- (1.) The facts giving rise to this second appeal by Chinti (defendant No. 1) who is the wife of Sadhu Ram (defendant No. 2) are these. In 1957 defendant No. 1 brought a plot of land measuring 398 sq. yards and situated in Taraf Perubonda, a locality of Ludhiana town. On the 15th of December, 1959, defendant No. 2, entered into an agreement (Exhibit P. 1) on behalf of defendant No. 1 with Rattan Devi plaintiff for the sale to the latter of an area measuring 117 sq. yards and forming part of the said plot, at the rate of Rs. 4.50 per sq. yard. According to the agreement, the area to be transferred to the plaintiff was located adjacent to the house of her husband Mukhtiar Chand. The agreement stated that defendant No. 2 had received a sum of Rs. 150/- as earnest money and stipulated that if defendant No. 1 failed to have a sale deed registered, the plaintiff would be entitled to have the agreement specifically performed. Three days later, i.e., on the 18th of December, 1959, defendant No. 1 executed a sale deed (Exhibit P. 2) in favour of the plaintiff conveying to the latter 129-1/3 sq. yards of land forming part of the plot above mentioned for a consideration of Rs. 528/-, out of which a sum of Rs. 150/- was stated to have been received by the vendor against the receipt dated the 5th of April, 1958. On the 11th of July, 1961, the plaintiff filed a suit for specific performance of agreement Exhibit P. 1. The defendants contested the suit on the ground that they had already performed their part of the agreement by executing sale deed Exhibit P. 2. Their explanation for execution of receipt Exhibit P. 1 was that it had been issued by them in lieu of the receipt dated the 5th of April, 1958, which the plaintiff said she had lost. The parties went to trial on the following issues :- 1. Whether the agreement dated 15th December, 1959 relied upon by the plaintiff has already been performed ? 2. In case issue No. 1 is not proved, to what relief the plaintiff is entitled ? 3. Relief. Issue No. 1 was decided by both the Courts below against the defendants for the reasons given below : (a) Sale deed Exhibit P. 2, according to the recital appearing in it, had been executed in performance of an agreement under which a sum of Rs. 150/- had been paid by the plaintiff as earnest money on the 5th of April, 1958. Apparently the transaction covered by agreement Exhibit P. 1 was a transaction separate and distinct from the one under which the receipt dated the 5th of April, 1958, was executed. (b) Agreement Exhibit P. 1 nowhere mentions that it was being executed in lieu of a previous receipt which the plaintiff claimed to have lost. (c) There was no necessity at all for the execution of agreement Exhibit P. 1 if it was merely a substitute for a former receipt which had been lost, when it is borne in mind that sale deed Exhibit P. 2 was executed only three days later. (d) The area conveyed by sale deed Exhibit P.2 was 129-1/3 sq. yards which was materially different from that forming the subject-matter of agreement Exhibit P. 1, namely 117 sq. yards. Similarly the price paid for the land sold under the sale deed Exhibit P. 2 works out to Rs. 4.10 per sq. yard, approximately which is substantially less than the rate at which the land was agreed to be sold in agreement Exhibit P. 1. Under issue No. 2 both the Courts held that the plaintiff was entitled to a decree for specific performance of agreement Exhibit P. 1. Under that issue a plea was taken before the lower appellate Court on behalf of the defendant that agreement Exhibit P.1 was void for uncertainty attaching to the subject-matter of the sale inasmuch as the precise location of the area measuring 117 sq. yards was not capable of determination from its description given in that agreement. The plea was turned down on the written statement and also because the lower appellate Court was of the opinion that the description of the area agreed to be sold under agreement Exhibit P. 1 was "adequate". The suit of the plaintiff was decreed by both the Courts below and that is why defendant No. 1 has come up to this Court in second appeal.
(2.) The concurrent finding given by the two Courts below on issue No. 1 is a finding of fact and must be affirmed inasmuch as it is not based on any misconstruction or misappreciation of evidence. Besides, the reasons given by the two Courts below in support of that finding are cogent and I fully agree therewith.
(3.) At one stage of the agreement I was inclined to think that agreement Exhibit P. 1 was void in view of the provisions of Section 29 of the Indian Contract Act and, therefore, not capable of being specifically performed inasmuch as its meaning was not certain or capable of being made certain. The reason for my holding this opinion was that the precise location of the area measuring 117 sq. yards agreed to be sold under it was not given with any precision. A bare reading of the agreement no doubt makes it appear that the description of the land agreed to be sold suffers from a patent ambiguity which the plaintiff could not be allowed to clear up by extrinsic evidence. However, the matter is not as simple as that. One of the sides of the area agreed to be sold is mentioned in the agreement as being adjacent to the house of Mukhtiar Chand, husband of the plaintiff. The extent of the area also is certain, namely, 117 sq. yards. The only uncertainty from which the description of the area suffers is that its shape (i.e., whether it is circular, triangular, quadrangular, etc.) and the number and size of the various sides, if any, encircling it, are not specified. The question then arises : Is this uncertainty of such a type as would render the agreement necessarily void ? In my opinion, the answer to this question must be given in the negative. The law, in my view, allows ambiguities of the type from which agreement P. 1 suffers to be cleared up by evidence. As laid down in Section 96 of the Indian Evidence Act : "When the facts are such that the language used might have been meant to more than one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to." Under the provisions of this Section the plaintiff has a right to show which 117 sq. yard was agreed to be conveyed. This she could do in more ways than one. She could show that on the date of agreement Exhibit P. 1 defendant No. 1 owned only an area of 117 sq. yards out of the entire plot of 398 sq. yards purchased by her (defendant No. 1) in 1957, the rest of the plot having been sold away or built upon by her (defendant No. 1) prior to the date of the agreement. She could also show that adjacent to the house of Mukhtiar Chand there lay on the date of the agreement only that much land in the ownership of defendant No. 1 as had an area of 117 sq. yards, the rest of the land being separated from such area by land sold by defendant No. 1 to others. In either of these cases the provisions of Section 96 of the Indian Evidence Act would come into play and the plaintiff would be entitled to a finding that the agreement though not certain was capable of being made certain. Thus the question whether Section 29 of the Indian Contract Act is attracted to the facts of the case is a mixed question of fact and law which cannot be allowed to be raised at the state of second appeal when it was not raised in the written statement and the plaintiff had no opportunity of producing evidence in relation to it. Mr. Thapar, learned counsel for defendant No. 1, has drawn my attention to Banwari Lal and Others v. Syed Muqtida Khan and Another,1953 1 ILR(All) 675. In that case Muqtida Khan and his brother Muhammad Yusuf jointly owned Kothi No. 10 with land appurtenant thereto on Bisheshwar Nath Road, Lucknow. Muqtida Khan entered into an agreement to lease his half share in the Kothi with the land to Radha Krishna and Dhanpat Rai for 90 days. One of the terms of the agreement was that Radha Krishna and Dhanpat Rai wee to set apart a plot of land having the dimensions 30' x 50' for the use of Muqtida Khan out of the land agreed to be leased. On a suit for specific performance of the agreement brought by Radha Krishna and Dhanpat Rai, Ghulam Hasan and Misra, JJ., who decided the first appeal arising out of the suit, held that the agreement was void for uncertainty inasmuch as the location of the plot of land measuring 30' x 50' and mentioned above was left undetermined. It is to be noted that this finding was arrived at on a consideration of the evidence according to which Dhanpat Rai himself could not give any satisfactory answer to the question as to who has to determine the location of the plot in question. The case is, therefore, distinguishable from the present one in which no opportunity was afforded to the plaintiff to lead evidence for clearing up the ambiguity from which agreement Exhibit P. 1 suffers and in the absence of such opportunity being afforded to her, it cannot be said that the terms of the agreement are not capable of being made certain.;