Kerala High Court
Ahammed vs Mammad Kunhi And Ors. on 10 September, 1986
Equivalent citations: AIR 1987 KERALA 228
JUDGMENT S. Padmanbhan, J.
1. Appellant in this second appeal filed O.S. 108/76 before the Subordinate Judge, Tellicherry for specific performance of Ext.A1 agreement for sale and also for injunction restraining the defendants from disturbing his possession. The suit was dismissed by the trial court and the decision was confirmed by the District Judge, Tellicherry in A.S.248/78.
2. The subject-matter of the suit is 30 cents of land which belonged to defendants 2 and 3. They gave Ext.B6 power of attorney to the 1st defendant authorising him to sell 1/2 right over the said property. On the basis of that power 1st defendant entered into Ext.A1 agreement on 3-8-1974 with the plaintiff agreeing to sell the entire 30 cents for a consideration of Rs. 5,000/-. Rs. 2,500/- was received as advance on the date of Ext. A1. The further case of the appellant is that on the date of Ext.A1 itself he was put in possession of the entire 30 cents and the sale deed had to be taken on payment of the balance amount on or before 31-10-1974. Alleging that 1st defendant demanded a higher price and attempted to forcibly evict the plaintiff from the property he filed the suit.
3. The case put forward by the 1st defendant was that the appellant was not satisfied with the title and he wanted to resile from the agreement. It is also said that the advance amount was agreed to be re-paid and thereafter the power of attorney in his favour was cancelled.
4. Third defendant contended that on the basis of Ext. B1 sale deed executed by the 2nd defendant he became owner of the entire 30 cents and that he is in exclusive possession. Possession claimed by the appellant was denied by him. He has also stated that the 1st defendant had authority to deal with only 1/2 of the property and that the power was subsequently cancelled. So also it is said that the price fixed under Ext.A1 is grossly inadequate and the agreement was beyond the authority of the 1st defendant and hence it is not enforceable. Second defendant also raised identical contentions.
5. Both the trial court and the appellate court found the agreement to be valid to the extent of 1/2 right over the suit property. At the same time, basing on Sections 227 and 228 of the Contract Act, the trial court and the appellate court found that the agreement entered into by the 1st defendant beyond his authority is not separable from the portion for which he had the authority. On this ground the agreement was found to be not enforceable. What Section 227 of the Contract Act says is that when an agent does more than he is authorised to do, and when the part of what he does, which is within his authority, can be separated from the part which is beyond his authority, so much only of what he does as is within his authority is binding as between him and his principal. What Section 228 says is that when an agent does more than he is authorised to do, and what he does beyond the scope of his authority cannot be separated from what is within it, the principal is not bound to recognise the transaction. I do not think that the courts below were right in the finding that the authorised portion is not separable from the unauthorised portion. What was authorised under Ext.B6 was only sale or agreement for sale of 1/2 of the property. But what was agreed was sale of the full right. Section 12 of the Specific Relief Act authorises specific performance of a part of contract in certain specified cases even though the general provision is that specific performance of part of a contract shall not be directed.
Under Section 22 of the Specific Relief Act, notwithstanding anything to the contrary contained in the Code of Civil Procedure, any person suing for specific performance of a contract for the transfer of immovable property may, in appropriate cases, ask for partition and separate possession of the property in addition to such performance. Therefore, it cannot be said that the unauthorised portion of Ext.A 1 is inseparable from the authorised portion and hence for that reason the agreement is not enforceable to any extent. Even though what was claimed in the plaint was specific performance of the entire agreement, it is seen that at the time of arguments plaintiff restricted his claim to enforcement of the agreement to 1/2 of the property over which atone the 1st defendant had authority. I disagree with the courts below in this respect and find that the authorised portion was separable from the unauthorised portion.
6. The trial court has considered some other aspects also in disallowing the claim of the appellant. The agreement was on 3-8-1974 and the date specified for performance of the contract was 31-10-1974. Even though the appellant alleged in the plaint that he was ready and willing to perform his part of the contract, there was noallegation in the plaint that he continues to be ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act says that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. In the written statement the defendants raised a specific contention in this respect. But for two years the appellant waited and then filed I.A. 48/78 seeking permission to amend the plaint by including a statement that even now he continues to be ready and willing to perform his part of the contract. That petition was dismissed by the trial court on the ground that it is belated and lacking in bona fides. Along with this fact the trial court also considered the delay of the appellant in approaching the court for specific performance of the contract. The suit was filed only on 19-4-1976 which is nearly 1 1/2 years after the due date specified in Ext.A 1 for performance of the contract. Though the suit is well within the limitation period of three years, the delay continues to have a reasonable bearing on the question of readiness and willingness on the part of the appellant to perform his part of the contract. Non-explanation of the delay is also a circumstance against the appellant.
7. Both the trial court and the appellate court found on the basis of the evidence that the claim of the appellant that he was put in possession of the properly on the basis of Ext.A 1 is not correct. The contention of the 3rd defendant that she is in possession was accepted by both the courts below. That finding is not liable to be interfered with by this Court in second appeal.
8. The trial court also found that the consideration agreed in Ext.A1 is grossly inadequate when compared with the value of the property at the time of execution of Ext.A1. In that respect, the trial court considered Ext.X-1 document which was executed on 26-11-1973. That is a sale deed regarding 2 cents forming part of Ext.A1 property itself. The 2 cents in Ext.X-1 was sold for a consideration of Rs. 3,000/- which means that in 1973 the sale consideration was Rs. 1,500/- per cent. Under Ext.A1 the power of attorney holder agreed to assign 30 cents of land for a consideration of Rs. 5,000/- which means that the price per cent is less than Rs. 200/-. It has also to be remembered that the power of attorney holder exceeded his authority under Ext.B6 while executing Ext.A1. It was under these circumstances that the trial court and the appellate court refused to exercise the discretion in favour of the appellant. The question is whether sitting in second appeal this Court has to interfere with the discretion.
9. Section 20(1) of the Specific Relief Act says that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Sub-section (2) of Section 20 of the Act enumerates cases in which the court may properly exercise discretion not to decree specific performance. They are : (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered intoare such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; and (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation-I to Section 20(2) says that mere inadequacy of consideration, or the mere fad that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b).
10. Their Lordships of the Supreme Court had occasion to consider this aspect in Satyanarayana v. Yelloji Rao, AIR 1965 SC 1405 in which it was said :
"Diverse situations may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal."
It was in the light of the various circumstances enumerated above, that the trial court as well as the appellate court refused to exercise the discretion of granting specific performance in favour of the appellant. I am not in a position to say that the discretion was not fairly, reasonably or judicially exercised or that the exercise was in an arbitrary manner. Therefore, I do not think that this is a fit case for interference in second appeal.
The second appeal fails and it is hereby dismissed, but in the circumstances without costs.