S. V. Krishnaswami and others vs Munion

Sengottuvelan, J.—S.A.No. 210 of 1980 is filed by the defendants in O.S.No. 466 of 1976 challenging the legality and correctness of the

judgment of the District Judge of Salem in A.S.No. 6 of 1979. Similarly S.A.No. 694 of 1980 is filed by the same set of parties challenging the

legality and correctness of the judgment of the Subordinate Judge of Salem in A.S.No. 98 of 1978. The facts of the case are briefly as follows: -

The respondent herein filed the suit O.S.No. 466 of 1976 on the file of the Subordinate Judge of Salem praying for specific performance of the

agreement of sale in respect of the properties described in schedule A to the plaint. The said agreement is executed by the first defendant S.V.

Krishna-samy and the same is marked as Ex. A1. Ex. A1 is dated 17.6.1975. By means of the endorsement made in the agreement Ex. A1,

marked as Ex. A2, dated 10.3.1976, the period of the agreement was extended by three months i.e. upto 10th May, 1977. According to the

plaint allegations subsequent to the agreement, the respondent came to know that the lands described in Schedule B are ''D'' card lands which are

conditionally assigned to the said S.V. Krishnasami that he should not alienate the same for the period often years. Hence the respondent herein

filed the suit O.S.No. 466 of 1976 for specific performance of the agreement in respect of the A Schedule lands alone. He valued the A Schedule

lands at Rs. 4,000/- and prayed for the refund of the sum of Rs. 2,000/- out of the advance of Rs. 6,000/- paid by the respondent.

The case of the appellants before the trial Court was that they are the owners of the entire property and they are entitled to execute the sale

deed and the respondent is not entitled to the specific performance of the A Schedule property alone. The trial Court after considering the oral and

documentary evidence let in came to the conclusion that the B Schedule lands are ''D'' card lands which cannot be alienated by the appellants. The

trial Court also accepted the evidence of the respondent and his witnesses. that the value of the lands comprised in Schedule A is Rs. 4000/- and

accordingly passed a decree for specific performance and for return of the sum of Rs. 2,000/-.

As against the judgment of the learned Subordinate Judge the defendant filed an appeal A.S.No. 6 of 1979 on the file of the district Judge of

Salem. The District Judge after considering the evidence, oral and documentary, and the judgment of the trial Court confirmed the judgment of the

trial court and dismissed the appeal. The legality and correctness of the said judgment is questioned in S.A.No. 210 of 1980.

Pending the suit O.S.No. 466 of 1975 the respondent herein filed the suit O.S.No. 534 of 1976 on the file of the District Munsif of Sankari at

Salem, for an injunction restraining the defendants from interfering win his possession of the suit lands to which he was put in possession in

pursuance of the agreement Ex. A1. The first defendant in that suit contended that he is in possession of the property and the respondent is not

entitled to any injunction. The trial Court on the strength of the recitals in the agreement Ex. A1 held that the respondent is in possession of the suit

lands and granted a decree as prayed for. As against the said judgment the defendants filed A.S.No. 63 of 1978 on the file of the District Judge,

Salem, which was subsequently transferred to the file of the subordinate Judge, Salem and numbered as A.S.No. 98 of 1978. The learned

Subordinate Judge after considering the evidence in the case and the judgment of the trial Court confirmed the judgment of the trial Court only in

respect of A Schedule property and set aside the judgment in respect of B Schedule property on account of the fact that B Schedule property has

been resumed by the Government in the meanwhile. It is against the said judgment the defendants filed S.A.No. 694 of 1980 on the file of this

Court.

Since both the matters relate to the same transaction, both the appeals are taken together for disposal.

On the basis of the argument advanced the following questions arise for consideration in both the abovesaid second appeals: -

Whether the judgments of both the Courts below directing the specific performance of the contract evidenced by Ex. A1 is correct?

2 In any event whether both the Courts below are right in fixing the value of A Schedule lands at Rs.4,000/-?

Whether both the Courts below are right in granting the relief of injunction in respect of A Schedule lands to the respondent?

The agreement of sale is marked as Ex. A1. The consideration is Rs. 22,000/- and the property comprised of two items mentioned in Schedule

A and Schedule B to the plaint. In Ex. A1 it is stated that the properties are the absolute properties of S.V. Krishnaswami. The evidence of the

respondent is that subsequent to the agreement he was told by the Karnam that the B Schedule lands are ''D'' card lands which are assigned to

S.V. Krishnaswami on condition that he should not alienate lands for 10 years, and as such he is not entitled to sell the same. In view of this

situation the respondent herein filed the suit O.S.No. 466 of 1976 for specific performance of the contract of sale in respect of the A Schedule

lands by valuing them at Rs. 4,000/- and for the return of the balance of Rs. 2,000/-. On behalf of the appellants it is contended that under S. 12 of

the Specific Relief Act 47 of 1963 the respondent is not entitled to specific performance of a portion of the contract. S. 12 reads as follows: -

(1) Except as otherwise hereinafter provided in this section, the Court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small

proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of

so much of the contract as can be performed, and award compensation in money for 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.

According to the above section if either party to the contract is unable to perform the whole of it and the part which cannot be performed bears a

small proportion to the entire contract, this Court can direct specific performance of so much of the contract that can be performed and award

compensation in money for the deficiency. In cases where the portion which cannot be performed by the person who agreed to convey forms a

considerable part of the contract and he admits of compensation in money then the other party to the contract on payment of the agreed

compensation for the whole of the contract reduced by the consideration for the part which must be left unperformed, can ask for specific

performance of the contract in respect of the portion which can be performed. In such a case the party asking for the relief should relinquish his

claim for compensation, either for the deficiency or for the loss or damage sustained by him in respect of the transaction. In view of this legal

position it is open to the respondent to pray for the specific relief in respect of A Schedule lands in view of the fact that admittedly the B Schedule

lands are ''D'' card lands and the patta for the same had been subsequently cancelled by the Government. On behalf of the appellants reliance is

placed upon the case reported Parthasarathy Mudaliar v Kondia Chettiar, 77 L.W. 672=1966 (1) M.L.J. 90 where a Division Bench of this Court

in a case arising under the provisions of the old Specific Relief Act, has held that specific performance in respect of a portion of the property

capable of being sold, can be ordered on the purchaser paying the entire consideration and relinquishing his claim in respect of the balance of the

agreement and the damages arising therefrom. The law of Specific Relief has undergone a change and the entire old Act was repealed land the new

Act 47 of 1963 is substituted. The above decision is rendered under S.15 of the old Act. S.15 of the old Act is as follows:-

Specific performance of part of contract where part unperformed is large. Where a party to a contract is unable to perform the whole of his

part of it and the part which must be left unperformed forms a considerable portion of the whole or does not admit of compensation in money, he is

not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform

specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all

right to compensation, either for the deficiency, or for the loss or damages sustained him through the default of the defendant.

As per S.15 of the old Act the specific performance will have to be ordered as per the terms of the contract and on condition the person asking for

the specific performance relinquishes all claim to further performance and all right to compensation, either for the deficiency or for the loss or

damages sustained by him. But the provision had been changed under the new Act under S.12(3) (b) (i) to the effect that in such a case the party

asking for specific performance need to pay only the consideration for the whole of the contract reduced by the consideration for the part which is

left unperformed. Hence under the new provision the respondent can ask for specific performance of the contract by paying money equal to the

value of the lands comprised in A Schedule. Hence both the courts below are right in holding that the respondent is entitled to the relief of specific

performance in respect of A Schedule lands on payment of proportionate consideration equal to the value of A Schedule lands.

The second point to be considered is whether the value of Rs. 4,000/- arrived at for the A Schedule lands by both the Courts below is correct.

No doubt in Ex. A-1 the lands are not valued separately and the consideration is stated to be Rs. 22,000/- for both A and B Schedule lands. The

respondent as P.W. 1 has stated that A Schedule lands are worth Rs. 4,003/- and his evidence is supported by the evidence of P.Ws. 2 to 4 who

according to the evidence are the persons present at the time of agreement of sale. This version of P.Ws. had not been specifically denied by the

first defendant who was examined as D.W.1. He does not say that A Schedule lands are worth more than Rs. 4,000/-. D.W. 2 the attestor to the

agreement says that he does not know whether A Schedule lands are worth Rs. 4,000/-. Under the circumstances both the Courts below are right

in accepting the evidence regarding the valuation of A Schedule lands adduced by the respondent. It is contended on behalf of the appellants that

the extent of both A and B Schedule lands are more or less dry lands and hence the valuation of A Schedule lands will be much more than Rs.

4,000/-. But there is evidence to show that B Schedule lands are irrigated and the A Schedule lands have no such facility. Hence both the courts

below are correct in fixing the valuation of A Schedule lands at Rs. 4,000/-.

The third point to be considered is whether a decree for A Schedule lands to the respondent is correct. Ex. A1 recites that possession had been

delivered to the respondent, and he is also entitled to specific performance in pursuance of the decree granted in his favour in the above suit. Under

the circumstances the respondent is entitled to a permanent injunction in respect of A Schedule lands. In the result there are no merits in both the

second appeals and the same are dismissed. However, there will be no order as to costs.