V.N. Khare and; B.N. Agrawal, JJ.
1. The defendant is in appeal before us. The father of the defendant- appellant on 23-7-1964 entered into an agreement for sale of land measuring 153 kanals 19 marlas. After his father's death, Defendant 1 on 17-10-1968 entered into a fresh agreement for sale of the same land jointly owned by him and his sister in favour of the plaintiff-respondents. However, the defendant's sister was not party to the said agreement. It is alleged that the defendant's father received the earnest money under the first agreement. It is also alleged that since the defendant-appellant avoided to execute the sale deed, the plaintiff-respondents brought a suit for specific performance of the agreement to sell dated 17-10-1968. The suit was contested by the defendant-appellant as well as by his sister who was also the co-sharer of the land. The sister of the appellant denied having entered into an agreement with the plaintiff-respondents for sale of her share. The trial court was of the view that there could not be a part-performance of the whole contract. Consequently, the suit was dismissed. The plaintiff-respondents preferred an appeal before the High Court. A learned Single Judge of the High Court dismissed the appeal. The plaintiff thereafter preferred an LPA before the Division Bench of the Punjab and Haryana High Court. The High Court relying upon a decision in the case
of Kartar Singh v. Harjinder Singh1 allowed the appeal. Consequently, the suit stood decreed for the half share of the property belonging to the defendant-appellant on payment of half price of the agreed consideration money. It is against the said judgment of the High Court, the defendant is in appeal before us.
2. Learned counsel appearing for the respondents urged that in view of the decision in Rachakonda Narayana v. Ponthala Parvathamma2 this appeal deserves to be allowed. In the present case, what we find is that the defendant-appellant entered into an agreement for sale in respect of the entire land including the share of his sisters in the land which has not yet been partitioned. The sister of the appellant denied having entered into a contract with the plaintiff-respondents. Under such circumstances, the only course open to the plaintiff-respondents was to take resort to sub-section (3) of Section 12 of the Specific Relief Act. The plaintiffs sought specific performance of the whole contract. In such a situation, the aid of sub-section (3) of Section 12 not having been taken by the plaintiff, the suit deserved dismissal. However, in Kartar Singh case1 it was held that the properties agreed to be sold were clearly distinguished by the shares of the respective vendors and, therefore, the agreement can be enforced against a vendor who had signed it and whose property is identifiable by his specific share. It was further held that there were two contracts in one agreement viz. for the sale of his share and of his sisters' shares, were separate and were severable from each other although there was no partition of land.
3. We regret to express our disagreement with the view taken by this Court in Kartar Singh case1. If we hold that there were two contracts in an agreement of sale of undivided land, we would be setting up a new contract which cannot be enforced by the Court unless the plaintiff takes resort to sub-section (3) of Section 12 of the Act. In the present case, there was only one contract for the entire land and what was pleaded in the plaint and enforcement of the agreement sought, was for the entire land covered by the agreement. If the plaintiff seeks enforcement of part of the whole contract, he must plead his readiness and willingness to perform his part of the whole contract. Since the decision in Kartar Singh case1 is by a two-Judge Bench, we are of the view that this appeal may be referred to for decision by a Bench of three Judges.
4. Let the papers of this case be placed before the Hon'ble the Chief Justice of India for appropriate orders.