R.F.A. No. 719 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 31[ST] DAY OF OCTOBER 2022 / 9TH KARTHIKA, 1944 RFA NO. 719 OF 2014** **AGAINST THE JUDGMENT AND DECREE DATED 01.04.2014 IN OS 535/2010 OF PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANTS/PLAINTIFFS:** 1 SADANANDAN AGED 50 YEARS S/O.KUPPAN EZHUTHASSAN, MARUVAPPADAM, KANNADI, PALAKKAD DISTRICT. (Died) 2 SUPPL.A2. SUBHADRA SUBHADRA, AGED 49 YEARS, W/O. THE LATE SADANANDAN, PALAKKAL HOUSE MARUVAPPADAM, KANNADI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678701. 3 SUPPL.A3. AKHIL AKHIL, AGED 28 YEARS, S/O. THE LATE SADANANDAN, PALAKKAL HOUSE MARUVAPPADAM, KANNADI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678701. 4 SUPPL.A4. AKHILA AKHILA, AGED 25 YEARS, D/O. THE LATE SADANANDAN, PALAKKAL HOUSE MARUVAPPADAM, KANNADI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678701. LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 4 IN THE APPEAL AS PER THE ORDER DATED 16/9/2022 IN IA NO.1/2022. BY ADV SRI.P.K.MOHANAN(PALAKKAD) ## **RESPONDENTS/DEFENDANTS:** 1 K.CHANDRAN AGED 53 YEARS S/O.KUTTIRAMAN, CHITTAM VEEDU, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. R.S.A.No.719/2014 2 - 2 RAJAN AGED 69 YEARS S/O.KUTTIRAMAN, CHITTAM VEEDU, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 3 BHASKARAN AGED 70 YEARS S/O.KUTTIRAMAN, CHITTAM VEEDU, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 4 PANKAJAM AGED 59 YEARS W/O.LATE SUKUMARAN, CHITTAM VEEDU, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 5 SURESH AGED 30 YEARS S/O.LATE SUKUMARAN, CHITTAM VEED, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 6 YESODHA AGED 58 YEARS W/O.LATE KANDAMUTHAN, CHITTAM VEEDU, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 7 SATHEESH S/O.LATE KANDAMUTHAN, CHITTAM VEEDU, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 8 JEEVA AGED 44 YEARS S/O.LATE KESAVAN, CHITTAM VEEDU, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 9 JISHA AGED 24 YEARS D/O.LATE KESAVAN, CHITTAM VEEDU, KOCHAMKULAM, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. - 10 JIJIN AGED 20 YEARS S/O.LATE KESAVAN, CHITTAM VEEDU, KOCHAMKULAM, THENKURISSI, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 671. 3 ## R.S.A.No.719/2014 BY ADVS. SMT.GIRIJA K GOPAL T.JAGAL BOSE GIRIJA. K. GOPAL THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON 31.10.2022 DELIVERED THE FOLLOWING: R.S.A.No.719/2014 4 ## **M.R.ANITHA, J** ****************** R.F.A.No.719 of 2014 -----------------------------------------------Dated this the 31[st] day of October, 2022 ## **JUDGMENT** The appellant is the plaintiff in O.S.No.535 of 2010 on the file of Principal Subordinate Judge's Court, Palakkad. Suit is one for specific performance of contract. (Parties will hereafter be referred as per their status before the trial court. 2. It is alleged that plaint schedule item No.1 property belongs to defendants 1 and 2 and item No.2 belong jointly to all the defendants. Plaintiff agreed to purchase and defendant agreed to sell plaint item No.1 of plaint schedule property for a value of Rs.1,875/- per cent and item No.2 for a value of Rs.5,600/- per cent. An agreement to that effect was executed on 30.05.2008. Plaintiff paid Rs.1,50,000/- on that day towards advance sale consideration to defendants 1 and 2. Defendants 1 and 2 signed the agreement for and on behalf of all the other R.S.A.No.719/2014 5 defendants. Plaintiff was always ready and willing to perform his part of the contract but defendants evaded the performance and finally plaintiff issued lawyer notice to defendants 1 and 2 for which a reply was sent raising untenable contentions. Hence the suit has been filed for specific performance of the contract and in the alternative for return of advance amount. 3. Pending the suit, second defendant died and his legal heirs were impleaded as supplemental defendants 9 to 10. Defendants 3 to 8 and 11 remained ex parte. Defendants 1, 9 and 10 filed joint written statement admitting that plaint item No.1 belonged to defendants 1 and 2. It is not admitted that item No.2 belonged to all the defendants. Execution of the agreement and advance of Rs.1,50,000/- given are admitted. It is denied that defendants 1 and 2 executed the agreement on behalf of all other defendants. Time of 6 months stipulated in the agreement was the essence of the contract. Plaintiff was never ready and willing to perform his part of the contract and was not able to raise balance sale consideration. Defendants 1 and 2 sustained huge loss and damage due to the failure of the plaintiff R.S.A.No.719/2014 6 in performing his part in time. So, they are not liable to execute the sale deed or return of advance amount. 4. Plaintiff was examined as PW1 and Exts.A1 to A5 were marked from the side of the plaintiff. DW1 examined and Ext.D1 marked on behalf of defendants 1, 9 and 10. Thereafter, trial court on analysing the evidence adduced from both sides, found that Ext.A1 agreement for sale has been signed by first and second defendants alone, but item No.2 belongs to all defendants. Defendant Nos.3 to 8 have not signed in Ext.A1 agreement. Terms with respect to item Nos.1 and 2 are not separable and advance amount also has been paid in common. Hence trial court was of the view that inseparability of Ext.A1 and its impossibility with respect to item No.2 makes the contract unenforceable with respect to item No.1 also and thereby refused specific performance. Against which the plaintiff approaches this Court in this Regular First Appeal. 5. Notice was issued to the respondent. Adv.Smt.Girija K.Gopal appears for the respondents. Lower court records were called for and perused. Heard both sides. R.S.A.No.719/2014 7 6. According to the learned counsel for the appellant/plaintiff, plaintiff has confined the specific performance of contract with respect to item No.1 property alone which is admittedly owned by defendants 1 and 2 who signed the document and hence the trial court ought to have ordered specific performance of the contract with respect to item No.1. It is also his contention that 90% of the sale consideration has been given by him on the date of agreement itself (that is Rs.1,50,000/-) and ordinary rule is that specific performance should be granted and it ought to be denied only when equitable consideration point to its refusal and the circumstances of this case, according to him, would clearly show that on the date of agreement itself the possession was handed over to the plaintiff and he is in enjoyment and major part of the sale amount has been advanced and item No.1 property is clearly separable from item No.2 property and hence the court below went wrong in refusing specific performance of item No.1 property. 7. Learned counsel for the defendants, on the other hand, would contend that Ext.A1 contract itself is an incomplete R.S.A.No.719/2014 8 one since except defendants 1 and 2, the other parties have not signed the contract and the terms of the contract are also not separable and the advance amount has been fixed in total with respect to item Nos.1 and 2 and hence being an inseparable contract, not signed by all the sharers, it is unenforceable and hence no interference is called for in the judgment and decree passed by the trial court. 8. So the question for consideration is whether the plaintiff is entitled for specific performance of item No.1 property in Ext.A1 agreement? 9. Section 12 of the Specific Relief Act, 1963 deals with specific performance of part of contract which provides that a court shall not direct the specific performance of a part of a contract except as otherwise hereinafter provided which reads thus: _Specific performance of part of contract.-_ _(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract._ R.S.A.No.719/2014 9 _(2)Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency._ _(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either—_ _(a) forms a considerable part of the whole, though admitting of compensation in money; or_ _(b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party—_ _(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b), [pays or had paid] the consideration for the_ R.S.A.No.719/2014 10 _whole of the contract without any abatement; and_ _(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant._ _(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part._ 10. So, sub Section (4) of Section 12 provides that when a part of contract which by itself can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. 11. On going through Ext.A1, specific description is that plaint item No.1 property belongs to defendants 1 and 2 (parties R.S.A.No.719/2014 11 4 and 5 in the agreement) as per document No.58 of 1998 of Kuzhalmandham S.R.O and item No.2 property was obtained as per purchase certificate No.4155/1976 in O.A.No.1176/863 to one Kuttiraman and after the death of Kuttiraman and his wife Thanka as per succession it was devolved upon defendants 1 to 4 and their other brothers Sukumaran and Kandamuthan. After the death of Sukumaran, by succession it was devolved upon defendant Nos.2 and 5 and after the death of Kandamuthan, as per succession it was devolved upon defendant Nos.6 and 7 and in the possession of all the defendants and accordingly item No.2 is described as belonging to all the parties. Agreement would further describe that sale consideration of Rs.1,875/- per cent has been agreed for item No.1 and for item No.2 the sale price agreed is Rs.5,600/- per cent. It is further agreed that, out of sale consideration, an advance Rs.1,50,000/- has been paid to the second parties i.e defendants herein. So, agreement does not specify as to the amount of advance towards item Nos.1 and 2 separately. In other words, the stipulations in Ext.A1 would not show that the part of the contract with respect to item No.1 R.S.A.No.719/2014 12 stands on a separate and independent footing from that of item No.2 so as to order part performance of contract as contemplated under sub Section (4) of Section 12. 12. Learned counsel for the plaintiff relies on **Prakash Chandra vs Angadlal And Ors** : **1979(4) SCC 393** , wherein a three Judge Bench of the Apex Court, in paragraph 9, it has been held that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In that case, it has been found that the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged the other party to enter into the sale with the respondents. 13. In the present case, it is found that the contract was not separable and part performance of which cannot be ordered and that the contract is not signed by all the property owners and all those factors disable the court to grant the relief in favour of R.S.A.No.719/2014 13 the plaintiff. 14. In this context, **Karthiyani Amma v. Parukutty Amma : 1993 (2) KLJ 1028 : 1993 (2) KLT 952 : 1993 KHC 457** was relied on by the counsel for the defendants wherein it has been held that specific performance of contract can be enforced only with respect to completed contract. An incomplete agreement would not enable a party to seek for a relief of specific performance. That was also a case in which the defendant denied the execution of the document and receipt of the advance and thereby disclaimed the liability to execute the sale deed. In that case, agreement ought to have been executed by the first defendant and four children but it was executed by the first defendant alone and the children did not subscribe their signature in the document and in that circumstances it has been held that on the face of it, it was an incomplete contract and only a completed contract which in itself is valid and enforceable can be specifically enforced through court. 15. In the present case, on a bare glance through Ext.A1 agreement, it is clear that item No.2 as per the description in the R.S.A.No.719/2014 14 agreement itself belongs to all the defendants but only defendants 1 and 2 had signed the document. So, it is an incomplete agreement and hence cannot be specifically enforced through court. 16. Learned counsel for the defendants also seek in aid of Section 17 of the Specific Relief Act, 1963 to contend that Ext.A1 contract is not specifically enforceable. Section 17 of the Act provides that a contract to sell or let in immovable property cannot be specifically enforced in favour of a vendor or lessor who knowing himself not to have any title to the property, has contracted to sell or let the property or who though entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. So, in the present case, at the time when the contract was entered into by the plaintiff with the defendants, the defendants 1 and 2 who alone had signed the agreement, had no full right over the property. That makes Ext.A1 impossible of performance. Knowing that they have no R.S.A.No.719/2014 15 full title over item Nos.1 and 2, contract was entered into by them with the plaintiff. Hence, as per Section 17(1)(a) of the Act also, Ext.A1 is not specifically enforceable. 17. The alternate relief of return of advance amount has been granted is not further challenged by the defendants and it is also submitted that the amount so ordered has already been deposited before the court below. Plaintiff also produced Ext.A5 deposit receipt of Rs.1,14,675/- by the defendants in the name of plaintiff to prove the deposit of amount by the defendants. So, on a close evaluation of the entire facts and circumstances and evidence adduced, I am of the considered view that the trial court has rightly refused the specific performance of contract in favour of the appellant/plaintiff and I find no reason whatsoever to interfere with the said findings. In the result, appeal is found to be devoid of any merit and hence dismissed. In the facts and circumstances, parties shall bear their respective costs. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy PS to Judge