Mohamed Akbar Batcha Sahib vs Y. Nagarajan

Srinivasan, J.—The appeal arises out of a suit for special performance. The agreement the execution of which is not denied, was entered on

18.6.1975 by the plaintiff and the defendant. The total consideration is Rs. 25,251/- out of which a sum of Rs. 5,000/- was paid as advance. The

sutured of matter of the agreement is house situated to Hosur Town. The agreement refers to the occupation of a tenant and provides that the

vendor has to get the tenant evicted to observant possession and give notice to the purchaser for completion of the transaction. The document also

refers to the vendors being jointly entitled to the properly with his brother Mohammed Ibrahim Sahib under a registry has deed dated 12.7.1941,

and that the vendor he gut a General Power of Attorney duly registered in 1967. The vendor did not perform his part of the contract. After the

issue of lawyer''s notice by the purchaser and failure on the party of vendor to send a reply, the purchaser filed the suit for specific performance of

the central property as he was entitled to only one half of the same and that the contract as such could not be specifically enforced. The trial court,

however, granted a decree for the refund of the sum of Rs. 5,000/- which was paid as advance by the purchaser with interest thereon. The

purchaser filed an appeal in this Court which was disposed of by a single judge. The learned judge held that the plaintiff is entitled to a decree for

specific performance of the contract with reference to the undivided half share by the vendor on payment of one halt of the total consideration. The

learned Judge has exercised his power under O.7, R.7, C.P.C. to mould the relief prayed for by the plaintiff and grant appropriate relief and

consequently, he set aside the direction given by the lower court for refunding the advance and passed a decree for specific performance with

reference to the vendor''s half share in the property on payment of Rs. 7625.50 which represented the balance out of one halt of the total

consideration. The aggrieved defendant has filed this appeal while the plaintiff has preferred a Memorandum of Cross Objections. The contention

of the appellant is that the direction of the learned Judge to execute a sale deed on payment of one hall of the consideration, is erroneous.

According to him, the plaintiff has to pay the full amount as agreed under the agreement Ex.A1 even though specific performance can be only with

reference to one hall of the properly. He places reliance on the judgement the Supreme Court in Balamukand v. Kamala Wait (A.I.R. 1964 SC

1985) and that of the Delhi High Court in Ram Kishan Das v. Bhavi Chand Sharma (A.I.R. 1988 Del 20). In both the cases, the question arose

with reference to the sale of the property belonging to a joint family and there was no proof of benefit to the family or consent by the adult

members of the family and the person who entered into an agreement was found to had no right to enter into a transaction on behalf of others.

Those two rulings will not apply to the present case.

On the other hand, the contention of the plaintiff is that the Court has to pass a decree directing specific performance of the contract as it is and

therefore, the defendant shall be directed to execute a sale deed for the entire properly even though he may be entitled only to one half thereof.

According to learned counsel, the plaintiff will proceed against the owner of the other half share, the brother of the appellant in the event of his

disputing the title of the plaintiff. Alternatively, the plaintiff relies on the judgment of the Division Bench of this Court in P.A.K.A. Shahul Hameed v.

Abdul Rasheed Khan (1992 1 L-W. 269) in which the Court granted a decree for specific performance with reference to the shares owned by

those persons who executed document on payment of consideration due for the said portion of the property.

After hearing the counsel on the both sides, we are of the opinion that the judgment and decree passed by the learned Judge of this Court are

based on equitable considerations and the suit being one for specific performance, he was well within his rights in having exercised his power under

Order 7, Rule 7, C.P.C and moulded the relief.

In addition to the reasoning given by the learned Judge, we want to point out that the defendant has made a specific reference to the Power of

Attorney in his favour said to have been given by his brother in Ex.A1 agreement. The relevant portion of the agreement reads as follows :

The vendor is entitled to the properly along with his younger brother Mohamed Ibrahim Sahib under a registered deed dated 12.7.1941. From the

joint donee the said Mohamed Ibrahim Sahib the Vendor has got a General Power of Attorney duly registered dated 1967.

The context in which the said recital is found, shows that the defendant has made a representation to be plaintiff that he had power of Attorney in

his favour authorising him to sell the property to the plaintiff. Though the document refers to a deed of Power of Attorney registered in 1967, the

defendant did not choose to produce the same before Court. What he produced in Court was only a registration copy of the Power of Attorney

dated 25.8.1964 which provided only for maintenance. Obviously, the defendant has not chosen to produce the relevant document and produced

some other document, which is not referred to in Ex.A1. Unfortunately the plaintiff has not taken steps to verify from the office of the Sub-

Registrar the existence of the deed of power of Attorney said to have been registered in 1967 or has not taken any steps to gel the same produced

into Court by appropriate summons. Apart from that, the plaintiff has chosen to mention in the notice issued through his lawyer that the defendant

had made a representation that the power of attorney was not with him and that his brother would come and join in the sale deed that may be

would up as being executed by himself and his brother.

On the facts and circumstances of the case were are of the opinion that the proper decree to the passed in this case is to permit the plaintiff to

have the specific performance of the contract with reference to the undivided one half share of the defendant which belongs to him admittedly and

undoubtedly.

Learned counsel for the appellant refers to Section 12 of the Specific Relief Act and submits that such a decree cannot be passed. We are

unable to accept this contention Section 12(3) reads in so far as it is relevant, as follows;

Where a party to contract is unable in perform the whole of his part of it and the part which must he left unperformed at 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 obtained a decree for specific performance but the Court may at the suit of the other party direct the pray in default to perform

specifically so much or his part of the contract as he can perform, if the other party.... .

(1) In case tailing 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 he 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.

It is seen from the above clause that the court can direct specific performance of the agreement with reference to the part which can be

performed for consideration reduced by the amount for the part which has to be left unperformed. In this case, it is not in dispute that the defendant

and his brother are equally entitled to the property and when the defendant is allowed to execute a sale deed with reference to his undivided half

share, the consideration shall be reduced to a half and that is what has been done by the learned single Judge in the appeal. We have no hesitation

to hold that there is no merit either in the appeal or in the Memorandum of Cross-Objections. Hence both are dismissed. There will be no order as

to costs.