute sale deed was not barred. Their lordships of the Hon'ble Supreme Court have held as under: “15. Further, in the present case, defendant No. 1 Mohd. Yousuf Magray entered into an agreement to sell the land purchased by him in 1968-69 in three names, namely, himself, his brother (Ghulam Rasool at the relevant time - minor) and his minor son (Manzoor Ahmad Magray). Clause 2 of the agreement stipulated that Mohd. Yousuf would be bound to include and join his brother Ghulam Rasool for the execution and completion of the sale deed in respect of the said land. Clause 2 of the agreement stipulated that Mohd. Yousuf would be bound to include and join his brother Ghulam Rasool for the execution and completion of the sale deed in respect of the said land. The learned single Judge by judgment and decree dated 16th November, 1981 granted relief for specific performance of the contract only for 1/3rd share of Mohd. Yousuf (defendant No. 1). Against that judgment the plaintiff as well as defendant No. 1 filed appeals. The Division Bench dismissed the appeal filed by Mohd. Yousuf. It allowed the appeal of the plaintiff qua the share of minor son of defendant No. 1 by holding that land was purchased by Mohd. Yousuf in the name of his son and in fact, it was owned by him. The Division Bench, however, dismissed the claim for specific performance in respect of 1/3rd share of Ghulam Rasool. Against that part of the decree, plaintiff has not preferred any appeal. 16. As stated above, Section 15 of the J. and K. Act makes it abundantly clear that where a party to a contract is unable to perform the whole of his part of it, 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. Hence, there is no bar for passing the decree for specific relief with regard to 1/3rd or 2/3rd share owned by the contracting party for which he can execute the sale deed. For the share of Ghulam Rasool (brother of defendant No. 1) admittedly, no decree is passed by the High Court. Dealing with the similar contention where agreement was for sale of property belonging to brother and sister each having half share the Court in Kartar Singh v. Harjinder Singh, (1990) 3 SCC 517 : ( AIR 1990 SC 854 ) held that 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 and his property is identifiable by specific share. The Court further held that such case is not covered by Section 12 of the Specific Relief Act, 1963 which relates to specific performance of a part of a contract. The Court further held that such case is not covered by Section 12 of the Specific Relief Act, 1963 which relates to specific performance of a part of a contract. Such type of case would be the case where specific performance of the whole of the contract so far as contracting party is concerned. Further, whenever a share in the property is sold the vendee has right to apply for the partition of the property and get the share demarcated. Hence there would not be any difficulty in granting specific performance of the contract to the extent to which it is binding between the parties. Re: (e) Suit land cannot be alienated or transferred” 17. In the case of A. Abdul Rashid Khan (Dead) and others versus P.A.K.A. Shahul Hamid and others., reported in (2000) 10 SCC 636 , their lordships of the Hon’ble Supreme Court have held that the joint owner of property agreeing to sell such property is bound to execute sale deed, if other cosharer does not join, the vendor joint-owner is bound at least to the extent of his share and the agreement to sell would be specifically enforceable. Their lordships have held as under: “14. Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property agreement, then, even if other co-sharer has not joined at least to the extent of his share, he is bound to execute, the sale deed. However, in the absence of other co-sharer there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the Appellants in such property to other such contracting party. In the present case, it is not in dispute that the Appellants have 5/6"' share in the property. So, the Plaintiffs suit for specific performance to the extent of this 5/6"' share was rightly decreed by the High Court which requires no interference.” 18. In the case of P.C.Varghese versus Devaki Amma Balambika Devi and others, reported in AIR 2006 SC 145 , their lordships of the Hon’ble Supreme Court have held that the decree for specific performance of contract regarding vendors excluding share of minor can be passed and it was composite contract. In the case of P.C.Varghese versus Devaki Amma Balambika Devi and others, reported in AIR 2006 SC 145 , their lordships of the Hon’ble Supreme Court have held that the decree for specific performance of contract regarding vendors excluding share of minor can be passed and it was composite contract. Their lordships have held as under: “19. We fail to understand as to how the agreement for sale can be said to be a contingent contract, as was submitted by Mr. Reddy. The agreement nowhere states that in the event the permission to sell the minor's share is not obtained within the period specified therein, the same shall become invalid or otherwise unenforceable in law. The application for grant of permission to sell the minor's share, as noticed hereinbefore, was rejected only during the pendency of the suit. 34. The submission of Mr. Reddy to the effect that the learned Trial Judge committed a serious error in granting a decree for partition along with a decree for specific performance of contract need not detain us long as in view of Section 22(1)(a) of the Act a decree for partition and separate possession of the property can be granted in addition to a decree for specific performance of contract. As in this case, the Appellant herein in view of amended prayer 'C' relinquished his claim in respect of the property belonging to the minor - Respondent No. 4, he also prayed for a decree for partition and such a prayer having been allowed, no exception thereto can be taken. In any event, the said question has not been raised by the Respondents before the High Court at all. Section 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, the plaintiff may claim a decree for possession and/ or partition in a suit for specific performance. Even though strictly speaking, the right to possession accrues only when a suit for specific performance is decreed, indisputably such a decree for possession and/ or partition is prayed for in anticipation of the grant of prayer for specific performance of contract. [See Babu Lal Vs. M/s. Hazari Lal Kishori Lal and Others (1982) 1 SCC 525 ] 38. For the reasons aforementioned,, the impugned judgment cannot be sustained, which is set aside accordingly. The Appeal is allowed. No costs.” 19. [See Babu Lal Vs. M/s. Hazari Lal Kishori Lal and Others (1982) 1 SCC 525 ] 38. For the reasons aforementioned,, the impugned judgment cannot be sustained, which is set aside accordingly. The Appeal is allowed. No costs.” 19. Similarly, their lordships of the Hon’ble Supreme Court in the case of Kammana Sambamurthy (deceased by L.Rs) versus Kalipatnapu Atchutamma (deceased by L.R) and others., reported in AIR 2011 SC 103 , have held as under: “21. Section 12 prohibits specific performance of a part of a contract except in the circumstances under sub-sections (2), (3) and (4). The circumstances mentioned in these sub-sections are exhaustive. Is Section 12 attracted in the facts and circumstances of the present case? We do not think so. The present case is not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor is concerned since he had agreed to sell the property in its entirety but it later turned out that vendor had only half share in the property and his wife held the remaining half. The agreement is binding on the vendor as it is without being fractured. As regards him, there is neither segregation or separation of contract nor creation of a new contract. In Kartar Singh v. Harjinder Singh & Ors. (1990) 3 SCC 517 , this Court was concerned with a case where vendor--brother and a sister had each half share in the suit properties. The agreement for the sale was executed by the brother concerning the suit properties in which the sister had half share. The sister was not executant to the agreement; rather she refused to accept the agreement. The question for consideration before this Court was whether agreement could be enforced against the vendor--brother to the extent of his half share. This Court considered Section 12 and held as under: "5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts, viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property. 6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and respondent's sister each have half share in the properties, the consideration can easily be reduced by 50 per cent which is what the first appellate court has rightly done." 24. In view of the above decisions of this Court and the facts and circumstances which have already been noticed by us, in our opinion, there is no impediment for enforcement of the agreement against the vendor to the extent of his half share in the property. However, Mr. A.T.M. Sampath, learned counsel for the vendor's wife placed great reliance upon HPA International v. Bhagwandas Fateh Chand Daswani & Ors. (2004) 6 SCC 537 and, particularly, the following paragraphs of the report. "67. If the vendee intended to seek conveyance separately of the life interest of the vendor, the earliest opportunity for him was when he had received notice dated 11-9-1979 sent through the lawyer by the vendor cancelling the contract. (2004) 6 SCC 537 and, particularly, the following paragraphs of the report. "67. If the vendee intended to seek conveyance separately of the life interest of the vendor, the earliest opportunity for him was when he had received notice dated 11-9-1979 sent through the lawyer by the vendor cancelling the contract. Assuming that at that time he could not opt for lesser relief as the suit for sanction was pending, he could have, in any case, opted for conveyance of life interest of the vendor soon after he came to know of the negotiations for sale with Bob Daswani, which took place in the presence of one of the partners of the plaintiff vendee. Even after deriving the knowledge of the execution of the sale deed dated 29- 12-1979 Ext. D-1, the option to obtain lesser relief of transfer of life interest was not exercised. It was exercised as late as on 25- 11-1986 by filing an affidavit and at the time when pleadings of the parties were completed and the joint trial in the two suits had already commenced. During long pendency of the suits between 1979 to 1986, the parties interested in the property changed their positions. The vendor by executing a registered sale deed in favour of the subsequent vendee got his public dues paid to relieve the pressure on the property and obtained market price of the property. After obtaining possession of the property pursuant to the sale deed, the subsequent vendee has raised construction and inducted tenants. Accepting the legal stand based on Sections 90, 91 and 92 of the Indian Trusts Act that the subsequent vendee, being a purchaser with knowledge of prior agreement, is holding the property as a trustee for the benefit of the prior vendee, the vendor, who changed his position by effecting a subsequent sale cannot be compelled to convey his life interest when such lesser relief was not claimed at the earliest opportunity and the terms of the contract did not contemplate transfer of life interest alone." ****** 98. The above argument has no merit and the aforesaid decision is hardly of any help to the vendee. This is not a case where the vendor had only right of spes successionis and after execution of agreement of sale, he subsequently acquired full interest in the property to be held bound by Section 43 of the Transfer of Property Act. The above argument has no merit and the aforesaid decision is hardly of any help to the vendee. This is not a case where the vendor had only right of spes successionis and after execution of agreement of sale, he subsequently acquired full interest in the property to be held bound by Section 43 of the Transfer of Property Act. In the case before us, the reversioners were not parties to the agreement of sale. When in the suit for sanction to transfer their interest they were made parties and were noticed, they expressly objected to the proposed transfer. No principle of estoppel or provisions of Section 43 of the Transfer of Property Act can, therefore, operate against them. So far as the subsequent vendee is concerned, in the course of suit, he was pushed to a position in which he could not take a stand that he had no knowledge of the prior agreement with the vendee but he has separately purchased life interest from the vendor and obtained separate release deeds, on payment of consideration, from the reversioners. The reversioners being not parties to the sale agreement, Ext. P-1 entered into with the vendee, the latter could not enforce the contract, Ext. P-1 against the former." It is sufficient to say that the agreement of sale and the facts which their Lordships had to consider in the case of HPA International4 were in many respects different from the agreement in the present case. In that case vide agreement of sale (Exhibit P1) therein, full interest in the property, i.e. life interest of the vendor and spes successionis of reversioners with sanction of the court was agreed to be sold. The reversioners were not parties to the sale agreement that was entered with the vendee therein. The parties were conscious that the vendor had only life interest in the property and he could not convey more than his own interest. The court found that vendee entered into a speculative deal for obtaining full interest in the property depending upon the sanction to be granted by the court. In the backdrop of these facts, this Court observed in paragraphs 68, 69 and 70 of the report thus: "68. The court found that vendee entered into a speculative deal for obtaining full interest in the property depending upon the sanction to be granted by the court. In the backdrop of these facts, this Court observed in paragraphs 68, 69 and 70 of the report thus: "68. On duly appreciating the evidence on record, construing specific terms of the contract and considering the conduct of the parties, we have arrived at the conclusion that the rescission of the contract, due to non-grant of sanction by the Court within two years after execution of the contract and filing of the suit for sanction, was not an act of breach of contract on the part of the vendor to justify grant of relief of specific performance of the contract to the prior vendee. 69. We are also of the view that the plaintiff vendee, by his own act in the pending suits, was responsible for rendering the suit for sanction as infructuous. He was guilty of lapse in not seeking conveyance of life interest of the vendor at the earliest opportunity when notice of rescission of the contract was received by him and later when he derived the knowledge of execution of registered sale deed in favour of the subsequent vendee. The option was exercised conditionally in the midst of the joint trial of the two suits. 70. There was one integrated and indivisible contract by the vendor to convey full interest in the property i.e. his own life interest and the interest of the reversioners with sanction of the Court. As the Court had not granted the sanction, the contract could not be specifically enforced. The lesser relief of transfer of life interest was not claimed within a reasonable time after the vendor had intimated that the contract, as agreed for full interest, was not possible of performance. We find that neither equity nor law is in favour of the plaintiff vendee." The Court further observed in paragraph 100 of the report as follows: "100. In the case before us, we have not found that the vendor was guilty of rendering the suit for sanction infructuous. It did terminate the contract pending the suit for sanction but never withdrew that suit. The vendee himself prosecuted it and rendered it infructuous by his own filing of an affidavit giving up his claim for the interest of reversioners. It did terminate the contract pending the suit for sanction but never withdrew that suit. The vendee himself prosecuted it and rendered it infructuous by his own filing of an affidavit giving up his claim for the interest of reversioners. In such a situation where the vendor was not in any manner guilty of not obtaining the sanction and the clause of the contract requiring the Court's sanction for conveyance of full interest, being for the benefit of both the parties, the contract had been rendered unenforceable with the dismissal of the sanction suit." HPA International, thus, have no considerable bearing on the case in hand.” 20. In the case of Harendra Chandra Das and others versus Nanda Lal Roy and others, reported in AIR 1933 Calcutta 98, the Division Bench has held that contract, whether divisible, is a question of fact. 21. In the case of Dwijendra Kumar Roy and others vrs. Monmohan De reported in AIR 1957 Calcutta 209, the learned Single Judge has held that contract must be specifically enforced as a whole and the exceptions to this general rule are to be found in Sections 14 to 16 of the Act. Sections 14 to 17 of the Act taken together are both positive and negative in their form and they constitute a complete code within the terms of which relief by way of specific performance of part of a contract will have to be brought. In this case defendants No. 1 to 4 have entered into a contract to settle certain lands belonging to them with the plaintiff at a rental of Rs. 70 per annum on receipt of a salami of Rs. 700. In a suit for specific performance it was found that the contract was not binding on the minor defendant No. 2 in respect of his ¼ share in the suit lands. The learned Single Judge has held that neither Section 14 nor Section 16 was applicable to the case but the plaintiff was entitled to a decree for specific performance in regard to ¾ share of the adult contracting defendants without any abatement in the stipulated salami and rent in respect of the sixteen annas share, provided he was prepared to relinquish his claim to further performance and compensation as required by the proviso to S. 15. It has been held as follows: “8. It has been held as follows: “8. The relevant law of partial enforcement is to be found in Sections 14 to 17 of the Specific Relief Act. Section 17 of the Act provides that "the Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections". The general rule thus is that a contract must be specifically enforced as a whole and the exceptions to this general rule are to be found in Sections 14 to 16 of the Act. The Judicial Committee in , has authoritatively laid down that the four Sections 14 to 17 of the Act taken together "are both positive and negative in their form" and "they constitute a complete Code within the terms of which" relief by way of specific performance of part of a contract will have to be brought. My present enquiry is thus of a limited character, namely, whether the plaintiff has succeeded in making out a case under any of the said three Sections 14 to 16. 9. On the facts found, the suit contract was made in favour of the plaintiff by defendants Nos. 3 and 4 and defendant No. 1 acting on behalf of himself and his minor brother defendant No. 2, and the contract, so far as this defendant No. 2 is concerned, is unenforceable in law. In the face of the decision in L.P.A. Nos. 8 and 9 of 1952 (Cal) (B), cited by the appellants, it is difficult to apply Section 16 to such a case when, under almost similar circumstances, this Court (Das and Sen, JJ.) refused to hold that the disputed contract was divisible in the sense that its enforceable and unenforceable parts stood on "separate and independent'' footings within the meaning of the Section. I must, therefore, leave aside Section 16 and turn to the other two Sections 14 and 15. Of these, again, Section 14 requires that the unenforceable part should bear only a small proportion to the whole in value which obviously refers to or connotes negligible or insignificant or immaterial deficiency, implying substantial compliance with the whole contract. The present case is certainly not one of substantial compliance, as contemplated in Section 14 and, accordingly, that section also must be left out of account. The present case is certainly not one of substantial compliance, as contemplated in Section 14 and, accordingly, that section also must be left out of account. I am thus left with Section 15 which applies where inter alia substantial compliance is not possible and the latter part of the section which is in the nature of a proviso provides that in such a rase the defaulting party may be made "to perform so much of his part of the contract as he can perform provided that the plaintiff relinquishes all claim 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." This section has often been applied to cases like the present and specific performance of the enforceable part of the contract has been decreed if the plaintiff relinquished his claim to the remainder as required by the statutory proviso, quoted above. For instance, it is enough to refer to Dinanath Sarma v. Gour Nath Sarma ; Purna Chandra Mukherjee v. Gopendra Krishna AIR 1926 Cal 744 (D); Panchananda Kundu v. Rajani Kanta Pal ; Rai Promatha Nath Mittra v. Gostha Behari Sen . Reference may also be made to Shama Charan Kotal v. Kumed Dasi 27 Cal LJ 611: (AIR 1918 Cal 889) (G); Srinath Bhattacharya v. Jatindra Mohan Chatterji, 30 Cal WN 263: (AIR 1926 Cal 445) (H); Mahendra Nath Srimani v. Kailash Nath Das ; Nripendra Ch. Sarkar v. Ekherali Joardar and Baluswami Aiyar v. Lakshmana Aiyar, ILR 44 Mad 605: (AIR 1921 Mad 172) (FB) (K), which appear to proceed on the same principle and the correctness of the position has been accepted and applied in the L.P.A. Nos. 8 and 9 of 1952 (Cal) (B), particularly relied on by the appellants, where the decision of the Privy Council in , has been exhaustively reviewed, examined and explained. Harendra Chandra Das v. Nanda Lal Roy is even wider but, in view of the fact that the plaintiff is content to have the lesser relief under Section 15 (Proviso), it is unnecessary to consider the applicability of that case to the facts before us. I would, accordingly, hold that the plaintiff-respondent is entitled to a decree for specific performance in regard to the three-fourths share of the adult contracting defendants Nos. I would, accordingly, hold that the plaintiff-respondent is entitled to a decree for specific performance in regard to the three-fourths share of the adult contracting defendants Nos. 1 and 3 and 4 without any abatement in the stipulated selami and rent in respect of the sixteen annas share. That is what the Courts below have given him and the plaintiff has definitely accepted it and thus waived or relinquished all his claim in respect of the remaining one-fourth as required by the proviso in Section 15. Even if the necessary relinquishment be not inferable from the above circumstance, the plaintiff-respondent is in no worse position, as his learned Counsel has categorically and unequivocally stated before me that his client is prepared to relinquish his claim to further performance and compensation, as required by the proviso in Section 15. This is clearly sufficient, as relinquishment for purposes of the said section can be made at any stage of the litigation (Vide the Kalyanpur Lime Wows Ltd. v. The State of Bihar, (M), approving Waryam Singh v. Gopi Chand, ILR 11 Lah 69: (AIR 1930 Lah 34) (N), and as, in my opinion, there is nothing on the present record to justify withhold ing of specific performance, in the exercise of my discretion, I am bound to affirm the decisions of the two Courts below. This appeal must, therefore, fail.” 22. In the case of Ahammed versus Mammad Kunhi and others, reported in AIR 1987 Kerala 228, the learned Single Judge has held that where an agent was authorized by power of attorney to sell half right over property and on basis of that power he entered into an agreement with purchaser plaintiff to sell the entire property, the authorized portion was separable from the unauthorized portion in a claim by plaintiff under S. 22 of Specific Relief Act for enforcement of agreement for sale and only that extent of agreement was enforceable over which alone the agent had the authority: “5. Both the trial court and the appellate court found the agreement to be valid to the extent of 1/2 right over the suit property. At the same time, basing on Sections 227 and 228 of the Contract Act, the trial court and the appellate court found that the agreement entered into by the 1st defendant beyond his authority is not separable from the portion for which he had the authority. At the same time, basing on Sections 227 and 228 of the Contract Act, the trial court and the appellate court found that the agreement entered into by the 1st defendant beyond his authority is not separable from the portion for which he had the authority. On this ground the agreement was found to be not enforceable. What Section 227 of the Contract Act says is that when an agent does more than he is authorised to do, and when the part of what he does, which is within his authority, can be separated from the part which is beyond his authority, so much only of what he does as is within his authority is binding as between him and his principal. What Section 228 says is that when an agent does more than he is authorised to do, and what he does beyond the scope of his authority cannot be separated from what is within it, the principal is not bound to recognise the transaction. I do not think that the courts below were right in the finding that the authorised portion is not separable from the unauthorised portion. What was authorised under Ext.B6 was only sale or agreement for sale of 1/2 of the property. But what was agreed was sale of the full right. Section 12 of the Specific Relief Act authorises specific performance of a part of contract in certain specified cases even though the general provision is that specific performance of part of a contract shall not be directed. Under Section 22 of the Specific Relief Act, notwithstanding anything to the contrary contained in the Code of Civil Procedure, any person suing for specific performance of a contract for the transfer of immovable property may, in appropriate cases, ask for partition and separate possession of the property in addition to such performance. Therefore, it cannot be said that the unauthorised portion of Ext.A 1 is inseparable from the authorised portion and hence for that reason the agreement is not enforceable to any extent. Even though what was claimed in the plaint was specific performance of the entire agreement, it is seen that at the time of arguments plaintiff restricted his claim to enforcement of the agreement to 1/2 of the property over which atone the 1st defendant had authority. Even though what was claimed in the plaint was specific performance of the entire agreement, it is seen that at the time of arguments plaintiff restricted his claim to enforcement of the agreement to 1/2 of the property over which atone the 1st defendant had authority. I disagree with the courts below in this respect and find that the authorised portion was separable from the unauthorised portion.” 23. In the case of Santhos Kumar and others, versus Varghese George and others, reported in AIR 1988 Kerala 277, the Division Bench has held that where no permission of Court under Section 8 of the Hindu Minority and Guardianship Act, 1956 was obtained, the agreement to sell property in favour of the plaintiff was executed by the natural guardian on behalf of himself and minors was not binding on the minors. The plaintiff could be granted decree for part performance against the guardian: “7. Section 8 of the Hindu Minority and Guardianship Act enumerates the powers of a natural guardian. Section 8(1) reads: "The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but the guardian can in no case bind the minor by a personal covenant". Section 8(2) of the Act prohibits the natural guardian from mortgaging, charging or transferring the minor's property without permission of the Court. Section 8(3) stipulates that any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of the minor or any person claiming under him. Section 8(4) mandates the court not to grant permission to the natural guardian to do any of the acts mentioned in Sub-section (2) except in case of necessity or for an evident advantage to the minor. Thus it is manfestly clear that under Section 8 of the Act, property of the minor can be alienated, mortgaged or leased or gifted only for his evident advantage or necessity and the court's permission is a condition precedent. Any transaction by a natural guardian of the immovable property of the minors without permission of the court will not have any legal force and would not be binding on the minors. 8. Any transaction by a natural guardian of the immovable property of the minors without permission of the court will not have any legal force and would not be binding on the minors. 8. In the case in hand there is not leading or evidence at all that the 1st defendant as natural guardian entered into the agreement to alienate the property belonging to the minors with permission obtained from the Court under Section 8 of the Act. As there is no evidence that the agreement was entered into by the 1st defendant' for the manifest advantage of the minors and with the permission of the Court their right will not be adversely affected. Defendants 3 to 6 are perfectly entitled to, avoid the agreement entered into by the 1st defendant in favour of the plaintiff without permission of the Court, Even if it is held that the transaction was beneficial to the minors and to their manifest advantage, still it cannot improve the position, as the Court's prior permission was not obtained. As permission of the Court was not taken by the guardian for the sale of the property the minor defendants can very well avoid the agreement. 9. It has next to be considered whether the plaintiff can obtain decree for specific performance of the agreement so far as the property belonging to defendants 1 and 2 is concerned. Section 12(1) of the Specific Relief Act, 1963 postulates that except in cases falling in Sub-sections (2) to (4), the Court shall not direct specific performance of a part of contract so far as they can be performed, and for compensation so far as it is not possible to perform them. Sub-section (2) deals with the case, when the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money. In such animation the court may direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency. In the case in hand defendants 1 and 2 are in a position to convey substantially what the plaintiff has contracted to get. Out of the total extent of 94 cents, the extent of property belonging to the minors is only 18 cents. In the case in hand defendants 1 and 2 are in a position to convey substantially what the plaintiff has contracted to get. Out of the total extent of 94 cents, the extent of property belonging to the minors is only 18 cents. With respect to the property belonging to defendants 1 and 2 they cannot raise any controversy so far as the plaint claim is concerned. As defendants 1 and 2 are in a position to convey substantially what the plaintiff as a purchaser had contracted to get, the court can definitely decree the suit for specific performance as against their property. As it is found that defendants 1 and 2 have no title with regard to 18 cents of property belonging to the minor defendants and as they did not obtain sanction of the Court as provided under Section 8 of the Hindu Minority and Guardianship Act specific performance cannot be granted with regard to that item of property. In such a case the Court has to see whether the part of the contract which cannot be performed bears only a small proportion to the whole in value. Where it is found that the promisor had no title in regard to one item out of several, he had agreed to convey, the court has to see whether the part of the contract which cannot be performed bears only a small proportion to the whole in value and admits of compensation in money, or that such part does not bear only a small proportion to the whole in value or does not admit of compensation in money. In a case where the part of the contract which cannot be performed is the conveyance of ah item which is only a small portion of the whole in value and admits of compensation in money, the provisions of Section 12(2) of the Specific Relief Act became applicable. In Rutherford v. Acton Admas, AIR 1915 PC 113 it is stated as follows: "if a vendor sues and is in a position to convey substantially what the purchaser has contracted to get, the court will decree specific performance with compensation for any small and immaterial deficiency, provided that the vendor has not, by misrepresentation or otherwise, disentitled himself to his remedy". Defendants 1 and 2 cannot perform the whole of the agreement and they can perform only that part of the agreement which relates to their own property. As the property belonging to the minor defendants is only a small proportion to the whole of the agreement, it has to be held that specific performance of so much of the contract as can be performed can be granted in favour of the plaintiff.” 24. In the case of K. S. Krishnan versus Kizhakkumbrath Arumugha Tharakar, reported in AIR 1993 Kerala 134, the learned Single Judge has held that the agreement can be enforced against one of the co-owners in respect of his share. It has been held as follows: “18. The law being what has been stated above there cannot be any difficulty in enforcing a contract against one of the co-sharers who had jointly contracted to convey a property. If any of them is unable to convey his portion there is no legal bar in getting specific performance of the remaining portion against the other co-sharers. Each of the co-sharers is entitled to possession and enjoyment of the whole property along with others. He has an equal right to the possession of every part and parcel of the property. It may be that their interests are unequal but still they have got unity of possession and each of the co-sharers can transfer his share and the transferee becomes a co-sharer along with others. Section 44 of the Transfer of Property Act says that the transferee acquires as to such share or interest the transferor’ right to joint possession or other common or part enjoyment of the property. The transferee can also enforce partition of his rights but subject to the conditions and liabilities affecting at the date of the transfer. Thus in a case where several cosharers had contracted to convey a joint property belonging to them the contract can be enforced against one of them if the others are unable to convey their shares.” 25. In the case of Dhara Singh versus Fateh Singh & ors., reported in AIR 2009 Rajasthan 132, the learned Single Judge has held that the purchaser would be entitled to get partition by stepping into shoes of his vendor and decree of specific performance cannot be denied to plaintiff purchaser. It has been held as follows: “15. In the case of Dhara Singh versus Fateh Singh & ors., reported in AIR 2009 Rajasthan 132, the learned Single Judge has held that the purchaser would be entitled to get partition by stepping into shoes of his vendor and decree of specific performance cannot be denied to plaintiff purchaser. It has been held as follows: “15. Therefore, merely because the land in question was owned jointly by joint owners, it does not prevent sale by joint owners to the extent of their share and purchaser would become entitled to get partition of such land owned in joint names by stepping into shoes of their vendors. Since this position of law is clear enough, the decree for specific performance could not have been refused by the learned trial Court while deciding issue No. 8 against the plaintiff which appears to have been wrongly decided by the learned trial Court against the plaintiff-appellant and contrary to the judgment of Apex Court in the case of P.C. Varghese ( AIR 2006 SC 145 ) (supra). 16. It is true that the relief of specific performance is a discretionary relief and it is not necessary for the trial Court to always decree specific performance of contract and the plaintiff can be compensated in the form of compensation in monetary terms. However, the said discretion has to be fairly used and in accordance with law. The fact that the plaintiff was put in physical possession at the time of agreement dated 9.2.1985 itself and paid major portion of the consideration under agreement in the year 1985 itself, entirely tilts the balance in favour of the plaintiff and in these circumstances, he was entitled to secure the specific performance of the agreement in question itself and mere compensation at double the amount paid by the plaintiff cannot adequately compensate the plaintiff who is in possession of 9 bighas of agricultural land since 1985 and is doing agricultural operations thereon since then. This Court also does not find any reason to upset the findings of the learned Trial Court on issues decided in favour of the plaintiff. 17. The legal impediment in securing such transfer by proving that he is bonafide resident of Rajasthan, is also no longer available to the defendants in view of aforesaid notification dated 22.4.1991 cited by the learned counsel for the plaintiff-appellant. 17. The legal impediment in securing such transfer by proving that he is bonafide resident of Rajasthan, is also no longer available to the defendants in view of aforesaid notification dated 22.4.1991 cited by the learned counsel for the plaintiff-appellant. The judgments relied upon by the learned counsel for the respondents-defendants are mostly under the circumstances where the plaintiff was not in possession of the suit property and after long number of years, the Court did not consider it appropriate to award the specific performance of the contract in question, in view of high escalation of the price of the land. Here the situation is different. Under the agreement in question, the plaintiff is in physical possession of the land in question since 1985 and for long number of years he is carrying on his agricultural operations on the land in question, therefore, now denying him specific performance and allowing him only compensation in monetary terms cannot be considered to be justified. As far as question of any compensation to the defendants is concerned, that too is not found to be justified because it is only the rights of parties at the time of entering into the agreement, which will be decided in the litigation and merely because this Court now finds that the decree of specific ought to have been granted in favour of the plaintiff, it cannot be said that the defendants would be entitled to any sort of difference on account of escalation of price or compensation to settle the equities. The defendants had agreed to sell said 9 bighas of land for consideration of Rs. 74,250/- and the plaintiff had already paid consideration to the extent of Rs. 66,450/-. This was according to the then prevailing market rate and the plaintiff is admittedly in possession of the land in question since then. Therefore, now awarding any extracompensation in the form of consideration in favour of the defendants are now expected to do is only to execute the sale-deed in performance of the agreement which they entered into on 9.2.1985 followed by agreement dated 15.2.1985, whereby with some additional payment, the bar of any time limit was agreed to be removed by the parties. However, on the unpaid sum of consideration of Rs. 7, 800/- the defendants would be entitled to get interest @ 9% per annum.” 26. Accordingly, the Courts below have correctly appreciated Ext. However, on the unpaid sum of consideration of Rs. 7, 800/- the defendants would be entitled to get interest @ 9% per annum.” 26. Accordingly, the Courts below have correctly appreciated Ext. PW- 1/A and the substantial questions of law are answered accordingly. It is held that the agreement could be specifically enforced against the share of defendant. 27. Consequently, the appeal is dismissed.