MOHAMED AKBAR BATCHA SAHIB Vs. Y NAGARAJAN

JUDGEMENT

(1.) THE appeal arises out of a suit for specific performance. THE agreement the execution of which is not denied, was entered on 18.6.1973 by the plaintiff and the defendant. THE total consideration is Rs. 25,251/- out of which a sum of Rs. 5,000/- was paid as advance. THE subject of matter of the agreement is house situated in Hosur Town. THE agreement refers to the occupation of a tenant and provides that the vendor has to get the tenant evicted to obtain vacant possession and give notice to the purchaser for completion of the transaction. THE document also refers to the vendors being jointly entitled to the property with his brother Mohammed Ibrahim Sahib under a registered deed dated 12.7.1941, and that the vendor has got a General Power of Attorney duly registered in 1967. THE vendor did not perform his part of the contract. After the issue of lawyer's notice by the purchaser and failure on the part of vendor to send a reply, the purchaser filed the suit for specific performance of the entire property as he was entitled to only one half of the same and that the contract as such could not be specifically enforced. THE trial court, however, granted a decree for the refund of the sum of Rs. 5,000/- which was paid as advance by the purchaser with interest thereon. THE purchaser filed an appeal in this Court which was disposed of by a single judge. THE learned judge held that the plaintiff is entitled to a decree for specific performance of the contract with reference to the undivided half share by the vendor on payment of one half of the total consideration. THE learned Judge has exercised his power under O. 7, R. 7, C.P.C. to mould the relief prayed for by the plaintiff and grant appropriate relief and consequently, he set aside the direction given by the lower court for refunding the advance and passed a decree for specific performance with reference to the vendor's half share in the property on payment of Rs. 7625.50 which represented the balance out of one half of the total consideration. THE aggrieved defendant has filed this appeal while the plaintiff has preferred a Memorandum of Cross-Objections.

(2.) THE contention of the appellant is that the direction of the learned Judge to execute a sale deed on payment of one hall of the consideration, is erroneous. According to him, the plaintiff has to pay the full amount as agreed under the agreement Ex. A1 even though specific performance can be only with reference to one half of the property. He places reliance on the judgement the Supreme Court in Balamukand v. Kamala Wati (A.I.R. 1964 SC 1385) and that of the Delhi High Court in Ram Kishan Das v. Bhavi Chand Sharma (A.I.R. 1988 Delhi 20). In both the cases, the question arose with reference to the sale of the property belonging to a joint family and there was no proof of benefit to the family or consent by the adult members of the family and the person who entered into an agreement was found to had no right to enter into a transaction on behalf of others. Those two rulings will not apply to the present case.

(3.) AFTER hearing the counsel on the both sides, we are of the opinion that the judgment and decree passed by the learned Judge of this Court are based on equitable considerations and the suit being one for specific performance, he was well within his rights in having exercised his power under Order 7, Rule 7, C.P.C. and moulded the relief.