V.K. Jhanji, J.
1. This is plaintiffs' Letters Patent Appeal.
Balwant Singh father of the defendants was the owner of land measuring 153 K. 19 M. i. e. the suit land. On 22.7.1964 he entered into agreement to sell land measuring 32-B, 6 B, 3-B with Arjan Singh, plaintiff No. 3. The sale price was fixed at Rs. 500/- per bigha. The Sale Deed was agreed to be executed on or before 15.6.1966. ' A sum of Rs. 1600/- was paid as stipulated under the agreement dated 22 7.1964. However, the same could not be executed because of some civil suit which was filed by Nihal Singh and Atma Singh against Balwant Singh. The suit was finally dismissed in the year 1967. On the asking of Balwant Singh, Arjan Singh paid another sum of Rs. 14,000/- in addition to Rs. 16,000/- which was paid under the agreement. Balwant Singh died on 11.2.1968. On his death, his son Surinder Singh executed another agreement to sell on 17 10.1968 in favour of plaintiffs to sell land measuring 153 K. 19 M. The agreement was executed by Surinder Singh acting on his behalf and on behalf of his sister, Tejinder Kaur. The land was agreed to be sold at the rate of Rs. 4,700/- per acre. A sum of Rs. 32,000/- which was paid earlier to Balwant Singh was taken to be earnest money under . the said agreement. As per the agreement, the Sale Deed was to be executed on or before 20 6.1969. As per the case of the plaintiffs, they appeared before the Sub Registrar on 20.6.1969 to get the Sale Deed executed on payment of balance amount of sale consideration but defendants, Surinder Singh and Tejinder Kaur did not come to receive the balance sale consideration and to execute the Sale Deed. Plaintiffs have further stated in their plaint that sale money was shown to the Sub-Registrar. On failure of defendants to execute the Sale Deed, a telegraphic notice was also sent despite which the defendants failed to execute the Sale Deed. Plaintiffs have also alleged that they were always ready and willing to perform their part of the contract but for reasons best known to them, defendants refused to execute the Sale Deed. This led to the filing of the suit for specific performance. In the alternative, return of earnest money of Ks. 32,000/- with stipulated damages of Rs. 32,000/- was also claimed in the suit. Tejinder Kaur, in her statement, denied having executed any agreement or having ever appointed her brother as her attorney. Surinder Singh defendant though admitted the execution of the agreement dated 17.10 1968 but denied that the plaintiffs were willing and ready to perform their part of the contract. Presence of the plaintiffs before the Sub-Registrar was also denied.
2. Trial Court, on the pleadings of the parties framed as many as 16 issues. All the material issues were decided in favour of plaintiffs except Issue No. 5 which is to the effect as to 'whether the plaintiffs are entitled to claim specific performance of the agreements dated 22.7.1964 aud 17.10.1968 ?'
3. On Issue No. 5, the trial Court declined to grant decree for specific performance of the agreement dated 17.10.1968 on the ground that the plaintiffs did not seek specific performance of the entire land. Two Khasra Numbers No. 39/4 and 39/3/2 were not included while describing the land in plaint. Therefore, it is a case of partial performance of the agreement which, under the law, could not be allowed. Relief of specific performance was also denied on finding that Surinder Singh defendant was not competent to enter into agreement on behalf of his sister in absence of any power of attorney given by here to him. Learned Single Judge also found that the share of Surinder Singh cannot be separated and, therefore, no decree for specific performance can be passed in view of the provision of Section 12 of the Specific Relief Act (for short the Act) as well as on the basis of the judgment of this Court in Harjinder Singh v. Kartar Singh, 1975 R. L. R.377. However, a decree for a sum of Rs. 64,000/- i. e. Rs. 32.000/- paid as earnest money and Rs. 32,000/- as damages was passed in favour of the plaintiffs. Plaintiffs as well as the defendants preferred first appeals in this Court against the judgment and decree of the trial Court, plaintiffs were aggrieved of the order of the trial Court which dismissed their suit for specific performance of the agreement dated 17,10.1968 whereas the defendants were aggrieved of passing of a decree for Rs. 64,000/-. Before the learned Single Judge, plaintiffs claimed that their application for amendment was wrongly declined by the trial Court wherein a prayer to include the two Khasra numbers was made. In support of this prayer, it was submitted before the learned Single Judge that though the entire land measuring 153 K 19 M. was mentioned in the body of the plaint' yet two Khasra numbers i. e No. 39/4 and 39/3/2 were inadvertently omitted. This defect was pointed out by the defendants at the time when arguments were being heard by the trial Court. Application for amendment was filed immediately thereafter. The learned Single Judge thought that decision on the application for amendment is not necessary as the plaintiffs otherwise also were not entitled to the specific performance of the agreement in view of the provisions of Section 12 of the Act. The learned Single Judge placed reliance on the case of Harjinder Singh's case (supra) in which it was held that 'before the provisions of sub-section (5) of Section 12 can be made applicable, specific finding has to be recorded that the part of the contract, which is sought to be specifically performed, taken by itself, stands on an independent and separate footing from another part of the same contract which cannot and ought not to be performed which finding could not be recorded on the fact and circumstances of that case.' Keeping in view the observation made in Harjinder Singh's case (supra), the learned Single Judge, from the evidence, concluded that it could not be said as to of which portion of the suit land, Surinder Singh defendant was the owner for which specific performance of the agreement, Exhibit P-10 could be allowed. Thus, the appeal preferred by the plaintiffs was dismissed. The appeal of the defendants was also dismissed. Plaintiffs being aggrieved, have preferred the present Letters Patent Appeal. Defendants have not challenged the decree for Rs. 64,000/- which was passed against them by the trial Court, and as affirmed by the learned Single Judge.
4. Learned counsel for the appellants, Mr. Sanjay Majithia, Advocate, contended that the agreement dated 17.10.1968, Exhibit P-10 was in continuation of the agreement dated 22.7.1954 which was executed by Balwant Singh in favour of Arjan Singh plaintiff and both the defendants are liable to perform the agreement. He also contended that Section 12 of the Act has no application to the facts of the present case inasmuch as it is not a case of specific performance of the part of the contract but whole of the contract so far as the contracting party, namely, Surinder Singh is concerned He has placed reliance on the case of Kartar Singh v. Harjinder Singh and Ors.', A. I. R. 1990 S. C. 854.
5. On the other hand, Mr. A. K. Mittal, Advocate learned counsel for the defendants submitted that the agreement stipulated damages in case of breach of the agreement and, therefore, alternative prayer for the return of earnest money and grant of damages has rightly been passed which calls for no interference.
6. After hearing the learned counsel for the parties at length, we find that there is no force in the first contention of learned counsel for the plaintiffs. The suit was not brought on the basis of the agreement dated 22.7.1964 but was brought on the basis of agreement dated .17.10.1968. It was not the case of the plaintiffs before the learned Single Judge that the agreement dated 17.10 1968 was in continuation of the agreement dated 22.7.1964. Plaintiffs cannot be allowed to take the plea which was not urged before the learned Single Judge. Even otherwise, we find from the record that the agreement dated 17.10.1968 was cancelled vide document dated 20-2.1969 proved on the record, Exhibit P-16. In this view of the matter, no relief can be allowed under the agreement dated 22.7.1964 which was executed between Balwant Singh, father of defendants in favour of Arjan Singh plaintiff.
7. Coming to the second contention, we find that the learned Single Judge declined to grant the relief of specific performance of the agreement dated 17.10.1968 on the basis of the judgment in Harjinder Singh's case (supra). The judgment relied upon by the learned Single Judge was over-ruled by the Supreme Court in Kartar Singh's case (supra). The view taken by this Court was negatived by the Supreme Court in paragraphs 4, 5 and 6 of the judgment which are reproduced hereunder for facility of reference :-
'4. We arc afraid that the very foundation of reasoning of the Division Bench of the High Court is defective, it was never disputed that the respondent and his sister had each half share in the suit properties, Hence a mere failure to mention in the agreement that they had such share in the property would not entitle one to come to the conclusion that they did not have that share. When the property is owned jointly unless it is shown to the contrary, it has to be held that each one of the joint owners owns a majority of the property. In the present case, there is neither a pleading nor a contention that the respondent and his sister did not own the property is equal shares. Secondly, the agreement of sale clearly mentions that respondent was entering into the agreement, selling the whole of his share and also the whole of share of his sister in the property. Further, in the agreement itself he had stated that be was responsible to get the sale deed executed by his sister and that he would persuade her to do so. This being the case, the properties agreed to be sold were clearly distinguishable by the shares of the respective vendors, in the circumstances when the absentee refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share.
5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement be had contracted to sale whole of his property. The two contracts viz; one for sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property.
6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the property and get the share demarcated. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and respondent's sister each have half share in the properties, the consideration can easily be reduced by 50 percent which is what the first Appellate Court has rightly done.'
8. From the reading of the above quoted paragraphs, it is clear that Section 12 of the Act shall have no application where a share of a contracting party is identifiable, severable and separate from the share of the one against whom specific performance of the agreement cannot be enforced. Coming to the facts of the present case, we find that it is not a case which is covered under Section 12 of the Act. The share of Surinder Singh is clearly identifiable and is separate and severable from the share of his sister. The suit land was originally owned by Balwant Singh, father of the defendants. On his death, Surinder Singh and Tejinder Kaur succeeded in equal shares and they have 1/2 share each in the suit land. The agreement was entered into by Surinder Singh not only for the sale of his share in the property but also that of his sister. The agreement also provided that in case they fail to execute the Sale Deed, a sum of Rs. 32,000/- will be re-returned alongwith damages to the extent of Rs. 32,000/-. His sister did not admit the execution of the agreement and moreover, on the record it was proved that she never authorised her brother Surinder Singh to enter into agreement to sell land of her share. Considering that the property is owned jointly by Surinder Singh and Tejinder Kaur in equal shares, the share of Surinder Singh is clearly identifiable and in these circumstances, the agreement can certainly he enforced against Surinder Singh who had signed it. As held by the Supreme Court in Kartar Singh's case (supra), the plaintiffs shall take the share of Surinder Singh in the suit land subject to the right of the plaintiffs to apply for the partition 'f the property for getting their share demarcated. As regards the apportionment of sale consideration, it shall be reduced by 50 per cent as Surinder Singh would be entitled to the amount which he is entitled for the sale of his share under the agreement.
9. Faced with this situation, learned counsel for the defendants contended that the agreement in question is optional and stands fully performed on passing of the decree for damages. He, therefore, contended that on payment of damages, decree for specific performance cannot be passed. We find no force in this contention as well. Mere mention in the agreement of a sum to be paid in case of default is no ground for denying specific performance of the agreement Where in an agreement for the sale of land, a sum was mentioned as the amount of damages in case of non performance, mention of the amount of damages was only made for the purpose of securing performance. In the present case, we find that the agreement does not specifically mention that the parties will have the option to perform the contract or pay compensation. Therefore, the stipulated sum has to be held to have been mentioned only to secure the specific performance of the agreement.
10. Now, coming to the objection of the defendants that no relief can be granted to the plaintiffs because of non mentioning of Khasra Nos. 39/4 and 39/3/2 in the plaint, we find that the mistake was clearly inadvertent. No objection whatsoever was taken by the defendants in their written statement It was only at the time of arguments before the trial Court that such an objection was taken. Plaintiffs realising their mistake, immediately thereafter made an application to correct the error We are of the view that the trial Court was not justified in dismissing the application on technical grounds. Decree was sought for the entire land i e. 153 K. 19 M Copies of the agreement as well as Jamabandi for the relevant year were also attached with the plaint. Agreement as well as Jamabandi clearly indicate that relief sought was with regard to the land measuring 153 K. 19 M which also includes Khasra Nos. 33/4 and 39/3/2. In this view of the matter, prayer of the plaintiffs for amendment of the plaint is allowed. Plaint would be deemed to have included Khasra Nos 39/4 and 39/3/2 apart from other Khasra numbers mentioned in the plaint.
11. la the circumstances, the Letters Patent Appeal is allowed with costs throughout and a decree for specific performance is passed in favour of the plaintiffs and against Surinder Singh, defendant on payment of balance sale consideration. Appeal as well as suit against Tejinder Kaur shall stand dismissed. Plaintiffs shall also bear the expenses of stamp and registration charges at the time of the execution of the Sale Deed. Balance sale consideration shall be paid/deposited with the Executing Court within three months from today failing which the suit of the plaintiffs shall stand dismissed.