SUBRAMANI Vs. KANNAPPA REDDIAR

JUDGEMENT

(1.) THE fourth defendant is the appellant in the Second appeal which arises out of a suit filed by the plaintiff seeking specific performance of an agreement of sale of the suit properties. The first defendant is the husband of the second defendant and the minor third defendant is the step-sister of the second defendant. Defendants 1 to 3 entered into an agreement with the plaintiff to sell the share of the second defendant as well as share of the third defendant to the plaintiff for a sum of Rs. 4,000/ -. An advance of Rs. 500/- was received. A period of four months was fixed for completion. In executing the agreement the first defendant acted as guardian for his sister-in-law, the minor third defendant. When the plaintiff pressed the defendants to complete the transaction, the second defendant repudiated the agreement itself while on behalf of the third defendant, the objection was raised that the first defendant had no authority to represent her. On 17-10-1964, the second defendant sold to the fourth defendant her share in the properties covered by the agreement. On the same day, the guardian of the third defendant sold the third defendant's share to defendants 5 and 6 and the plaintiff instituted the present suit for specific performance on 13-11-1964. The trial Court dismissed the suit, but in appeal, the plaintiff suit was decreed with reference to the share of the second defendant, with a proportionate abatement in the price payable by the plaintiff under Section 12 (4) of the Specific Relief Act of 1963 (hereinafter referred to as the Act ). The fourth defendant who has purchased the property from the second defendant with knowledge of the agreement of sale and as against whom also there is a decree for specific performance has preferred this second appeal.

(2.) SEVERAL useless and untenable contentions were raised on the merits before the courts below, like (a) denial of the execution of the agreement by the second defendant, (b) the plaintiff's waiver of his right and (c) the fourth defendant being an innocent purchaser without knowledge of the agreement of sale etc. and they were all found against and learned counsel for the appellant did not, rightly, question the correctness of those findings. He confined his arguments only to the question whether, on the facts and the circumstances of this case, the plaintiff would be entitled to specific performance of a part of a contract with abatement of a proportionate purchase price.

(3.) IN India, the power and jurisdiction of the Court to grant specific performance of a part of a contract was limited and circumscribed by the provisions in Ss. 14 to 17 of the repealed Act of 1877. Under the new Act of 1963, those provisions have been amalgamated and are contained in Sec. 12, sub-sections (1)to (4) with some modifications. Section 12 of the present Act which has taken the place of Sections 14 to 17 of the repealed Act constitutes a complete Code in respect of a claim for specific performance of a part of a contract. In this respect, the law in India is not in complete consonance with the law in England as laid down by the English courts. In a limited sense, when a Court decrees specific performance of a part of a contract, it virtually amounts to the Court making a new bargain for the contracting parties which they never would have made for themselves, and it is for this reason that it is only in special cases, subject to certain conditions, that a party can claim specific performance of a part of a contract, though the English courts have exercised jurisdiction in a wider area of cases. So far as India is concerned, it is settled law and beyond question that the provisions of Sections 14 to 17 of the repealed Act are both positive and negative in their form, and taken together, they constitute a complete Code, within the terms of which relief by way of specific performance must be sought if it is to be granted at all and that even though assistance may be derived from a consideration of cases upon this branch of English jurisprudence, the language of the Sections must ultimately prevail. Vide William Graham v. Krishna Chandra Dey, (48 Mad LJ 172 at page 176- (AIR 1925 PC 45) ). This rule applies even now and Section 12 (1) of the new Act which corresponds to Sec. 17 of the repealed Act, expressly declare "that the Courts shall not direct specific performance of a part of a contract except as provided in section 12, sub-sections (2) to (4 ). " Section 12 of the present Act of 1963 runs in these terms: