1983 Supreme(All) 131

Allahbad High Court
H.N.SETH,R.B.LAL
Ram Niwas - Appellant
Versus
Omkari - Respondent
Decided On : 05/17/1983

A party to a contract is entitled to the benefit of Section 12 (3) of the Specific Relief Act, 1963, where he is unable to perform the whole of his part of the contract and the part which must be left unperformed either forms a considerable part of the whole, though admitting of compensation in money, or does not admit of compensation in money.

Headnote:

SPECIFIC PERFORMANCE - AGREEMENT TO SELL - PARTITION OF HOLDING - DECREE IN PARTITION SUIT - BINDING ON PLAINTIFF - SPECIFIC PERFORMANCE OF REDUCED AREA - SECTION 12 (3) OF THE SPECIFIC RELIEF ACT, 1963 - APPLICABILITY - DELAY IN CLAIMING BENEFIT - EFFECT.

Fact of the Case:

Plaintiff-appellant brought a suit for specific performance of an agreement to sell 1/3rd share in joint bhumidhari and sirdari khatas. The agreement was subject to partition of the share of the defendant No. 1 and acquisition of bhumidhari rights in respect of the sirdari land. The sale deed was to be executed thereafter. Plaintiff paid a sum of Rs. 3,000/- as advance and the defendant No. 1 executed a registered agreement to sell in his favour. Defendant No. 2, in collusion with defendant No. 1, filed a suit for recovery of money on the basis of a fictitious claim and obtained an ex parte decree. He got the decree transferred to Meerut and put the share of bhumidhari plots of defendant No. 1 to auction sale in execution of that decree. He purchased the land himself and the auction sale was confirmed on 7-3-1969 by the executing Court. Plaintiff got the plaint amended in the year 1969 and impleaded Rajsingh as a defendant. He alleged that Rajsingh had full notice of the agreement to sell between him and the defendant No. 1. The auction sale was also hit by the doctrine of lis pendens and it was not binding on him. Plaintiff prayed for a decree for specific performance and recovery of possession.

Finding of the Court:

The Court held that the suit was premature as it was filed before the conclusion of the partition suit. The decree in the partition suit was binding on the plaintiff and he had no right to challenge the decree passed in that suit. For this reason the suit for specific performance was barred by the principle of res judicata. The suit was not maintainable because the plaintiff was claiming specific performance in respect of a larger area even though defendant No. 1 had been given smaller area in partition and the plaintiff had not cared to give the details of the separate kurra of the defendant No. 1 in the plaint. The Court, however, held that the plaintiff was entitled to the benefit of Section 12 (3) of the Specific Relief Act, 1963, and allowed the plaintiff to claim specific performance of the contract in respect of the reduced area of land, i.e. 6 bighas 16 biswas bhumidhari, which had been allotted to defendant No. 1 in the partition suit.

Issues: 1. Whether the suit was premature as it was filed before the conclusion of the partition suit? 2. Whether the decree in the partition suit was binding on the plaintiff? 3. Whether the suit for specific performance was barred by the principle of res judicata? 4. Whether the suit was maintainable in respect of a larger area even though defendant No. 1 had been given smaller area in partition? 5. Whether the plaintiff was entitled to the benefit of Section 12 (3) of the Specific Relief Act, 1963?

Ratio Decidendi: 1. The suit was premature as it was filed before the conclusion of the partition suit. The agreement to sell clearly provided that defendant No. 1 would execute a sale deed in favour of the plaintiff within one month of the decision of the partition suit and its amaldaramad in the revenue records. 2. The decree in the partition suit was binding on the plaintiff and he had no right to challenge the decree passed in that suit. The plaintiff was bound by the decision in the partition suit and could not challenge that decision. 3. The suit for specific performance could not be held barred by the principles of res judicata on the ground that the plaintiff was claiming one-third share and the share of defendant No. 1, had been held to be less than that. 4. The suit was not maintainable in respect of a larger area even though defendant No. 1 had been given smaller area in partition. The plaintiff was claiming specific performance of the contract in respect of one-third undivided share of defendant No. 1 in the bhumidhari and sirdari holdings which come to 14 bighas 19 biswas and odd. This could be justified on the ground that at the time of the institution of the suit, the suit for partition of the holdings was pending. However, after the partition suit was decreed and the decree became final, it was clear that the defendant No. 1 could not be deemed owner of more than 6 bighas 16 biswas bhumidhari land and she could not transfer more than that area to the plaintiff. 5. The plaintiff was entitled to the benefit of Section 12 (3) of the Specific Relief Act, 1963. The part which was to remain unperformed was obviously considerable part being more than half of the area originally contracted to be sold. The considerable part which was to be left unperformed admitted of compensation in money. The fair and reasonable compensation could be determined with reference to the amount of sale consideration fixed for the area originally contracted for. Thus, the ingredients of Clause (a) of sub-section (3) of Section 12 of the Act were present in the instant case.

Final Decision: Appeal partly allowed. Decree of the trial Court dismissing the suit set aside. Suit for specific performance of contract in respect of 6 bighas 16 biswas bhumidhari land decreed against both the defendants respondents on payment of Rupees 17,000/- by the plaintiff. Plaintiff directed to bear his own costs throughout and to pay the costs to Raj Singh contesting respondent in this Court as also in the Court below.