Judgment:
M.M. Kumar, J.
1. It is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short 'the Code') challenging concurrent findings of fact to the effect that the plaintiff-appellant was not entitled to specific performance of the agreement to sell. The trial Court under issue No.3 has passed a decree for refund of Rs. 2,400/- which had been modified by the Lower Appellate Court enhancing the amount,
2. Facts in brief are that the plaintiff-appellant filed Civil Suit No. 5-B, of 1968 on 6.11.1968 for possession by way of specific performance of the agreement dated 10.1.1961. According to the case of the plaintiff-appellant, he had, through his grand-father, entered into an agreement to sell with defendant-respondent No. 2. The total consideration stipulated in the agreement was Rs. 10,500/- and an amount of Rs. 2,400/- was paid as earnest money. It is appropriate to mention that the plaintiff-appellant was minor at the time of agreement to sell dated 10.1.1961. Subsequently, another agreement was entered into on 22.1.1963 and a sum of Rs. 4,100/- was stated to have been paid to the defendant-respondents. Alleging that the defendant-respondents have failed to execute the sale-deed, a suit for specific performance was filed or in the alternative, an amount of Rs. 10,500/- was claimed as a refund, which included interest on the aforementioned amount of Rs. 4,100/- paid in advance.
3. The stand of the defendant-respondents before the Courts below was that defendant-respondent No.l had right to enter into an agreement to sell on behalf of defendant-respondent No. 2. It-was further asserted that the plaintiff-appellant was not entitled to specific performance of the agreement. However, it was admitted that the defendant-respondents were owners in possession of the suit property and defendant-respondent No, 1 had received a sum of Rs. 2,400/-. It was also admitted that an agreement to sell was entered on 10.1.1961, which was supplemented on 22.1.1963. Their further stand was that after the supplementary agreement, no amount was paid and, therefore, the plaintiff-appellant was not ready and willing to perform his part of contract. Another plea taken was that the agreement by grandfather of the plaintiff-appellant was void and it could not be enforced. Therefore, it was pleaded that the plaintiff-appellant was not entitled to specific performance of the agreement to sell nor he was entitled to any refund.
4. The trial Court recorded the findings holding that defendant-respondent No. 1 had no authority to enter into an agreement to sell so as to bind defendant-respondent No.2 and the plaintiff-appellant was not ready and willing to perform his part of contract. It was further held that the plaintiff-appellant had paid an earnest amount of Rs. 2,400/- to defendant-respondent No. 1 and that the grand-father of the plaintiff-appellant was not competent to enter into an agreement to sell on behalf of the minor and as such the contract could not be specifically enforced. Accordingly, the agreement to sell was held to be invalid. On the basis of the aforementioned findings, a decree for refund of Rs. 2,400/- was passed in favour of the plaintiff-appellant.
5. On an appeal filed by the plaintiff-appellant, the Lower Appellate Court upheld the findings of the trial Court concerning the authority of defendant-respondent No. l to enter into a binding agreement to sale on behalf of defendant-respondent No.2. After referring to the statements of the witnesses, the learned Lower Appellate Court has concluded as under:-
I have perused the statements of both the witnesses. Defendant No. 1 has clearly stated that he had no authority to sell the land of defendant No. 2. To the same effect is the statement of defendant No. 2. Raghbir Singh, next friend of the plaintiff also appeared as PW-4. He has not stated that he saw any power of attorney with defendant No. l prior to entering into an agreement to sell. In the absence of any such evidence being adduced by the plaintiff, the statements of defendant No. l and 2 will be believed to show that the defendant No. 1 had no authority to enter into an agreement to sell on behalf of defendant No. 2. So finding of the trial Court on issue No. l is liable to be confirmed and is confirmed as such.
Similarly, on the question of readiness and willingness to perform his part of contract by the plaintiff-appellant, the Lower Appellate Court in para 8 of its judgment has affirmed the findings of the trial Court by observing as under:-.there is only the statement of the plaintiff and trial Court also held that there is no evidence adduced by the plaintiff that he had the money ready with him to pay. On the file, there is no documentary evidence to show that the plaintiff or its natural guardian waited in the tehsil premises for defendant on any particular day to get the sale-deed registered. There is also no evidence that the plaintiff had ready cash with him for payment to the defendant. It 'is not disputed that as per allegations in the plaint, Rs. 4,000/- were to be paid on the date of registration of the sale-deed. It was for the plaintiff to adduce evidence to show that he had Rs. 4,000/- with him for getting the ale effected. In the absence of any such evidence being adduced, it will be held that the plaintiff did not have Rs. 4,000/- with him and he was not ready and willing to perform his part under the agreement.
6. The Lower Appellate Court, however, modified the findings on issue No. 3 with regard to payment of Rs. 2,400/- by accepting the plea of the plaintiff-appellant that Rs. 4,100/- was paid later on and the plaintiff-appellant was held entitled to aforementioned amount. For the aforementioned purpose, reliance was placed on the receipt Ex.P4 showing the acknowledgement by defendant-respondent No. l in respect of a sum of Rs. 4,100/-. The Lower Appellate Court also agreed with the trial Court on the competence of Ragbir Singh grand-father of Gopal Dass minor to enter into an agreement of sale on behalf of the minor. The view of the Lower Appellate Court in this regard reads as unden-
It is admitted by Raghbir Singh PW-4 that father of the plaintiff is alive. This shows that Raghbir Singh is not the natural guardian of minor plaintiff on the day when agreement to sell was made. It is also not the case of the plaintiff that Raghbir Singh was a guardian appointed by the Court. So Raghbir Singh can at the most be a de facto guardian. Under Section 8 of the Hindu Minority and Guardianship Act, a natural guardian is restrained from mortgaging, changing, transferring, selling, gifting, exchanging or leasing out the property of minor.... Under the above Act, the powers of guardian to deal with the property of the minor have been restricted. Only a guardian appointed by the Court can purchase property with the permission of the Court. A natural guardian has been restrained from alienating the property of the minor which include cash also. It the argument of the learned Counsel for the appellant is accepted, it will amount to holding that a guardian who is not even natural guardian has more power to deal with the property of the minor than the natural guardian which can never be the intention of the Legislature. '1963 Act' was enacted simply to safeguard the property of the minor and to prevent persons from dealing with the property of the minor. As Raghbir Singh was neither the natural guardian nor a guardian appointed by the Court, so he on behalf of the minor has no right to purchase the property in the name of the minor and as such he will be deemed to be debarred from enforcing the agreement on behalf of the minor.
The Lower Appellate Court has rejected the argument of the plaintiff-appellant that a decree for specific performance to the extent of the share of defendant-respondent No. 1 in the suit land, which was agreed to be sold, be passed. The view of the Lower Appellate Court in that regard reads as under-
To get relief under Section 12 of the Specific Relief Act, it was incumbent for the plaintiff to plead the above fact and also to lead evidence, or show his readiness and willingness that he is prepared to purchase the share of defendant No. l at the stipulated price. There was no such offer given by him during the course of trial in the lower Court, Even there is no such plea taken in the grounds, of appeal. As such I am of the view that now plaintiff is estopped from alleging the above fact. Even otherwise, as plaintiff was not ready and willing to perform his part under the agreement and the contract was made by Raghbir Singh who had no authority to bind the minor so it cannot be specifically enforced. So 1 am of the view that the plaintiff is not entitled to the specific performance of agreement to sell.
7. Shri C.B.Goel, learned Counsel for the plaintiff-appellant has argued that the total sale consideration found by both the Courts below in respect of the suit land is Rs. 10,500/- and an amount of Rs. 6,500/- was paid to defendant-respondent No. 1. He has maintained that there are further findings that no binding contract could have been executed by defendant-respondent No. l in respect of' the share of land belonging to defendant-respondent No. 2 and, therefore, specific performance to the extent of the share of defendant-respondent No. l in the suit land should at least be decreed in favour of the plaintiff-appellant. In support of his submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Kartar Singh v. Harjinder Singh : AIR1990SC854 . Learned Counsel has also placed reliance on four judgments of this Court in the cases of Kulwant Singh v. Makhian Singh 2 (2003-1)133 P.L.R. 647; Karam Singh Kamboj v. Harbans Singh (1998-1)118 P.L.R. 284; Mohinder Singh and Ors. v. Guljit Singh (2000-3)126 P.L.R. 115 and Gian Singh v. Harbans Singh (2000-3)126 P.L.R. 405 and argued that Court should promote the specific performance rather than declining the same. He has then submitted that the Courts below have committed grave error in law by refusing to pass a decree for specific performance of contract dated 22.1.1963 by totally mis-interpreting the provisions of the Hindu Minority and Guardianship Act, 1956 (in short 'the 1956 Act'), In support of his submission, learned Counsel has, placed reliance on a judgment of Privy Council at the case of Subrahmanyam v. Subha Raoo A.I.R, 1948 P.C. 95 and a judgment ot the Andhra Pradesh, High Court in the case of C. Ananthakishan v. K. Ramesh Kumar and Anr. 1993 (Suppl.) Civil Court Cases 78. Another submission made by the learned Counsel is that in law there is no necessity to prove availability of adequate cash funds to pay to the defendant and it is enough to show that the plaintiff-appellant had the capacity to earn and pay such an amount. He has lastly made an attempt to challenge the findings of fact to the effect that the plaintiff-appellant was not ready and willing to perform his part of contract by referring to the averment made in para 6 of the plaint (page 11 of the trial Court record) and the corresponding para of the written statement. Learned Counsel has argued that defendant-respondent No.l had conceded to perform his part of contract, although he alleged that plaintiff-appellant did not perform his part.
8. Shri Robin Dutt, learned Counsel for the defendant-respondent has argued that Section 12 of the Specific Relief Act, 1963 (in short '1963 Act') would apply to the facts of the present case because substantial land i.e. 7-1/2 acres out of total 10 acres is in possession of defendant-respondent No.2. Learned Counsel has maintained that there is no issue nor any evidence on the record in this regard and, therefore, the suit cannot be decreed in part. Learned Counsel has further argued that the relief of specific performance is a discretionary relief and the same cannot bS claimed as a matter of right according to Section 20 of the Act. In this regard, he has made reference to the judgment of this Court in the cases of Mohinder Singh v. Harjit Singh (2001-3)129 P.L.R. 706 and Joginder Singh v. Surinder Pal Singh (2001-2)128 P.L.R 504, Learned Counsel has lastly submitted that the findings of both the Courts below are that the plaintiff-appellant was not ready and willing to perform his part of contract and, therefore, he cannot claim even specific performance to the extent of the share of defendant-respondent No. l.
9. Having heard learned-counsel for the parties, perusing the judgments of both the Courts below and the record, 1 am of the considered view that there is no merit in this appeal. Both the Courts below have concurrently held that the plaintiff-appellant has not been ready and willing to perform his part of contract, In this regard, a reference may be made to the findings recorded under issue No. 2 by the trial Court and the view expressed by the Lower Appellate court in para 8 (supra) confirming to those findings. After the aforementioned findings nothing would in fact survive for consideration because these conclusions oversee the findings that the defendant-respondent No. l has no authority to enter into an agreement to sell on behalf of the defendant-respondent No.2 and, that he was not bound by the same.
10. Moreover, the specific performance has been declined on the ground that no plea of part performance was raised during the course of trial nor any such plea was taken in the grounds of appeal before the Lower Appellate Court although an argument was raised. Therefore, discretion exercised by the Courts below cannot be interfered with which has been rightly exercised keeping in view the parameters of Section 20 of the '1963 Act'.
11. The judgment of the Supreme Court in Kartar Singh's case (supra) on which reliance has been placed would not in any case be applicable once the findings have come that the plaintiff-appellant was not ready and willing to perform his part of contract. However, assuming that the aforementioned judgment applies to the facts of the present case, then the correctness of the same has been doubted by the Supreme Court in the case of Surinder Sirgh v. Kapoor Singh 10 20002(10) S.C.C. 109. In the present case, it has come on record in para 1 of the written statement that defendant-petitioner No. 1 alone has signed the agreement to sell. The defendant-respondent No. 2 is in possession of 7-1/2 acres of land out of the total 10 acres. It is not clear whether defendant-respondents are owners to the extent of 1/2 share each. These are questions of evidence. In the absence of any pleadings and evidence to that effect, such an issue cannot be decided at the stage of appeal under Section 100 of the Code. It is thus evident from the record that 7-1/2 acres land is in possession of a stranger to contract i.e. defendant-respondent No. 2. When there is such a wide difference between the subject-matter of sale and what actually becomes available for sale then there is loss of identity; and the emergence of a new character and subject-matter. In the case of Baikunth Devi v. Mahendra Nath : AIR1977SC1514 , the Supreme Court sustained the decree in favour of specific performance of contract because a tiny bit of land was short than the land agreed to be sold. Therefore, no benefit of Section 12(1) of '1963 Act' could be extended to the plaintiff-appellants especially when they have been found not ready and willing to perform their part of contract.
12. It would be appropriate to consider the provisions of Section 12 of ' 1963 Act' which reads as under:-
12. Specific Performance of part of contract:- Except as otherwise provided in this section, the Court shall not direct the specific performance of part of a contract.
(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 bears 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 the 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 in a case falling under Clause (b), the consideration for the 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 of damage sustained by him through the default of the defendant,
(4) When a part of 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.
A perusal of Section 12(1)(2) of the 1963 Act reveals that Court must not direct specific performance of a part of a contract. However, there are exceptions viz (1) where a party to a contract is able to perform substantial part of the contract and the part which is left unperformed bears only a small portion of the whole in value and admits of compensation in money for the deficiency. It is evident that in the present case a major portion of the agreement to sell would remain unperformed.
For the reasons aforementioned, this appeal fails and is dismissed. There shall, however, be no order as to costs,