Jeet Singh alias Jeetan Deceased Th. L.Rs. vs Daulat Ram and Others

Rakesh Kumar Jain, J.—The substantial question of law involved in this appeal is as to ""whether the relinquishment of a claim u/s 12 of the

Specific Relief Act, 1963 [for short ""the Act""] can be made at any stage of the suit or appeal without incorporating specific pleadings"".

The plaintiff is in second appeal against judgment and decree of both the Courts below by which his suit for specific performance of an

agreement to sell has been partly decreed for recovery of Rs. 44,000/- and the mortgagee rights held by the plaintiff in the suit land were ordered

to be continued.

The brief history of this case is that the plaintiff filed the suit for specific performance of an agreement to sell alleging that defendant No. 1

(Daulat Ram) was the owner in possession of land measuring 72 Kanals, situated within the revenue estate of village Chhainsa, Tehsil Ballabgarh,

District Gurgaon, who agreed to sell it to the plaintiff for a consideration of Rs. 65,000/- on 04.07.1977. It transpired between the parties that out

of the sale consideration of Rs. 65,000/-, a sum of Rs. 16,000/- would be retained by the plaintiff towards mortgage money payable by defendant

No. 1 to the plaintiff in respect of four mortgage deeds dated 10.06.1974 each for Rs. 4,000/-, out of the remaining sale consideration, a sum of

Rs. 44,000/- was paid as part payment at the time of execution of the agreement and the balance sale consideration of Rs. 5,000/- was agreed to

be paid at the time of registration of sale deed on 30.05.1978. It was averred by the plaintiff that he has always been ready and willing to perform

his part of the contract for the purpose of execution and registration of the sale deed. In this regard, he had approached defendant No. 1 several

times and also attended the office of the Sub-Registrar on 30.05.1978 along with requisite amount for registration of sale deed, but defendant No.

1 did not turn up, rather he got a collusive suit filed against himself from defendant Nos.2 to 5 bearing Civil Suit No. 614 of 1978 and transferred

the suit land by filing an admitted written statement in their favour. On these broad facts, the plaintiff prayed for decree for specific performance of

the agreement to sell dated 04.07.1977 on receipt of Rs. 5,000/- and in the alternative, recovery of Rs. 65,000/- with costs of the suit and future

interest @ 12% per annum from the date of filing of the suit till its actual realization. It was admitted in the written statement that defendant No. 1 is

recorded as owner of the suit land but execution of agreement to sell was denied. Defendant No. 1 denied the receipt of Rs. 44,000/- as part

payment. He alleged that his thumb impressions might have been taken on a blank stamp paper under influence of liquor alleging it to be special

power of attorney in favour of Bed Ram for sanction of mutation of mortgage created by him in favour of the plaintiff. The impugned judgment and

decree dated 22.12.1978 in favour of defendant Nos.2 to 5 was tried to be justified.

On the pleadings of the parties, following issues were framed by the learned Trial Court:

Whether the defendant No. 1 entered into impugned agreement with the plaintiff? If so the terms and the effect thereof?

Whether the plaintiff has been and is ready and willing to perform his part of contract? OPP.

Whether the impugned judgment and decree is illegal, collusive, fraudulent and not binding on the rights of the plaintiff, as alleged in para No. 8

of the plaint? If so, the effect thereof? OPP.

Whether the suit is not maintainable in the present form? OPD.

Whether the plaintiff has no locus standi to file the suit? OPD.

Whether the land in question is ancestral, as alleged in para No. 8 of the written statement? OPD.

Relief.

The learned Trial Court, while deciding issue No. 1, categorically held that defendant No. 1 had entered into the impugned agreement to sell

dated 04.07.1977 (Ex.P4) and had also received Rs. 44,000/- as part sale consideration vide receipt (Ex.P5). While deciding issue No. 2, it was

held that the plaintiff was always ready and willing to perform his part of the agreement. Issues No. 3 and 6 were taken up together in which it was

held that the suit land is ancestral, therefore, defendant Nos.2 to 5 have 3/4th share in the suit land, the other land is standing in the name of

defendant No. 1 and thus specific performance of the agreement to sell could not ordered and the impugned judgment and decree was held valid

to the extent of 3/4th share of the land involved therein. It was further held that the plaintiff is entitled to recover ? 44,000/- from defendant No. 1

alone and his mortgagee rights in the suit land shall be continue to subsist.

Aggrieved against the judgment and decree of the learned Trial Court, the plaintiff preferred statutory first appeal in which it was observed that

the findings on issues 1,2,4 and 5 were not challenged before me by the respondents. They are thus affirmed"". The findings on issues Nos.3 and 6

were basically assailed but the appeal was ultimately dismissed on 09.01.1984. However, the learned First Appellate Court had recorded that the

appellant''s counsel had argued before it that though the plaintiff/appellant is entitled to grant of specific performance of the agreement to sell with

regard to the entire land, but if it is not possible, decree may be granted to the extent of the share of respondent No. 1 (Daulat Ram). The said

prayer was declined by the learned First Appellate Court in view of the decision of this Court in the case of Devi Dayal v. Manohar Lal, 1982

Current Law Journal (Civil & Criminal) 83 on the ground that this claim was not pleaded in the plaint and hence, cannot be granted.

Aggrieved against the judgment and decree of both the Courts below, the plaintiff filed the present appeal in which notice of motion was issued

on 21.08.1984 on the following assertion made by the plaintiff which is reproduced as under:

Present: Mr. I.K.Mehta, Advocate, for the appellant.

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Learned counsel for the appellants states that his client is willing to pay the entire consideration for obtaining the decree against the interest of

Daulat Ram alone in the property.

Notice of motion to issue.

To come up on 16th October, 1984.

On 15.11.1984, the following order was recorded by the Court:--

Present: Mr. I. K.Mehta, Advocate, for the appellant.

Mr. R.S. Sehota, Advocate, for respondent Nos. 1 to 5.

The matter is concluded against the appellant by the judgment reported as Devi Dayal v. Manohar Lal, 1982 CLJ (C & Cr) 83. The learned

counsel for the appellant, however, argued that the above ruling was relied upon by Gupta J. in R.F.A. No. 75 of 1964, (Ganda Singh v. Surain

Singh (deceased) through Lrs. ) decided on 31st May, 1983 and L.P.A. No. 627 of 1983 against that judgment has been admitted.

To be listed for motion hearing after the decision in the above L.P.A.

On 07.11.1984, the Court had recorded the following order:

Present: Mr. I.K. Mehta, Advocate, for the appellant.

Mr. R.S. Sehota, Advocate, for respondent Nos.1 to 5.

To be put up with L.P.A. No. 627 of 1983.

To come up on 14.11.1984.

On 24.09.1992, the Court had recorded the following orders:

Present: Mr. I. K.Mehta, Sr. Advocate, with Ms. Gurnam Kaur, Advocate, for the appellant.

Mr. R.S. Sihota, Advocate, for the respondents.

Admitted.

Learned counsel for the appellant has argued that the plaintiff had made up his mind even before the learned First Appellate Court to forgo his

claim against 3/4th share of suit property transferred by defendant No. 1 in favour of defendant Nos.2 to 5 and had claimed that he may be

granted decree for specific performance in respect of the l/4th share of defendant No. 1, which has remained with him, after the decree, on the

payment of entire sale consideration. However, that prayer was not allowed by the learned First Appellate Court in view of the law prevailing at

that time by virtue of the decision in Devi Dayal''s case (supra), but the said judgment was subject matter of consideration in the case of Harnam

Kaur and others v. Jagtar Singh, 1991 PLJ 604 by which the decision in Devi Dayal''s case (supra) has been specifically overruled and it has been

held that ""we, therefore, hold that the relinquishment u/s 12 of the Act can be made at any stage of the suit or appeal and it is not necessary to

incorporate the plea specifically in the pleadings.

Learned counsel for the appellant has submitted that in terms of Section 12 of the Act, a part of the contract can always be performed. In this

regard, he has relied upon two decisions of the Supreme Court in the cases of Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, ,

Surjit Kaur Vs. Naurata Singh and Another, , and various decisions of this Court in the cases of Balkar Singh Vs. Mohabat Singh and Others, Tej

Kaur (deceased by L.Rs.) Vs. Devinder Kaur and Another, and Bhajan Singh and Others Vs. Jaswant Singh, Learned counsel for the

plaintiff/appellant has also argued thatthe decree suffered by.defendant No. 1 in favour of defendant Nos.2 to 5 was fraudulent in order to frustrate

the agreement to sell for which he had taken the substantial amount of consideration.

In reply, learned counsel for the respondents has submitted that the plaintiff had not pleaded in the plaint for alternative prayer of restricting his

claim to the extent of the share of defendant No. 1, therefore, he was rightly denied the said claim by the learned First Appellate Court, but at the

same time he has admitted that the judgment in Devi Dayal''s case (supra) has already been overruled by this Court in the case of Harnam Kaur

and others (supra) in which ultimately the decree was not granted to the plaintiff on the ground that decree for specific performance is a

discretionary relief which could not have been granted because of efflux of time and the default on the part of the plaintiff by not asking for it earlier.

He has further submitted that since notice of motion was issued only on the issue of the claiming the share of Daulat Ram (defendant No. 1), the

plaintiff cannot challenge the decree suffered by Daulat Ram in favour of defendant Nos.2 to 5.

I have heard both the learned counsel for the parties and perused the record with their able assistance.

Before referring to the admitted facts and the law relied upon by both learned counsel for the parties, it would be relevant to refer to Section

12 of the Act, which reads as under:--

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 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, andaward 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 right to compensation, either for the

deficiency or for the loss or damage sustained by him through the default of the defendant.

(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing

from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the

former part.

Explanation:-- For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion

of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance.

As per the admitted facts, defendant No. 1 had entered into an agreement to sell dated 4.7.1977 (Ex.P4), received Rs. 44,000/-vide receipt

(Ex.P5) and was obliged to execute the sale deed on 30.05.1978, but he had suffered the decree of 3/4th share of suit property in favour of

defendant Nos.2 to 5, who are his wife and minor children, on 22.12.1978 (Ex.P13), whereas the suit was filed by the plaintiff on 02.04.1979.

The agreement to sell and receipt, though denied by defendant No. 1, have been proved coupled with the readiness and willingness on the part of

the plaintiff, but decree for specific performance was not granted on account of transfer of land by defendant No. 1 in favour of defendant Nos.2

to 5 vide (Ex.P13). The plaintiff had admittedly not made a prayer before the Trial Court when the suit was decreed on 23.11.1981 that he may

be granted the decree in respect of the share of defendant No. 1 alone on payment of the entire amount of sale consideration. However, he made

this request without pleadings before the First Appellate Court who had dismissed his appeal on 09.01.1984 on the ground that there was no

pleadings in this regard in the plaint which was required in terms of the decision of this Court in Devi Dayal''s case supra. The fact remains that the

suit was decided by the Trial Court within two years of its filing and the appeal was decided within three years Within the period of 7 years of the

agreement, the plaintiff had made a prayer before the First Appellate Court for allowing him to take the remaining share in the hands of defendant

No. 1 after sufferance of decree dated 22.12.1978 on payment of entire sale consideration to him. Insofar as the question of law that whether a

part of the land can be asked for by the plaintiff on the payment of the entire sale consideration even if it is not so pleaded is concerned, that has

already been decided by the Division Bench of this Court in the case of Harnam Kaur and others (supra), therefore, this issue is no more res

integra as it has been held in Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, that relinquishment of the claim to further performance

can be made at any stage of the litigation. In Surjit Kaur Vs. Naurata Singh and Another, , it was held that part performance of contract can be

accepted by a party at any stage of litigation, but it was also held that once a party selects not to accept part performance, it cannot later on resile

or get out of the said election. In the present case, however, there is no evidence to refer to prove that the plaintiff had ever elected not to accept

part performance of the contract. In Balkar Singh Vs. Mohabat Singh and Others, , it was held that this Court can grant decree to the extent of

share of the vendor by reducing consideration proportionately. However, in the present case, the vendee/plaintiff is ready to pay the entire sale

consideration of the reduced share of the vendor. In Tej Kaur (deceased by L.Rs.) Vs. Devinder Kaur and Another, , it was held that plaintiffs are

entitled to relinquish their claim with regard to damages and with regard to deficiency in land even at the stage of second appeal. In the case of

Bhajan Singh and Others Vs. Jaswant Singh, , it was held that if inability of party to perform part of contract is coming to light, relief of part

performance could be claimed even at belated stage.

Thus, the law laid down by this Court is consistent after the decision in Harnam Kaur''s case that it is not necessary to plead alternative prayer

of restricting the claim to the part of the contract in terms of Section 12 of the Act, meaning thereby it would be suffice to relinquish the right of

specific performance in respect of the part of the land during the course of hearing. Hence, the substantial question framed in the beginning of the

judgment is decided in favour of the plaintiff and against the defendants. Now the question arises as to whether the plaintiff is entitled to decree in

respect of the share of defendant No. 1 or not as the Courts below have declined the decree and learned counsel for the defendants otherwise has

relied upon the later part of the decision in Harnam Kaur''s case (supra) in which this Court had exercised the discretion on the ground that the

matter was decided by the learned single Judge on May 31, 1983, and it was for the first time before him that the prayer for relinquishment qua the

claim of 46 Kanals 03 Marias was made. The LPA was decided by the Division Bench of this Court on 28.08.1991 and in this background, it was

held that because of efflux of time and default of the plaintiff by not asking it earlier, the discretionary and equitable relief of specific performance

could not be granted, whereas in the present case, the suit was filed in 1979 which was decreed with regard to recovery of the part payment in

1981 and in 1983 itself the plaintiff had made a prayer for relinquishment of his right in respect of the share of co-defendant Nos. 2 to 5 and had

restricted his claim with respect to the share of defendant No. 1 alone which was denied only on the ground of law prevailing at that time which has

now been overruled. Therefore, the plaintiff had acted in time before the First Appellate Court unlike in Harnam Kaur''s case (supra) in which the

plaintiff had made the prayer in the second appeal after the expiry of 21 years

Thus, in these circumstances, I am of the view that the plaintiff is entitled to decree for specific performance in respect of the share of defendant

No. 1 on the payment of entire sale consideration out of which Rs. 60,000/- have already been paid and only Rs. 5,000/- are left to be paid. The

said amount shall be paid/deposited by the plaintiff with the learned Trial Court within three months from the date of receipt of certified copy of this

order and defendant No. 1 shall execute the sale deed of his share in favour of the plaintiff. In case of refusal on the part of defendant No. 1 in

executing the sale deed, the plaintiff shall got it registered through the process of Court. The decree be accordingly drawn. Insofar as the remaining

land transferred in favour of defendant Nos. 2 to 5 is concerned, it would be pertinent to mention here that the plaintiff had only made the prayer

for the share of defendant No. 1 when notice of motion was issued on 21.08.1984 and has been pursuing his appeal as reflected from order dated

15.11.1984 in that direction only. Thus, I do not agree with the contention of the plaintiff in this regard and as such the prayer made by him in this

regard is hereby declined.

In nutshell, keeping in view the finding recorded here-in-above, the present appeal is hereby allowed, the decree for specific performance is

granted only in respect of the share of defendant No. 1 alone on the payment of entire balance sale consideration and the judgments and decrees

of the Courts below are hereby modified accordingly with costs throughout.