LAKSHMIKUTTY AMMA Vs. GOVINDAN NAIR
HIGH COURT OF KERALA
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(1.)The predecessor in title of the 8th defendant who is the appellant, executed an agreement of sale in respect of the property in suit on the 16th Karkadakom, 1121, of which Ext. P1 is the certified copy, undertaking that he would clear the three encumbrances on the property during the space of ten years, and execute a conveyance thereafter within one year. The plaintiff an assignee of the right under Ext. P1, sued for specific performance. The 8th defendant raised various contentions, but it is not necessary to go into all of them. The two courts have decreed specific performance and while the first court also gave a decree to the plaintiff for interest at 6 per cent per annum on the purchase money deposited by the plaintiff, the lower appellate court allowed mesne profits instead, to be determined by the first court by the issue of a commission which might also assess the value of improvements which the 8th defendant has effected, if at all, the latter being conditional on her paying the court fee on the amount of the value of improvements. The 8th defendant has preferred this second appeal.
(2.)There is no substance in the contention based on S.21(g) of the Specific Relief Act, that Ext. P1 "involves the performance of a continuous duty extending over a longer period than three years from its date" and therefore specific performance cannot be ordered. The discharge of the three encumbrances can in no sense be regarded as a continuous duty at all. "Continuous" means according to the dictionary, "joined together without interruption" and "continuation" implies "constant succession". The provision for clearing the three encumbrances within ten years does not attract the operation of clause (g) of S.21.
(3.)Under S.22 of the Specific Relief Act, the Court has a discretion in granting specific performance. This aspect was before the mind of the lower appellate court. The fact relied on that the plaintiff did not produce the original agreement of sale, but only its certified copy is no relevant consideration, nor is the fact that ten years is a very long period for the performance of the agreement or that improvements may have been effected in the interval by the 8th defendant. The plaintiff does not admit that improvements have been made. Even if improvements have been effected, the lower appellate court has allowed the 8th defendant, an opportunity to take out a commission for assessment of the same. 'Hardship' to be a consideration in deciding whether to decree specific performance or not, must relate to that which existed at the time the agreement came into being. This has been so ruled in Kunjumohammed A. C. v. Govardhan Hathibai Company ( 1956 KLT 20 ) not to mention other decided cases on the subject. I therefore consider that there is no need to revise the exercise of discretion by the lower courts in ordering specific performance.
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