Patna High Court
Triloki Vishwakarma Alias Triloki ... vs Zaitun Nisa on 13 February, 1990
Equivalent citations: AIR1992PAT40, AIR 1992 PATNA 40
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This suit at the instance of the defendant arises out of a judgment and decree dated 10-2-1984 passed by Shri Dinesh Narayan Pathak, Special Sub-Judge, Ranchi in Title Suit No. 220 of 1982; whereby and whereunder the said learned court decreed the plaintiff-respondent's suit.
2. The plaintiff-respondent filed the aforementioned suit for a decree for specific performance of agreement of sale dated 8-5-1979. By reason of the said agreement the defendant agreed to transfer 854 Square fit of land in M.S. plot No. 206 bearing holding No. 583 appertaining to Ward No. 5 of Ranchi Municipality for a consideration of Rs.21,500/-.
3. The plaintiff allegedly paid a sum of Rs. 13,500/- by way of advance to the defendant on the date of execution of the aforementioned agreement dated 8-5-1979 and further paid sum of Rs. 600/- on 16-5-1979.
4. In terms of the aforementioed agreement and for sale dated 8-5-1979, which was marked as Ext. 3, the defendant was to execute a registered deed of a sale in favour of the plaintiff within six months from the date of receipt of permission granted by competent authority in terms of Section 27 of the Urban Land (Ceiling and Regulation) Act 1976.
5. The defendant in his written statement denied the execution of the said agreement. The defendant further contended that the suit was barred by limitation.
6. The defendant also contended that in any event as he had merely 1/5th share in the property in suit and as such the said agreement is void.
7. The defendant further contended that the lands in question amongst others were the subject matter of a partition suit which was filed by one of his co-sharers in which a preliminary decree has been passed.
8. Before the learned court below, the plaintiff categorically stated that she was ready and willing to pay the entire consideration amount stipulated in the aforementioned agreement dated 8-5-1979 and she is also ready and willing to relinquish all her claim of damages, if a decree for specific performance of the agreement in question is granted in respect of a portion of the property.
9. It is admitted that 1/5th share belonging to the defendant in the plot in question will be 426 square feet out of the suit land which is 854 square feet in area.
10. Learned court below, therefore, granted a decree for specific performance of contract in respect of the aforementioned 426 square feet of the land with structures standing thereupon directing the plaintiff to deposit the balance sum of Rs.7,400/-.
11. Mr. V. Shivnath learned counsel appearing on behalf of the appellant raised three contentions in support of the appeal.
12. Firstly he submitted that as no time was fisted I for performance of contract, in terms of Article 54 of the Schedule appended to the Limitation Act 1963, the time shall begin to run from 8-5-1979 i.e. date agreement or 16-5-1979 i.e. date of payment of a sum of Rs. 600/- and as the suit was filed on 15-9-1982 the same being beyond the period of limitation, the suit was barred by limitation.
13. Learned counsel secondly contended that in view of the fact that the plaintiff herself was not examined and further in view of the fact that only on the date of the institution of the suit, she executed a power of attorney in favour of her husband who examined himself as P.W. 12, he was not competent to depose on behalf of the plaintiff as to whether prior to 15-9-1982, the plaintiff was ready and willing to perform her part of contract or not.
According to the learned counsel in view of Section 16(c) of the Specific Relief Act 1963, it was incumbent upon the plaintiff to plead and prove that she at all material times was and still is ready and willing to perform her part of contract and in view of fact that she did not examine herself the factum of readiness and willingness to perform the part of contract the part of the plaintiff was not proved.
14. Learned counsel in this connection has relied upon a decision of the Patna High Court in Nawal Kishore v. Kauleshwari Devi reported in AIR 1986 Pat 301.
15. Learned counsel lastly contended that in view of the admitted fact that defendant could not have sold specific portion of the property which admittedly belonged to ajoint Hindu Mitakshare coparcenary family, the agreement dated 8-5-1979 could not have been specifically enforced. The learned counsel, in the alternative submitted that in any event as portion of the property which could have been allotted to the share of the defendant was less than 1/2 of the area agreed to be conveyed a decree for specific performance of contract could not have been passed by the learned court below in relation to the said property.
In support of these contentions learned counsel has relied upon in Bageshwari Prasad Duivedi v. Deopati Kuer; Hati Pratihari v.
Alekh Mohapatra reported in AIR 1954 Orissa 136.
16. Mr. Devi Prasad the learned counsel appering on behalf of the plaintiff-respondent, on the other hand, submitted that in this case the question of the suit being barred by limitation does not arise in view of the fact that the aforementioned agreement of sale deed dated 8-5-1979 was to be performed within a period of six months from the date obtaining of permission from the competent authority in terms of Section 27 of the Urban Land (Ceiling and Regulation) Act 1976, learned counsel submitted that in view of the fact that the defendant did not fulfil his promise in filing the application for permission in terms of Section 27 of the said Act, there cannot be said to be a refusal on the part of the defendant to perform his part of contract. According to the learned counsel, several notices were served upon the defendant to perform his part of contracts and the plaintiff filed the suit within three years from the date of sending the last notice dated 19-10-1981.
17. Learned counsel further contended that the plaintiff is a woman and request to perform her part of the contract had all along been made to the defendant by the plaintiff through her husband and as such he was competent to depose on behalf of the plaintiff to the effect that the plaintiff has all along been ready and willing to perform her part of contract.
In this connection learned counsel has referred to the statements made in paragraphs 5, 6 and 7 of the plaint.
18. With regard to the third contention raised on behalf of the appellant, the learned counsel submitted that there is no bar under Hindu Law any embargo has been placed to the effect that a coparcener cannot transfer a property which is in his separate possession. Learned counsel submitted that in.view of the fact that in the instant case the plaintiff has also pleaded that the defendant had been in possession of the property in question and in part performance of the said agreement for sale dated 8-5-1979, he had put the plaintiff in possession over a portion of the property agreed to be sold, the third contention raised by Shri. Shivnath has no substance.
19. According to the learned counsel, therefore, the defendant was competent even to sell the said property to the plaintiff which was in his exclusive possession.
20. Learned counsel further submitted that in the instant case in view of Section 12(3) of the Specific Relief Act 1963, the plaintiff was entitled to get a decree for specific performance of contract as she has declared that she was ready and willing to obtain a decree for specific performance of Contract even in respect of 426 square feet of land being 1/5th share of the plaintiff in the plot in question without any abatement in the consideration amount and the plaintiff has also expressly relinquished her claim of damages against the defendant,
21. Re : Contention I Article 54 of the Schedule appended to the Limitation Act 1963 reads as follows :--
For Specific Performance of Contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
22. From a perusal of the aforementioned provision it would be evident that period of limitation begins to ruh from the date on which the contract was to be specifically performed and if no such date has been fixed, from the date when the plaintiff received notice about the refusal on the part of the other side to perform his part of contract.
This aspect of the matter has been considered by the Bombay High Court in Shri-krishna Keshav Kulkarni v. Balajl Ganesh Kulkarni reported in AIR 1976 Bom 342.
23. In the aforementioned decision it has been held that in the event no particular date is fixed for specific performance of contract, the limitation will begin to run only on the date when the plaintiff had notice that the defendant refused performance.
(contd. on col. 2)
24. In the instant case the defendant was under a contractual obligation to file application for obtaining permission from the competent authority in terms of the provisions contained in Section 27 of the Urban Land Ceiling Regulation) Act, 1976.
25. It is true that as has been contended by Mr. Shivnath that the Supreme Court in Maharao Saheb Shri bhim Singhji v. Union of India reported in AIR 1981 SC 234, held Section 27 of the said Act is ultra vires the Constitution, but there cannot be any doubt that before the said Act was held to be unconstitutional, the persons concerned were bound to follow the law and in any event were expected to follow the same.
26. In this situation, in my opinion, the defendant cannot take advantage of his own wrong in not performing his part of contract namely to file an application before the competent authority for obaining permission in terms of provision of the said Act.
Further in any event as according to the plaintiff which has been pleaded and proved that she had all along been giving notice to the defendant requesting him to execute and register the necessary sale deed in terms of the aforementioned agreement of sale dated 8-5-1979, there cannot be any doubt that the plaintiff had all along been reminding the defendant to discharge his obligation under the said agreement. Further it appears from the notice dated 19-10-1981, which is contained in Ext. 2 that the plaintiff immediately after declaration of the law by the Supreme Court in Bhim Singhji's case (supra) through her advocate called upon the defendant to perform his part of contract within one month from the date of receipt of the said notice, in my opinion, the limitation has, thus, in this case begun to run from the date after expiry of one month from date of receipt of the said notice.
27. Further in any event, the plaintiff was at least entitled to six months period from the date of the agreement i.e. 8-5-1979 and even if the period of limitation is computed from 8-11-1979 the suit having been instituted within a period a three years from the said date the same will not be barred by limitation in terms of Article 54 of the Limitation Act, 1963.
28. Re:-- Contention 2 It is true that in a suit for specific performance of contract, the plaintiff should normally be examined for the purpose of proving that she had all along been and still is ready and willing to perform part of contract. There cannot be any doubt whatsoever in view of the provisions contained in Section 16(3) of the Specific Relief Act, 1963 the plaintiff must plead and prove that she had all along been ready and willing to perform her part of contract.
29. In the instant case apart from the fact that the plaintiff paid considerable amount out of the agreed consideration by way of advance on the date of agreement and paid a further sum of Rs. 600/- on 16-5-1979.
30. The plaintiff had issued several notices to the defendant which are Ext. 2 series, from a perusal whereof it would appear that she had all along been requesting the defendant to perform his part of contract.
31. P.Ws. 8 and 9 examined on behalf of the plaintiff categorically stated that the plaintiffs husband (P.W. 12), in their presence, revested the defendant to perform his part of contract and the defendant promised to get his name mutated as also file an application for obtaining permission to sell the property in question.
32. It appears from the notice dated 19th October 1981, that therein also, the plaintiff stated all facts relating to the execution of the aforementioned agreement and subsequent conduct of the parties.
33. As noticed herein before, there cannot be any doubt that ordinarily the plaintiff should have examined himself in order to prove the factum of her readiness and willingness to perfrom her part of contract, but in this case the Court cannot lose sight of the fact that the plaintiff is a Muslim lady.
34. Ext. 1 is power of attorney which was executed by the plaintiff on 5-2-1982 in favour of her husband whereby and whereunder she granted power of attorney in order to file the plaint and for taking other steps in the aforementioned suit which indicates that she was unable to present the plaint herself and to take other steps in the aforementioned suit and thus she felt the necessity to execute the power of attorney in favour of her husband.
35. Further as noticed hereinbefore, in paragraphs 5 and 6 of the plaint as also in the aforementioned notice dated 19-10-1981, it was specifically stated that the plaintiff had always requested the defendant to perform his part of contract through her husband. It was not the case of the plaintiff that at any point of time she herself contracted the defendant and requested him to perform his part of contract. It is thus the specific care of the plaintiff that she had all along been taking steps so far as negotiation of purchase of the land is concerned only through her husband or through her advocate.
36. In this situation, in the peculiar facts and circumstances of the case, in my opinion, it cannot be said that the plaintiff is nonsuited as she did not examine herself (in) court.
Re:-- Contention 3
37. Section 12 of the Specific Relief Act reads as follows:---
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 smalt portion 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 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 Clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under Clause (b), pays or has paid the consideration for the whole of the contract without any abatement; and . (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all rights 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 be specifically performed, the court may direct specific performance of the former part.
38. Section 12 of 1963 Act is a new provision. Under the old Specific Relief Act the same subject matter was contained in Sections 13 to 17 thereof.
39. The aforementioned provisions of Section 13 to 17 of the old Specific Relief Act read as follows:--
"Section 13 Contract of which the subject has partially ceased to exist-
'Notwithstanding anything contained in Section 56 of the Indian Contract Act, a contract is not wholly impossible of performance because a portion of its subject-matter, existing at its date has ceased to exist at the time of the performance.
Section 14 Specific performance of part of contract where part unperformed is small.-
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 the specific performance of so much of the contract as can be performed and award compensation in money for deficiency.
Section 15, Specific performance of part of contract where part unperformed is large.-
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 forms a considerable portion of the whole, or 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, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.
Section 16, Specific performance of independent part of contract.
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.
Section 17, Bar in other cases of specific performance of part of contract-
The Court shall not direct the Specific Performance of a part of a contract except in cases coming under one or other of the three last preceding sections".
40. This Court in Giridhar Das Anandij v. Sivaraj Madha Patel, reported in 1971 BLJR 828 : 1971 PUR 66, held, that Section 12(2) of the new Specific Relief Act has inter alia brought a change with regard to the substantive right of the parties although by and large the said Act deals with procedural aspect of law of specific performance of contract.
41. A Division Bench of this Court in the aforementioned case held that this change on a vital aspect is not really a change in respect of procedural aspect but on the other hand it fixes and specifies the mutual rights of the parties which may properly be classified under the head substantive law.
42. As noticed hereinbefore, Mr. Shiv-nath contended that the suit for specific performance of contract is not maintainable on two grounds namely:--
(A) The defendant being one of the coparceners had no right to sell specific portion of the joint family property.
(B) The area in question which fell in his share being 426 Square feet out of the area under the agreement namely 854 square feet being not considerable part of the whole a suit for specific performance of contract is not maintainable.
43. In the olden days disposition of the joint family property had along been looked down upon and discouraged. However, on passage of time, right of disposition in respect of separate properties has been established.
44. There cannot be any doubt that the joint owners that is to say, the family, has the requisite power to dispose of its property. There has been a difference of opinion amongst the propunders of Mitakshara School and Dayabagh School of Hindu law with regard to power of disposal of different joint owners in respect of his own share.
According to Mitakshara no joint owner may dispose of even his own share, but according to Dayabagh he may do so.
45. S.V. Gupte in his Hindu Law Vol. 11 at page 214 noted that aforementioned differences in opinion arose because of the conflict in the ideology of co-ownership recognised by two school viz. aggregate ownership of the Mitakshara joint family and separate ownership of Dayabagh school of Hindu.
46. It is, however, interesting to note that while the right of a joint family to dispose of any part of the family as also right of all the coparceners subject of course to the fact that the same would not be binding upon non coparceners unless it is for legal necessity is well recognised.
47. The right of a coparcener to dispose of the property either in whole or in part either by will or by gift or alienation for consideration is very much restricted.
48. In this connection Article 30 of the aforementioned Book may be reproduced:--
"Any coparcener may alienate for value his undivided interest in the joint family property:--
(1) Without the consent of the other coparceners according to the Mitakshara law as administered in the former presidencies of Bombay and Madras and in the Central Provinces, including the Bearer and (ii) with the consent of the other coparceners according to the Mitakshara law as administered in Bengal, the United Provinces, Bihar, Orissa, Oudh and the Punjab.
(2) A sole surviving coparcener may alienate for value the whole or any part of the joint property, (3) A coparcener who is father may (as such) alienate for value the joint family property (moveable and immoveable) to the extent of the undivided interest of himself and his male issue without the consent of his male issue for the payment of his own debt, provided that the debt is an antecedent debt and not of an immoral or illegal nature.
(4) A coparcener who is the manager may (as such) alienate for value the whole or any part of the joint family property (moveable or immoveable) in case of need or for the benefit of the estate without the consent of the other members of the family.
49. Thus, in the former presidencies of Madras, Bombay and Central Provinces including Bearer, any coparcener may alienate for value his entire or part of interest in the joint family property without the consent of the other coparceners but in the states of Bengal, former United Provinces, Bihar, Orissa, Oudh and the Punjab it can be done only with the consent of the other coparcener.
50. So far as the restriction of a coparcener governed by the Mhakshara School Bihar and Orissa governed by the Mitakshara school is concerned the following decisions may be noted:
(1) AIR 1916 Patna 203, Jwala Prasad v. Maharajah Protab; (2) AIR 1969 Orissa 18, Gopinath Deb v. Jagannath Boral; (3) AIR 1935 Patna 349, Mahindra Ojha v. Sitaram Ojha;(4) AIR 1921 Patna 447 Mathura Misra v. Rajkumar Misra;(5) AIR 1920 Patna 441, Ram Bilas Singh v. Ramyad; (6) AIR 1920 Patna 433, Amar Dayal Singh v. Har Per-shad.
51. However, the right of a karta to alienate the property for legal necessity and or for a purpose which is generally beneficial to the Hindu undivided family exists. Similarly the father has a right to alienate the joint family a property to pay an antecedent debt.
52. In Bageshwari Prasad Duivedi v. Deopati kuer, reported in AIR 1961 Patna 416, a learned single judge of this Court held that a Karta in absence of existence of a legal necessity or benefit of the estate cannot agree to make a settlement in favour of a third person and in such a case a decree for specific performance of contract cannot be granted even in relation in share of a karta. In that decision reliance was placed by this Court inter alia upon a decision of Orissa High Court in Hati Pratihari v. Alekh Mohapatra, reported in AIR 1954 Orissa 136 upon which as noticed herein before reliance has also been placed by Mr. V. Shivnath.
53. At this stage, however, a decision of the Supreme Court in Balmukand v. Kamla Watt, reported in AIR 1964 SC 1385, may be noticed in the aforementioned decision, the Supreme Court held that karta was not entitled to enter into an agreement for sale promising transfer of the coparcenery property, without any legal necessity but the same is binding upon him to the extent of his own share and a decree for specific performance of contract could be granted in terms of Section 15 of the Specific Relief Act, 1877. However, the question involved in this appeal was not raised in the aforementioned case.
54. In the instant case, therefore, regard being had to the fact that partition has been effected and the plaintiff's share in the property has been held to be 1/5th, it is evident that at the time when the agreement of sale was entered into, the defendant had no right to alienate the undivided share and that too in respect of specific portions of the property,
55. Mr. V. Shivnath, learned counsel appearing on behalf of the appellant, when questioned, stated that an appeal is pending in this Court against the aforementioned preliminary decree passed in the said partition suit.
56. In any event, there is nothing to show that any final decree proceedings had already been initiated and/or therein the property in dispute had been allotted to the share of the defendant-appellant.
At the stage of final decree proceeding, a party to the suit cannot claim allotment of a particular property as a matter of right but the court may regard being had to the facts and circumstances of each case take recourse to allotment of such property is to the co-sharers which are in their inclusive possession.
57. It is further possible that defendant may not be allotted any share in the premises in suit at all in the final decree proceeding. '
58. The other coparceners, as indicated herein before, would not be bound by the agreement for sale entered into by the defendant with the plaintiff.
59. In this view of the matter, in my opinion, the plaintiff was not entitled to any decree for specific performance of contract.
Mr. Devi Prasad learned counsel appearing on behalf of the appellant, however, argued that in this case the defendant himself in the agreement of sale deed dated 8-5-1979 (Ext. 3) described himself to be the owner of the subject matter of the agreement. The learned counsel further submitted that in the said agreement it has further been mentioned that there had been an oral partition amongst the members of the joint family as a result whereof the defendant claimed himself to be in exclusive possession of the said property.
Learned counsel further drew my attention to the fact that the defendant in paragraphs 5, 12 to 14 of his deposition had further stated that business of brothers were separate.
It is now well known by various decisions of the Supreme Court as also of various High Courts that partition of a co-parcenery Mita-kshara family governed under the school of Hindu Law consists of two parts namely:--(a) declaration of unequivocal intention by the co-parceners to servere the joint family status and (b) division of the joint family properties by metes and bounds.
60. An unquivocal declaration to severe the joint family status may inter alia be made by filing a suit or by serving a notice; whereas partition by metes and bounds has to be done by actual division of the properties belonging to the joint family.
61. The question as to whether there had been a partition by metes and bounds of the joint family properties or not depends upon the facts and circumstances of each case.
62. However, it is now well known that mere separate residence or carrying of separate business by themselves would not lead to an inference of partition by metes and bounds.
Reference in this connection may be made to Brajananda Pradhan v. Sachidananda Pradhan, reported in AIR 1990 Orissa 29.
63. Learned counsel, contended that in this view of the matter, it must be held that there had been a previous partition amongst the heirs of Kishun Mistri and as such the defendant was capable of entering into the agreement for sale in question.
64. Learned counsel in this connection has also drawn my attention to the following observations in Girdhar Das Anandji v. Jiva-raj Madhavir Patel, reported in 1971 BLJR 828.
"The last case relied upon by Mr. Roy also does not support his contention. In fact, this case to a certain extent goes against the contentions raised by the appellant. For the present it is sufficient to say that this case holds that when a member of a Hindu joint family purports to sell not only his own share, but also the share of other coparceners and the vendor is not able to give good title to anything more than his individual share in the property, the purchaser can claim the share of the actual contracting member of the joint family and can get a decree for specific performance in respect thereof. I fail to see how this case can be of any assitance to the appellant. I would consequently reject the contention of the appellant that since he was incapable of transfering the interest of his co-sharers, the suit for specific performance cannot be decreed even in respect of his share. In fact in similar circumstances, courts in India have decreed suits for specific performance in at least two cases reported in Purna Chandra Mukharji v. Gopendra Krishna Kandu and Sita Ram v. Bal Kishen."
65. There cannot be any doubt that if the defendant had already seperated from his other co-sharers or a party who is governed by Dayabhaga School of Hindu Law or by Mitakshara School of Hindu Law as adm-instered in some states he has a right to enter into agreement for sale in respect of his own share. However, in this case this point is not available to the plaintiff as subsequent to the entering into aforementioned agreement dated 8-5-1979, a Partition Suit was filed by Sukul Bishwakarma and another being Title Suit No. 144 of 1973 of 1981-82 and by a judgment dated 8-4-1983 the 3rd Additional Subordinate Judge, Ranchi, granted a decree in the following terms:--
"1. The plaintiff No. 1 entitled to l/5th share while the plaintiff No. 2 along with defendant No. 3 to 6, all being sons of Shanker Vishwakarma are jointly entitled to 1/5th share in the disputed property. So plaintiff No. 2 will be entitled to 1/5th of the 1/5th namely 1 / 25th share in the disputed property.
2. Similarly defendant No. 1 is entitled to 1/5th share in the disputed property but while carving out the equities the portion on which his newly constructed house stands should be allotted to his share (sic) do not cover more area than his own share. If his house is found to be standing on the portion of the disputed property more than his share and included in the share of Triloki defendant No. 2, Defendant No. 2 will also be entitled to 1/5th share in the disputed property similarly 1/5th share in the disputed property. Similarly 1/5th shall go to the defendant No. 7".
66. From the aforementioned judgment it appears that whereas the said learned court held that the defendant No. 1 is entitled to 1/5th share in the disputed property but while carving out the equities he did not pass any decree allotting the premises in question to him which was done in the case of his elder brother.
It will, thus appear whereas the said learned court directed allotment of a particular house to the defendant No. 1 of that suit no such direction has been made in respect of the defendant No. 2 of the said suit who is the defendant No. 1 before the learned court below and appellant in this appeal.
67. Further the said defendant in his written statement stated as follows:--
"(11) That since there has not been a partition of the property all the co-sharers are in joint possession of the same.
(12) That in fact Shukul Vishwakarma one of the sons of Kishun Mistri and Ganesh Vishwakarma sons of Shankar Vishwakarma have filed a partition suit being partition suit No. 144 of 1981, of the Court of the Addl. Subordinate Judge, Ranchi, for an inter alia for a decree of partition of the properties.
(13) That the widow of Kishun Mistri has since died and therefore, the property is held by the son and/or grand children of Kishun Mistri.
(14) That from the schedule it appears that the total area for which the agreement was alleged to have been entered is 804 Sq. ft i.e. more 1 katha whereas the shares of the defendant in the property in much less than 1 Katha and therefore, the alleged agreement itself is not valid.
(15) That allegations made in paragraph 3 of the plaint are false and are denied. The defendant never could put the plaintiff in possession over any portion of the property. In fact the plaintiff has been in possession of the suit property as a tenant on a monthly rent of Rs. 40/- only. It is palpably false to allege that the plaintiff has been coming in possession of the property in part performance of the agreement".
68. From the aforesaid statements made by the defendant, it is evident that the defendant had been claiming'that all the co-sharers are in joint possession of the suit properties and further the properties are being held by him along with other co-sharers but the grand children of Kishun Mistri are also entitled to share therein.
69. It is true as has been contended by Mr. Devi Prasad that the plaintiff has put forward a case before the learned court below that the defendant got the aforementioned partition suit filed in order to defeat the agreement of sate, as it would appear from the tenor of cross-examination of the aforementioned D.W. 5, but it appears that he categorically stated that all the brothers are joint and there has been no partition by metes and bounds.
70. Further the plaintiff at no point of time has questioned the correctness or otherwise of the judgment passed in the aforementioned Partition Suit No. 144 of 1981.
71. As it would appear in the impugned judgment the plaintiff made declaration that she is ready to purchase even the property falling in the share of the defendant in terms of the decree passed in the aforementioned partition suit No. 144 of 1981.
In this view of the matter, in my opinion, the plaintiff cannot be permitted to realise from her earlier stand.
72. Further from the judgment of the learned court below it does not appear that the plaintiff made any relinquishment of her claim of damages as is mandatorily required under Sub-clause (ii) Clause (b) of Sub-section (3) of Section 12 of the Specific Relief Act, 1963 which would be evident from the following portion of the judgment passed by the learned Court below which reads as follows :--
"Thus coming to the fact of this case as discussed above it is evident that though vide Ext. 3 defendant had agreed to execute a sale deed in favour of plaintiff for an area of 8.4 Sq.ft and 8" but defendant had got only 486 Sq. ft. In his share and it is further clear that it is more than held of the area which was agreed to be sold. Further more it is also admitted position that P. W. 12 on behalf of plaintiff is ready to take only the share of defendant in lieu of his entire consideration money agreed vide Ext. 3".
73. Taking thus the facts and circumstances of this case and particularly in view of the fact that even if a decree for Specific Performance of Contract is granted the same may be against the interest of the co-parceners, in my opinion, it will not be proper to exercise the Court's discretion in favour of the plaintiff.
74. It is now well known a decree for Specific Performance of Contract is equitable in nature.
75. Reference in this connection may be made in Balmukand v. Kamala Wati, reported in AIR 1964 SC 1385.
76. In this case, the plaintiff had made a prayer for alternative relief by way of compensation as described in Schedule of the plaint which reads as follows:--
Advance paid on 8-5-79 Rs. 13,500/-
Advance paid on 16-5-79 Rs. 600/- Damages Rs. 7,400/- Total = Rs. 21,500
77. In this case there is no denial that the defendant received the aforementioned amount 14,100/- from the plaintiff by way of advance.
No evidence on records, however, has been pointed out before me to show that the parties adduced any evidence with regard to the quantum of damages allegedly suffered by the plaintiff.
78. However, taking into consideration of the facts and circumstances of the case and further the fact that the defendant has not only made false promises to the plaintiff in terms of the a forementioned agreement dated 8-5-1979 which is contained in Ext. 3 and further in view of the fact that the defendant has defaulted in performing his part of contract although he kept on assuring the plaintiff that he would perform his part of contract, in my opinion, the plaintiff is entitled to interest on the aforementioned sum pendente lite and (further) at the rate of 12% per annum.
79. In the facts and circumstances of the case, the plaintiff is alsoentitled to exemplary costs from the defendant which besides the expenses incurred by the plaintiff respondent is estimated at Rs. 5000/- (Five thousand).
80. In the result this appeal is allowed in part and the judgment and decree passed by the learned court below is modified to the aforementioned extent.