KRISHNA Vs. K S KRISHNA
LAWS(KER)-2003-6-17
HIGH COURT OF KERALA
Decided on June 26,2003

KRISHNAN Appellant
VERSUS
K.S.KRISHNAN Respondents

JUDGEMENT

- (1.) Defendant is the appellant. Suit was instituted for specific performance of an agreement for sale of A1 dated 12.10.1982. The agreement was executed by the defendant along with his brother Pulendran and Govindan. Plaint schedule house and compound is having an extent of 20 cents. Total sale consideration was Rs.1,45,200/-. An advance amount of Rs.20,000/- was paid on the date of the execution of the agreement. Defendant and his two brothers had also undertaken to evict the tenants residing in the property. It was agreed that the transaction be completed by 30th August 1983. While so, Pulendran surrendered his one - third share over the plaint schedule property in favour of Govindan. Govindan then executed assignment deed in respect of his 2/3rd share on 26.8.1986 to the plaintiff. Afterwards by instalments plaintiff had paid to the defendant and his two brothers a sum of Rs.1,05,000/- thereby making a total payment of Rs.1,25,000/-. However, the defendant was not prepared to perform his part of the contract. Hence the suit was instituted seeking a decree for specific performance of the agreement by defendant after receiving Rs.6,667/- his share of the balance consideration.
(2.) Suit was resisted by the defendant. Receipt of the further sum of Rs.1,05,000/- was denied by him. He contended that he had subscribed his signature in some of the papers taken to him by his brother Govindan and those papers might have been utilised for preparing the agreement and the receipt. Trial Court after considering the oral and documentary evidence came to the conclusion that A1 is genuine document, but denied the relief for the reason that the defendant had not received any consideration on the date of the agreement or thereafter and the agreement is not enforceable against one of the coowners. Aggrieved by the same plaintiff approached this Court and filed A.S.207/87. A learned single Judge of this Court allowed the appeal and directed the defendant to execute the sale deed in favour of the plaintiff in respect of his one - third share over the plaint schedule property on receiving Rs.6,667/- being his share of the balance consideration and put the plaintiff in full possession of the property. Defendant is aggrieved by the said judgment and has preferred this appeal.
(3.) The following substantial questions of law are raised by the defendant. i. When no part of the contract is left unperformed and the contract with the defendant does not stand on a separate footing with that of his brothers, was it correct in law to apply sub-s.(2) to (4) of S.12 of the Specific Relief Act Can Ext.A1 agreement be construed as two different contracts for conveyance of the property in parcels ii. When Ext.A1 agreement provided only for a joint conveyance, has not the terms of the agreement been violated by a release by one brother of the defendant and a subsequent sale by the other brother Was it therefore correct in law to grant a decree for specific performance of Ext.A1 agreement for sale as it stands iii. When Ext.A12 receipt is not duly proved and the payment of the amount thereunder not supported by the production of the account maintained by the plaintiff, was it correct to hold that the share of the sale consideration has been paid over to the defendant Does the finding of the Trial Court based on oral evidence call for any interference in appeal The main legal question which arises for consideration is whether the agreement can be enforced against the defendant who is only one of the executants of the agreement. This question centres round the interpretation of S.12 of Specific Relief Act. S.12 lays down the general rule that courts do not enforce the partial performance of a contract. As observed by Romilly M.R. in Merchants Trading Co. v. Banner (19 W.R.707) the Court cannot specifically perform the contract piecemeal, but it must be performed in its entirety if performed at all. The locus classicus of the law relating to partial performance is the following passage in Viscount Haldane's judgment in Rutherford v. Acton Adams ((1915) AC 866). In exercising its jurisdiction over specific performance a Court of equity looks at the substance and not merely at the letter of the contract. If a vendor sues and is in a position to convey substantially what the purchaser has contracted to get, the Court will decree specific performance with compensation for any small and immaterial deficiency provided that the vendor has not by misrepresentation or otherwise disentitled himself to his remedy. Another possible case arises where a vendor claims specific performance and where the Court refuses it unless the purchaser is willing to consent to a decree on terms that the vendor will make compensation to the purchaser, who agrees to such a decree on condition that he is compensated. If it is the purchaser who is suing, the Court hold his to have an even larger right. Subject to considerations of hardship he may elect to take all he can get, and to have a proportionate abatement from the purchase - money. The law relating to specific performance of part of a contract was earlier dealt with in S.14 to 17 of the Specific Relief Act, 1877. The same has been reproduced with some modification in S.12 of the Specific Relief Act, 1963. The general rule in sub-s.(1) of S.12 is that the Court shall not direct the specific performance of a part of a contract except as otherwise provided in that section. The exceptions are provided in sub-ss.(2) to (4). They constitute a complete code as far as enforcement of a part of a contract is concerned and the reliefs can be claimed or granted only within the terms thereof. Sub-s.(2) relaxes the general rule in favour of both parties. 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. That sub-section enables even a party in default to claim specific performance provided the part left unperformed is small in value and admits of compensation. On the other hand, if the part left unperformed forms a considerable part of the whole it is sub-s.(3) that is applicable. Under this sub-section a decree for specific performance of a part of the agreement will be granted on reduction from the consideration for the part which is left unperformed provided the following conditions are fulfilled. (i) The part which is left unperformed forms a considerable part of the whole though admitting of compensation in money, (ii) the part left unperformed does not admit of compensation in money, and (iii) the party who is not in default relinquished all claims to the performance of the remaining part of the contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. In a case where the part which is left unperformed forms a considerable part of the whole though admitting of compensation in money the party is entitled to obtain a decree on payment of proportionate consideration, viz. the agreed consideration for the whole reduced by the proportionate consideration for the part which must be left unperformed. Counsel on either side cited several decisions which were taken note of by the learned single Judge. Reference was made to the following decisions. Abdul Aziz v. Abdul Sammad ( AIR 1937 Mad. 596 ), Lakshmikantayya v. Nagayya (AIR 1955 AP 188), Balakrishnan v. Kunjikrishnan ( 1981 KLT 463 ), Narayana Surve v. Pappu Ammal ( ILR 1983 (1) Ker. 599 ) and also unreported decision in A.S.391 of 1982. Reference was also made to the decision of the Apex Court in Kartar Singh v. Harjinder Singh ( AIR 1990 SC 854 ).;


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