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1964 (6) TMI 61

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..... he terms of the agreement the sale had to be completed within three months failing which the defendants had to pay to the plaintiff a sum of ₹ 5000 as and for damages to the plaintiff. Before the plaintiff entered into the agreement to purchase these two items of properties he made and enquiry in respect of the second item as it was purchased in the name of the first defendant's mother and the first defendant assured the plaintiff that his sisters would not claim these properties as they had already declared that they had no interest or title in the properties. The plaintiff was ready and willing to purchase these properties. The defendants subsequently evaded and neglected to execute a sale deed. The first defendant began to give out an excuse that his sisters were not willing to join with him in executing the sale deed, especially in respect of item 2, as they claimed title to the same on the ground that it belonged to their mother. It was also stated in the plaint that in case there was any difficulty for the defendants to execute a sale deed in respect of item 2 also. The plaintiff was willing to take a conveyance of item 1. The plaintiff also prayed that in the ev .....

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..... t against the second defendant was dismissed without costs. (4) The first defendant preferred an appeal in this court. Ramakrishnan J. who heard the appeal, agreed with the finding of the trial Judge, that the agreement is valid and binding on the defendants. But he is of the opinion that S. 15 of the Specific Relief Act would apply to the facts of this case and applying that section he directed the first defendant to execute a conveyance in respect of item 1 of the plaint schedule on receipt of a sum of ₹ 4750 (i.e., ₹ 5750 less advance of ₹ 1000) from the plaintiff. The learned Judge dismissed the appeal subject to the above modification. It is against this judgment and decree of the learned Judge that the present appeal is preferred by the first defendant. (5) The only question we have to consider in this appeal is whether the defendant is entitled to avoid specific performance of the contract as he could not perform the contract in entirety as item 2 of the plaint schedule property did not belong to him. It is contended by the first defendant-appellant that since the defendants are not entitled to the second item, the contract is not enforceable against .....

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..... fic performance and where the court refuses it unless the purchaser is willing to consent to a decree on terms that the vendor will make compensation to the purchaser, who agrees to such a decree on condition that he is compensated. If it is the purchaser who agrees to such a decree on condition that he is compensated. If it is the purchaser who is suing the court holds him to have and even larger right. Subject to considerations of hardship he may elect to take all he can get, and to have a proportionate abatement from the purchase money. But this right applies only to a deficiency in the subject matter described in the contradict . The above said principles are embodied in Ss. 14 to 17 of the Specific Relief Act with a view to provide remedies for partial specific performance of the contract with compensation. Section 14 is applied to a case where a party to a contract is unable to perform the whole or part of it. On account of some incurable defect in title or deficiency in quantity of the subject matter or of some legal impediment, when the court may at the suit of either party direct the performance of so much of the contract as can be performed and award compensation in mo .....

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..... rt of the contract which taken by itself can and ought to be specifically performed and (3) that the said part stands on a separate and independent footing from the other part of the same contract. Before a court can exercise the power given in the section, it must have before it some material tending to establish these propositions. This section cannot be applied on a mere surmise that if opportunity were given for further enquiry, such material might be forthcoming and possibly might be found to be sufficient. In the instant case, the defendants entered into an agreement to sell both the items of property for a consolidated sum of ₹ 5750. This is a contract for sale of property in one lot which will generally be considered as indivisible, as the conveyance of item 2 does not stand on a separate and independent footing from the conveyance of item 1. We agree with Ramakrishnan J., that s 16 of the Specific Relief Act cannot be applied to the present case. (7) The only question that now remains is whether S. 15 can be applied to the facts of this case. Ramakrishnan J. held that the provisions of S. 15 will apply to this case and allowed specific performance of the contract .....

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..... ny time before the suit is finally decided by the court of appeal. The principle laid down in the above decision was approved by the Supreme Court in the Kalyanpur Lime Works Ltd. v. State of Bihar, where the Supreme Court observed that relinquishment of the claim to further performance can be made at any stage of the litigation. this principle has been followed by the Calcutta High Court in Dwijendra Kumar v. Manmohan, where in second appeal the court gave permission to the purchaser to relinquish a part of the contract. It will be useful to refer to the following observation of Venkatasubba Rao J. made in Sultan Kani Rowther v. Md. Meera Rowther, AIR 1929 Mad 189 at p. 190: Section 15 of the specific Relief Act is enacted for the benefit of the purchaser and cannot operate to his detriment. That section gives him an option and if he declines to accept an offer which brings him loss, he cannot be regarded as acting improperly. If his conduct is not improper he cannot be deprived of the statutory charges. To a similar effect is the decision in Narayanamurthy v. Madhavayya, 1947-2 Mad LJ 366. In that case in a contract to convey 16 acres 80 cents of land the vendor was n .....

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