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2003 Supreme(Ker) 382
Judges : K.S.RADHAKRISHNAN,PIUS C.KURIAKOSE
Krishnan - Appellant
Versus
K.S.Krishnan - Respondent
Case No : AFA.No.28 of 1993
Decided On : 06/26/2003
Advocates Appeared :
For the Appellant: V. Chitambaresh, Advocate. For the Respondents : P.N. Krishnankutty Achan (SRI), T.Sethumadhavan, Advocates.
Headnote:
Specific Relief Act 1963 –Sections 12(2), (4) –Issue on Enforcement of an Agreement , Sale deed –Defendant is the appellant – He contended that he had subscribed his signature in some of the papers taken to him by his brother and those papers might have been utilised for preparing the agreement and the receipt – Trial Court after considering the oral and documentary evidence came to the conclusion that A1 is genuine document, but denied the relief for the reason that the defendant had not received any consideration on the date of the agreement or thereafter and the agreement is not enforceable against one of the co-owners – Aggrieved by the same plaintiff approached this Court –The main legal question which arises for consideration is whether the agreement can be enforced against the defendant who is only one of the executants of the agreement –Held, From the facts court obtain court find that it was the inaction on the part of the defendant, one of the co-owners that the sale deed could not be executed – Two of his brothers relinquished their rights in favor of the plaintiff – That being the position decree for specific performance can be granted on paying proportionate amount to the defendant – Plaintiff had contracted to purchase the entire 20 cents – If a portion of the 20 cents could not be obtained the very purpose of the agreement could be defeated – It was the defendant along with two brothers had entered into the agreement – Agreement is not disputed –Under the above mentioned circumstance court is in full agreement with the learned single Judge that plaintiff is entitled to get a decree for specific performance on the balance payment of Rs.6,667/- being his share of the balance consideration –Court find no reason to take a different view from that of the learned single Judge –Order accordingly
Based on the provided legal document, the key points are as follows:
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The case concerns the enforceability of an agreement for sale of property involving co-owners, specifically whether the agreement can be enforced against a co-owner who is only one of the executants (!) (!) .
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The agreement was executed jointly by the defendant and his brothers, with the plaintiff paying a substantial part of the consideration, and the defendant’s inaction being a primary reason for the failure to complete the sale (!) (!) .
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The court examined whether the contract was divisible or indivisible and concluded that enforcement against one co-owner is permissible if the other co-owners are unable to convey their shares, especially when the agreement is not disputed and the inaction of a co-owner prevents the completion of the transaction (!) (!) .
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The legal principles governing specific performance indicate that the court generally enforces the entire contract unless specific exceptions apply, such as when only a small part remains unperformed and can be compensated in money, or when the contract is divisible and can be severed into enforceable parts (!) (!) (!) .
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The court emphasized that enforcement against a co-owner is valid if the contract is enforceable against the entire property, and the failure to perform is due to the inaction of that co-owner, with other co-owners having relinquished their rights in favor of the plaintiff (!) (!) (!) .
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The court upheld the lower court’s decision, granting specific performance by ordering the defendant to receive the proportionate amount due for his share, thus allowing the plaintiff to obtain the property or its equivalent (!) (!) .
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The appeal was dismissed as lacking merit, reaffirming the principles that support enforcement of the agreement against a co-owner in such circumstances (!) .
In summary, the case confirms that specific performance can be enforced against a co-owner when the contract is indivisible, the co-owner’s inaction prevents the completion of the sale, and other co-owners have relinquished their rights, allowing the plaintiff to proceed with the purchase upon paying the proportionate consideration.
Radhakrishnan, J.
Defendant is the appellant. Suit was instituted for specific performance of an agreement for sale of A1 dated 12-10-1982. The agreement was executed by the defendant along with his brother Pulendran and Govindan. Plaint schedule house and compound is having an extent of 20 cents. Total sale consideration was Rs.1,45,200/-. An advance amount of Rs.20,000/- was paid on the date of the execution of the agreement. Defendant and his two brothers had also undertaken to evict the tenants residing in the property. It was agreed that the transaction be completed by 30th August 1983. While so, Pulendran surrendered his on-third share over the plaint schedule property in favour of Govindran. Govindan then executed assignment deed in respect of his 2/3rd share on 26-8-1986 to the plaintiff. Afterwards by instalments plaintiff has paid to the defendant and his two brothers a sum of Rs.1,05,000/- thereby making a total payment of Rs.1,25,000/-. However, the defendant was not prepared to perform his part of the contract. Hence the suit was instituted seeking a decree for specific performance of the agreement by defendant after receiving Rs.6,667/ his share of the balance of the balance consideration.
2. Suit was resisted by the defendant. Receipt of the further sum of Rs.1,05,000/- was denied by him. He contended that he had subscribed his signature in some of the papers taken to him by his brother Govindan and those papers might have been utilized for preparing the agreement and the receipt. Trial court after considering the oral and documentary evidence came to the conclusion that A1 is genuine document, but denied the relief for the reason that the defendant had not received any consideration on the date of the agreement or thereafter and the agreement is not enforceable against one of the co-owners. Aggrieved by the same plaintiff approached this court and filed A.S.207/87. A learned single Judge of this Court allowed the appeal and directed the defendant to execute the sale deed in favour of the plaintiff in respect of his one-third share over the plaint schedule property on receiving Rs.6,667/- being his share of the balance consideration and put the plaintiff in full possession of the property. Defendant is aggrieved by the said judgment and has preferred this appeal.
3. The following substantial questions of law are raised by the defendant.
i. When no part of the contract is left unperformed and the contract with the defendant does not stand on a separate footing with that of his brothers, was it correct in law to apply sub sections (2) to (4) of Section 12 of the Specific Relief Act? Can Ext.A1 agreement be construed as two different contracts for conveyance of the property in parcels?
ii. When Ext.A1 agreement provided only for a joint conveyance, has not the terms of the agreement been violated by a release by one brother of the defendant and a subsequent sale by the other brother? Was it therefore correct in law to grant a decree for specific performance of Ext.A1 agreement for sale as it stands?
iii. When Ext.A12 receipt is not duly proved and the payment of the amount there under not supported by the production of the account maintained by the plaintiff, was it correct to hold that the share of the sale consideration has been paid over to the defendant? Does the finding of the trial court based on oral evidence call for any interference in appeal?
The main legal question which arises for consideration is whether the agreement can be enforced against the defendant who is only one of the executants of the agreement. This question centers round the interpretation of Section 12 of Specific Relief Act. Section 12 lays down the general rule that courts do not enforce the partial performance of a contract. As observed by Romilly.M.R. in Merchants Trading Co.v. Banner. 19 W.R. 707 the court cannot specifically perform the contract piecemeal, but it must be performed in its entirely if performed at all. The locus
