Judgment

SAWANT, J.:- The admitted facts are that respondent Harjinder Singh and his sister Bibi Nasib Kaur owned some properties, namely, (i) two pieces of land in village Dhora measuring 26 kanals and six marlas, and 33 kanals respectively; (ii) a vacant site in village Bighan measuring one kanal; (iii) a kachcha house in village Urapur; and (iv) a Bara in village Urapur measuring about 8 marlas. There is no dispute that the respondent and his sister had each half share in all the said properties. The respondent for himself and on behalf of his sister entered into a written agreement with the appellant Kartar Singh on February 28, 1965, for the sale of all the said properties for a consideration of Rs. 20,000/ -. He received a sum of Rs. 2,000/- as earnest amount and agreed to execute the sale-deed and get the same registered between May 15 and July 15, 1965. It was specifically mentioned in the agreement that he had agreed to sell not only his entire share in the property but also that of his sister, and that he would be responsible for getting the sale-deed executed from his sister. The agreement also provided that in case the respondent failed to execute the sale-deed a!; stipulated, he would refund Rs. 2,000/- which he had received as earnest money and also pay Rs. 5,000/-- as damages. His sister, however, refused to sell the property. The respondent, therefore, informed the appellant that since his sister had refused to sell the property it was not possible for him to execute the sale-deed. The appellant, hence, filed the present suit for specific performance of the contract and in the alternative for refund of the earnest money of Rs. 2,000/ - and damages of Rs. 5,000/-. The suit was filed against both the respondent and his sister as well as one Smt. Pritam Kaur who was alleged to have purchased about 13 kanals of land out of the suit property from the respondents sister Nasib Kaur under a registered sale-deed of 31st May, 1965.

2. The suit was contested by respondent and defendant No. 3 Sint. Pritam Kaur. Defendant No. 2, the respondents sister, did not contest the suit. The trial Court came to the conclusion that the respondent was liable to sell his half share in the suit property and decreed the suit with respect to the said share on payment of Rs. 8,000/- by the appellant being the balance of the consideration of Rs. 10,000/-, i.e. half of the earlier agreed consideration of Rs. 20,000/- for the entire property. The trial Court also decreed a sum of Rs. 5,000/- as damages against the respondent for not completing the sale in time and also Rs. 1,000/- as special costs. The said decree of January 6, 1967, was appealed against, and the learned Judge of the High Court partly allowed the appeal. He maintained the decree for specific performance of the contract in respect of the half share of the respondent in the suit property, but set aside the decree for damages of Rs. 5,000 /- as well as for the costs of Rs. 1,000/-. This order of November 9, 1973 passed in First Appeal was challenged by the respondent before the Division Bench in the same Court in Letters Patent Appeal, and the Division Bench allowed the appeal and dismissed the suit. The Bench, however, passed a decree for Rupees,, 7,000/- in favour of the appellant being the amount consisting of Rs. 2,000/- as earnest money and Rs. 5,000/- as damages. The Bench took the view that since the case was not covered by any of the exceptions to S. 12 of the Specific Relief Act (hereinafter referred to as the Act), the respondent could not have been directed to sell his share of the property. It is this decision of August 2, 1974 which is in appeal before us.

3. The High Court took the view that the present case was not governed by the provisions of sub-sections 2, 3 and 4 of S. 12 of the Act because according to the Court it could not be said that the respondent was unable to perform the whole of his part of the contract. According to the Court, he could not and he never