S.K. Sinha, J.
1. This is the defendant's first appeal filed Under Section 96 of the Code of Civil Procedure. It arises out of the judgment and decree dated 14-10-1993 passed by second Addl. District Judge, Bilaspur, in Civil Suit No. 3-A/1990. By the said judgment and decree, the trial Court decreed the suit for specific performance of an agreement dated 30-5-1988.
2. The brief facts are that the plaintiff filed a suit for specific performance of the aforesaid agreement dated 30-5-1988 allegedly entered into between the plaintiff and defendant for sale of a house situated in Talapara. Bilaspur, for a consideration of Rs. 25,000/- The plaintiff inter alia pleaded that after entering into the written agreement dated 30-5-1988 (Ex. P. 1), a sum of Rs. 5000/- was received as an advance by the defendant and it was agreed between them that a registered sale deed shall be executed within a period of one year from the said date, after receiving the remaining amount of consideration. The plaintiff further pleaded that thereafter on 27-10-1988, the defendant again received a sum of Rs. 13,614/- from him and made an endorsement to this effect on the back portion of the agreement dated 30-5-1988. He, thereafter, again received a sum of Rs. 1800/-from the plaintiff and in this way, he received a total amount of Rs. 20,414/-, but he did not execute the sale deed. On his refusal, the plaintiff served a notice dated 29-1-1990 and requested the defendant to execute the sale deed within 15 days from the date of receipt of notice, but even after the receipt of notice on 2-2-1990, the defendant did not turn up and in this manner, he made a breach of contract as he has declined to perform the same. The plaintiff further pleaded that he was always ready and willing to perform his part of contract, but due to non-Cooperation of the defendant the sale deed could not be executed which gave rise to a cause of action to the plaintiff to institute the instant suit.
3. The defendant filed his written statement denying the contentions of the plaintiff. It was pleaded by him that he was not the absolute owner of the suit house as the suit house is his ancestral and joint family property and his minor sons are also the joint owners thereof. He also pleaded that there has been no partition of the said property. He further pleaded that he has never entered into any such agreement like Ex. P. 1 dated 30-5-1988 and he has never received the advance amount of Rs. 5000/-as is alleged, in the plaint. He also pleaded that the suit house situates in mohalla Talapara and is a property of very high rate, therefore, question of entering into agreement to sell in sum of Rs. 25,000/- does not arise. He further pleaded that in fact, a sum of Rs. 1000/- was taken as a loan by him from the plaintiff and the plaintiff in security of the said loan got his signature on a blank stamp paper and it appears that thereafter, the contents of the alleged agreement have been typed over the said document by the plaintiff in collusion with other persons. About the allegations of again receiving the amount Rs. 13,614/- on 27-10-1988, the defendant pleaded that in fact, he used to play Chits (Beecees) and some amount was needed for it and it was agreed between them that periodically needed amount of Beeces shall be paid by the plaintiff and when the return amount of Beecee shall be received to the defendant, the plaintiff shall retain his amount and the balance would be paid to him and on this only, he had put his signature on the said document. About Rs. 1800/-, he pleaded that he has never taken any such amount from the plaintiff as is alleged in para 4 of the plaint. It is stated that the entire amount taken by him has been repaid to the plaintiff.
4. The learned trial Court framed various issues in this case and after recording evidence of the parties, decreed the suit of the plaintiff holding that the defendant had entered into the said agreement to sell, with the plaintiff and he had received the advances and he is under obligation to execute the sale deed in accordance with the agreement dated 30-5-1988.
5. Learned Counsel for the appellant argued that since the nature of the property was joint, the defendant alone was not entitled to enter into any such agreement. He also argued that execution of a valid agreement is not proved and the discretionary power of the Court to grant relief of specific performance cannot be exercised in such case.
6. On the other hand, learned Counsel for the respondent opposed these arguments and supported the judgment and decree passed by the trial Court.
7. So far as the first point in relation to nature of property is concerned it comes in the evidence of plaintiff (P.W. 1) that the suit house belongs to the defendant. It also comes vide para 4 of his evidence that the defendants are 5 brothers and there has been a partition in their family and they are residing separately and the suit house situated on the area admeasuring 70 ft. x 12 ft. has been allotted to his share. The other brothers are also residing near the house of this defendant. In para 14 of his cross-examination, the plaintiff admits that before the agreement he had not verified from Patwari records or Municipal records about the ownership of this land. He stated that the defendant had disclosed that it was the land of his ownership and possession and he also disclosed that this has been received in partition. This witness has also stated in the last line of this paragraph that the suit property was initially the property of the ancestors of. the defendant. So far as the revenue entries in relation to the said properties are concerned, this witness has expressed no knowledge about the same. Another witness Abdul Hasan Khan (P.W. 2) has been examined as the scribe of the said document (Ex. P. 1). However, he stated vide para 4 that there has been a partition in the family of the defendant and all the brothers of the defendant were living separately. Except this, no other evidence in relation to partition has been brought on record by the plaintiff. It is important to mention this fact here that neither the agreement (Ex. P. 1) nor the plaint describe, the Khasra number of the land on which the house is situated. Only identification by boundary of the land has been shown in the agreement and it has also been pleaded in the plaint. The defendant has filed a receipt of Municipal Corporation which is dt. 29-4-199land is in the name of the father of the defendant namely Bukhau Ram. The Khasra Panchshala and B-1 Form of Survey No. 41/2 has been filed as Ex. D-2 and D-3 which are on the joint names of 5 brothers of the defendant. The defendant has also given his evidence to the effect that in fact there was no partition in the family and along with the brothers, rights of his three minor children namely Santosh, Mantosh and Manoj are also there and he was not competent to enter into the alleged agreement of such property on his own.
8. After perusal of the evidence of the parties, led on the point of nature of property, it clearly appears that though the brothers were living separately in the different houses constructed over the father's property, but no partition in their family had taken place and the nature of property was joint on the date of alleged agreement.
9. Now the question arises as to whether the defendant was competent to enter into such an agreement with the plaintiff The law does not prohibit the co-owner or a co-sharer of the property to enter into an agreement to sell of his share in the said property which may be an undetermined and undivided share. An agreement to sell the unpartitioned share is valid and enforceable, but if the agreement specifies the portion of joint property by metes and bounds and it enforcement thereof, is sought by vendor, then the same cannot be ordered in absence of consent of other co-sharers for entering into such an agreement. The reason is that in. a joint property, every co-sharer or co-owner retains right and interest on each and every portion of the entire property and unless there has been a partition and the shares and specified portions are allotted to the vendor, the vendee cannot maintain a suit for specific performance of an agreement to sell any specified and identified portion of the joint family property because in such case, he would be enforcing for specific performance of an agreement to sell pertaining to that specified property which was not the absolute property of the vendor or which was not consented to be sold by the vendor to the vendee by the other cosharers of the property. Therefore, an agreement of the specified area of a joint family property by one of the co-sharers was not enforceable unless there was consent of the other co-sharers for the same. In the case on hand, since the partition has not been proved and there appears to be no such consent by the co-sharers, the aforesaid agreement was not enforceable under the law.
10. Now the second point raised is about the proof of agreement. The relief for specific performance is discretionary relief and is not given merely because it is legal but it is governed by sound judicial principles. The circumstances referred to in Sub-section (2) to (4) of Section 20 of the Specific Relief Act, in regard to exercise of discretion for granting a decree for specific performance are not exhaustive. In a suit for specific performance, the evidence and proof of the agreement must be absolutely clear and certain. While normally it is permissible to grant relief on the basis of what emerges from evidence even if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. Please see : [1998]3SCR479 Ganesh Shet v. Dr. C. S. G. K. Setty. This has been said by the Apex Court referring to a quotation from Pomeroy on Specific Performance of Contracts (3rd Edn.) (para 159) as follows para 14 of AIR:
a greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action at law for damages. An action at law is founded upon the mere non-performance by the defendant, and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of non-performance is not enough, its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms, they must be exactly ascertained before their performance can be enforced. This quality of certainty can best be illustrated by examples selected from the decided cases.
11. In : AIR2006SC1144 H. P. Pyarejan v. Dasappa (dead) by L.Rs. it has been held by the Apex Court that the basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
12. Therefore, in a case for specific performance of contract, a greater degree of certainty is required and it demands a clear, definite and precise understanding of all the terms, they must be exactly ascertained before their performance can be enforced. It also needs a high quality of certainty than what is needed in an action at law for damages etc. as the Jurisdiction which is vested with the Court is discretionary and the Courts are not bound to grant such relief merely because it is lawful to do so, the only guiding factor is that the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by Court of appeal.
13. Now it has to be seen as to whether in case on hand, the agreement is proved, with all its certainty and even otherwise, it was independently enforceable, leaving the question of right of vendee to enter into an agreement This is a case in which the defendant has admitted his signature on document Ex. P. 1. The plaintiff has stated that after receiving a sum of Rs. 5000/- as an advance, the defendant put his signature on the document on 30-5-1988 and thereafter he again received a sum of Rs. 13,614/-on 27-10-1988 and further an endorsement to this effect was made by the same scribe who scribed the document on 30-5-1988. The defence raised is that the defendant has taken a sum of Rs. 1000/- as loan from the plaintiff and the plaintiff had obtained his signature on a blank stamp paper. The defendant also admitted that on subsequent date, he had said to the plaintiff to deposit the installments of his Beecee and had agreed with him that when the maturity payment of Beecee would be made, the plaintiff will be entitled to retain his amount, and he shall hand over the remaining amount to him. In the cross-examination vide para 31, the defendant admits that he had returned Rs. 4000/- to the plaintiff which according to his entire statement, comes as the outcome of amount of Rs. 1000/- received by him on loan and the amount of the installments of Beecee.
14. About execution of document, the plaintiff and the scribe have been examined and it is stated that the document was drafted and prepared by the scribe in the District Court and thereafter, it was brought to the house of the defendant in the evening where the defendant signed the document and received a sum of Rs. 5000/- as an advance of the said transaction. It comes in para 13 of the evidence of Hasan Khan (P.W. 2) that the stamp paper for the agreement was brought by the defendant and one Daras Ram. The stamp paper (Ex. P1), also shows in the endorsement of the stamp vendor that it was purchased by Daras Ram on 30-5-1988. When the suggestions about the same were made to the defendant, the defendant vide para 28 of his cross-examination deposes that he does not know any Daras Patel. He has also denied that Daras Patel was resident of Talapara and he was a Masson and he knew him. Daras Patel was a witness to the execution of the document because the scribe says that the document was typed on the instructions of the defendant in the presence of Daras Ram and in this situation, he was an important witness. Not only this, Daras Patel has also been shown as a marginal witness No. 1 to the document. This witness and another witness whose illegible signature is also there as witness No. 2, both of them have not been examined by the plaintiff and if the signature of Daras Ram put as a purchaser of the stamp paper and the signature made as Daras Patel on the first page of the document are compared, they would appear to be different from each other. In the said circumstances, in appreciation, I find that an execution of the valid agreement between the parties has not been established in this case and the court below has recorded a wrong finding that there was an agreement to sell between the parties vide Ex. P1 and the plaintiff was entitled to get the agreement enforced on the basis of the material placed before the Court.
15. However, on the basis of admission of the defendant, it comes that he had taken a sum of Rs. 1000/- from the plaintiff and thereafter about Rs. 2,000/- was paid by the plaintiff, as the instalments of his Beecees, on which certain interest was to be given, but in para 31 he says that he has paid Rs. 4,000/- to the plaintiff and nothing remains to be received by the plaintiff from him. About proof of payment of this amount, the defendant says vide para 31 of his cross-examination that he has not obtained any receipt for the same. These all go to show that in fact Rs. 4,000/- was taken by the defendant from the plaintiff and the defendant could not establish the repayment of the said amount by him. In the said situation, though the plaintiff is not entitled to get a decree for specific performance, but certainly he is entitled to receive back the amount of Rs. 4,000/- which was admitted to be taken by the defendant from him, along with suitable interest.
16. In the result, the impugned Judgment and decree for specific performance are set aside. The plaintiffs suit for specific performance of contract is dismissed. Instead, it is decreed and ordered that the defendant shall pay a sum of Rs. 4000/-(Four thousand) to the plaintiff. He shall also pay interest @ 6% per annum on the said amount from the date of institution of the suit till its realization. There shall be no orders as to costs.