KOCHUTHAMPI RAWTHER HASSANKUTTY Vs. PEERUMUHAMMED PUTHUMALIYAR RAWTHER

JUDGEMENT

(1.) Defendant No. 3 in a suit for specific performance is the appellant in this case. He is an assignee from the 1st defendant who entered into an agreement with the plaintiff. The suit was decreed and confirmed in appeal by the lower appellate Court. Exhibit A10 is the agreement for sale dated 3-10-1978.

(2.) Can an agreement without mutuality be enforced? Can a decree for specific performance be granted in the absence of averment regarding readiness and willingness of the plaintiff in terms of S.16(c) of the Specific Relief Act? Can a decree for specific performance be granted, when there is much disparity in price due to lapse of time? These are the substantial questions of law formulated in this appeal. Can an agreement for sale be enforced when there is mistake of fact regarding the identity of a property agreed to be sold, is also argued as a question of law. Therefore, these are the substantial questions of law arising in this case.

(3.) The description of the property in Ext. A10 is 20 cents of land lying east west on the southern side of 55 cents of property touching the eastern side and stretching north south of a larger extent of 92 cents. The property covered by Ext. A10 was of course not described with side measurements. Though Ext. A10 agreement was disputed by the plaintiff both the scribe as well as the two witnesses examined as P.Ws. 2, 3 and 5 have proved the execution. In the light of this weighty evidence, the defendant No. 3 or the defendant No. 1 cannot deny execution of Ext. A10 agreement. It is contended by defendant No. 1 that he was not the owner of the whole of the property agreed to be conveyed as per Ext. A10. That property is owned by some other as well. Therefore, there is mistake regarding identity of the subject-matter of the agreement which itself is a mistake as to a matter of fact essential to the agreement. Therefore, the agreement is void. It is not in dispute that defendant No. 1, the executant of Ext. A10 agreement is a party to Ext. A1 partition deed and he and his wife got 8 cents each in terms of Ext. A1 and that as per Ext. A2 sale deed his wife has transferred the rights over her 8 cent to defendant No. 1. Exhibits A3 to A8 are certain other sale deeds in favour of defendant No. 1 transferring the shares of other sharers. These documents altogether cover an extent of 60 cents. Out of that as per Ext. A9, 5 cents of property purchased as per Ext. A5 had been sold by the defendant No. 1. Thus altogether the 1st defendant was having 55 cents of land. This 55 cents of land is part of a larger extent of 92 cents which was partitioned in terms of Ext. A1. It is out of this 55 cents, 20 cents had been agreed to be sold in Ext. A10, by defendant No. 1 to the plaintiff. The ownership over the 55 cents is not disputed by the defendant and as seen from Ext. C3 plan this 55 cent is marked as HBCLDEJKI. the entire 92 cents is almost in L shape and out of this the aforesaid 55 cents is touching the eastern boundary and also stretching the northern as well as southern boundary on one limb of the L portion. Therefore, that 55 cents, substantially satisfy the description made mention of in paragraph 4 of the plaint and Ext. A10 agreement. The 20 cents described within that 55 cents is also touching southern boundary and stretching east west. Therefore, the description of the 20 cents in Ext. A10 agreement also is satisfied more or less in conformity with the agreement. Both the parties did not, while entering into the agreement have any description of the property with the side measurement but only with reference to the sides of the said 55 cents forming part of a larger extent of 92 cents. In such circumstances, it cannot be said that there was any mistake as to a matter of fact essential to the agreement so as to invalidate the contract in terms of S.20 of the Contract Act.