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2018 DIGILAW 681 (KER)

Rubis Tharayil v. Abdullakoya Haji

2018-08-21

A.M.SHAFFIQUE, P.SOMARAJAN

body2018
JUDGMENT : The plaintiffs in O.S. No. 89 of 2008 has preferred this appeal challenging judgment dated 23.12.2010 of the Sub Court Palakkad, by which a suit for specific performance of an agreement for sale of plaint schedule property came to be dismissed. 2. As per the point allegations, agreement covers 5 items of immovable property of which item No.1 belonged to the 1st defendant, item No.2 belonged to defendants 1 and 2 jointly, item No. 3 belonged to Smt. Beena who was the wife of the 3rd defendant. Beena died and the property had devolved on her legal heirs namely 3rd defendant and their minor children. The 3rd defendant is the legal guardian of the said minor children. Item No. 4 property was jointly owned by the 3rd defendant and his wife late Beena and on the death of Beena the said property devolved on the 3rd defendant and his minor children. Item No. 5 belonged to the 3rd defendant. The entire property is lying as a single plot having total extent of 12.775 acres. The 1st Plaintiff through 2nd plaintiff made arrangements for purchasing the said property and accordingly an agreement dated 26.03.2007 was executed between the parties. As per the terms agreed between them, the consideration was fixed at Rs.11,350/- per cent. Depending upon the actual extent of property available plaintiffs paid Rs.75,00,000/- as advance and offered to pay a further amount of Rs.75,00,000/- on or before 15.10.2007. The defendants had undertaken to measure the property and produce the title deeds, before 15.10.2007. Defendants also agreed to produce necessary documents authorising the 3rddefendant to assign the property of the minors in favour of the plaintiffs? According to the plaintiffs, they were ready with Rs.75,00,000/- lakhs as on 15.10.2007. But it is contended that defendants did not make available all the documents necessary for executing the sale deed. The defendants therefore agreed that the balance sale consideration be paid only at the time of execution of the sate deed. Plaintiffs further alleged that though they were ready with the balance sale consideration, defendants did not honour the agreement and therefore notice was issued calling upon the defendants to execute and register the sale deed. The defendants sent a reply alleging that plaintiff committed breach of contract and they do not have sufficient funds for paying the balance sale consideration. Plaintiffs further alleged that though they were ready with the balance sale consideration, defendants did not honour the agreement and therefore notice was issued calling upon the defendants to execute and register the sale deed. The defendants sent a reply alleging that plaintiff committed breach of contract and they do not have sufficient funds for paying the balance sale consideration. In such circumstances, the plaintiffs filed the suit for specific, performance of the contract, with an alternative prayer for return of the amount paid as advance along with interest and also for realisation of compensation for breach of contract by the defendants. 3. Though the defendants admitted execution of agreement and receipt of Rs.75,00,000/-, according to them plaintiffs were not ready to perform their part of the contract. They admitted having made endorsement dated 14.10.2007 in the agreement and according to them it was made to accommodate the plaintiffs to procure sufficient funds and accordingly sought for dismissal of the suit. During the pendency of the suit, defendants filed application calling upon the plaintiffs to deposit the balance sale consideration stating that they are ready and willing to execute the sale deed. Plaintiffs objected the prayer contending that they are ready to produce necessary documents before the court to show that they have got sufficient funds available with them to pay the balance sale consideration. An order was passed by the trial Court directing the plaintiffs to deposit the entire balance sale consideration. The plaintiffs did not comply with the said direction and hence the suit was dismissed. 4. The plaintiffs challenged the order of the trial court by filing W.P. (C). No. 25719 of 2008 and C.R.P.No.680 of 2008. By a common order dated 26.3.2010 the writ petition was closed and the C.R.P was allowed and the order directing deposit of balance sale consideration and the dismissal of the suit were set aside. Thereafter, evidence was taken. The first plaintiff was examined as PW1 and the documents relied upon are marked as Exts.B1 to B25. Defendants examined DW1 and DW2 and the documents were marked as Exts. Bl to B25. Ext.C1 report and C1 (a) plan filed by the Advocate Commissioner were taken as evidence. The trial Court has raised the following issues: "1. Whether the suit is bad for misjoinder of causes of action and parties? 2. Defendants examined DW1 and DW2 and the documents were marked as Exts. Bl to B25. Ext.C1 report and C1 (a) plan filed by the Advocate Commissioner were taken as evidence. The trial Court has raised the following issues: "1. Whether the suit is bad for misjoinder of causes of action and parties? 2. Whether the first plaintiff was ready and willing to perform their part of the contract? 3. Whether the first plaintiff is entitled to get a decree for specific performance of the contract? 4. Whether the first plaintiff is entitled to get a decree for realization of Rs.75,00,000/- (Seventy five lakhs) together with 18% interest per annum as an alternative relief? 5. Relief’s and costs?" 5. With references to 1st issue regarding misjoinder of cause of action and parties, the contention raised by the 1st defendant was that the 2ndplaintiff was not a necessary party to the suit as he was only the power of attorney holder of the 1st plaintiff and that apart legal heirs of late Beena was not made party to the suit. 6. As far as 2nd plaintiff is concerned he is only a power of attorney holder of the 1st plaintiff and ha has not claimed any relief for himself. Hence it was held that the suit is not bad for misjoinder of parties. We do not think that a different view is necessary in the case. 7. It is argued that only one of the legal heirs of late Beena has been made a party to the agreement and the agreement was executed by her husband who has offered to sell entire property belonging to her. The contention is that when the minors are also entitled to have right over the property they should also be properly represented. Court below found that, since legal heirs of Beena were not parties to the sale agreement, they are not necessary parties to the suit. We will consider this issue while considering the other issues as well. 8. Now with regard to merits of the case, Court below found that the documents produced by the plaintiffs were not sufficient to prove that they had sufficient money to pay the balance sale consideration within the period prescribed for performance of the contract and therefore their failure to perform the contract is evident. 8. Now with regard to merits of the case, Court below found that the documents produced by the plaintiffs were not sufficient to prove that they had sufficient money to pay the balance sale consideration within the period prescribed for performance of the contract and therefore their failure to perform the contract is evident. However, it was found that the plaintiffs were entitled for the money they paid as advance and accordingly a decree has been granted to refund Rs.75,00,000/- with interest at the rate of 9% per annum from the date of suit till payment. 9. Heard Sri. T. Krishnanunni learned Senior Counsel appearing for the appellants/ plaintiffs and Sri. P.B. Krishnan, learned counsel for the respondents. 10. There is no dispute regarding execution of agreement on 26.3.2007, payment of advance of Rs.75,00,000/- on the date of execution of the agreement and offer to pay Rs.75,00,000/- on or before 15.10.2007. As per the agreement between the parties the time for performance of contract was up to 22.1.2008. It is also not in dispute that the time for payment of further amount of Rs.75,00,000/- was extended by mutual consent between the parties and the plaintiff agreed to pay the balance sale consideration at the time of execution of the agreement and registration of sale deed. Accordingly an endorsement was made on the agreement itself postponing the payment till 22.1.2008. The plaintiffs issued Ext.A2 notice dated 15.01.2008 to the defendants and Ext.A3 is the reply send by the defendants on 21.01.2008. It is argued that when the time for performance was fixed on 22.1.2008, the plaintiffs by Ext.A2 notice dated 15.1.2008 had clearly indicated their readiness and willingness to comply with the terms of the contract expressing their ability to pay the balance consideration. In Ext. A2 notice plaintiffs had stated that the defendant had failed to comply with their part of the contract. According to the plaintiffs the defendants had not produced the title deeds, tax paid receipt, encumbrance certificate, possession certificate etc to the plaintiffs and no court order had been produced to assign the minors right. That apart, attempts were made by the defendants to assign the property in the name of benami's. The Plaintiffs further stated that they have entrusted document writer Mr. That apart, attempts were made by the defendants to assign the property in the name of benami's. The Plaintiffs further stated that they have entrusted document writer Mr. P.V. Gopi for preparing the sale deed and the defendants were called upon to produce all the title deeds and other documents before the document writer, so that the document could be executed within the specified time. Ext. A3 is the reply notice sent by the defendants through a counsel, in which they denied the allegations, except the execution of the agreement, the price fixed by the parties and extension of period. They also refused to approach the document writer for submission of documents on the ground that the plaintiffs had not complied with the terms of the contract and further they refused to assign part of the property. According to them plaintiffs were under obligation to purchase the entire property by paying the entire consideration. It is further stated that already there was an order from the District Court in O.P. No. 134/2006 for assignment of minors' right over the property which was decreed on 24.08.2007 and the said fact has been informed to the plaintiffs. They reiterated the fact that the plaintiffs did not have sufficient funds to pay the balance sale consideration. It is further stated that there was no agreement to obtain a court order for assignment of property of the minors. It is also stated that the period for payment of balance sale consideration was extended till 22.1.2008 only to accommodate the plaintiffs. 11. Ext.A4 is another notice sent by the plaintiffs to defendants on 24.1.2008, as a reply to Ext.A3 notice. It is stated that the title deed along with prior documents ought to be entrusted to the plaintiffs and so far the defendants have not obliged. It is however stated that the plaintiffs were ready and willing to perform their part of the contract. They made arrangements for the balance sale consideration, the amount required for the stamp duty, registration fee etc. Further the property has not been measured and demarcated. It was reiterated that they were ready to be present on any day for the measurement of the property and since the defendants did not approach the document writer along with the documents it was assumed that; they were not willing to convey the property. Further the property has not been measured and demarcated. It was reiterated that they were ready to be present on any day for the measurement of the property and since the defendants did not approach the document writer along with the documents it was assumed that; they were not willing to convey the property. It is further stated that the sale-deed could not be executed on 14.10.2007 and extended up to 22.1.2008 only on account of the fact that the defendants were unable to produce the title deeds. The suit was filed seeking specific performance on 13.2.2008. 12. During cross examination the 1st plaintiff deposed that prior to execution of the agreement he was given copies of documents. He also stated that he was convinced about the title of defendants even before execution of document. He knew that Beena had expired, even before execution of documents and was aware about the legal heirs of Beena. He also knew that Some of the legal heirs of Beena were minors at the time of execution of the agreement. He wanted to purchase the right of minors as well and it is not possible to exclude them. In cross examination a suggestion was put to PW1 stating that endorsement dated 14.10.2007 in Ext. A1 was made by the defendants on misrepresentation of facts, which he denied. Regarding the documents produced as Exts.AS to A9, its admissibility was objected. According to them Ext. A5 is not a certified ledger extract and the 1st plaintiff did not produce his pass book. As far as Ext.AS is concerned it does not have a pass book. A question was asked as to why certified ledger extract of Exts.A5 to A9 could not be produced, for which he did not have any specific answer. According to him it was not asked for. Ext.A9 message was sent by the 1st plaintiff to his brother. Thought it was suggested that Exts.A5 to A9 were fabricated 1st plaintiff denied the same. 13. Learned counsel for the plaintiffs places reliance on the following documents' (i). According to him it was not asked for. Ext.A9 message was sent by the 1st plaintiff to his brother. Thought it was suggested that Exts.A5 to A9 were fabricated 1st plaintiff denied the same. 13. Learned counsel for the plaintiffs places reliance on the following documents' (i). Ext.A5 is the certificate issued to the 1st plaintiff in respect of his account from 09.10.2007 to 08.11.2007 which would show that an amount of Rs.75,00,000/- was deposited in his account on 11.10.2007 and Rs.1,00,000/- was withdrawn on 19.10.2007 (ii) Ext.A6 is dated 25.07.2008 which is the certificate issued by State Bank of India, which indicates that the 1st plaintiff and Bincy Rubise was having a total amount of Rs.15,62,426/- in their account as on 22.1.2008. (Hi) Ext. A7 is a certificate issued by the Catholic Syrian bank which would show that as on 22.1.2008 the 1st plaintiff has a credit of Rs.5,00,488/- in his SB account, (iv) Ext.A8 series certificates issued by the Axis Bank, Thrissur Branch would show that the 1st plaintiff has in his account balance amount of Rs.7,97,005/- as on 22.1.2008, and Rs.14,41,097/- in his NRE account as on 22.1.2008. It is argued that these documents clearly indicates that the plaintiffs were having sufficient funds all along and the court below committed serious error in arriving at a different finding. 14. Learned Senior counsel further submits that when it is proved that the plaintiffs have sufficient funds and they have paid a fabulous amount of Rs.75,00,000/- as advance and was always ready and willing to pay the balance sale consideration, the defendants were under obligation to execute the sale deed. The plaintiffs had insisted the defendants to comply with three aspects. One is actual measurement of property to arrive at the actual balance sale consideration. Secondly permission from the court to appoint a guardian for sale of minors' property and thirdly handing over of original title deeds along with tax receipts, encumbrance certificate, possession certificate etc. 15. As far as the minors' right is concerned, an argument had been Raised stating that even assuming that minors property cannot be assigned the court below ought to have directed conveyance of the property excluding the minors' property in favour of the plaintiffs. Reference is made to Section 12 of the Specific Relief Act. it is argued that such aspects of the matter were not considered. 16. Reference is made to Section 12 of the Specific Relief Act. it is argued that such aspects of the matter were not considered. 16. Learned Counsel al o placed reliance on the following judgments : (i) (2013 0 Supreme (Ker) 409) Faizal Eroth & Another v. Venkalath Raveendran & Another. This a judgment of a Division Bench of this Court relating to an appeal filed by the plaintiffs for a decree for specific performance. That was also a case in which the defendants had offered to measure the property in order to ascertain the actual extent of land available for sale. It was held that when the agreement clearly indicates that the appellants have to perform their part only after ascertaining the actual extent of land available for sale by a proper measurement. The obligation of plaintiffs to perform their part arises only when they are convinced of the exact extent of the property. If the performance of the intending buyer is conditional upon certain acts to be performed by the seller, the buyer need to perform his part only when those acts are performed by the seller. (ii) ( 2004 (6) Supreme 28 ) P.D Souza v. Shondrilo Naidu. This judgment had been cited to emphasise the principles underlying a suit for specific performance of a contract for sale of immovable property. After referring to an earlier decision in Nirmala Anand v. Advent Corporation (P) Ltd & Others (2002) 5 SCC 481 ), it was held that in cases of contract for sale of immovable property the grant of specific performance and its refusal on exception is based on valid and cogent grounds. Defendant cannot take advantage of his own wrong and then plead that the decree for specific performance would amount to an unfair advantage to the plaintiff. It was further held that escalation of price during the period may be a relevant consideration under certain j circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. It would depend on the facts and circumstances of each case. It would depend on the facts and circumstances of each case. It was also held that delay in performance of a contract due to pendency of proceedings in court cannot by itself be a ground to refuse relief of specific performance in the absence of any compelling circumstances to take a contrary view. (iii) Motilal Jain v. Smt. Ramdasi Devi and Others (2000 AIR (SC) 2408) = 2000 (5) Supreme 165 ). This was also a case where the Apex Court had occasion to consider a suit for specific performance. One of the contentions raised was that plaint averments did not show that the plaintiff was ready and willing to perform his part of the contract. Placing reliance upon the judgment in Syed Dastagir v. T.R. Gopalakrishna Setty ( 1999 (6) SCC 337 ), it was held that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place facts and law one's case for a relief. Therefore the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form. It was further held that averment of readiness and willingness in a plaint is not a mathematical formula it should only be in specific words. (iv) P.C Varghese v. Devaki Amma Balambika Devi and Others (2005 SAR (Civil) 952). This judgment is cited to emphasise the principles laid down under Section 12 (3) of the Specific Relief Act. It is held that the provision has been enacted for the benefit of the purchaser and cannot operate to his detriment. It was further observed that under the old Specific Relief Act, the plaintiff was not only required to relinquish his claims of specific contract as regards that part of contract which cannot be performed but was also required to pay the entire amount of consideration whereas in Section 12 (3) of the new Act he is now required to pay the amount of consideration proportionately, (v) Sasidharan Pillai v. Devaky Amma ( 1991 (1) KLT 590 . In this case a learned single 3udge of this Court had occasion to consider the scope of Section 12 of the Specific Relief Act. It is held at para 6 as under; "6. In this case a learned single 3udge of this Court had occasion to consider the scope of Section 12 of the Specific Relief Act. It is held at para 6 as under; "6. The chief question that has to be considered in this case is whether the above said reason for declining specific performance of the agreement for sale with respect to 1/4th right of the 1st defendant in the property is sustainable in law and that whether the court below has exercised its discretion in a reasonable and judicial manner. I say so because in regard to the other contentions, the court below has found rightly against the defendants. Counsel for the respondents was not able to point out any error in those findings. So the only question that remains for consideration in this appeal is as to whether the refusal to decree specific performance of the agreement with regard to 1/4th right of the 1st defendant in the property is correct or not xxxx In AIR 1973 Madras 393 (Subramani v. Kannappa Reddiar & Ors.) the whole question was considered elaborately and the court ultimately found "A decree for specific performance of a part of a contract must not necessarily be against the same body of persons who had entered into the contract Thus it cannot be said that the Court has no power to pass decree of specific performance of part of a contract on the ground that the contract in so far as one of the parties is concerned, is void or invalid or inoperative." The case considered also involved the right of a minor in the property agreed to be sold. (vi) Krishnan Sathyadas v. Lakshmikutty Amma ( 1990 (2) KLT 795 . This is also a case in which the learned single Judge of this Court had occasion to consider the scope of Section 12 of the Specific Relief Act it was held at paragraphs 6 to 9 as under : "6. Except the rule against part performance, there is no legal or equitable consideration in refusing specific performance. Though performance of the contract as a whole is the rule and performance in part is only an exception, it is necessary to see whether the case in hand comes under any exception. We are concerned only with sub-sections (3) and (4) of S.12 of the Specific Relief Act. Though performance of the contract as a whole is the rule and performance in part is only an exception, it is necessary to see whether the case in hand comes under any exception. We are concerned only with sub-sections (3) and (4) of S.12 of the Specific Relief Act. First I shall consider subsection (4) itself. That sub-section is not concerned with the question whether the part of the contract incapable of performance bears only a small proportion or large proportion. If concerns only with the question whether that part incapable of performance stands on a separate and independent footing from the other part. Life estate and reversion or vested remainder are independent rights standing on separate footings. A vested remainder subject to an intervening life estate is a right which is capable of being transferred in itself (See Budhiraju Seethayamma and others v. Vullipalem and others - AIR 1939 Mad. 802 ). The transferee gets right to the property and on determination of the life estate, he gets full right also because the life estate will terminate with the death of the holder and it will not devolve on anybody else. 7. Even under subsection (3) of S.12, the position may not be different. It is true that normally the plaintiff may not be entitled to specific performance if the part of the contract incapable of performance forms a considerable part of the whole and does not bear only a small proportion, whether it admits of compensation in money or not. But, in such cases also, the court can direct specific performance of the part capable of performance. In such a situation, if the part of the contract incapable of performance is capable of being compensated in money, the plaintiff will have to pay the consideration reduced by that of the part incapable of performance. If it does not admit of compensation in money, the entire compensation without any reduction has to be paid. In either case, the plaintiff must relinquish all claims of performance of the remaining part and all rights to compensation. 8. It is true that the appellant was seeking enforcement of the entire claims without any relinquishment. If it does not admit of compensation in money, the entire compensation without any reduction has to be paid. In either case, the plaintiff must relinquish all claims of performance of the remaining part and all rights to compensation. 8. It is true that the appellant was seeking enforcement of the entire claims without any relinquishment. Before me, the counsel made it clear that the appellant wants specific performance of the contract only to the extent of convening the rights of the first defendant and that he is relinquishing his claim to get the life estate of second defendant and any compensation on that account. Such relinquishment can be had at any stage of the litigation, including the appellate stage. It is not necessary that such relinquishment should be in writing incorporated in the plaint or set forth in the trial court itself (T.K. Santha and others v. A.G. Rathnam and others - AIR 1990 Kerala 69). 9. The person affected by the non-performance of the contract to the extent of the life estate of the second defendant is the plaintiff and none else. When that right minus the life estate is capable of specific performance, it may defeat the ends of justice, if the defendants are allowed to set up such a defence to negative a legitimate claim. If specific performance of the contract of sale of the right of the first defendant could be had, then the challenge in the cross objection regarding the decree for refund of the advance amount, on the ground of want of plea and the prayer based on S 52 of the Specific Relief Act, need not be considered." (vii) Varghese v. Devaki Amma Balambika Devi ( 2005 (4) KLT 530 (SC). In this case, the Apex Court considered the question relating to the sale of minor's interest in a property. Explaining Section 12(3) of the Specific Relief, Act, it was held as under : "20. The said provision has been enacted for the benefit of the purchaser and, thus, cannot operate to his detriment. In this case, the Apex Court considered the question relating to the sale of minor's interest in a property. Explaining Section 12(3) of the Specific Relief, Act, it was held as under : "20. The said provision has been enacted for the benefit of the purchaser and, thus, cannot operate to his detriment. We may notice that under the old Specific Relief Act, the Plaintiff was not only required to relinquish h s claim of specific contract as regard that part Of the contract which cm not be performed but also was required to pay the entire amount of consideration; whereas in terms of S.12(3) of the new Specific Relief Act, 1963 he is now required to pay the amount of consideration proportionately. 21. In Sardar Singh v. Krishna Devi (Smt.) and Another (1994) 4 SCC 18 ), it was held : "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" 22. In Rachakonda Narayana v. Ponthala Parvathamma and Another (2001) 8 SCC 173 ), Khare J the leaned Chief Justice as he then was, observed : "Thus, the ingredients which would attract specific performance of the part of the contract, are: (i) if a party to an agreement is unable to perform a part of the contract, he is to be treated as defaulting party to that extent, and (ii) the other party to an agreement must, in a suit for such specific performance, either pay or has paid the whole of the agreed amount, for that part of the contract which is capable of being performed by the defaulting party and also relinquish his claim in respect of the other part of the contract which the defaulting party is not capable to perform and relinquishes the claim of compensation in respect of loss sustained by him. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or laches or any other disability on the part of the other party." 23. In Surinder Singh v. Kapoor Singh (Dead) through LRs. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or laches or any other disability on the part of the other party." 23. In Surinder Singh v. Kapoor Singh (Dead) through LRs. and Others (2005) 5 SCC 142 ), (wherein Dharmadhikari, J. was a member) a three-Judge Bench of this Court on a reference made or the purported conflict in Kartar Singh v. Harjinder Singh ((1990) 3 SCC S17) and Rachakonda Narayana (supra), opined : "In this case, the Division Bench of the High Court passed a decree of specific performance of contract relying on or on the basis of a decision of this Court, In Kartar Singh.". 24. Strong reliance, however, has been placed by Mr. Reddy on HPA international etc. v. Bhagwandas Fatehchand Daswani amd Others etc. (2004 ) 6 SCC 537) there in the facts and circumstances of the case held : "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 lessor 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." 25. Therein, in the agreement not only the interest of the vendor in presenti but also the interest of the remainder men or reversioners after his death was the subject matter of contract. The agreement was furthermore subject to the passing of the vendor's title to the property and of the vendor's right to sell the entire interest, present and future in the property by the purchaser's advocate. We may also notice that in that ease one of the terms contained in the agreement for sale was: "6. In case sanction of the Court is not accorded as aforesaid, this agreement shall forthwith stand cancelled and the vendor shall forthwith return the advance amount of rupees twenty-five thousand to the purchaser." A perusal of the said decision clearly shows that conduct of the plaintiff therein was such which precluded him from obtaining a decree for specific performance of contract. In the aforementioned facts and circumstances of the case, it was held that recession of contract due to non-grant of sanction by the court within the stipulated period was not an act of breach of contract on the part of the vendor. The said decision has no application in the facts and circumstances of this case. 26. In Dalsukh M. Panchol (supra), two questions were posed by the court : (a) was the term "Subject to the court's approval" an essential term of the agreement?, and (b) if it was essential, by whose default did it fail? Therein, in the facts of the case, the Privy Council opined that the approval of the attaching court was insisted on as a necessary condition for effecting the sale, for without it the title to the property was not at all safe. Once such condition was found to be essential one, the contract was held t; be a composite contract. However, in that case, the vendor then in was not in a position to convey his own interest in the property without the court's sanction and the contract. In the facts and circumstances of the case, the Defendant Nos. 1 to 3 could transfer their properties having definite share in favour of the Appellant. 27. The decision of Travancore and Cochin High Court in T.V. Kochuvareed (supra), has also no application in the fact of the present case. 28. The submission of Mr. Reddy to the effect that this Court should not exercise its discretionary jurisdiction is stated to be rejected. No such contention has been raised before the High court. Even otherwise it has not been shown, having regard to the conduct of the parties, as to why such a discretionary jurisdiction should not be exercised. An alternative plea of refund of earnest amount and damage cannot itself be a bar to claim a decree for specific performance of contract. 29. The Trial Court not only granted a decree for specific performance of contract but also a preliminary decree for partition. The submission of Mr. An alternative plea of refund of earnest amount and damage cannot itself be a bar to claim a decree for specific performance of contract. 29. The Trial Court not only granted a decree for specific performance of contract but also a preliminary decree for partition. 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 s.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. S. 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 Lai v. M/s. Hazari Lai Kishori Lai and Others (1982) 1 SCC 525 )" 17. On the other hand learned counsel Sri. P.B Krishnan argued that Ext. Al agreement never contemplated that court permission has to be obtained for assignment of minors' share and therefore the plaintiffs could not have insisted that the minors' property can be assigned only after getting court permission. That apart his contention is that none of the minors were parties to the suit and even if the legal guardian are parties nothing has been stated regarding their representative capacity of the minors. That apart his contention is that none of the minors were parties to the suit and even if the legal guardian are parties nothing has been stated regarding their representative capacity of the minors. Further, it is submitted that when there was a direction by the court calling upon the plaintiffs to deposit the entire balance sale consideration and the defendants had produced all the original title deeds and documents, plaintiffs did not choose to do so instead opposed the said application. The 1st plaintiffs in his evidence had also admitted that he has obtained copies of all prior documents and he was convinced about the title of the defendants. Under such circumstances, leaned counsel submits that the court below was justified in coming to a finding that the plaintiffs are not entitled to specific performance. 18. Learned counsel places reliance on following judgments : (i) Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri & Others (Vol. XXXIX Indian Appeals I). The question considered was whether an agreement executed by the manager of the minor's estate would bind the minor. The Privy Council held that it is not within the competence of a manager of a minor's estate or within the competence of a guardian of a minor to bind the minor or minor's estate by a contract for the purchase of immovable property. It was further held that minor was not bound by the contract as there was no mutuality, and that the minor who has now reached his majority cannot obtain specific performance of the contract. On the basis of aforesaid judgment it is argued that there is nothing in the agreement to indicate that the legal guardian has entered into a contract for sale of immovable property on behalf of minors. For that reason also there is no mutuality and minor's property cannot be sold. (ii) Srikakulam Subrahmanyam & Another v. Kurra Subba Rao (Vol. LXXV Indian Appeals 115). That was a case in which the mother acting on behalf of a minor entered into a contract for sale for discharging the debt of his father. It was held that it was within the power of mother as guardian to enter into contract of sale for the purpose of discharging his father's debt. If the sale had been completed by execution and registration of the sale deed, the respondent would have been bound under Hindu law. It was held that it was within the power of mother as guardian to enter into contract of sale for the purpose of discharging his father's debt. If the sale had been completed by execution and registration of the sale deed, the respondent would have been bound under Hindu law. It was observed that since the sale was not complete, the counsel for appellant conceded that appeal should fail unless the appellants are entitled for the protection under Section 53A of the Transfer of Property Act. The question was whether the respondent comes within the words "transferor or any person claiming under him", the question considered was whether the person who contracted within the meaning of 53A of the Act was either the respondent or the mother. Their lordship further considered the position of guardian under the Hindu Law and it was observed that the act of mother and guardian in entering into the contract of sale in the case was an act done on behalf of the minor. After referring to the commentary on Pollock and Mulla it was observed that a minor's agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the "Judicial Committee". In Mohori Bibee v. Dhurmodas Ghose ((1903) LR 30 IA 114), it was held that, the High Courts in India which arose subsequent to the governing decision of the Judicial Committee, the contract can be specifically enforced by or against the minor, if the contract is one which is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, if it is for the benefit of the minor. If either of these two conditions is wanting, the contract cannot be specifically enforced at all. (iii) Manik Chand and Another v. Ramchandra (AIR 1981 SC 319). This was a case relating to interpretation of Section 8 of the Hindu Minority and Guardianship Act, 1956. If either of these two conditions is wanting, the contract cannot be specifically enforced at all. (iii) Manik Chand and Another v. Ramchandra (AIR 1981 SC 319). This was a case relating to interpretation of Section 8 of the Hindu Minority and Guardianship Act, 1956. In this case while considering the power of a guardian under the Hindu law to enter into an agreement in order to bind a minor, held that after passing of the Hindu Minority and Guardianship Act, 1956, the guardian of a Hindu minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for realisation, protection or benefit of the minor's estate. The power thus conferred by the Section is no way restricted than that was recognised under the Hindu law. It also applies to the contract for purchase of immovable property as it is within the competence of the guardian, to enter into a contraction behalf of a minor. (iv) Roomal & Others v. Siri Niwas (AIR 1985 Delhi 153) This is also a case relating to specific performance of a contract wherein it is held that a minor can be a "transferor" and a "transferee" subject to the restrictions enacted in the Hindu Minority and Guardianship Act on the powers of the guardian of a Hindu minor. It is argued that even assuming that the father is a legal guardian, property of a minor can be sold only under exceptional circumstances (v) Man Kaur (dead) by Lrs v. Hartar Singh Sangha (2010) 10 SCC 512 ). This judgment is cited to emphasise the legal position regarding the burden of proof in matters relating to specific performance. It was held at para 28 and 31 as under : 28. It is thus clear that for a plaintiff to seek specific performance of a contract of sale relating to immovable property, and for a court to grant such specific performance, it is not necessary that the contract should contain a specific provision that in the event of breach, the aggrieved party will be entitled to specific performance. The Act makes it clear that if the legal requirements for seeking specific enforcement of a contract are made out, specific performance could be enforced as provided in the Act even in the absence of a specific term for specific performance in the contract. The Act makes it clear that if the legal requirements for seeking specific enforcement of a contract are made out, specific performance could be enforced as provided in the Act even in the absence of a specific term for specific performance in the contract. It is evident from section 23 of the Act that even where the agreement of sale contains only a provision for payment of damages or liquidated damages in case of breach and does not contain any provision for specific performance, the party in breach cannot contend that in view of specific provision for payment of damages, and in the absence of a provision for specific performance, the court cannot grant specific performance. But where the provision naming an amount to be paid in case of breach is intended to give to the party in default an option to pay money in lieu of specific performance, then specific performance may not be permissible, xxxxxxx 31. The agreement does not specifically provide for specific performance. Nor does it bar specific performance It provides for payment of damages in the event of breach by either party. The provision for damages in the agreement is not intended to provide the vendor an option of paying money in lieu of specific performance. Therefore, we are of the view that plaintiff will be entitled to seek specific performance (even in the absence of a specific provision therefor) subject to his proving breach by the defendant and that he was ready and willing to perform his obligation under the contract, in terms of the contract." (vi) Alex Thomas v. Rajan ( 2010 (4) KLT 842 ). The judgment is cited with reference to the exercise of discretion. It was held at paragraph 12 as under : "12. Explanation 1 occurring after sub-s.(2) of S.20 of the Specific Relief Act provides that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage or hardship within the meaning of clauses (a) and (b) of "that sub-section. The circumstances specified in S.20 are only illustrative but not exhaustive, as noted by the Apex Court in Sardar Singh v. Krishna Devi ( (1994) 4 SCC 18 ). The circumstances specified in S.20 are only illustrative but not exhaustive, as noted by the Apex Court in Sardar Singh v. Krishna Devi ( (1994) 4 SCC 18 ). The courts have to take into consideration the circumstances of each case, the conduct of the parties or respective interest in the contract. Sub-s.(1) of S.20 stands to advise that the discretionary jurisdiction to decree specific performance does not oblige the court to grant such relief, merely because it is lawful to do so but that the discretion is to be exercised in a sound and reasonable manner, guided by judicial principles and capable of correction by a court of appeal. The legislative indication in that provision of statute is what the exercise of discretion shall not be arbitrary and reasonableness has to be founded on some judicial principle. While we note that mere inadequacy of consideration may be irrelevant, the passage of time that has gone through with the litigation apparently tilts the scales, since escalation in land value cannot be ignored. In that view of the matter, the pendency of this litigation from the trial court to this court from sometime in November, 1996, till now, advises us to hold that the discretion needs to be exercised against the decreeing specific performance, however, on terms that the defendants will suffer the entire costs of this litigation both here and in the court below." (vii) Jince Mary Johns v. Johny ( 2011 (4) KLT 533 ). This is a Division Bench judgment of this Court. While considering Sections 29 and 30 of the Guardians and Wards Act, 1890, it was held at paragraph 5 as under : “5. While S.28 deals with the powers of testamentary guardian and applies to cases where a guardian has been appointed by Will or other instrument, S.29 operates when a person other than the Collector or a testamentary guardian is appointed or declared as a guardian. That limitation of the power of such a guardian of property of a ward in terms of S.29 will stand confined to persons who are appointed or declared by the court to be guardians. S.30 describes the consequences as to voidability of transfers made in contravention of S.28 or S.29. That limitation of the power of such a guardian of property of a ward in terms of S.29 will stand confined to persons who are appointed or declared by the court to be guardians. S.30 describes the consequences as to voidability of transfers made in contravention of S.28 or S.29. Therefore, Ss.28, 29 and 30 do not have any bearing on a guardian who is neither the Collector nor a testamentary guardian nor a person - appointed or declared by the court to be the guardian of the property of a ward. Hence disposal of immovable property of a minor by such a 'V guardian would not be affected by S.30 of the G. & W. Act merely on the ground that previous permission of the Court was not obtained in terms of S.29 of that Act. (viii) Devaki Amma v. Vargttese ( 2000 (3) KLT 330 ) this is also a Division Bench judgment of this court wherein the scope of Section 12 of the Specific Relief Act, 1963 is considered. Paragraphs 13 and 19 are relevant which reads as under : “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." xxxxxxxx "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. 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. 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." (ix) Naila Abdul Nazar v. Gopalakrishnan ( 2017 (1) KLT 773 ). By this judgment a Division Bench of this Court after referring to Section 20 of the Specific Relief Act, 1963 in a concurring judgment, relying upon the Apex Court judgment in HPA International v. Bhagwandas Fateh Chand Daswani & Others (2004) 6 SCC 537 ) held that even independent of Section 20f the grant of a decree for specific performance of part of a contract is, on the terms of Section 12 of the Specific Relief Act, discretionary (x) Shanmughasundaram & Others v. Diravia Nadar (dead) by Lrs & Another ( AIR 2005 SC 1836 ). The Apex Court was considering the scope of granting specific performance with reference to the undivided share of the parties it was held that in the absence of sisters being parties to the agreement, the buyer can at best obtain undivided interest of two brothers in the property. The Apex Court was considering the scope of granting specific performance with reference to the undivided share of the parties it was held that in the absence of sisters being parties to the agreement, the buyer can at best obtain undivided interest of two brothers in the property. Section 12 of the Specific Relief Act cannot be invoked by the buyer to obtain sale of undivided share of the two brothers with a right to force partition on the sisters who were not parties to the agreement of sale. Such a relief under Section 12 cannot be obtained by a buyer, on purchase of an undivided share of the property of some of the co-owners, against other co- owners who were not parties to the sale agreement. 19. There cannot be any quarrel regarding the legal propositions placed before us by the learned counsel appearing on either side. But it is trite that each case has to be decided depending upon its own facts. 20. In this case, Court below finds that the documents produced by the "plaintiffs were not sufficient to prove that they had sufficient money with them to pay the balance sale consideration within the period prescribed for performance of the contract. Of course, if the plaintiffs seek specific performance of a contract their readiness and willingness to comply with the terms of the contract is of paramount necessity. Readiness includes the capacity to raise funds for purchasing the property. It is settled law that there is no necessity to make available the funds at the time of filing the suit. However, it has to be shown that he was in a position to raise funds for purchasing the property within the time specified. In the case on hand, the total consideration of the property would come around Rs.1.5 crores of which Rs.75,00,000/- was paid as advance and there was an offer to pay Rs.75,00,000/- on or before 15.10.2007. Ext.A10 is the certified extract of an account maintained in the name of the 1st plaintiff, which would show that an amount of Rs.75,00,000/- was credited on 11.10.2007. Therefore it cannot be stated that plaintiffs were incapable of raising funds. Other documents namely, Exts. A11 to A13 produced by plaintiffs further proves their capacity to raise funds and in fact they had substantial amounts at the relevant time to purchase the property. Therefore it cannot be stated that plaintiffs were incapable of raising funds. Other documents namely, Exts. A11 to A13 produced by plaintiffs further proves their capacity to raise funds and in fact they had substantial amounts at the relevant time to purchase the property. Therefore the finding of court below to that extent is erroneous and is liable to be set aside 21. Yet another reason stated by court below to deny the relief was that the plaintiffs failed to perform their part of the contract. This finding was rendered by the court below proceeding on the basis that the plaintiffs insisted for a court order to sell minors' share. In so far as there is no such provision in the contract, the plaintiff could not have sought for a court order before assignment. Therefore basically the court below was proceeding on the basis that in so far as there was no stipulation in the agreement to obtain court orders for assigning minors' share and the plaintiffs did not have sufficient funds at the relevant time for purchasing the property, specific performance cannot be granted as the plaintiffs themselves have committed breach of contract. We have already held from the documents made available that plaintiffs were having sufficient funds to purchase the property and almost half of the amount has already been paid as advance. 22. Learned counsel for the appellants contended that even assuming that the minors' share cannot be transferred for want of court order, still the court below ought to have granted a decree for specific performance in respect of the property of defendants 1 to 3 for the proportionate consideration. 23. On a reading of Section 12 of the Specific Relief Act and on consideration of the judgments cited at Bar, it is rather clear that the court can decree specific performance of a part of contract. Section 12 reads as under : "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. Section 12 reads as under : "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 proportion to the whole in value and admits of: compensation in money, the Court may, at the suit of either party, direct that 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 the 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 falling under CI.(a) pays or has paid the agreed consideration for :he whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under CI. (b), pays or has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency, or for the loss or 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." 24. Sub section (1) of the Section 12 clearly lays down the principle that the essence of specific performance is that a part of an agreement need not be performed, except under special circumstances mentioned in the sub sections. Sub section (1) of the Section 12 clearly lays down the principle that the essence of specific performance is that a part of an agreement need not be performed, except under special circumstances mentioned in the sub sections. We are concerned with a set of facts where Beena's property was also part of the sale bargain. But other than her husband, the minors were not made parties and no court permission has been obtained for assignment -Of minors' interest. Therefore the question is whether the minors' property can be excluded and specific performance be granted in the case. Section 12(2) is an exception to the general rule that the court shall not direct specific performance of a part of a contract. In order to make the provision applicable it has to be shown that the contract can be split up into two parts and that there is a part of the contract which taken by itself can and ought to be specifically performed and that part stands on a separate and independent footing from the other part of the same contract. In A.L. Parthasarathi Mudaliar v. Venkata Kondiah Chettiar (AIR 1965 Madras 188), it was held that before a court can exercise a power given in the section, it must have before it, some material, lending to establish these propositions. In P.C. Varghese v. Devaki Ainma Balambika Devi ( AIR 2006 SC 145 ), a contention was urged that the contract is a contingent one and in view of the fact that application for obtaining permission to sell the share of the minor was sought for and refused, the entire agreement became unenforceable in law. The Apex Court held that, the agreement nowhere states that in the event 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 vendors having definite share in the property a decree can be passed against the vendors excluding share of minors. In this case also what we find from the facts is that item No.1 property having an extent of 1 acres 22 cents belongs to the 1st defendant. Item No.2 having an extent of 5 acres belongs to the 2nddefendant. In item No.3 and 4 Beena has interest. Item No.1 and 2 by itself will come to 6 acres and 22 cents. Item No.2 having an extent of 5 acres belongs to the 2nddefendant. In item No.3 and 4 Beena has interest. Item No.1 and 2 by itself will come to 6 acres and 22 cents. Item No.5 exclusively belongs to the 3rd defendant. If minors' interest in the property are excluded, item Nos. 3 and 4 can be excluded and assignments can be made in respect of items 1, 2 and 5. The total extent of item Nos. 3 and 4 will come to roughly 7 acres. Even In the suit, plaintiffs had sought for an alternative relief for assignment of property excluding the property of minors. If such a decree is granted, the technical plea of the minors not being made parties to the suit does not arise. 25. When the property of a minor is being sold, necessarily it requires either court permission or the assignor takes risk of the minor challenging the sale at a later occasion. Therefore, the plaintiffs having insisted for a court permission for assignment of minors' interest cannot be stated to be unreasonable. 1 Merely or the reason that nothing has been stated In the agreement for obtaining court permission does not indicate that the plaintiffs were not interested in purchasing the property. When a sale is effected conveying rights and interest in a property, the buyer can insist the seller complying with all statutory requirements. Therefore, merely for the reason that no mention had been made in the agreement for assigning minors interest by itself cannot be a reason to arrive at a finding that the "plaintiffs have committed breach of contract. Taking into consideration all these facts, we are of the view that the Court below ought to have granted decree for part performance of the contract, especially in relation to item Nos. 1, 2 and 5 of the plaint schedule. 26. Once it is found that the 1st plaintiff was ready and willing to purchase the property, it is for the court to consider whether there are any circumstances to deny specific performance. It is settled law that the exercise of such a discretion shall not be arbitrary and reasonableness has to be founded on some judicial principles. In the case on hand what is to be considered is whether there are any circumstance not to decree specific performance. It is settled law that the exercise of such a discretion shall not be arbitrary and reasonableness has to be founded on some judicial principles. In the case on hand what is to be considered is whether there are any circumstance not to decree specific performance. It could be seen that none of the contentions urged by the defendants were sustainable and that apart they agreed to assign the property by producing all the title deeds and an application was filed before the trial court calling upon the plaintiffs to deposit the entire balance sale consideration. It could therefore be seen that: at one point of time, even after filing of the suit, they have decided to assign the property. Hence we don't find any circumstances to deny the decree of specific performance as contemplated under Section 20(2) of the Specific Relief Act. That apart, it could be seen that almost 50% of sale consideration, i.e., Rs.75,00,000/- was paid as advance which had been appropriated by the defendants and still remains with them. We have already held that the 1st plaintiff was entitled for specific performance of part of the property coming under plaint schedule 1, 2 and 5. The amount already paid as advance covers substantial portion of the sale consideration and the balance sale consideration for plaint items 1, 2 and 5 properties will be very less. In such circumstances, we do not think it necessary to exercise any discretion in favour of the defendants. 27. Accordingly this appeal is allowed. We set aside the judgment of Court below and a decree is passed as under : (i) That the defendants shall execute sale deed in favour of 1st plaintiff for conveying item No.1,2 and 5 properties in favour of the 1st plaintiff on the 1 plaintiff depositing the balance sale consideration for the said items alone before the court below within two months from the date of receipt of a copy of this judgment. (ii) On such deposit being made within the specified time, if there is failure c the part of defendants in executing the sale deed, it shall be open for the] plaintiff to approach the court for execution and registration of sale deed, (iii) Plaintiffs are also entitled for the cost for the entire proceedings.