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2019 DIGILAW 1283 (ALL)

Mohd. Yunus v. Ram Chandra

2019-05-10

VED PRAKASH VAISH

body2019
JUDGMENT : VED PRAKASH VAISH, J. 1. Heard Sri Mohd. Arif Khan, learned Senior. Advocate assisted by Sri Mohiuddin Khan, learned Counsel for the appellants and Sri Anurag Shukla, learned Counsel for the respondent. 2. The appellants have assailed the judgment and decree dated 4.12.2006 passed by learned Additional District Judge, Kheri, in Civil Appeal No. 4 of 2001, whereby the appeal filed by the appellants was dismissed. 3. The facts giving rise to the present appeal are that the respondent herein, Ram Chandra (now deceased) filed a suit for specific performance of contract bearing Original Suit No. 158 of 1989 titled as Ram Chandra v. Mohd. Yunus and others. The case of the respondent/plaintiff is that the defendants entered into an agreement to sell of their house situated at Mohalla Poorvi Dixitana, Town Gola, Pargana Hyderabad, District Lakhimpur Kheri, for a sum of Rs. one Lac, a sum of Rs. 52,000/- was paid as earnest money and an agreement to sell was executed on 29.7.1988 and the same was got registered in the office of Sub-Registrar, Mohmadi, District Lakhimpur kheri; it was agreed that the defendants will execute the sale-deed in respect of the said house within a period of one year on receiving the remaining balance amount of Rs. 48,000/-. The respondent/plaintiff alleged that he had requested the defendants-appellants several times to execute the sale-deed, but the appellants did not execute the sale-deed; the plaintiffs paid an additional sum of Rs. 1,000/- on 4.5.1989. The respondent/plaintiff sent registered notice dated 24.6.1989 to the defendants and requested to execute and register the sale-deed and the defendants were re-quested to appear in the office of Sub-Registrar on 12.7.1989, but the said notice was refused by the defendants; the respondent again sent a notice dated 15.7.1989 through registered post on 17.7.1989 and requested the defendants to appear in the office of Sub-Registrar on 29.7.1989 and get the sale-deed registered but the defendants refused to receive the said notice; the defendants were orally informed about the same. The respondent/plaintiff appeared in the office of Sub-Registrar alongwith balance amount or consideration on 12.7.1989 and 29.7.1989, but the defendants did not reach there and, therefore, it was clear that the defendants intended to avoid the performance of the contract. The respondent/plaintiff appeared in the office of Sub-Registrar alongwith balance amount or consideration on 12.7.1989 and 29.7.1989, but the defendants did not reach there and, therefore, it was clear that the defendants intended to avoid the performance of the contract. It was also stated by the respondent/plaintiff that the plaintiff was always ready and willing to perform his part of contract and he is still ready to perform his part of contract. Hence, the respondent/plaintiff filed a suit for specific performance of contract, the plaintiff also prayed for delivery of possession of the said house. 4. The suit was contested by all the five defendants by filing joint written statement. The defendants denied the allegations made in the plaint in the additional pleas. It has been stated that father of the defendants, Sri Azizur Rahman was owner and in possession of the disputed house, he died on 4.1.1980, he was survived by his widow Smt. Hazra and four sons who are defendants No. 1 to 4 and two sisters, namely, Smt. Hasrati and Smt. Rahmati who become owners of the disputed property; it was agreed that the sale deed shall be executed within one year, time was essence of the contract and the defendants were ready to execute the sale deed but the plaintiff was not having the balance amount. It was alleged that on 28.7.1989, the defendants went to the office of Sub-Registrar, Mohmadi, Kheri for execution of the sale deed but the plaintiff did not turn up. The defendants denied to have received a sum of Rs. 1,000/- on 4.5.1989. The defendants denied that any notice was received by them. 5. During pendency of the suit, defendant No. 5 Smt. Hazra died on 10.1.1996 and on an application, under Order XXII, Rule 4 of C.P.C., the legal heirs of defendant No. 5, namely, Smt. Hasrati and Smt. Rahmati were substituted as legal representatives. The legal heirs of the deceased defendant No. 5 had filed suit for partition bearing Suit No. 62 of 1992 titled as Smt. Hasrati and others v. Mohd. Yunus and others in the Court of learned Civil Judge (Senior Divison), Lakhimpur Kheri, a preliminary decree was passed on 11.2.1993 and thereafter final decree was passed. 6. The legal heirs of the deceased defendant No. 5 had filed suit for partition bearing Suit No. 62 of 1992 titled as Smt. Hasrati and others v. Mohd. Yunus and others in the Court of learned Civil Judge (Senior Divison), Lakhimpur Kheri, a preliminary decree was passed on 11.2.1993 and thereafter final decree was passed. 6. On the pleadings of the parties, following issues were framed: **1- D;k izfroknhx.k oknh dks okn&i= dh /kkjk&1 esa of.kZr edku vadu ,d yk[k :i;s esa cspus dk vuqcU/k fnukad& 29-7-88 dks fd;k vkSj 52000@& :i;k crkSj c;kuk izkIr fd;k \ ;fn gka rks bldk izHkko \ 2- D;k oknh us vuqcU/k fnukafdr 29-7-88 izfroknhx.k dks /kks[kk nsdj o edku dh de dher yxkdj fu"ikfnr djk;k \ 3- D;k izfroknhx.k us oknhx.k ls vadu ,d gtkj :i;s crkSj vkaf'kd ewY; mDr vuqcU/k ds vUrxZr izkIr fd;k \ 4- D;k oknh vuqcU/k ds vuq:i izfroknhx.k ls fookfnr edku dk c;ukek vuqcU/k ds ckn djkus ds fy;s le; lhek ds vUrxZr bPNqd o rS;kj jgk vkSj vc Hkh gS \ 5- D;k izfroknhx.k dks leLr edku fodz; vuqcU/k djus dk vf/kdkj ugha Fkk\ tSlk fd mUgksaus okn&i= dh /kkjk&11] 12 o 13 esa dgk gS \ ;fn gka rks mldk izHkko \ 6- D;k fodz; vuqcU/k&i= esa fu;r le; lhek ds vUrxZr oknh us c;ukek fu"ikfnr ugha djk;k vkSj mlus vuqcU/k dh 'krksZa dk ikyu ugha fd;k rFkk mldk c;kuk tCr gks x;kA 7- D;k oknh us vuqcU/k esa fu;r le; lhek ds iwoZ uksfVl izfroknhx.k dks ugha nh\ ;fn gka rks izHkko \ 8- D;k oknh fdlh vuqrks"k] ;fn dksbZ gks] dk vf/kdkjh gS\ 9- D;k izfroknh la[;k&5@1 o 5@2 fookfnr lEifRr dh lgLokfeuh gS rFkk rn~uq:i v/;kflr gS \ ;fn gka rks izHkko \ 10- D;k dfFkr vuqcU/k fnukad&29-7-88 ukdkfcys vey gS rFkk nkok pyus ;ksX; ugha gS \ 11- D;k okn dkyckf/kr gS \ 12- D;k okn dk ewY;kadu de fd;k x;k gS rFkk iznRr U;k; 'kqYd vi;kZIr gS \** 7. In support of his case, the respondent/plaintiff examined himself (Ram Chandra) as P.W. 1, Sri Ram Bharose (P.W. 2) and Sri Ram (P.W. 3). The defendants examined defendant No. 1, Mohd. Yunus (D.W. 1), Sri Karim Bux (D.W. 2) and Smt. Hasrati (D.W. 3). 8. In support of his case, the respondent/plaintiff examined himself (Ram Chandra) as P.W. 1, Sri Ram Bharose (P.W. 2) and Sri Ram (P.W. 3). The defendants examined defendant No. 1, Mohd. Yunus (D.W. 1), Sri Karim Bux (D.W. 2) and Smt. Hasrati (D.W. 3). 8. Vide judgment and decree dated 8.12.2000 passed by learned Additional Civil Judge (Senior Division), Lakhimpur Kheri, the suit was decreed and defendants were directed to execute the sale-deed to the extent of 66/80 portion of the property in question in favour of the plaintiff after receiving proportionate remaining balance amount of Rs. 30,500/- and, in case, there is any impediment in execution of sale-deed, the plaintiff would be entitled to recover a sum of Rs. 52,000/- which was paid towards earnest money alongwith interest at the rate of 12% per annum from the date of agreement till the date of realization. 9. Against the said judgment and decree, the appellants/defendants filed a Regular Civil Appeal No. 04 of 2001 which was dismissed by learned Additional District Judge, Kheri vide judgment and decree dated 4.12.2006. 10. Feeling aggrieved by the said judgment and decree, the appellants have preferred the present appeal. 11. On perusal of file, it is revealed that vide order dated 4.1.2008, the appeal was admitted on the following substantial question of law: "Whether in absence of the averments in the plaint regarding plaintiff's readiness and willingness to perform his part of the contract, he could be entitled to a decree for specific performance of contract?" 12. Learned Senior Counsel for the appellants urged that the judgment and decree passed by learned Courts below are perverse as there is no pleading regarding readiness* and willingness; the respondent moved an application under Order VI, Rule 17 of the C.P.C. seeking amendment in the plaint and to add word jgsxk (remain) and the word vc (present) and the word bPNqd (willing) and, the said application was allowed by the Trial Court on 17.9.1994; the appellants filed a Revision Petition against the said order bearing Civil Revision No. 24 of 1994 and the Revision Petition was allowed and the order dated 17.9.1994 was set aside by learned Additional Judge, Kheri on 27.11.1995. 13. According to learned Senior Counsel for the appellant, there is no averments regarding readiness and willingness and, therefore, the suit was liable to be dismissed. 14. 13. According to learned Senior Counsel for the appellant, there is no averments regarding readiness and willingness and, therefore, the suit was liable to be dismissed. 14. Learned Senior Counsel for the appellants also submitted that the agreement to sell was not executed by all the co-owners in as much as two sisters of defendants No. 1 to 4, namely, Smt. Hasrati and Rahmati respectively are also co-owners of the disputed property, they had not executed any agreement to sell in favour of the respondent. He also submitted that Smt. Hasrati and Smt. Rahmati had filed suit for partition, it was decreed by learned Civil Judge, Kheri and they got possession of the suit property and therefore decree for specific performance cannot be granted. In support of his submission he has relied upon judgment of Allahabad High Court in the case of Zamir Ahmad (Dead) through LR and others v. Samson Claudius and others 2005 (23) LCD 472, in the case of Malik @ Abad and 2 others v. Smt. Nafeesa Khatoon and 9 others, in Second Appeal No. 317 of 2014 decided on 9.1.2019 and Jagjit Singh (Dead) through LRs v. Amarjit Singh (2018) 9 SCC 805 . 15. Learned Senior Counsel for the appellants also argued that the suit is hit by section 4 of the Partition Act, 1893. 16. Another submission of the learned Senior Counsel for the appellant is that the decree passed by Trial Court is not in conformity with the Order XX, Rule 12-A of C.P.C. as no time was fixed for execution of sale-deed. The Trial Court was not empowered to reduce the sale consideration. 17. Per contra, learned Counsel for the respondent contended that the agreement to sell was not disputed by the defendants. He also submitted that in Para 5 of the plaint, it was specifically pleaded that the plaintiff was ready and willing to perform his part of contract. He pointed out that the same was not disputed by the defendants, he drew attention of the Court to Para 16 of the written statement wherein the defendants have denied that the plaintiff was ready and willing to perform his part of contract. The same shows that there was categorical assertion in the plaint that the plaintiff was ready and willing to perform his part of contract. The same shows that there was categorical assertion in the plaint that the plaintiff was ready and willing to perform his part of contract. He further submitted that the application for amendment was filed to add the word readiness and willingness for the future period which was not allowed by Revisional Court and the same is immaterial. The plaintiff, in para 5 of the plaint, pleaded and proved that he was always ready and willing to perform his part of contract. 18. Learned Counsel for the respondent also submitted that the respondent examined the attesting witness of agreement to sell, namely, Ram Bharose (P.W. 2) who proved the agreement to sell. The other witness to the agreement to sell had expired. 19. Learned Counsel for the respondent also submitted that at the time of agreement to sell it was not disclosed by the defendants that Smt. Hasmati and Smt. Rahman' are co-owners of the disputed property, the name of defendant was mutated in the revenue records, a receipt was shown to the respondent/plaintiff at the time of agreement to sell and the same has been corroborated by P.W. 2, Ram Bharose. 20. The Counsel for the respondent also submitted that the respondent sent notice dated 24.6.1989 and requested the defendants to appear in the office of Sub-Registrar on 12.7.1989 and to execute and register the sale deed; again notice dated 17.7.1989 was sent to the defendants and requested them to appear in the office of Sub-Registrar on 29.7.1989 and execute the sale-deed and register the same in favour of the respondent. The said notices were refused by the defendants. The respondent examined the Postman, namely, Sri Ram (P.W. 3) who has deposed that defendant met and avoid to receive the notice and he made an endorsement on the registered envelope. 21. I have given my thoughtful consideration to the submission made by learned Senior Counsel for the appellants and Sri Anurag Shukla, learned Counsel for the respondent. I have also carefully gone through the material available on record. 22. The agreement to sell dated 29.7.1988 is a registered document and the same is not disputed by the appellants. 23. It is settled principle of law that remedy for specific performance is a discretionary and equitable relief. The equitable discretion to grant or not to grant relief for specific performance depends upon the conduct of the parties. 22. The agreement to sell dated 29.7.1988 is a registered document and the same is not disputed by the appellants. 23. It is settled principle of law that remedy for specific performance is a discretionary and equitable relief. The equitable discretion to grant or not to grant relief for specific performance depends upon the conduct of the parties. The necessary ingredient has to be proved by the plaintiff so that discretion would be exercised judiciously in favour of the appellant. The Court while granting decree of specific performance exercised its discretionary jurisdiction. Section 20 of the Specific Relief Act, 1963 provides that the Court's discretion to grant decree of specific performance is discretionary but not arbitrary. 24. In the case of Jagjit Singh (Dead) through LRs v. Amarjit Singh (2018) 9 SCC 805 relied upon by learned Senior Counsel for the appellants, the Hon'ble Supreme Court held as under: "4. It is settled law that a plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act mandates that the plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance. As far back as in 1967, this Court in Gomathinayagam Pillai v. Palaniswami Nadar held that in a suit for specific performance the plaintiff must plead and prove that he was ready and willing to perform his part of the contract right from the date of the contract up to the date of the filing of the suit. This law continues to hold the field and it has been reiterated in J.P. Builders v. A. Ramadas Rao and P. Meenakshisundaram v. P. Vijayakumar. It is the duty of the plaintiff to plead and then lead evidence to show that the plaintiff from the date he entered into an agreement till the stage of filing of the suit always had the capacity and willingness to perform the contract." 25. Recently, the Hon'ble Supreme Court after considering the provisions of sections 10, 16 and 20 to 23 of the Specific Relief Act, 1963, in the case of Kamal Kumar v. Premlata Joshi and others 2019 (133) ALR 288 (SC), observed as under: "7. Recently, the Hon'ble Supreme Court after considering the provisions of sections 10, 16 and 20 to 23 of the Specific Relief Act, 1963, in the case of Kamal Kumar v. Premlata Joshi and others 2019 (133) ALR 288 (SC), observed as under: "7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are; 7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; 7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; 7.3 Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5 Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 8. In our opinion, the aforementioned questions are part of the statutory requirements [See sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts." 26. Thus, it is clear that in order to seek the enforcement of a contract of specific performance, it is necessary for the plaintiff to plead the readiness and willingness and also to establish the same by cogent evidence. 27. Thus, it is clear that in order to seek the enforcement of a contract of specific performance, it is necessary for the plaintiff to plead the readiness and willingness and also to establish the same by cogent evidence. 27. In the present case, the respondent/plaintiff in para-5 of the plaint has averred that he was ready and willing to perform his part of contract and he is still ready and willing to perform his part of contract. The appellants filed written statement, in para 16 of the written statement the appellants-defendants have denied that the plaintiff was ready and willing to perform his part of contract. In case, there was no averment in the plaint that the plaintiff was ready and willing to perform his part of contract, there was no occasion for the appellants-defendants to deny the same. This shows that there was an averment in the plaint that the respondent plaintiff was ready and willing to perform his part of contract. 28. The application for amendment filed by the respondent was to add some words in para-5 of the plaint to the effect that he will remain ready and willing to perform his part of contract. The said amendment was allowed by the Trial Court, on a revision filed by the appellant, the amendment was disallowed by the Revisional Court. 29. The respondent-plaintiff, Ram Chandra while appearing as P.W. 1 categorically deposed that he was ready and willing to perform his part of contract and he requested the appellants to execute the sale-deed and received the balance amount of consideration. He also stated that notice dated 24.6.1989 and 17.7.1989 were sent to the appellants whereby the appellants were requested to appear in the office of sub-Registrar, to execute and register the sale-deed after receiving the balance amount of consideration. In order to prove the said notice, the respondent has also examined the postman, namely, Sri Ram as P.W. 3 who also deposed that he went to the addressee to serve the said notices but the addressee/appellants avoided to receive the notice and he made an endorsement that the notice was refused. The copy of receipt dated 29.7.1989 issued by the office of sub-Registrar which shows that the respondent appeared in the office of sub-Registrar on the said date. 30. The copy of receipt dated 29.7.1989 issued by the office of sub-Registrar which shows that the respondent appeared in the office of sub-Registrar on the said date. 30. In the case of Motilal Jain v. Smt. Ramdasi Devi and others 2001 (43) ALR 98 (SC), the Hon'ble Supreme Court after considering the judgment in R.C. Chandiok and another v. Chuni Lal Sabharwal and others AIR 1971 SC 1238 observed as under: "9. That decision was relied upon by a three Judges Bench of this Court in Syed Dastagirs case (supra), wherein 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 fact and law of one's case for a relief. It is pointed out that in India most of the pleas are drafted by Counsel and hence they inevitably differ from one to the other; thus, to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed, "Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. "So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form." It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale." 31. In the instant case, the respondent plaintiff has specifically pleaded in para 5 of the plaint that he was ready and willing to perform his part of contract and the same was proved by the statement of Sri Ram Chandra (plaintiff) as P.W. 1. The same is also clear from the notices dated 24.6.1989 and 17.7.1989. 32. So far as the other submission of learned Senior Counsel for the appellants that Smt. Hasrati and Rahmati who are sisters of appellants or also co-owner of the disputed property, they had not executed the agreement to sell in favour of the respondent, therefore, the decree of specific performance cannot be granted and the suit is hit by section 4 of the Partition Act, 1893, it is necessary to consider the relevant provisions. 33. Section 12 of the Specific Relief Act, 1963 which 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 by 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 the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either-- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of 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 Clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under Clause (b), [pays or had 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." 34. On a plain reading of section 12 of the Specific Relief Act, 1963 it is clear that it relates to the specific performance of a part of contract. Section 12 of the said act prohibits specific performance of a part of a contract except in the circumstances under sub-sections (2), (3) and (4). The circumstances mentioned in the sub-sections are exhaustive. The present case is not a case of performance of a part of contract but of the whole of the contract so far as the contracting parties, that is, the appellants are concerned under the agreement, the appellants had contracted to sell whole of the property. In the agreement, the vendors did not disclose that their father was owner of the property or that there are two daughters, namely, Smt. Hasrati and Smt. Rahmati are co-owners of the property. 35. In the agreement, the vendors did not disclose that their father was owner of the property or that there are two daughters, namely, Smt. Hasrati and Smt. Rahmati are co-owners of the property. 35. A similar issue was considered in the case of Kartar Singh v. Harjinder Singh and others (1990) 3 SCC 517 , the Hon'ble Supreme Court after considering section 12 of the Specific Relief Act, 1963 observed 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 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. 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 mat 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 property to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and the 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" 36. Further, in the case of Manzoor Ahmed Magray v. Ghulam Hassan Aram and others (1999) 7 SCC 703 , the Hon'ble Supreme Court followed the judgment in Kartar Singh's case (supra) and held as follows: "16. Further, in the case of Manzoor Ahmed Magray v. Ghulam Hassan Aram and others (1999) 7 SCC 703 , the Hon'ble Supreme Court followed the judgment in Kartar Singh's case (supra) and held as follows: "16. ...........Hence, there is no bar for passing the decree for specific relief with regard to 1/3rd or 2/3rds share owned by the contracting party for which he can execute the sale-deed. For the share of Ghulam Rasool (brother of defendant 1) admittedly, no decree is passed by the High Court. Dealing with the similar contention where agreement was for sale of property belonging to a brother and sister each having a half share, the Court in Kartar Singh v. Harjinder Singh 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. Such type of case would be the case of specific performance of the whole of the contract so far as the contracting party is concerned, further, whenever a share in the property is sold the vendee has the 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." 37. A similar question was cropped up before the Hon'ble Apex Court in the case of A. Abdul Rashid Khan (Dead) and others v. P.A.K.A. Shahul Hamid and others (2000) 10 SCC 636 . In the said case, the suit property belonged to one Aziz Khan. On his death, his heirs under the Muslim Law-nine sons and two daughters inherited said property. The two sons agreed to sell that property to the respondent No. 1 therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. The two daughters of Aziz Khan had not joined in the agreement of sale. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. The two daughters of Aziz Khan had not joined in the agreement of sale. The suit was dismissed by Trial Court by holding that the agreement was indivisible and could only be enforced if the daughters of Aziz Khan agreed. The first respondent therein preferred an appeal before the High Court against the said judgment and decree. The High Court held that he had not pleaded and proved that the daughters of Aziz Khan had agreed to sell the suit property and hence, it cannot be held that the said agreement was by all the heirs of Aziz Khan. The two daughters of Aziz Khan were held not bound by the agreement. However, the High Court held that insofar as the executants of the agreement, sons of Aziz Khan, were concerned they were bound by it and valid and enforceable contract existed between the first respondent and the sons of Aziz Khan. Accordingly, the High Court, granted decree for specific performance to the extent of 5/6th share which Aziz Khan's sons had in the property. The Supreme Court relying upon the judgment in Manzoor Ahmed Magray's case (supra) affirmed the decree passed by the High Court. It was 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 by 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 5/6th share was rightly decreed by the High Court which requires no interference." 38. Section 4 of the Partition Act, 1893 reads as under: "4. 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 5/6th share was rightly decreed by the High Court which requires no interference." 38. Section 4 of the Partition Act, 1893 reads as under: "4. Partition suit by transferee of share in dwelling.-- house.-- (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section." 39. (2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section." 39. On a bare perusal of section 4 of the Partition Act, it is manifestly clear that the following conditions have to be specified: (i) any person having undivided interest in a family dwelling house as co-owner should effect transfer of his interest therein; (ii) the transfer of such undivided interest of co-owner has to be made to an outsider or a stranger to the family; (iii) the person to whom such undivided interest was transferred must sue for partition and separate possession of share transferred to him; (iv) any member of family having share in the dwelling house may claim presumption against a claim of stranger transferred by undertaking to buy out the share of that person; and (v) while accepting such a claim for preemption by the existing co-owner of the dwelling house belonging to the undivided family, the Court should make a valuation of a transferred share belonging to the stranger transferee and make the claimant co-owner to pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of preemption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such dwelling house. 40. The issue regarding specific performance of contract by some heirs of the deceased owner and section 4 of the Partition Act are no more res Integra in view of the law laid down by the Hon'ble Supreme Court in the case of Kammana Sambamurthy (Dead) By L.Rs. v. Kalipatnapu Atchutamma (Dead) and others 2011 (85) ALR 221 (SC). ALR (4)-29, the relevant paras of the said judgment read as under: "22. Is section 12 attracted in the facts and circumstances of the present case? We do not think so. v. Kalipatnapu Atchutamma (Dead) and others 2011 (85) ALR 221 (SC). ALR (4)-29, the relevant paras of the said judgment read as under: "22. 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 in so far as the vendor is concerned since he had agreed to sell the property in its entirety but it later turned out that the 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. 25. In A. Abdul Rashid Khan v. P.A.K.A. Shahul Hamid, this Court held that (SCC p. 643, para 14) "even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share", the party to the contract is bound to execute the sale-deed. In that case, the suit property originally belonged to one Aziz Khan. On his death, his heirs under the Muslim law-nine sons and two daughters inherited that property. The sons agreed to sell that property to the first respondent therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. 31. The above submission was also canvassed before the High Court. The High Court considered this aspect in the following manner: "It is too premature for the defendant to have invoked the provisions of section 4 of the Partition Act. The plaintiff's right has not been crystallized yet and he cannot at this stage be considered as a purchaser of the undivided interest of the first defendant. In order to validly invoke section 4 of the Partition Act, the following five conditions have to be satisfied: 7. The plaintiff's right has not been crystallized yet and he cannot at this stage be considered as a purchaser of the undivided interest of the first defendant. In order to validly invoke section 4 of the Partition Act, the following five conditions have to be satisfied: 7. ...."(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (2) The transferee of such undivided interest of the co-owner should an outsider or stranger to the family; (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned; (4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and 5. While accepting such a claim for pre-emption by the existing co-owners of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption and said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger-transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can he effectively denied entry in any part of such family dwelling house." The whole object seems to be to preserve the privacy of the family members by not allowing a stranger to enter in a part of the family dwelling house. Such is not the situation obtaining in this case having regard to the context. I am reinforced in my above view by the judgment of the Apex Court in Babulal v. Habibnoor Khan. The Apex Court placing reliance upon its earlier judgment in Ghantesher Ghosh v. Madan Mohan Ghosh reiterated the five essential requisites. For the foregoing reasons, the contention of the learned Counsel merits no consideration." 34. The other point argued by Mr. A.T.M. Sampath is that the decree granted by the High Court would result in hardship since the vendor and vendor's wife are dead and their 10 daughters are residing in the property. For the foregoing reasons, the contention of the learned Counsel merits no consideration." 34. The other point argued by Mr. A.T.M. Sampath is that the decree granted by the High Court would result in hardship since the vendor and vendor's wife are dead and their 10 daughters are residing in the property. We are afraid these facts hardly constitute hardship justifying denial of decree for specific performance to the extent of vendor's half share in the property." 41. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid cases, the agreement to sell to the extent of share of the heirs of Sri Azizur Rahman (who was original owner of the property) who have entered into agreement to sell can be granted. The Trial Court has reduced the sale consideration proportionately to the extent of shares of the vendors. 42. As regards the other submission of learned Senior Counsel for the appellants that no time has been fixed by Trial Court for execution of the sale-deed, and, therefore, the judgment of the Trial Court is liable to be set aside on this ground, it may be mentioned that Order XX, Rule 12(A) of the C.P.C. provides that where a decree for the specific performance of a contract for the sale or lease of immovable property orders that, the purchase money or other sum be paid by the purchaser or lessee, it shall specify the period within which the payment shall be made. 43. It is settled rule of law that all the rules of procedure are the handmaid of justice. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. With the march and progress of law, the new horizons explored and modalities discern and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law invariably necessitates it. Therefore, merely because the Trial Court has not fixed the time for execution of the sale-deed, the judgment cannot be set aside. Even if no time is fixed by the Trial Court, this Court can fix the time for execution of the sale-deed, however, the judgment passed by Trial Court cannot be set aside merely on that ground. 44. In view of the law laid down in the aforementioned judgments, the judgments relied upon by learned Senior Counsel for the appellant are of no help to the appellants and it is not necessary to refer the said judgments. 45. For the aforesaid reasons, the appeal fails, same deserves to be dismissed and the same is hereby dismissed. The judgment and decree dated 8.12.2000 passed by learned Additional Civil Judge (Senior Division), Lakhimpur Kheri in Suit No. 158 of 1989 and judgment and decree dated 4.12.2006 passed by learned Additional District Judge, Kheri in Civil Appeal No. 4 of 2001 are affirmed. The appellants are directed to execute sale-deed in respect of 66/80 share in the property in favour of the respondent, after receiving the proportionate balance amount of Rs. 30,500/- within a period of one month. 46. No order as to costs. 47. Interim application, if any, stands disposed of. 48. Lower Court records be sent back forthwith.