ABDUL AZIZ SAHIB Vs. MABDUL SAMMAD SAHIB

JUDGEMENT

(1.) This second appeal raises a question relating to the construction of Section 16, Specific Relief Act, which runs thus: When a part of contract which taken by itself can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.

(2.) The facts may be briefly stated. Defendant 1, a Station Master, agreed to sell to the plaintiff, a plot of land measuring about 1 acre 14 cents. That plot had originally belonged to his wife, and upon her death, it devolved upon himself and his children his share being one- third and the share of the children being two-thirds. Out of the agreed consideration of Rs. 825 the plaintiff paid Rs. 250 as advance to defendant 1. The latter, with what motive it is unnecessary to enquire, repudiated the contract and it now transpires that two of his sons who have become majors are unwilling to fulfil it. It may now be taken that as regards two-thirds of the property (the children's share) defendant 1 cannot be compelled to specifically perform the contract. I may mention that what he did was this: he first gave a writing agreeing to sell the property to defendant 2; subsequently he executed in his favour a sale deed in respect of the entire land. The lower appellate Court disagreeing with the District Munsif held that in the circumstances the contract was capable of being specifically performed in respect of defendant 1's one-third share. On that basis it passed a decree directing him to convey his one-third share on the plaintiff paying a third of the agreed price. The lower Court's judgment is wrong, as it fails to take note of the language of the section. Can it be said that the present contract is divisible into two parts, one relating to a third and the other relating to the remaining two- thirds? In other words, in the language of the section, can we import a contract affecting a third, standing on a separate and independent footing from another supposed contract relating to the remainder of the land? Section 16 does not stand isolated and for understanding its full significance it must be read in conjunction with certain other sections which along with it form a group. As the Judicial Committee point out in Graham V/s. Krishna Chunder Dey : Secs.14 to 17, inclusive of the Specific Relief Act, 1877, are both positive and negative in their form. Taken together they constitute a complete Code within the terms of which relief of the character in question must be brought, if it is to be granted at all.

(3.) The effect of the lower Court's judgment is to allow an abatement of price in respect of defendant 1's failure to carry out the contract in its entirety. Let us see what is necessarily implied in this view. Had defendant 1 come to Court instead of the plaintiff, he would have been likewise granted specific performance, that is to say, it would have been open to him, although he was the party in default, to compel the plaintiff, a person not to blame, to buy a third of the land--the result being that the Court would be substituting a new bargain and forcing upon the parties a new contract, a thing which the Privy Council has shown ought not to be done. I do not propose to conisider the matter further as the law has been in the case cited above clearly expounded by the Privy Council and the principles applicable have been fully explained. In the view I have taken, it is unnecessary to deal with the finding recorded by the lower Courts in regard to defendant 2; nor is it necessary for me to express any opinion as regards the title he has obtained.