Back
2024 Supreme(Online)(KER) 52762
HIGH COURT OF KERALA
Sathish Ninan, J
SADASIVAN(DIED) – Appellant
Versus
REJI MON – Respondent
RFA 828/2008
G.S.REGHUNATH - FOR A2 TO A4, A.S.SHAMMY RAJ - FOR A2, M.AJAY (IRUMPANAM), HARISH GOPINATH, KVP.JAYALEKSHMY, R.S.KALKURA, M.S.KALESH, A.V.PRIYA, V.VINAY MENON
The court affirmed the trial court's decree for specific performance, including excess land, emphasizing the agreement's terms and the plaintiff's financial capacity.
Headnote:(A) Specific Relief Act - Section 20 - Specific performance of an agreement for sale - Plaintiff sought specific performance of an agreement dated 17.08.2003 for 12.5 cents of property, with an advance of ` 1 lakh paid - Trial court decreed specific performance including an excess of one cent found on measurement - Defendants contended only 11.5 cents were agreed upon and questioned plaintiff's financial capacity - Court upheld trial court's findings on both counts. (Paras 7, 12, 13, 14)
(B) Discretion of Court - The court emphasized that discretion under Section 20 should be exercised in favor of specific performance unless compelling reasons exist to deny it - The defendants' claims regarding financial injury were not substantiated. (Paras 14, 15)
Facts of the case:
The plaintiff entered into an agreement for the sale of property with the defendants, paying an advance and later claiming an additional cent found during measurement. The defendants denied the claim for the excess land and questioned the plaintiff's financial capacity.
Findings of Court:
The court found that the plaintiff was entitled to the excess land under the agreement and had sufficient funds to proceed with the transaction.
Issues: The main issues were whether the plaintiff was entitled to the excess land and whether the trial court's findings on financial capacity were sustainable.
Ratio Decidendi: The court ruled that the agreement's terms justified the inclusion of the excess land and that the plaintiff's financial capacity was adequately demonstrated, affirming the trial court's discretion to grant specific performance.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. defendants contended that the plaintiff (Para 4 , 5) |
| 2. i have heard the learned counsel (Para 6) |
| 3. points that arises for determination (Para 7) |
| 4. the property agreed to be conveyed (Para 8 , 9) |
| 5. the learned counsel for the appellants (Para 10) |
| 6. ext.a1 agreement contain a recital (Para 11) |
| 7. thus the circumstances involved (Para 12) |
| 8. though the defendants have denied (Para 13) |
| 9. it is next argued by the learned counsel (Para 14) |
J U D G M E N T
The suit for specific performance of an agreement for sale was decreed by the trial court. The defendants are in appeal.
2. Ext.A1 is the agreement dated 17.08.2003 which is sought to be specifically enforced. The extent of property is stated as 12.5 cents. The consideration fixed is ` 25,000 per cent. An amount of ` 1 lakh was paid as advance sale consideration. The period fixed for performance is three months.
3. The plaintiff alleges that, on measurement it is found that the property has an excess extent of one cent, and that the excess land is also liable to be conveyed on the basis of Ext.A1 agreement.
4. The defendants contended that the plaintiff was entitled to get sale deed executed in respect of the 11.5 cents agreed to in Ext.A1 only. The claim over the excess land was denied. It was also contended that the plaintiff did not have sufficient funds to go ahead with the transaction, which resulted in its breach.
5. The trial court held that the plaintiff is entitled for conveyance of the excess land of 1 cent also. The defence plea that the plaintiff did not have sufficient funds, was negatived.
6. I have heard the learned counsel on either side.
7. The points that arises for determination are :-
(i) Is the plaintiff entitled for specific performance of Ext.A1 agreement by including the excess area of one cent found on measurement, in addition to the extent mentioned therein?
(ii) Is the finding of the trial court with regard to the financial capacity of the plaintiff, sustainable on the evidence?
(iii) Was the trial court right in having exercised its discretion under Section 20 of the Specific Relief Act to grant a decree for specific performance?
8. Ext.A1 agreement does not contain a schedule describing the property. As per Ext.A1, the defendants agreed to convey to the plaintiff the 11.500 cents of property in Sy. 812/A-4-4 which belong to them as per Ext.A2 Sale Deed No.2463 dated 30.08.1988. As per Ext.A2 Sale Deed, the defendants obtained title over 11 cents and 500 square links of property. On measurement it was found that the property has an excess extent of one cent. Whether the plaintiff is entitled for conveyance of one cent also is covered under Ext.A1 agreement, is the issue.
9. Ext.A2 Sale Deed is the document under which the defendants got title over the property. It is the property obtained by the defendants under Ext.A2 Sale Deed that is agreed to be conveyed to the plaintiff. Ext.A1 does not indicate that it is a portion of the property belonging to the defendants that is agreed to be sold or that any portion is being retained by the defendants. The eastern boundary of the property obtained by the defendant under Ext.A2 is described tImcn-b hc¼v therein as “ ”. On the eastern side of the property of the defendants is a “thodu”. In Ext.A1 agreement though the extent of property is mentioned as 11.5 cents, as noticed first above, the value of the property is fixed on centage basis and the total consideration payable is to be ascertained based on the measurement. The property agreed to be conveyed being the one obtained by the defendants under Ext.A2 Sale Deed and on measurement it having been found that there is an excess extent of one cent, the plaintiff is entitled for conveyance of the said extent also for consideration to be payable at rate as fixed in Ext.A1.
10. The learned counsel for the appellants would contend that, consequent on the inclusion of the excess extent in the plaint schedule there is a change in the subject matter from that cover
