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2011 (8) Supreme 474
SUPREME COURT OF INDIA
P. Sathasivam and H.L. Gokhale, JJ.
Shanker Singh — Appellant
versus
Narinder Singh & Ors. — Respondents
Civil Appeal No. 3249 of 2005
Decided on : 15-12-2011
Facts of the Case :
A.Present Appeal has been filed against judgment and order passed by High Court, whereby it allowed second appeal filed by respondent Nos. 1 and 2 who had filed a suit for specific performance of an agreement entered into with appellant. High Court by its impugned judgment and order had decreed the suit filed by respondents for specific performance for agriculture land admeasuring 92 Kanals and 17 Marlas after recording statement of respondents that they were relinquishing that part of agreement which was not capable of being performed.
Findings of the Court :
A-Section 12(3) of the Act permits a party to an agreement to relinquish a part of agreement which is not enforceable. However, it should be possible to identify and demarcate that part of agreement which is not to be enforced.
B. Instantly offer of relinquishment by respondents could not be said to be an unambiguous one.It was difficult to decide as to which portion of the land was to be segregated to be retained with appellant, and which portion was to be sold.This was because, agreement did not specifically mention price of the land, and in the proposed relinquishment, respondents had not stated as to which portion of land (admeasuring 1 Kanal and 19 Marlas) they were agreeable to retain with appellant.
C. Apart from that ,in the agreement there was also a mention of ‘a motor, bore, passage, fan and water pump fitted with engine and without engine along with the place for placing garbage including shamlat’ amongst the properties which were being sold. It was not on record as to which parcel of land was having all these features. A question would therefore arise as to with whom such a parcel of land was to be retained. Obviously, a segregation of the land in dispute into two portions was difficult.
D. Hence held that in the peculiar facts and circumstances of the case inspite of the offer of relinquishment made by respondents specific performance of agreement could not be granted, solely on the ground that it was incapable of being performed. High Court erred in applying provisions of Sections 12, 14 and 20 of the Act since this was not a case for specific performance. Impugned order passed by High Court was set aside. Appeal was allowed.
JUDGEMENT
H.L. Gokhale J.
This appeal by special leave under Article 136 of the Constitution of India, seeks to challenge the judgment and order dated 8.4.2003 rendered by a learned Single Judge of the Punjab and Haryana High Court, in Civil Regular Second Appeal No. 1338/1983. The learned Single Judge has allowed the said second appeal by the respondent Nos. 1 and 2 (contesting respondents and original plaintiffs), who had filed a suit for specific performance of an agreement entered into with the appellant (original defendant No. 1). Although various questions of law are sought to be raised in this appeal, the relevant questions for our determination are mainly two viz. (a) whether the High Court has erred in applying the provisions of Sections 12, 14 and 20 of the Specific Relief Act 1963 (hereinafter referred as ‘the act’ for short), and (b) whether the agreement in question being vague in nature was incapable of being performed?
Facts leading to this present appeal are as follows:-
2. On 12.1.1977 the appellant herein, a resident of Village Dera Saidan entered into an agreement to sell certain property with the respondent No. 1, a resident of Dera Mainda, both villages being in Tehsil Sultanpur, Distt. Kapurthala of State of Punjab. The property to be sold consisted of two parts viz. agricultural land, and a house property. The Agricultural lands were bearing Khasra nos. 25/21/1-1/11-19, 26//24/6-11, 10/8-0, 12/5-8, 19/6-13, 20/8-0, 25//5/8-0, 15/8-0, 16/8-0, 17-8-0, 18/6-14, 21/2/5/7, 22/5-14, 23/8-0, 24/8-0, 25/7-18, 26/2-0, 34//2/6-14, 25//13/3-13.
3. The relevant clause of the agreement stated as follows:-
“Whereas the first party is the owner of = share in 65-13 and the total area of the first party is 92-K-17M and the remaining one house in the abadi Dera Saidan bounded by the custodian on the east, Kartar Singh on west, Pahar-passage on the south and the = share belongs to the wife of the first party namely Pritam Kaur. Now I am in need of purchasing property and therefore, now I am executing this writing in my full senses and dealing to sell the = share in lands measuring 92K-17M along with motor, bore, passage, fan and water pump fitted with engine and without engine along with the place for placing garbage including shamlat and including passage and all the rights which vest in Pritam Kaur and also execute this deal for sale on behalf of Pritam, with the party of the 2nd part for a total consideration of Rs. 1,24,500/- and I have received a sum of Rs. 28,000/- in cash as advance money in front of the witnesses. The purchaser will get the registry executed on 25th day of Magh 2034 and the possession will be handed over at the time of registry.”
It was also agreed that if the appellant violated the terms of the agreement, then the respondents were entitled to the recovery of Rs. 28,000/- as earnest money and Rs. 28,000/- as damages, the total coming to Rs. 56,000/. It was further agreed that if there was any addition or decrease in the area agreed to be sold belonging to appellant, the price of the same was to be adjusted accordingly.
4. It so transpired, that on the agreed date of registration the appellant did not turn up at the office of the Sub-Registrar, and hence the respondent gave a notice to the appellant to execute the sale deed. The appellant did not respond, and therefore the respondent No. 1 filed Suit No. 21/1978 in the Court of Sub Judge 1st Class, Sultanpur Lodhi for the specific performance of the agreement. The wife of Shanker Singh, Pritam Kaur was joined as defendant No.2. (She is reported to have expired in 1997). The other co-sharers of the land had sold their land in dispute in favour of one Joginder Kaur and three others who were joined as defendant Nos. 3 to 6 (Respondent Nos. 4 to 7 in the Civil Appeal).
5. The appellant raised various defences. Firstly he denied having entered into the agreement, and then he claimed of having received only Rs. 8,000/- and not Rs. 28,000/- as earnest mon
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