JUDGMENT

ORDER :—The petitioner, the unsuccessful plaintiff in the Courts below, seeks special leave to appeal to this Court from the judgment and decree dated 1st April, 1992 of the High Court of Karnataka in Regular First Appeal No. 37 of 1980 on its file, affirming the judgment and decree of dismissal dated 31st October, 1979 entered by the learned II Additional Civil Judge at Bangalore in O.S. No. 436/ 1973 of the petitioners suit for specific performance of an agreement to sell dated 7th May, 1970.

2. In his suit, the petitioner-plaintiff alleged that respondents 1 and 2 who are husband and wife, on their own behalf and on behalf of respondents 3 to 5, their children, agreed to sell, and the petitioner to purchase, the suit property for a consideration of Rs. 1,10,000/- and that respondents having failed to perform their obligations under the said agreement the petitioner is entitled to a decree for specific performance.

3. The execution of the suit agreement, Exhibit P-3, was not disputed. But having regard to the nature and circumstances under which the said agreement came into existence with its own peculiar terms, a question of construction of the instrument as to the nature and of the rights and obligations it sought to create fell for consideration before the Courts below. The relevant recitals in the Exhibit P-3 recapitulate certain antecedent transactions under which respondents had agreed to sell the whole of the properties of which the suit property was a part in favour of a certain Laxmi Narayan, who had also lent moneys to the respondents on a mortgage of the property and that the respondents had approached the petitioner to pay off the immediate and pressing debts and to extend to them financial assistance for the improvement of their business, from the earnings of which they expected to be able to discharge the mortgage debt in favour of Laxmi Narayan. The document proceeded to stipulate that in the event of respondents not being able to do so, they should sell the suit property to the petitioner. The recitals in Exhibit P-3 in this behalf, are these:-

"And whereas .... (respondents) agreed to help the members of the First Party to pay off the arrears of rents or damages to Sri Lakshmi Narayana and also to help the members of the First Party to improve the Poultry Farm and Dairy Farm which they are running at present to bring them to a remunerative stage so that from the income that they have been realising from various sources they will be in a position to discharge the mortgage loan of rupees one lakh and pay off the rents or damages as stated above and retain the property or in the alternative to sell the schedule property to the Second Party for a consideration of Rs. 1,10,000/- (Rs. One lakh and ten thousand only) which is an attractive one subject to the following terms and conditions: "

4. The trial Court came to dismiss the suit holding, inter alia, that the subject-matter of the agreement was coparcenary property and the debt for discharge of which the sale was intended was not for legal necessity. In the petitioners appeal before the High Court, respondents reiterated their main contention that the document in question recognised the right of the respondents, at their option, to decline to sell the property and that, therefore, the further question as to the entitlement of the petitioner to seek specific enforcement did not at all arise.

The two of the five points formulated by the High Court for its determination in the appeal reflect this aspect of the controversy. Points 1 and 3 formulated in the appeal were :

" 1. What is the true purport of agreement of sale dated 7-5-1970 marked as Ex. P-3?

3. Whether in the facts and circumstances of the case, the plaintiff is entitled to a decree for specific performance?"

On the first point, the High Court held :

"To our mind the clause is in clear terms and it gives an option to the defendants either to pay the amount and retain the property or to sell the suit pr