Andhra HC (Pre-Telangana)
Nallam Seeta Mahalakshmi And Ors. vs Talari Vijayalakshmi on 20 April, 2005
Equivalent citations: 2005(4)ALD130, 2005(6)ALT65
JUDGMENT A. Gopal Reddy, J.
1. This is an appeal by defendants 1 to 3 against the judgment and decree granted by the Subordinate Judge, Bhimavaram, West Godavari District dated 25.8.1986 made in O.S. No. 227 of 1980 wherein the learned Subordinate Judge decreed the suit of the plaintiff for specific performance of agreement of sale dated 10.7.1980.
2. For the sake of convenience, hereinafter the parties are referred to as they were arrayed before the Court below.
3. The plaintiff filed the suit to enforce the specific performance of agreement of sale dated 10.7.1980 to sell the house including the open land of Ac.0.17 1/2 cents within Bhimavaram Municipal Area; for delivery of vacant possession after execution of sale deed by all the defendants or in the alternative to direct the defendants 1 to 3 to execute the sale deed of their 17/21 share in the property and for partition of the said share and separate possession; in the alternative, if the said decree cannot be granted, for return of Rs. 10,000/- paid as advance to defendants 1 to 7 with interest at 12% per annum and for awarding Rs. 75,000/- towards damages as compensation for the loss. First defendant is the mother of defendants 2 to 7 and defendants 2 and 3 are the sons of late Nallam Ramarao and first defendant, whereas defendants 4 to 7 are their daughters and were not parties to the contract entered into by defendants 1 to 3 and did not subscribe their signatures to the agreement of sale under Ex.A.1, but were added as defendants 4 to 7 by plaintiff claiming that the contract was nevertheless binding on them on the ground that the first defendant, who is the mother of defendants 2 to 7 promised that defendants 4 to 7 will join along with them in execution of sale deed. It is pleaded by the plaintiff that the suit schedule property is a joint family property of late Ramarao and his two sons, defendants 2 and 3, and on the death of Ramarao, defendants 1 to 3 wanted to sell the suit schedule property for the purpose of discharging their mortgaged debt due to Bhimavaram Co-operative Urban Bank, apart from discharge of their sundry debts and for effecting repairs to their residential house and also for the purpose of purchasing landed property. Plaintiff accepted to purchase the property at Rs. 85,000/- settled after due bargain with the defendants 1 to 3 and paid an amount of Rs. 3,000/- as part of sale consideration to them and obtained agreement of sale executed by them on 10.7.1980 under Ex.A.1 on even date. As per the agreed terms and conditions, plaintiff has to make ready the balance of sale consideration of Rs. 82,000/-within three months and the defendants on their turn have to see that the amount due to the Bhimavaram Co-operative Urban Bank would be discharged and after such discharge the balance amount would be payable to the defendants. In the event of plaintiff fails to arrange the balance of sale consideration and delays the execution of sale deed, plaintiff had agreed to pay interest at the rate of 12% per annum till she obtains the registered sale deed from the defendants. On plaintiff making balance of sale consideration ready and on informing the defendants 1 to 3 if there is any delay in getting the defendants 4 to 7 to join in execution of the sale deed, the defendants are responsible for the loss and they can be proceeded both civil and criminal action. After entering into the said agreement, an amount of Rs. 7,000/- was again paid by plaintiff on 17.7.1980 to enable the defendants to discharge the loan amount availed with the Bhimavaram Co-operative Urban Bank vide endorsement under Ex.A2 and discharged the loan to the bank of Rs. 4,258.25 ps. under the receipts Exs.A.5 to A.7. When plaintiff made ready the balance of sale consideration in August 1980 and informed the same to defendants 1 to 3 for receiving the same and for execution of registered sale deed, defendants 1 to 3 postponed the matter promising to procure the presence of defendants 4 to 7. In the meanwhile as the plaintiff came to know that defendants 1 to 7 intended to sell the schedule property in favour of defendants 8 and 9, she got issued a registered notice on 19.8.1980 to defendants 1 to 3 and 8 and 9 calling upon defendants 1 to 3 to execute the registered sale deed as agreed by receiving the balance of sale consideration. Defendants 1 to 3 after receiving the notice, sent a reply on 17.10.1980 alleging that the plaintiff's husband induced them to execute the sale agreement and made them to believe that defendants 4 to 7 would join them at the time of execution of sale deed, though they were not willing to do so. They also stated that defendants 8 and 9 had been residing in the schedule house for the past five years. Hence, the plaintiff filed the suit.
4. Defendants 1 to 3 filed a common written statement contesting the suit stating that the plaintiff's husband, who was working as a clerk in the Commercial Tax Office at Palakole was residing for sometime in the rented house opposite to the plaint schedule property. It was pleaded that the suit schedule property was let out for rent and out of six portions, defendant No. 8 has been residing in the fourth portion for the past four years while defendant No. 9 has been residing in the third portion for the past nine years, and the other four portions were in occupation of other tenants. The premises is covered by the provisions of A.P. Buildings (Lease, Rent and Eviction) Control, Act. On the sudden death of late Ramarao, the plaintiff's husband assisted the defendants and stood by their side when the police were investigating into the death of late Ramarao, gained the confidence of defendants and advised them to dispose of the schedule property for due discharge of the debt due to Bhimavaram Co-operative Urban Bank. It is alleged that the plaintiffs husband persuaded the defendants to sell away the suit schedule property for an unconscionably low price of Rs. 85,000/- with an ulterior intention to have a wrongful gain, to have undue advantage that the locality around the building would be developed and thereby the value of the property would be increased. There were no compelling circumstances necessitating the defendants to sell the house. The value of the property on the date of the alleged sale is Rs. 4,000/-per cent apart from the value of the constructions and the total value of the suit schedule property is not less than Rs. 1,65,000/- at the relevant point of time. It is alleged that defendants 1 to 3 specifically informed the plaintiff that the defendants 4 to 7 have got 4/21 undivided joint share in the property and they should also be consulted before entering into the agreement, but the plaintiff and her husband informed them that defendants 4 to 7 need not join them in the agreement of sale and it would suffice if they join at the time of execution of sale deed. Defendants 1 to 3 informed the plaintiff and her husband that it is not possible to deliver vacant possession of the schedule property as the same is in occupation of the tenants for which, the plaintiff and her husband assured them that it is not necessary to mention about the occupation of the house by the tenants and they can see that the tenants would be vacated from the schedule house by the time of execution of the sale deed and at the instance of the plaintiff's husband, recital was incorporated for giving vacant possession of the property. The defendants though admitted about the receipt of Rs. 7,000/- under Ex.A.2 pleaded that subsequent to the execution of sale agreement one Nallam Estramma and her children got issued a registered notice dated 20.8.1980 to the first defendant alleging that Estramma was the second wife of late Ramarao and that Ramarao executed a will on 11.10.1978 bequeathing a portion of the schedule property in her favour for her life and with vested remainder right to her children and that she is entitled to recover possession of the portion of the schedule property. When the said notice was shown to the husband of the plaintiff, he took the first defendant to his advocate and got a reply notice issued denying the execution of the will in favour of Estramma though the first defendant had no knowledge about the truth or otherwise of the said will. Since the defendants 8 and 9 were not willing to vacate the schedule property and the defendants were not in a position to deliver the vacant possession of the schedule property apart from defendants 4 to 7 expressed their unwillingness to part with their share and therefore, the defendants requested the plaintiff to take back the advance amount of Rs. 10,000/- received by them on two different dates and to cancel the said agreement of sale. It was stated that defendants 1 to 3 or defendants 4 to 7 never intended to alienate the schedule property either in full or in part in favour of defendants 8 and 9 or their nominees at any time and they never tried to bring ante-dated possessory agreement of sale or other documents as contended by plaintiff. Due to non-co-operation of defendants 4 to 7 it has become impossible for the defendants 1 to 3 to execute the sale deed along with defendants 4 to 7 and deliver the vacant possession. It was stated that the plaintiff has no right to implead defendants 4 to 9 in the suit to claim any relief against them as there is no privity of contract between the plaintiff and defendants 4 to 9. The suit is bad for misjoinder of parties and cause of action and prayed for dismissal of the suit.
5. Defendants 4 and 5 filed a memo adopting the written statement filed by defendants 6 and 7. In their written statement, defendants 6 and 7 pleaded that defendants 1 to 7 succeeded to the 1/3rd joint interest in the plaint schedule property of late Nallam Ramarao equally as all of them are first class heirs under Hindu Succession Act. The defendants 6 and 7 have no knowledge about the proposal of defendants 1 to 3 to sell the schedule property to the plaintiff, about the debt due to Bank and other sundry debts and to their knowledge no repairs need be affected to their residential house and there was no proposal to purchase any landed property. The amounts settled between the plaintiff and defendants 1 to 3 for sale of schedule property is low and the same is not to their benefit or advantage. They are not aware of receipt of Rs. 7,000/- by defendants 1 to 3 and the factum of discharging the Urban Bank mortgaged debt. They denied about the issuance of notice dated 19.9.1980 by the plaintiff to defendants 1 to 3 and defendants 8 and 9, and themselves and defendants 4 and 5 refused to sell their interest in the schedule property when defendants 1 to 3 approached them. Finally, it is pleaded that the plaintiff is not entitled to any relief against them under the said agreement of sale since they are not parties to the same and defendants 1 to 3 have no right to enter into any such agreement on their behalf.
6. Defendants 8 and 9 filed written statement stating that they are the tenants in the suit schedule property since long time, defendant No. 8 is the tenant in the fourth portion from north of the suit schedule property and defendant No. 8 took the said portion on rental four years prior to the filing of the suit from the first defendant's husband and since then he has been residing there with his family by paying rents regularly. Defendant No. 9 is the tenant in the third portion of the schedule property, he took the same on rental from late Ramarao about six years prior to filing of the suit and has been residing there as a tenant by paying rents. It is stated that they never intended to purchase the suit schedule property and they have no capacity to do so.
7. Defendants 1 to 3 got their written statement amended as per orders in I.A.No. 1038 of 1985, dated 7.10.1985 and added Para 12(a) in their written statement wherein it is stated that the value of the property has been increased, which is not less than Rs. 4 lakhs, which is a material change, the plaintiff is not entitled to the equitable relief of specific performance and alleged that the plaintiff has not even deposited the balance of sale consideration and the interest accrued thereon, into Court, which clearly shows that the plaintiff is not ready and willing to perform her part of contract and hence, she is not entitled to the relief of specific performance. In view of the filing of additional written statement, the plaintiff filed a rejoinder denying the allegations about the increase of the market value of the property. As per the orders dated 21.2.1984, in LA. No. 435 of 1983 defendants 10 to 14 were added as legal representatives of deceased 8th defendant.
8. On these pleadings of the parties, the Court below framed the following issues and additional issue for trial:
1. Whether the plaintiff is entitled for the specific performance of the suit agreement dated 10.7.1980 against all the defendants?
2. Whether there is no privity of contract between the plaintiff and defendants 4 to 7?
3. Whether the Court fee paid is not correct?
4. Whether the suit is bad for misjoinder of parties?
5. Whether the suit is bad for the misjoinder of cause of action?
6. Whether the plaintiff is entitled for the vacant possession of the suit property?
7. Whether D-4 to D-7 are bound by the suit agreement dated 10-7-1980 executed by D-1 to D-3?
8. To what relief?
Additional issue:
Whether the plaintiff is entitled to any damages? If so, to what amount?
9. To substantiate the claim of the plaintiff, she herself examined as P.W.1, got examined the attestor of agreement of sale as P.W.2, examined her father as P.W.3 to speak about the transaction covered by agreement of sale and also got examined P.W.4 and got marked Exs.A.1 to A.13. On behalf of defendants, defendant No. 2 examined himself as D.W.1, defendant No. 5 examined as D.W.4 apart from examining D.Ws.2, 3 and 5, and got marked Exs.B.1 and B.2.
10. The Court below after elaborately considering the oral and documentary evidence, on Issue Nos. 1, 2 and 7 held that defendants 4 to 7 are not bound by the agreement of sale Ex.A.1 executed by defendants 1 to 3 and the plaintiff is not entitled to specific performance of the suit agreement against defendants 4 to 7. Issue Nos. 3 and 4 were answered in favour of the plaintiff. On additional issue, the Court below observed that the said issue do not call for any answer in view of its findings on Issue Nos. 1, 2 and 7 that the plaintiff is entitled to the specific performance of the agreement dated 10.7.1980 against the defendants 1 to 3, the contracting parties of their share only i.e., 17/21st share. Accordingly, the Court below decreed the suit in favour of the plaintiff for specific performance of the agreement of sale dated 10.7.1980 and for vacant possession of the suit schedule house to an extent of 17/21st share of the defendants 1 to 3 and dismissed the suit as against defendants 4 to 7 with costs and without costs as against defendants 8 to 12. Aggrieved by the judgment and decree, defendants 1 to 3 preferred the present appeal.
11. Sri Shesha Sai, learned Counsel for the appellants made the following submissions. Granting of specific performance is a discretionary relief and the Court below ought not to have been granted the decree in view of the facts and circumstances of the case and the evidence adduced, which clearly discloses that when the defendants 1 to 3 were in grief due to the sudden death of late Ramarao, the plaintiffs husband gained their confidence by standing their side at the time of investigation by police on the crime registered on the suspicious death of late Ramarao, who later influenced them to enter into the contract for Rs. 85,000/-, which is unconscionably low price. On the death of Ramarao, defendants 4 to 7 along with defendants 1 to 3 succeeded to the 1/3rd share left by Ramarao. When defendants 4 to 7 were not parties to Ex.A.1 agreement of sale to sell the residential house, the plaintiff is not entitled to seek partition of the same to the extent of shares of defendants 1 to 3. Plaintiff having pleaded for partition and separate possession as per Section 22 of the Specific Relief Act, 1963 (for short 'the Act'), since the shares of the defendants 1 to 3 under Ex.A.1 have not been ascertained, the plaintiff is not entitled to a decree for possession in view of Section 44 of Transfer of Property Act, since the suit schedule property is a residential house and as fifth defendant is residing therein, she is entitled to seek premtion rights in a suit filed for partition under Section 4 of Partition Act. When Nallam Estramma and her children got issued Ex.B.1 notice dated 20.8.1980 claiming that she is the second wife of late Ramarao and that late Ramarao executed a will on 11.10.1978 bequeathing a portion of the schedule property in her favour, the property is shrouded with cloud and unless and until the same is cleared, the plaintiff is not entitled for specific performance of agreement of sale dated 10.7.1980. Admittedly, six portions of the suit schedule property are in occupation of tenants and on one of the tenants vacating the property, one of the daughters of late Ramarao had occupied the premises and has been residing therein as she has no house of her own and under those circumstances, the plaintiff is not entitled for a decree of specific performance. Once the suit of the plaintiff is dismissed as against respondents 4 to 7 for partition, the Court below committed an error in granting the decree for specific performance and for possession even the shares of the parties have not yet been identified and in such circumstances, the Court below ought not to have exercised the discretion for granting a decree under Section 20 of the Specific Relief Act. The plaintiff was not ready and willing to perform her part of contract throughout and notice issued expressing her willingness has not been produced or marked for the reasons best known to the plaintiff, and the husband of the plaintiff, who obtained the agreement of sale in the name of the plaintiff, has not been examined. In support of the contentions made by learned Counsel for the appellants, reliance is placed on the following decisions: A.C. Arulappan v. Ahalya Naik, 2001 (6) ALT 26 (SC) = 2001 (5) ALD 90 (SC); Mohamed Asgar Mohamed Mazhar v. Arvind Raghunath Sawant, 2001 (5) Supreme 396; M. Veera Raghaviah v. M. China Veeriah, AIR 1975 AP 350; Potttem Subbarayudu v. Kothapalli Gangulu Naidu, 2000 (5) ALD 764; Mangal Singh v. Dial Chand, AIR 1940 Lahore 159; Shib Kumar v. Rasul Bux, AIR 1959 Cal. 302.
12. On the other hand, learned Counsel for the respondent-plaintiff argued that the allegation of the appellants that the husband of the plaintiff by gaining confidence influenced and forced the defendants 1 to 3 in entering into the agreement of sale at an unconscionably low price is invented to deprive the right of the plaintiff. Admittedly, the husband first defendant died in the year 1978, whereas the agreement of sale was entered into in the year 1980 i.e. two years subsequent to the death of husband of first defendant and hence the husband of the plaintiff influencing the defendants 1 to 3 in entering into the agreement of sale does not arise. It is contended that when defendants 1 to 3, who are admittedly, entitled to 17/21st share in the suit property, agreed to sell the suit schedule property and undertook that defendants 4 to 7 would join at the time of execution of sale deed, merely because defendants 4 to 7 are not parties to the agreement cannot be a ground to deny the specific performance and the Court below rightly decreed the suit to enforce the specific performance to the extent of 17/21st share of defendants 1 to 3, to which the plaintiff is entitled to. Learned Counsel for the respondent-plaintiff placed reliance on Baluswami Aiyar v. Lakshmana Aiyar, AIR 1921 Mad. 172, contending that on execution of sale deed plaintiff can acquire the status of co-sharer along with defendants 4 to 7 and after obtaining the decree she can work out her remedies for partition and separate possession of 17/21st share in the property. For the said proposition, he also placed reliance on the judgments in Tara Kishore v. Beharu, AIR 1958 Assam 67; Santan Narain v. Saran Narain, AIR 1959 Pat. 331 and Manohar Lal v. Onkar Das, AIR 1959 Punjab 252. Further, learned Counsel for the respondent-plaintiff contended that Section 4 of the Partition Act can be applied only when the respondent-plaintiff filed a suit for partition, but the same cannot be a ground for refusing the specific performance of the agreement of sale. In support of his contention, he placed reliance on Karri Perri Naidu v. B. Ramulamma, 1970 (2) APLJ 104 (SNRC). He contended that when the plaintiff filed the suit promptly within the period prescribed, it cannot be presumed that the plaintiff is not ready and willing to perform her part of contract. The learned Counsel sought to sustain the impugned judgment by placing reliance on Ramesh Chandra Chandiok v. Chuni Lal Sabharwal (Died) By LRs. , AIR 1971 SC 1238; Bank of India v. J.A.H. Chinoy, AIR (37) 1950 PC 90; and S.V.R. Mudaliar v. Rajabu F. Buhari, AIR 1995 SC 1607.
13. Considering the rival submissions made by learned Counsel on either side, the following points are settled for consideration.
1. Whether the husband of the plaintiff by gaining confidence of defendants 1 to 3 obtained the sale agreement at an unconscionably low price by misrepresentation and by playing fraud by taking advantage of their innocence?
2. Whether the plaintiff having sufficient knowledge of defendants 4 to 7 have their shares in the suit schedule property, is entitled to the discretionary relief of specific performance once the suit against defendants 4 to 7 has been dismissed, against which, the plaintiff has not chosen to prefer any appeal ?
3. Whether the plaintiff was always ready and willing to perform her part of the contract and entitled to specific performance of the contract to the extent of 17/21st share as decreed by the Court below having not taken the aid of Section 12(3) of Specific Relief Act ?
14. Point No. 1: In the written statement defendants 1 to 3 pleaded that on the death of Nallam Ramarao, there was some police enquiry and first defendant being an innocent women and defendants 2 and 3 being very young and inexperienced, husband of the plaintiff stood by their side at the time of police enquiry and thus he gained the confidence of the defendants 1 to 3. It was pleaded that even after the death of Nallam Ramarao, the husband of the plaintiff frequently visited them and advised them to dispose of the suit schedule property to discharge the bank loan, bargained at an unconscionably low price and at his instance they agreed to sell the property to his wife. They pleaded that they informed the plaintiff's husband that the tenants are in occupation of the suit premises and it would not be possible for them to deliver vacant possession and also informed that defendants 4 to 7 have got 4/21st undivided joint share in the property, but the husband of the plaintiff assured that the defendants 4 to 7 need not sign the agreement of sale and it is enough if they can join at the time of execution of sale deed and the defendants need not disclose about the occupation of the tenants. Whereas, the plaintiff in her chief-examination as P.W.1 deposed that defendants 1 to 3 informed her that defendants 4 to 7 would join them at the time of execution of sale deed and undertook to compensate if they would not join in execution of sale deed. She also admitted in her chief-examination that the suit schedule property consists of six portions and the same were let out to different tenants and defendants 8 and 9 were residing in 4th and 6th portions of the property respectively and on the date of agreement of sale all the six portions were under occupation of tenants. She denied the suggestion that herself and her husband persuaded defendants 1 to 3 to execute the agreement of sale in her favour even though they informed that defendants 4 to 7 have to be consulted. In the cross-examination she admitted that she has not approached the tenants before execution of Ex.A1 to know whether they are willing to vacate the suit schedule property. She also admitted in her cross-examination that subsequent to execution of Ex.A.1 she did not make any demand for execution of sale deed by approaching defendants 4 to 7.
15. P.W.2, who attested Exs.A.1 and A.2, in his chief-examination stated that the father of plaintiff looked after the matter on behalf of the plaintiff and her husband was not present. In the cross-examination, he admitted that first defendant did not go out to attend to the matter and defendants 2 and 3 have no experience to attend their affairs and he also admitted that he was not present at the time of bargain and settlement of terms between the plaintiff and defendants 1 to 3. He further admitted in the cross-examination that on the date of execution of Ex.A.1 the cost of the land per cent was Rs. 4,000/- in that locality and the cost of building would be about Rs. 1,00,000/- apart from the value of the site and he admitted that he was not present at the time of payment of Rs. 7,000/-under Ex.A.2, but subscribed his signature later. Though he was re-examined on behalf of the plaintiff, with regard to the market value as spoken by him, he was not confronted with the same. Plaintiff's father, who was examined as P.W.3, in his chief-examination stated that the drafting of Ex.A.1 took place at Sub-Registrar's office under a tree and at the time of settlement of bargain, himself, defendants 1 to 3 and P.W.2 and plaintiff were present. Whereas P.W.2 in his cross-examination admitted that he was not present at the time of settlement of bargain and terms between the plaintiff and defendants 1 to 3. But, in the cross-examination P.W.3 stated that P.W.2 participated in the settlement of bargain between the plaintiff and defendants 1 to 3 and there was no discussion with regard to the rights of defendants 4 to 7. Defendant No. 2 himself examined as D.W.1 and he stated that he was not present at the time of preparation of the agreement of sale and the agreement was executed on the advice of the husband of the plaintiff. He stated that the value of the property on the said date would be Rs. 1,165,000/- and admitted of receipt of amount of Rs. 3,000/-and Rs. 7,000/-. On his questioning, defendants 4 to 7 have indicated that they are not willing to sell away their respective shares in the property. In the cross-examination he admitted that he did not protest the contents in Ex.A.1 including proposal of purchasing some other property with the balance of sale consideration. He admitted that he has not sent any notice to the plaintiff contending that Ex.A.1 is unenforceable as it was obtained by force. In the written statement though it was vehemently stated that the husband of the plaintiff by gaining confidence influenced them by misrepresenting to enter into agreement, no specific instances were shown or deposed about the alleged undue influence or misrepresentation in obtaining the agreement of sale by force. In the cross-examination though D.W.1 stated that Ex.A.1 was obtained from him and others by force, no pleadings were set up to that effect nor any issue is framed. In the absence of the specific pleadings and the instances with regard to the alleged force in obtaining the agreement of sale, it cannot be said that the agreement under Ex.A.1 was obtained by plaintiff by misrepresentation or undue influence and by force. Accordingly, Point No. 1 is answered in favour of respondent-plaintiff.
16. Point No. 2: The agreement as evidenced by document under Ex.A.1 no doubt, embodies two fold obligations undertook by the vendors, defendants 1 to 3 namely; not merely to execute a proper sale deed by joining defendants 4 to 7 but to give possession as well.
17. Plaintiff in her evidence as P.W.1 admitted that first defendant promised to secure the presence of defendants 4 to 7 and that they recently come for festival and once again she stated that she would secure their presence. In the cross-examination she admitted that subsequent to execution of Ex.A.1, she did not make any demand for execution of sale deed by defendants 4 to 7, nor sent notice to them demanding them to join defendants 1 to 3 in execution of sale deed as per terms of Ex.A.1. It is admitted by the plaintiff in her cross-examination on behalf of defendants 4 to 7, that seventh defendant was minor at that time and was residing with her mother, first defendant and she did not know about the transaction. Plaintiff admitted that she knew that defendants 4 to 7 have got their shares in the property. Whereas, the father of plaintiff, P.W.3 in his cross-examination admitted that at the time of drafting of Ex.A.1 scribe asked first defendant to get the defendants 4 to 7 and till then he did not know that first defendant has got daughters and their right in the property. On coming to know of the same, he insisted for the presence of defendants 4 to 7 for execution of Ex.A.1, but the first defendant assured to secure their presence at the time of execution of sale deed. In the plaint it is categorically asserted that no partition was effected among defendants 2 and 3 and late Ramarao of their joint family property during the lifetime of late Ramarao and the plaint schedule property is the joint family property. In view of the same, I am of the opinion, that Ex.A.1 the agreement of sale to sell the property will not bind defendants 4 to 7 and that apart, defendant No. 7 was minor at that time. Therefore, the plaintiff cannot enforce the said agreement against the shares of defendants 4 to 7 in the property and the Court below rightly dismissed the suit against them, which do not call for any interference by this Court. This point is answered accordingly.
18. Point No. 3: In order to prove the readiness and willingness, plaintiff has pleaded that she made ready the balance of sale consideration during the month of August 1980 and informed the defendants 1 to 3 through her husband and mediators to procure the presence of defendants 4 to 7 and receive the balance of sale consideration by executing the registered sale deed in her favour. It is the case of the plaintiff defendants 1 to 3 postponed the matter for securing the presence of defendants 4 to 7 and subsequently as the plaintiff came to know that all the defendants 1 to 7 are intending to sell the suit schedule property either in full or part in favour of defendants 8 and 9, she issued a registered notice to defendants 1 to 3 calling upon them to receive the balance of sale consideration and execute the registered sale deed in her favour while marking a copy of the same to defendants 8 and 9 to desist them from entering into any collusive transaction in respect of the suit schedule property. The case of the plaintiff is that the defendants 1 to 3 have bounden duty to procure the presence of defendants 4 to 7, as they have undertaken the same at the time of entering into the agreement of sale. As defendants 1 to 3 got issued reply notice informing that defendants 4 to 7 were not willing to join in execution of sale deed, plaintiff filed the above suit seeking to enforce the agreement of sale against defendants 1 to 7 and to put her in possession after evicting defendants 8 and 9 from the suit schedule property stating that she has been willing to perform her part of contract and ready with the balance of sale consideration and ready to deposit the said amount into the Court as per the directions of the Court, that she complied all the formalities to obtain the sale deed, but defendants 1 to 7 are not willing and ready to perform their part of the contract. It is prayed that if the Court feels that specific performance by defendants 4 to 7 for their share of 4/21st cannot be granted, at least to direct the defendants 1 to 3 to execute the sale deed to the extent of their 17/21st share in the plaint schedule property and for any reason if the said relief cannot granted, she prayed for alternative relief to grant a decree for refund of the advance amount with interest at 12% per annum and Rs. 75,000/- towards damages.
19. Plaintiff in her evidence categorically admitted about defendants 1 to 3 informing her that defendants 4 to 7 would join them at the time of execution of sale deed, which is evident from Ex.A.1. In the cross-examination she admitted that she did not possess ready cash subsequent to Ex.A.1 but her father was readily having sufficient funds to fulfil the agreement from out of the income realized from the land. She deposed that a sum of Rs. 1,00,000/-is due from her father and he is having liquid cash of the said sum. Further, in the cross-examination, plaintiff admitted that she did not know if defendants have got shares in the property of late Ramarao and stated that she asked defendants 1 to 3 to see that defendants 4 to 7 would also join in fulfilment of agreement of sale and at the time of agreement, defendants 1 to 3 informed her that defendants 4 to 7 have also got shares and their presence would be procured by them at the appropriate time. She also admitted that defendant No. 7 was minor at the time of agreement and was residing with her mother, first defendant and she does not know anything about the transaction. She also admitted that neither her father nor herself gave notice to defendants 4 to 7 at any point of time calling upon them to join in execution of registered sale deed along with defendants 1 to 3. Whereas, her father, who tendered evidence as P.W.3 admitted in the cross-examination that on coming to know that defendants 4 to 7 have shares in the suit schedule property insisted for their presence in execution of Ex.A.1, for which, first defendant suggested that their presence was necessary only at the time of execution of sale deed. Ex.A.13 is the reply notice issued by defendants 1 to 3, in which, first defendant informed the plaintiff that she and her four daughters i.e., defendants 4 to 7, succeeded to the share of late Ramarao and they too also have shares in the property and without consulting them, the property cannot be bargained and at the instance of the plaintiff's husband defendants 1 to 3 executed the agreement of sale on his assurance that defendants 4 to 7 would join at the time of execution of sale deed and since the defendants 4 to 7 are not coming forward to execute the sale deed, the defendants 1 to 3 are agreeable to refund the amount of Rs. 10,000/- and requested the plaintiff to take back the said amount after cancelling the said agreement. But the plaintiff did not chose to reply to Ex.A.13.
20. Learned Counsel for the appellants-defendants 1 to 3 contended that since defendants 4 to 7 have their shares in the suit schedule property the Court below though dismissed the suit as against them for partition and for possession, has not properly exercised the discretion for granting the decree for specific performance of 17/21st share of the defendants 1 to 3. It is contended that the findings of the Court below that no suggestion was put to P.W.1 in her cross-examination to the effect that her husband has obtained Ex.A.1 agreement of sale from defendants 1 to 3 by force and it was not executed by them willingly, would fall on the ground in view of the evidence of P.W.1 wherein necessary suggestion was put to P.W.1 in that regard. It is contended that for non-examination of husband of the plaintiff an adverse inference can be drawn against the plaintiff to the effect that Ex.A.1 agreement was obtained at the influence of the husband of the plaintiff. It is contended that since it is established that defendants 4 to 7 have undivided shares in the property and since the property is in occupation and possession of the tenants, the Court below ought not to have exercised discretion for granting the decree for specific performance, but ought to have granted alternative relief for refund of amount advanced by the plaintiff. In support of his contentions, learned Counsel for the appellant placed reliance on the above decisions, A.C. Arulappan v. Ahalya Naik, Mohamed Asgar Mohamed Mazhar v. Arvind Raghunath Sawant, M. Veera Raghaviah v. M. China Veeriah, Pattem Subbarayudu v. Kothapalli Gangulu Naidu, Mangal Singh v. Dial Chand and Shib Kumar v. Rasul Bux (supra).
21. It is convenient to consider these submissions in the context of the decisions cited. At this stage, I can touch lightly on the facts and decisions in those cases.
22. In A.C. Arulappan's case (supra) the defendant agreed to sell his RCC building with appurtenant land in favour of plaintiff for a valid consideration and the property was outstanding on two mortgages- one in favour of the Karnataka Government and another in favour of Prgathi Co-operative Bank Limited. The property was in occupation of tenants. When the suit was filed for specific performance of the agreement, the vendor contended that purchaser was not entitled to seek specific performance on various grounds. The Trial Court declined to grant decree for specific performance and dismissed the suit though it held that there was no evidence to prove that the agreement was vitiated by coercion. By observing that the vendor was not keeping good health and voluntarily retired from service, the Trial Court held that granting of decree for specific performance could be put to great hardship to the defendant therein if the relief of specific performance was granted to the plaintiff therein. On appeal filed by purchaser-plaintiff, High Court decreed the suit as prayed for holding that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, would not be deemed to constitute an unfair advantage and the ingredients of Clause (b) of Section 20(2) of the Specific Relief Act, 1963 are not attracted. On further appeal by defendants, the Apex Court held as under:
"The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the Court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff."
While observing so, the Apex Court set aside the judgment of the High Court and directed that the plaintiff would be entitled to get advance amount with interest at 14% per annum from the date of payment till the date of realization.
23. In Mohamed Asgar Mohamed Mazhar's case (supra) the plaintiffs filed a suit for specific performance for sale of the property. The defendants filed a written statement stating that since the property belonged to a joint Hindu Undivided Family and the minors are co-sharers, no relief for specific performance can be granted. The defendants also filed a counter-claim in the suit for delivery of possession of the property. The Trial Court dismissed the suit as well as the counter-claim. Aggrieved by the same, plaintiffs and defendants preferred appeals against the dismissal of the suit and counter-claim. The first appellate Court dismissed the appeal of the plaintiff, however, the cross appeal filed by the defendants was allowed. Aggrieved, the plaintiffs filed two sets of appeal before the High Court and the High Court affirmed the judgment of the appellate Court to the extent it dismissed the appeal preferred by the plaintiff. However, the appeal to the extent it related to allowing cross-objection was allowed and the judgment of the first appellate Court was set aside. On further appeal by the plaintiffs, the Apex Court dismissed the appeal holding that once the property belong to the Hindu Undivided Family in which the minors have shares, who were admittedly, not party to the agreement, under law, the defendants could not sell the property without any legal necessity and accordingly, affirmed the judgment of the High Court in dismissing the suit.
24. In M. Veera Raghaviah's case (supra) the plaintiffs suit for performance of agreement executed in his favour by the father, who agreed to sell the joint family property, wherein his sons were also members of joint family, was refused by the Trial Court. Aggrieved, plaintiff filed an appeal before this Court and he also filed C.M.P. to amend the plaint seeking performance of the agreement by the first defendant to the extent of the land to which he is entitled to with the stipulated price of Rs. 6,300/- per acre, in case he is unable to perform the whole of the agreement and for refund of the amount paid in excess to him, or in the alternative for refund of the entire amount of Rs. 15,000/- with interest at 5% per annum. A Division Bench of this Court while allowing the CMP for amendment of the plaint refused to grant the relief in regard to the specific performance of the agreement to the extent to which, the first defendant was capable of on the ground that the agreement is a collusive document brought into existence by the plaintiff and the first defendant, but also for the reason that even for four acres of the land is not the exclusive property of the first defendant. Since it was the joint property of the two defendants, this Court rejected the relief in regard to the specific performance even in respect of the four acres or even in regard to the share which the first defendant might get in the four acres if partition takes place.
25. In Pattern Subbarayudu's case (supra) plaintiff filed the suit for specific performance of agreement of sale executed by defendants 1 and 2, who are joint owners of suit property along with defendant No. 3, who is not a party to the agreement of sale. When the Trial Court dismissed the suit, plaintiffs preferred an appeal before this Court. This Court after considering the agreement of sale in the light of the averments made in the plaint held as follows:
"The specific averment in the plaint to the effect that defendants 1 and 2 for themselves and on behalf of the defendant No. 3 entered into an agreement of sale with the plaintiffs is not supported by any recital in Ex.A.2, nor it is even discernible from a perusal of the whole document, nor the plaintiffs could establish the same otherwise. Therefore, that specific averment in the plaint remains unproved. It appears that it has been made after having realized that D3, who has 1/3rd share in the property is not a party to the suit agreement and the suit agreement of sale cannot be enforced for that share as against defendants 1 and 2. This conduct of the plaintiffs is blameworthy and disentitles them to any relief of specific performance."
Further, it was held that plaintiffs can seek for refund of the amount advanced at the time of execution of contract and accordingly, allowed the appeal in part decreeing the suit in favour of the plaintiffs for refund of the amount with interest.
26. Learned Counsel for the appellants-defendants 1 to 3 contended that once the suit for partition and separate possession against defendants 4 to 7 has already been dismissed, and since fifth defendant has been residing in the suit schedule property, the decree if any granted for 17/21st share, plaintiff necessarily has to seek for partition and separate possession as contemplated under Section 22 of the Specific Relief Act, in such an event, fifth defendant is entitled to claim premtion right as per the provisions under Section 4 of Partition Act.
27. Per contra, Sri N. Jaya Surya, learned Counsel for respondent-plaintiff submitted that since the defendants 1 to 3, who are entitled to 17/21st share in the property and who agreed to sell the property and assured the plaintiff that defendants 4 to 7 would join them at the time of execution of sale deed, it is their responsibility to see that the sale deed would be executed in favour of the plaintiff. It is contended that even if defendants 4 to 7 could not join in execution of sale deed, plaintiff is entitled to the decree for specific performance to the extent of shares of defendants 1 to 3. In support of the same, he placed reliance on Baluswami Aiyar's case (supra). It is contended that on execution of sale deed by defendants 1 to 3, the plaintiff would acquire the status of co-sharer along with defendants 4 to 7 and reliance is placed on the decisions, Tara Kishore v. Beharu, Santan Narain v. Saran Narain, Manoharlal v. Onkar Das and Karri Perri Naidu v. B. Ramulamma (supra). Further, it is argued that the very fact that plaintiff promptly issued the notice and filed the suit itself establishes that she was always ready and willing to perform her part of contract and that it is the defendants who have failed to perform their contract. Reliance is placed on the decisions Ramesh Chandra Chandiok v. Chunilal Sabharwal (died) by LRs., Bank of India v. J.A.H Chinoy, S.V.R. Mudaliar v. Rajabu F. Buhari and Rachakonda Narayana v. Ponthala Parvathamma, referred (supra).
28. In Baluswami Aiyar's case (supra) plaintiffs filed the suit to enforce specific performance of a contract to sell a house and ground in Madras made by first defendant with them and in the alternative for damages. The second defendant, who is the son of first defendant, was not a party to the contract and did not sign it but he was added as a party defendant as the plaintiffs claimed that the contract was nevertheless binding on him on two grounds namely, that he assented to it and authorized his father to sell the whole property including his own share and that the father himself had authority under the Hindu Law to sell the whole property as the sale must be taken to have been for the purpose of a family trade carried on by him for the benefit of the family. The Trial Court dismissed the suit against the son, second defendant but gave a decree against first defendant after directing him to convey the whole property including his son's half share in it, to the plaintiffs on their paying the balance of purchased money due. The first defendant preferred an appeal contending that once the contract was not binding on the second defendant, no decree for specific performance should have been passed at all even as against the first defendant, the plaintiffs' remedy, if any, being only a claim for damages and that in any event the decree for specific performance should have been confined to the first defendant's half share in the property under Section 15 of the Specific Relief Act. When the matter was referred to the Full Bench on difference of opinion, the Full Bench held that Section 15 of Specific Relief Act, 1877 (corresponding to Section 12(2) of Specific Relief Act, 1963) applies to the case covered by order of reference and that specific performance cannot be granted of the contract so as to direct execution of a conveyance of the entire property but that it is open to the purchaser to get specific performance so far as the share of the vendor is concerned on payment of the consideration agreed upon without any abatement. However, the relief for partition has been refused in the above suit.
29. In the decisions Tara Kishore v. Beharu and Santan Narain v. Saran Narain referred to supra, it was held that a right to obtain partition is a right inherent in the joint ownership of property. The mere fact that on an earlier occasion he could not obtain partition, is no ground for holding that the right of the co-owner to seek partition is barred forever. It is a continuing right, which a co-owner possesses in the joint property, and it is open to him to ask for separate enjoyment of his share of the property at any time he likes and the right to partition the property cannot be refused so long as his interest in the property is not extinguished.
30. In Manohar Lal's case (supra) a Division Bench of Punjab High Court held that a suit for partition dismissed for default under Order 9 Rule 8 does not bar a subsequent suit for partition for the reason that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues. Learned Counsel for the respondent-plaintiff contended that only in a suit filed for partition, the defendants 4 to 7 can claim relief under Section 4 of Partition Act and placed reliance in Karri Perri Naidu's case (supra). In the said decision, this Court held that the object of Section 4 of Partition Act is to prevent a transferee of a share in the family dwelling house, who is a stranger to the family, from forcing his presence and company on the members of the family by living in his portion which he has purchased. The aim is to retain, within bounds of law, the dwelling house entirely for the use and residence of the members of the family alone.
31. In view of the above legal position, learned Counsel for respondent-plaintiff contends that even without there being any appeal, the appellate Court in exercise of discretion under Order 41 Rule 33 can grant a relief for partition of the suit schedule property, which was denied by the Court below. With regard to the readiness and willingness of the respondent-plaintiff to perform his part of the contract, learned Counsel placed reliance on the judgment of the Apex Court in Ramesh Chandra Chandiok's case (supra). In the said judgment the Apex Court while taking into consideration of facts about the purchasers giving an advertisement in the newspaper about the existence of agreement and also sending a letter showing their readiness and willingness to pay the balance for purchase price on the respondents procuring the sanction of the authority to transfer the property in their name and further their making enquiry directly from the authorities about sanction, held that the circumstances show the readiness and willingness of the plaintiffs and there cannot be any straight-jacket formula to ascertain the readiness and willingness of the parties and the same have to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
32. The Privy Council in J.A.H. Chinoy's case (supra) held that in order to prove himself ready and willing to perform his obligation under a contract to purchase shares, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction and the question has to be considered based upon the facts and evidence adduced. The Supreme Court in S.V.R. Mudaliar's case (supra) held that rise in prices during the interregnum, should not weigh with the Court in refusing the relief if otherwise due to the purchaser and if merely because the prices have risen during the pendency of litigation, execution of specific performance cannot be denied if otherwise due, the relief could hardly be granted in any case, because by the time the litigation comes to an end sufficiently long period is likely to elapse in most of the cases. The said factor, therefore, should not normally weigh against the suitor in exercise of discretion by a Court.
33. Learned Counsel for the respondent-plaintiff further contends that in the absence of any evidence adduced by the defendants to prove that the plaintiff's husband exerted and made undue influence or force on defendants 1 to 3 in obtaining Ex.A.1 agreement of sale, the defendants cannot avoid the performance of the contract undertook by them. Once the respondent-plaintiff established her readiness and willingness to perform her part of contract and the same is satisfactorily established, which was accepted by the Court below, the same does not call for any interference.
34. It is now fairly well settled that ordinary rule is specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief (See Prakash Chandra v. Angadlal, AIR 1979 SC 1241 at P. 1244). It is equally well settled that grant of specific performance is a discretionary relief as declared by Section 20(1) of the Specific Relief Act. The Court is not bound to grant the relief merely because it is lawful to do so, but at the same time, the Section cautions that the discretion of the Court should not be arbitrary and the discretion exercised in granting relief has to be sound and reasonable and should be guided by judicial principles and capable of correction by a Court of appeal. Sub-section (2) of Section 20 of Specific Relief Act enumerates a few illustrations where the Court may properly exercise discretion not to decree specific performance. Class (c) thereof says that where the defendant entered into the contract under the circumstances, which though not rendering the contract voidable makes it inequitable to enforce specific performance is one such instance.
35. Fry in his Treatise on Specific Performance of Contracts, 6th Edition says at page 383 Para 821:
"The Court will not, as a general rule, compel specific performance of a contract, unless it can execute the whole contract; or, as Lord Romilly MR. expressed it, 'this Court cannot specifically perform the contract piecemeal, but it must be performed in its entirety if performed at all'."
36. It is now an admitted fact that the defendants 1 to 3 entered into an agreement to sell the suit schedule property for a sum of Rs. 85,000/- and paid an earnest money of Rs. 3,000/- on the date of execution of the agreement. Pleadings as well as the evidence let in by the respondent-plaintiff clearly discloses that plaintiff was aware that defendants 4 to 7 have also succeeded to the 1/3rd share possessed by late Ramarao in the property along with defendants 1 to 3 on his death. From the pleadings of the plaint itself it is clear that on issuance of notice on 19.9.1980 by plaintiff, the defendants 1 to 3 issued reply notice 17.10.1980 under Ex.A.13, in which, they categorically stated that defendants 4 to 7 were not willing to join in execution of sale deed, who are having undivided share of 4/21st share in the suit schedule property. Hence, by that time, the plaintiff is sufficiently aware of the fact that the defendants 1 to 3 cannot convey the property as agreed to be sold, in its entirety. In view of the same it is appropriate to have an insight into Sub-section (3) of Section 12 of Specific Relief Act, 1963, which runs as under:
"12.(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."
37. In Rachakonda Narayana v. Ponthala Parvathamma, , the suit filed by the plaintiff for specific performance was dismissed by the Trial Court holding that the plaintiff is not entitled to seek enforcement of a new contract either by way of substitution of the patta land or for proportionate deduction of the agreed price of the land when it was not found that the defendant has no right to sell either B plot, which was agreed to be sold along with A plot. The Trial Court further held that the title set up by Bhima Naik in respect of one item of the land did not entitle the plaintiff to vary the contract. Aggrieved, the plaintiff filed an appeal before the first appellate Court, wherein for the first time it was stated by defendant No. 1 that he has no title in respect of Plot B land and the same belonged to his wife and she has refused to assign the said land in his favour. Under such circumstances, the plaintiff moved an application for amendment of the plaint to the effect that the plaintiff is ready and willing to purchase Ac.2 acres of land in Plot A by paying the entire sale consideration and further relinquishing his claim in respect of the land contained in Plot B and that he would not claim any compensation. The said amendment was allowed by the appellate Court. The first appellate Court allowed the appeal decreeing the suit in respect of land comprising in Plot A. When the defendant preferred second appeal, this Court allowed the same holding that once the plaintiff did not come with the suit claiming benefit of Sub-section (3) of Section 12 of Specific Relief Act, 1963 and as he claimed performance of only part of agreement, he was not ready and willing to perform his part of whole contract and thus not entitled to decree for specific performance of agreement of sale. On further appeal by the plaintiff, the Supreme Court at Para 8 held as under:
"A perusal of Sub-section (3) of Section 12 shows that the first part of the said provisions mandates refusal of specific performance of a contract on certain conditions. However, the latter part of the provisions permits a Court to direct the party in default to perform specifically so much of his part of the contract as he can perform if the other party pays or has paid the agreed consideration for the whole of the contract and relinquishes all claims to the performance of the remaining part of the contract and all the rights to compensation for the loss sustained by him. If a suit is laid by the other party, the Court may direct the defaulting party to perform that part of the contract which is performable on satisfying two preconditions i.e., (i) the plaintiff pays or has already paid the whole of the consideration amount under the agreement, and that (ii) the plaintiff relinquishes all claims to the performance of the other part of the contract which the defaulting party is incapable to perform and all rights to compensation for loss sustained by him. 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."
On facts, the Supreme Court found that the first defendant for the first time at the appellate stage stated that he had no title in respect of Plot B land, which belonged to his first wife and his wife has refused to assign the said plot of land in his favour, which insisted the plaintiff to file an application for amendment of the plaint relinquishing his claim in respect of Plot B land as well as compensation for the loss he sustained for non-performance of a part of contract while agreeing to pay the entire part of contract amount. It was held that since the appeal is a continuation of the suit when an appellate Court hears an appeal, the whole matter is at large and the appellate Court can go into any question relating to rights of the parties, which a Trial Court was entitled to dispose of provided the plaintiff possesses that right on the date of filing of the suit. Since the first defendant prior to filing of appeal by the plaintiff never informed the plaintiff that his wife has refused to assign Plot B of land in his favour and he having no title over the said plot of land is incapable to perform the whole part of the contract, it was held that it is open to the plaintiff to move for amendment of the plaint, pleading therein the ingredients for part-performance of the contract as provided under Sub-section (3) of Section 12 of the Act. The Supreme Court held that since the plaintiff deposited the entire contract amount in the Trial Court and further relinquished his claim in respect of the remaining land as well as the claim for compensation the first appellate Court was justified in allowing the amendment of the plaint and decreeing the suit of the plaintiff and accordingly, set aside the judgment of this Court and allowed the appeal.
38. The jurisdiction of the Court in specific performance is discretionary. Fry in his Treatise on Specific Performance (6th Edition, P.19) said:
"There is an observation often made with regard to the jurisdiction in specific performance which remains to be noticed. It is said to be in the discretion of the Court. The meaning of this proposition is not that the Court may arbitrarily or capriciously perform one contract and refuse to perform another, but that the Court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff's favour. 'If the defendant', said Plumer V.C., 'can show any circumstances de hors, independent of the writing, making it inequitable to interpose for the purpose of a specific performance, a Court of Equity, having satisfactory information upon that subject, will not interpose'."
Regarding the extent of the jurisdiction Fry wrote:
"If a contract be made and one party to it make default in performance, there appears to result to the other party a right at his election either to insist on the actual performance of the contract, or to obtain satisfaction for the non-performance of it. It may be suggested that from this it follows that a perfect system of jurisprudence ought to enforce the actual performance of contracts of every kind and class, except only when there are circumstances which render such enforcement unnecessary or inexpedient, and that it ought to be assumed that every contract is specifically enforceable until the contrary be shown. But so broad a proposition has never, it is believed, been asserted by any of the Judges of the Court of Chancery, or their successors in the High Court of Justice, though, if prophecy were the function of a law writer, it might be suggested that they will more and more approximate to such a rule."
39. Coming to the facts in the case on hand, respondent-plaintiff though was very much aware that the shares of the parties have not been ascertained and they are possessing only undivided share in the property, has not made any endeavour to relinquish her claim in respect of other part of contract, which defendants 1 to 3 are not capable of performance and has not relinquished the claim for compensation in respect of the loss, if any, sustained by her in performing the contract undertook by defendants 1 to 3. It would be evident that a party to a contract which brings the suit under the provisions of Sub-section (3) of Section 12 of the Specific Relief Act, 1963 for specific performance of part of the contract, must frame its suit in the light of that sub-section incorporating the required averments to bring its case within its four comers. In other words, the frame of a suit for specific performance of the whole contract is distinct from that for specific performance of part of it, as different considerations arise in the two suits. Moreover, the defendant must have an opportunity by pleading and if necessary by adducing evidence, to show that the plaintiff is not entitled to specific performance of part of the contract. This he can do if there is a pleading on the part of the plaintiff bringing his case within the purview of Sub-section (3) of Section 12 of the Act strictly in accordance with Order 6 Rule 2 C.P.C. Mere praying for an alternative relief for specific performance of part of contract in case the whole contract cannot be performed is not sufficient, but if the plaintiff intends to do so, it must be clear from the plaint so as to give notice of it to the defendant. In my considered view, only on such pleadings the plaintiff is entitled for discretionary relief of specific performance, but not otherwise. The contents of suit notice as well as the facts pleaded in the plaint clearly disclose that the plaintiff sought for specific performance of whole contract and execution of the sale deed by defendants 1 to 7 in its entirety and she was not ready and willing to have a decree for a part of the contract i.e., to which the defendants 1 to 3 are capable of performance of their 17/21st share. The alternative relief sought was subject to the discretion of the Court, but not otherwise. In such a situation, the aid of Sub-section (3) of Section 12 of the Act not having been taken by the plaintiff, the suit deserved to be dismissed. Further, the Court below has also committed an error in decreeing the suit for specific performance of agreement of sate of 17/21st share of defendants 1 to 3 when the said share is unascertained and which has to be ascertained by a separate proceedings in a suit for partition after getting the status of co-sharer, by the plaintiff, if any.
40. I may also refer to another element of uncertainty or ambiguity in the contract in the event that has happened namely; defendants 4 to 7 refused to part with their share in the property. The share is undefined and the consideration for the sale price for the share of defendants 1 to 3 is also unspecified. Then the question that may arise for consideration is whether words could be read into Ex.A.1 to spell out an agreement, on the date of that exhibit, that, in case, defendants 4 to 7 backed out or not willing to join defendants 1 to 3 would sell their share to the plaintiff for the proportionate sale consideration or total sate consideration. It seems difficult to say that the answer should necessarily be in the affirmative. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the Courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Admittedly, the suit schedule property, which is agreed to be sold is a residential house, wherein defendant No. 5 along with 4 to 7, has succeeded to 4/21st share and has been residing therein. The decree for 17/21st share granted for execution of sale and possession, the defendants 1 to 3 will not be in a position to deliver vacant possession of the same as directed by the Court below in its decree. The remedy is to file a suit for partition by the plaintiff for the undivided 17/21st share and when such a suit is filed, it is always open for the defendants 4 to 7 to claim pre-emptory right under Section 4 of the Partition Act. It is well settled principle that Section 9 of the Specific Relief Act says that except as otherwise provided in that Act where any relief is claimed under Chapter II of the Act in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts. The same is missed the attention of the Court below while exercising the discretion of specific performance, which is a relevant factor, where the Court can always take into consideration while exercising the discretion having regard to the said fact. In view of the same, I am of the opinion, the Court below has not properly exercised the discretion in granting decree for specific performance in favour of the plaintiff.
41. Accordingly, the appeal is allowed and the decree and judgment of the Court below granting decree for specific performance of agreement of sale is set aside and in the alternatively, a decree for refund of advance amount with interest at 12% per annum from the date when the amounts were received by defendants 1 to 3 till the date of realization is hereby granted in favour of the plaintiff. Further, if any amount is deposited by the plaintiff pursuant to the decree granted by the Court below, the plaintiff is entitled to refund of the said amount together with interest accrued thereon. The decree and judgment of the Court below is modified as indicated above. Parties shall bear their own costs throughout.