2005 Supreme(SC) 1351

2005(8) Supreme 493
Supreme Court of India
(From Kerala High Court)
S.B. Sinha and R.V. Raveendran, JJ.
P.C. Varghese —Appellant
versus
Devaki Amma Balambika Devi & Ors. —Respondents
Civil Appeal No. 1984 of 2002
Decided on 7-10-2005
Counsel for the Parties :
For the Appellant : John Mathew, Sr. Advocate, M.T. George and Ms. Sumathi, Advocates.
For the Respondents : V.R. Reddy and T.L.V. Iyer, Sr. Advocates, C.N. Sree Kumar, Ms. Deepa S. Monappan and Subramonium Prasad, Advocates.

Headnote:Specific Relief Act, 1963—Sections 12 and 22—Suit for specific performance—Agreement to sell share of minor daughter—First respondent was wife of 5th respondent and respondents 2 and 3 were their daughters—4th respondent, their minor daughter was born subsequent to execution of deed of partition—15 cents out of 19 cents were obtained by respondents 1 to 3 by a partition deed—Respondents 1 to 3 and 5 agreed to sell that property to appellant—Agreement contained a condition that respondents would obtain requisite permission from the appropriate court for sale of minor’s share therein—Such permission was to be obtained within a period of three months which was also the period fixed for performance of terms of the agreement—Respondents did not perform their part of contract—Appellant filed suit against respondents for a decree of specific performance of contract in respect of entire 19 cents—During pendency of suit, application filed for obtaining permission for sale of minor’s share was dismissed—High Court held that the contract being an integrated one, conditions as regard obtaining the necessary permission relating to minor’s share was an essential term for execution of the contract and since such permission had not been granted, the entire contract failed—Whether agreement for sale can be said to be a contingent contract—(No)—Whether judgment of the High Court is sustainable—(No).

       Held : We fail to understand as to how the agreement for sale can be said to be a contingent contract, as was submitted by Mr. Reddy. The agreement nowhere states that in the event the permission to sell the minor’s share is not obtained within the period specified therein, the same shall become invalid or otherwise unenforceable in law. The application for grant of permission to sell the minor’s share, as noticed hereinbefore, was rejected only during the pendency of the suit. It may be true that the agreement was to be performed within a period of three months, but it was extended. The Appellant herein not only in the suit but also even prior thereto asked the Respondents herein by a notice dated 23.03.1981 (Ex. P2) to execute a deed of sale in relation to the shares of Respondent Nos. 1 to 3 herein i.e. excluding the share of the minor. (Paras 19 and 20)

       The submission of Mr. Reddy to the effect that the learned Trial Judge committed a serious error in granting a decree for partition along with a decree for specific performance of contract need not detain us long as in view of Section 22(1)(a) of the Act a decree for partition and separate possession of the property can be granted in addition to a decree for specific performance of contract. As in this case, the Appellant herein in view of amended prayer ‘C’ relinquished his claim in respect of the property belonging to the minor - Respondent No. 4, he also prayed for a decree for partition and such a prayer having been allowed, no exception thereto can be taken. In any event the said question has not been raised by the Respondents before the High Court at all. Section 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, the plaintiff may claim a decree for possession and/or partition in a suit for specific performance. Even though strictly speaking the right to possession accrues only when a suit for specific performance is decreed, undisputably such a decree for possession and/or partition is prayed for in anticipation of the grant of prayer for specific performance of contract. (Para 33)

       The only person who could question the said decree for partition was Respondent No. 4. As noticed hereinbefore, a decree as against him has attained finality as she did not preferred any appeal thereagainst. The said decree for partition, therefore, has attained finality. No decree for specific performance of contract, however, has been passed as against the Respondent Nos. 4 and 5. They are, however, otherwise bound by the decree passed by the learned Trial Judge. Therefore, they are also proper parties, though not necessary parties. (Paras 34 and 35)