Shanker Singh Vs. Narinder
Singh & Ors.
[Civil Appeal No.
3249 oF 2005]
J U D G E M E N T
H.L. Gokhale J.
appeal by special leave under Article 136 of the Constitution of India, seeks
to challenge the judgment and order dated 8.4.2003 rendered by a learned Single
Judge of the Punjab and Haryana High Court, in Civil Regular Second Appeal No.
The learned Single
Judge has allowed the said second appeal by the respondent Nos. 1 and 2 (contesting
respondents and original plaintiffs), who had filed a suit for specific
performance of an agreement entered into with the appellant (original defendant
No. 1). Although various questions of law are sought to be raised in this
appeal, the relevant questions for our determination are mainly two viz.
a. whether the High
Court has erred in applying the provisions of Sections 12, 14 and 20 of the
Specific Relief Act 1963 (hereinafter referred as `the act' for short), and
b. whether the agreement
in question being vague in nature was incapable of being performed? Facts
leading to this present appeal are as follows:-
12.1.1977 the appellant herein, a resident of Village Dera Saidan entered into
an agreement to sell certain property with the respondent No. 1, a resident of
Dera Mainda, both villages being in Tehsil Sultanpur, Distt. Kapurthala of
State of Punjab. The property to be sold consisted of two parts viz.
agricultural land, and a house property. The Agricultural lands were bearing Khasra
nos. 25/21/1-1/11-19, 26//24/6-11, 10/8-0, 12/5-8, 19/6-13, 20/8-0, 25//5/8-0,
15/8-0, 16/8-0, 17-8-0, 18/6-14, 21/2/5/7, 22/5-14, 23/8-0, 24/8-0, 25/7-18,
26/2-0, 34//2/6-14, 25//13/3-13.
relevant clause of the agreement stated as follows:- "Whereas the first
party is the owner of = share in 65-13 and the total area of the first party is
92-K-17M and the remaining one house in the abadi Dera Saidan bounded by the
custodian on the east, Kartar Singh on west, Pahar-passage on the south and the
= share belongs to the wife of the first party namely Pritam Kaur.
Now I am in need of
purchasing property and therefore, now I am executing this writing in my full
senses and dealing to sell the = share in lands measuring 92K-17M along with motor,
bore, passage, fan and water pump fitted with engine and without engine along with
the place for placing garbage including shamlat and including passage and all
the rights which vest in Pritam Kaur and also execute this deal for sale on behalf
of Pritam, with the party of the 2nd part for a total consideration of Rs. 1,24,500/-
and I have received a sum of Rs. 28,000/- in cash as advance money in front of the
The purchaser will get
the registry executed on 25th day of Magh 2034 and the possession will be
handed over at the time of registry." It was also agreed that if the
appellant violated the terms of the agreement, then the respondents were
entitled to the recovery of Rs. 28,000/- as earnest money and Rs. 28,000/- as
damages, the total coming to Rs. 56,000/. It was further agreed that if there was
any addition or decrease in the area agreed to be sold belonging to appellant, the
price of the same was to be adjusted accordingly.
so transpired, that on the agreed date of registration the appellant did not turn
up at the office of the Sub-Registrar, and hence the respondent gave a notice to
the appellant to execute the sale deed. The appellant did not respond, and therefore
the respondent No. 1 filed Suit No. 21/1978 in the Court of Sub Judge 1st Class,
Sultanpur Lodhi for the specific performance of the agreement.
The wife of Shanker Singh,
Pritam Kaur was joined as defendant No.2. (She is reported to have expired in
1997). The other co-sharers of the land had sold their land in dispute in
favour of one Joginder Kaur and three others who were joined as defendant Nos.
3 to 6 (Respondent Nos. 4 to 7 in the Civil Appeal).
appellant raised various defences. Firstly he denied having entered into the agreement,
and then he claimed of having received only Rs. 8,000/- and not Rs. 28,000/- as
contended that he did not have the authority to enter into the agreement to
sell = share in the house property which belonged to his wife. Lastly he contended
that he alongwith his two minor sons Amrik Singh and Balbinder Singh formed a
Hindu Undivided Family (HUF), and that he could not sell the coparcenery property
except in the case of legal necessity and for the benefit of the family.
Trial Court framed the following issues:
the agreement in question was executed by Shanker Singh defendant in his own behalf
and on behalf of defendant No. 2 for consideration?
Shanker Singh was competent to enter into agreement on behalf of defendant No.
the property in suit is the co-parcenary property as alleged in para No. 1 (on
merits) of the written statement filed by defendants No. 1 & 2?
the plaintiffs have been ready and willing to perform their part of the
defendant No. 1 has committed breach of the agreement?
the plaintiffs are entitled for specific performance of the amount claimed?
respondent examined himself, the writer of the agreement and one of the
witnesses of the agreement to prove the document of sale. The Trial Court held
on issue No. 1 that the evidence of the writer of the agreement and that of the
attesting witness was reliable, and that the earnest money of Rs. 28,000/- had
in fact been paid. The agreement in question was therefore proved to be a duly
executed document. This finding has been left undisturbed in the first appeal
as well as in the second appeal.
far as the second issue with respect to the competence of the appellant to enter
into the agreement on behalf of his wife is concerned, although the wife of appellant
Smt. Pritam Kaur did file a separate written statement, she did not enter into the
witness box. The Trial Court therefore, held that an adverse inference will
have to be drawn that she had given such an authority to her husband to sell
It further held that
when Shanker Singh had agreed to sell his entire land, there was no logic on
his part to retain the house, when he alongwith his wife had decided to shift
to some other place after purchasing some other property as is evidenced from
far as issue No. 3 is concerned, the appellant contended that he had purchased
the land in dispute from the proceeds of the sale of his ancestral land at
village Nihaluwal, which ancestral land belonged to his father Lachhman Singh. He
produced documents which showed that he as well as his brother Puran Singh and
his sisters had sold their lands at village Nihaluwal. However, the appellant
could not prove that the land in dispute was purchased from the proceeds of the
sale of the land which came to his share from his father.
The learned Single
Judge noted that in any case the property in dispute was not one inherited by
the appellant from his father. He observed that the land in dispute for being
proved to be an ancestral one, must be shown to have been held at one time by
the ancestor, and that it has come to the appellant by survivorship.
The learned Trial
Judge therefore held that the disputed land could not be held to be a
co-parcenery property wherein the minors had any share. The burden that the
disputed land, was a co-parcenery property was on the appellant, and he had
failed to discharge the same.
Trial Judge held that the respondents were of course ready and willing to
perform their part of agreement, and it is the appellant who had failed to
discharge his obligation. The learned Judge therefore decreed the suit for
specific performance by his judgment and order dated 20.2.1980.
appellant herein challenged this judgment in Civil Appeal No. 62 of 1980 (which
appears to have been numbered subsequently as Civil Appeal No. 92 of 1981). The
learned Additional District Judge who heard the appeal held that as far as the agreement
is concerned, the same had been duly executed, and that the appellant had received
the amount of Rs. 28,000/- as earnest money.
As far as the issue
with respect to the interest of the minors is concerned, he held that for
proving the property to be ancestral, the appellant had to show that the land
in Village Nihaluwal was originally held by his father Lachhman Singh, and it
was the same land which was sold by him and those proceeds had led to the
purchase of the land at Dera Saidan.
The learned Judge however,
noted that no documentary evidence of holding of Lachhman Singh with respect to
the land at Nihaluwal had been produced, nor was there any revenue entry of the
name of Lachhman Singh in the disputed land at Dera Saidan. Hence the disputed
land could not be held to be co-parcenery property.
First Appellate Court however found fault with the respondents' claim on two
counts. Firstly, it noted in para 6 of its judgment that `although it has not been
made clear in the agreement, it appears that Puran Singh, (the brother of the
appellant) was the owner of the other = share in the house as Puran Singh and
Shanker Singh had purchased their land jointly in equal shares in Village Dera
There was no dispute
that = share of the house was owned by Pritam Kaur, wife of the appellant. She
had filed a written statement opposing the decree. Therefore, in the same
paragraph the court subsequently observed `it has already been held that even
in respect of half the share in the house, Shanker Singh, defendant No. 1 had
no authority to sell the same and the plaintiffs have no right to claim a
decree for the same.'
The Court therefore
held by its judgment and order dated 23.2.1983 that the appellant could not
sell, or agree to sell the property of his wife without her written consent,
and therefore the agreement was incapable of being performed in respect of the
second count on which the First Appellate Court found the claim of the respondents
to be incapable of acceptance was that though the agreement provided for the sale
of 92 Kanals and 17 Marlas of land, it was actually found to be 94 Kanals and 16
Marlas (i.e. 1 Kanal and 19 Marlas in excess).
After examining the evidence
on record, the Court observed as follows:- "......Now in the agreement Ex.
P.1 the consideration of the whole property has been fixed at Rs. 1,24,500/- and
the consideration for the house has not been determined separately. Again, the
agreement provides for the sale of 92 Kanals 17 Marlas of land and at the end it
has been added that if any land was found to be in excess or deficient, then
the consideration would be increased or decreased correspondingly.
Now, in actual fact
it has been found that the holding of Shanker Singh is 94 Kanals 16 Marlas. However,
in the agreement no separate consideration for the land has been given nor is
the rate of the sale given and it is not possible to determine as to what should
be the cost of the excess land of 1 Kanals 10 Marlas. Had the price of the land
been mentioned separately, it could have been possible to work out the price of
the excess area by mathematical calculation but as the agreement stands this is
It was obvious that such
an excess share of land could not be segregated. The court therefore, held that
the whole of the agreement was incapable of specific performance. Hence it set aside
the decree of specific performance. The Court found fault with the appellant
also for entering into the agreement for sale of = share in the house belonging
to his wife without any authority. It, therefore, directed refund of the
earnest money of Rs. 28,000/-.
respondents challenged the judgment of the First Appellate Court by filing a Regular
Second Appeal No. 1338 of 1983 in the High Court. However, having noted the
finding of the First Appellate Court that Smt. Pritam Kaur had = share in the house
property, and it could not be sold by the appellant herein, and also since the
land was found to be in excess by 1 Kanal and 19 Marlas, the respondents submitted
in the High Court that they were ready to give up the claim for = the share of
Smt. Pritam Kaur in the house, and were also ready to restrict themselves to
the purchase of land of 92 Kanals and 17 Marlas as per the agreement, and
The order passed at
the time of admission of the second appeal reads as follows:- "
The 19th October, 1983.
Hon'ble Mr. Justice J.M. Tandon
the appellant :- Mr. Anand Swaroop, Sr. Advocate
Mr. Sanjiv Pabbi, Adv.
the respondents:- Mr. H.S. Kathuria, Adv. For Res. No. 1 and 2
Mr. Sanjiv Pabbi,
learned counsel for the appellants, states that the appellants are prepared to pay
full consideration of Rs. 1,24,000/- as stipulated in the agreement for the
purchase of the land and the share of Shanker Singh respondent in the house. Says
further that the appellants will not press for the transfer of half share of the
house which is owned by Pritam Kaur, wife of Shanker Singh.
High Court therefore, framed the substantial questions of law as follows:- "Whether
the plaintiffs are entitled to specific performance of the agreement in respect
of valid part of the agreement on payment of the entire sale consideration in
terms of Section 12 of Specific Relief Act, 1963."
It was submitted on behalf
of the respondents herein that they were entitled to relinquish the part of the
agreement which was not enforceable, and the same was permissible under Section
12 (3) of the Act. They relied upon the dicta of this Court in Kalyanpur Lime Works
Ltd. Vs. State of Bihar reported in AIR 1954 SC 165 to the effect that such an
relinquishment can be made at any stage of the proceedings.
This proposition of a
Bench of three Judges in Kalyanpur Lime Works (supra) has been reiterated by this
Court in Rachakonda Narayana Vs. Ponthala Parvathamma reported in 2001 (8) SCC 173.
The learned Judge hearing the second appeal accepted this submission, and by his
impugned judgment and order allowed the second appeal, and decreed the suit
filed by the respondents for specific performance for agriculture land admeasuring
92 Kanals and 17 Marlas after recording the statement of the counsel for the
respondents that they were relinquishing that part of the agreement which was
not capable of being performed.
Venkataramani, learned senior counsel appearing for the appellant assailed the
impugned judgment on various grounds, as against which Mr. Vishwanathan, learned
senior counsel appearing for the respondents defended the judgment as a proper
one in the facts of the case. Amongst other submissions, it was contented on
behalf of the appellant that minors' share could not have been sold without the
permission of the Court in view of the provision of Section 8 (2) of the Hindu
Minority and Guardianship Act, 1956.
However in view of
the concurrent findings as recorded all throughout in the present case, one cannot
say that the minor sons of the appellant had any share in the concerned
property which required the permission of the Court for its sale. It is,
therefore, not possible to accept this submission.
was then submitted that the agreement was incapable of being implemented as
rightly held by the Additional District Judge, and that the High Court had
erred in its application of the provisions of Section 12, 14 and 20 of the act.
Firstly, this was on
the ground that there was no specific reference to the price of the land per Kanal
or per Marla as held by the Additional District Judge. Secondly, it was submitted
that the relinquishment was not unambiguous.
The respondents had offered
to give up their claim for such excess land, but it was not possible to state
that the claim was being given up with respect to a particular parcel of land
bearing a specific Khasra number. The agreement was vague in nature and since
the proposed relinquishment was also ambiguous, the agreement was incapable of
being performed. Consideration of the rival submissions
this connection, we may refer to the relevant provisions of the Act. Section
12(3) of the Act permits a party to an agreement to relinquish a part of the
agreement which is not enforceable. However, it should be possible to identify and
demarcate that part of the agreement which is not to be enforced.
We must also keep in mind
the provision of Section 14 of the Act which deals with contracts which are not
specifically enforceable, and Sub-Section 1 (b) thereof includes therein a contract
which runs into minute and numerous details, as is seen in the present case. In
this connection, we must as well refer to Section 20 (1) of the Act which reads
as follows:- "Section 20. Discretion as to decreeing specific performance –
(1) The jurisdiction
to decree specific performance is discretionary, and the court is not bound to grant
such relief merely because it is lawful to do so; but the discretion of the
court is not arbitrary but sound and reasonable, guided by judicial principles
and capable of correction by a court of appeal."
and specific performance are both remedies available upon breach of obligations
by a party to the contract. The former is considered to be a substantial
remedy, whereas the latter is of course a specific remedy. It is true that
explanation (i) to Section 10 of the Act provides that unless and until the contrary
is proved, the Court shall presume that breach of contract to transfer
immovable property cannot be adequately relieved by compensation in money.
presumption is not an irrebuttable one. That apart, for a specific performance
of a contract of sale of immovable property, there must be certainty with
respect to the property to be sold. As held by this Court in para 18 of
Mayawanti Vs. Kaushalya Devi reported in 1990 (3) SCC 1 :- "18. 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............."
Vishwanathan, learned senior counsel for the respondents submitted that the
relinquishment of a part of the agreement was permissible. As far as the propositions
of law concerning relinquishment as canvassed by the respondents are concerned,
there is no difficulty in accepting the same. However, the relinquishment has
to be unambiguous.
As held by this Court
in Surjit Kaur Vs. Naurata Singh reported in 2000 (7) SCC 379, the party
seeking part performance must unambiguously relinquish all claims to
performance of remaining part of the contract. In the present case the offer of
relinquishment by the respondents cannot be said to be an unambiguous one, and it
will be difficult to decide as to which portion of the land is to be segregated
to be retained with the appellant, and which portion is to be sold.
Firstly, this is because
as rightly noted by the Additional District Judge, the agreement does not specifically
mention the price of the land, and in the proposed relinquishment, the
respondents have not stated as to which portion of land (admeasuring 1 Kanal
and 19 Marlas) they were agreeable to retain with the appellant.
Secondly, in the
agreement there is also a mention of `a motor, bore, passage, fan and water
pump fitted with engine and without engine along with the place for placing garbage
including shamlat' amongst the properties which were being sold. It is not on
record as to which parcel of land is having all these features. A question will
therefore arise as to with whom such a parcel of land is to be retained. Obviously,
a segregation of the land in dispute into two portions will be difficult.
the present case there is one more difficulty viz. with respect to the relinquishment
concerning the house. The First Appellate Court had categorically observed in para
6 of its judgment as quoted above, that the brother of the appellant, Puran
Singh appeared to be the owner of the other = share of the house, and the
remaining = share was in the name of Pritam Kaur, and that Shanker Singh did
not have any authority to sell it.
The judgment of the High
Court does not show that this finding had been challenged in the Second Appeal.
Nor was any submission made in this behalf before this Court. What the
respondents offered was to give up the claim for the share of Pritam Kaur, and
also the claim for the excess land of 1 Kanal and 19 Marlas which was accepted by
the High Court in its impugned judgment. The respondents, however, claimed to retain
the alleged = share of Shanker Singh, as can be seen from the order dated
19.10.1983 which is passed at the time of admission.
the respondents made a statement at the admission stage that they were ready to
pay the full consideration for the land as stipulated in the agreement, and for
the share of Shanker Singh in the house. This order dated 19.10.1983 records
that the respondents were ready to give up their claim for = the share of the
house owned by Pritam Kaur, but maintained the claim for the share of Shanker
Singh in the house.
As against that it
appears from the judgment of the First Appellate Court, that Shanker Singh did
not have any such share in the house. His wife had = share, and his brother
Puran Singh had = share. In the teeth of this finding of the First Appellate
Court, which is neither challenged nor reversed by the High Court, the proposed
relinquishment cannot be said to be a correct and unambiguous one.
It does not alter the
scenario and the agreement continues to remain incapable of performance. In any
case it is not clear as to how such an agreement could be acted upon.
for the reasons stated above, we have to hold in the peculiar facts and circumstances
of this case that inspite of the offer of relinquishment made by the
respondents herein, the specific performance of the agreement cannot be
granted, solely on the ground that it is incapable of being performed.
We have also to hold that
the High Court erred in applying the provisions of Sections 12, 14 and 20 of
the Act to the facts of the present case and in exercising its discretion, since
this was not a case for specific performance. We have therefore to allow this
appeal and set-aside the order passed by the High Court in Regular Second
Appeal No. 1338 of 1983. The suit filed by the respondents will have to be
have however to note that the respondents had paid the earnest money of Rs.
28,000/- at the time of entering into the agreement way back on 12.1.1977 i.e.
nearly 35 years ago. The respondents will therefore have to be compensated adequately.
On the question of the appropriate compensation, it was submitted by Mr.
Venktaramani, the learned senior counsel for the appellant that the agreement
was made at a difficult time in the social life of Punjab for a throw away
price. However, no evidence is placed on record to that effect.
He then pointed out
that the appellant had contended in the lower courts that respondents were
influential people. Even so, it cannot be ignored that inspite of the agreement,
the land has remained with the appellant all through out in view of the orders
passed by the courts from time to time, due to which he has benefited. The specific
performance of the agreement is being denied basically because of the finding that
the agreement was incapable of being performed inspite of the offer of relinquishment.
It is an adage that
money doubles itself in ten years, and on that basis the amount of Rs. 28,000/-
with an appropriate interest will come to atleast Rs. 3,50,000/-. If the land
was with the respondents, they would have earned much more. Having seen this
position, Mr. Venktaramani has fairly left it to the Court to decide an
adequate amount to be paid to the respondents by way of compensation and in lieu
of specific performance of the concerned agreement.
considered all the relevant aspects, we are of the view that to meet the ends
of justice, the appellant should be directed to pay the respondents an amount
of Rs. 5,00,000/- which will be inclusive of the earnest money with due return
thereon, and compensation.
therefore, allow this appeal and set-aside the judgment and order dated
8.4.2003 passed by the High Court in Civil Regular Second Appeal No.1338/1983,
as well as the one dated 20.2.1980 rendered by the Sub Judge at Sultanpur Lodhi
in Suit No.21/1978. The suit shall stand dismissed. There will be no order as
to costs. However, the appellant is hereby directed to pay an amount of Rs.
5,00,000/- to the respondents which amount shall be paid in any case by the end
of March, 2012.
( P. Sathasivam )
( H.L. Gokhale )