N.H. Bhatt, J.
1. This an appeal by the original defendants of the Special Civil Suit No. 65 of 1969 of the Court of the Civil Judge (S.D.) at Surat, being aggrieved by the judgment and decree of specific performance of a contract for sale of some property, hereinafter called the suit property on the respondent-plaintiffs depositing with the court the amount of Rs. 21.999/- on or before 15th June, 1971. The defendants were further directed by the said judgment and decree of the trial court to execute the aforesaid sale-deed within one month from the date of depositing of the aforesaid amount with the court by the plaintiff. It was further ordered and decreed that on execution of such a sale-deed in respect of 15/16th share of that property, the plaintiff was to be put into symbolic possession of that undivided share.
2. The background of the case deserves to be closely noted in order to comprehend the moot points in controversy. The suit property originally belonged to one Tribhovandas Bhaidas, the ancestor of the appellants Nos. 3 to 6. The defendant No. 1 bad purchased the shares of Bhukhandas Tibhovandas and of Somabhai alias Pitamber Tribhovandas in court auction on 21-9-56 and had contracted to purchase the share of the third brother Chhabildas Tribhovandas, the original defendant No. 4 who had died during the pendency of the case and is represented by the appellants Nos. 4A to 4H. The appellant no. 3 Chandiben is the wife of said Chhabildas Tribhovandas. The appellant No. 5 Maniben is the wife of aforesaid Somabhai alias Pitambardas Tribhovandas and the appellant No. 6 is said Somabhai alias Pitambardas Tribhovandas himself, who was the defendant No.6 in the trial court. The fourth brother Rangildas Tribhovandas was thought to have relinquished his share in the joint property and in the year 1958 it was believed by the defendant No. 1, the appellant No. 1 herein, that only three brothers had their right, title and interest to and in the suit property out of which 2/3rd shares had already been purchased by him in a court auction and he had contracted to purchase the remaining 1/3rd share of Chhabildas Tribhovandas. The defendant No. 1, therefore, thought himself entitled to the whole of the suit property and on 19-2-59 he had entered into a contract, ex. 76, with the present plaintiff-respondent to sell the said house to the latter on full title and possession having been procured. The price agreed upon was Rs. 21999/- and on the day of the contract, that is on 19-2-59, Rs.1001/- were received by the defendant no. 1 from the plaintiff as earnest money. The period stipulated was 18 months for the execution of the deed by the defendant in favour of the plaintiff but it was then apprehended that possibly the full title and complete possession could not be had by the defendant No. 1 within that period of 18 months and so the contract, ex. 76, specifically provided that till the defendant no. 1 procured the de facto possession of the property, the period was to be treated as extended till the recovery of full possession by the defendant No. 1. Soon after the execution of that agreement of sale by the defendant No. 1 in favour of the plaintiff, the defendant No. 1 had taken on 13-4-59 the share of Chhabildas Tribhovandas from the decree-holders, who had themselves purchased the said share of Chhabildas Tribhovandas at the court auction. So, what was promised by the defendant No. 1 to the plaintiff at the time of the agreement of sale as practically complete. However, the defendant No. 1 could not procure full title because the heirs of Ragildas, the fourth brother, had put forward their claim to the 1/4th share in the suit house, three sons of aid Rangildas, however, had been adjudged insolvent and their right, title and interest to and in the suit property was purchased through the court receiver by the defendant No. 1 on 26-12-59, that is about eight months after the Suit agreement by the defendant no. 1 in favour of the plaintiff. Thereafter the defendant No. 1 filed a Special Civil Suit No. 55 of 1960 against all the heirs of Tribhovandas Bhaidas for possession of the suit property, claiming that he had acquired a complete title to the suit property. In the said suit, the defendant No. 1 had sought a declaration that he had become the absolute owner of the entire suit property and on that basis he claimed possession of the entire house from the defendants in that suit. In the alternative he bad sued for partition and separation of his whatever sharps that would be adjudicated upon by the court. The suit was resisted by all the heirs, including one Bai Laxmi, the widow of Rangildas, who had asserted that she as the widow of h anginas had 1/4th share in the 1/4th share of Rangildas in the suit properly. The trial court by its judgment and order dated 30-3-62 declared that the present defendant No. 1 Makati Nanchand Kakaldas had 15/16th share in the suit property and that he was entitled to get his 15/16th share separated. The court clearly decreed that the remaining 1/16th share belonged to Bai Laxmi, the widow of deceased Rangildas. Against the said Judgment and decree in the Special Civil Suit No. 56 of 1960, Somabhai and others had preferred the first appeal No. 405 of 1962 in this High Court, claiming that the defendant No. 1 had not acquired even the 15/16th share as claimed by him. That appeal came to be dismissed by this High Court by its judgment dated 20-8-68.
3. As the litigation in respect of the suit property was going on between the defendant No. 1 on one hard and the original claimants, some of whom are the appellants herein, the period for performance of the contract by the defendant No. 1 in favour of the plaintiff went on being extended by the defendant No. 1's constituted attorney from time to time as noted in various endorsements made below Ex. 76, the original contract. Even the defendant No. 1 by his letter Ex. 77 dated 27-3-67 had, under his own hand, extended the period for performance of the contract in response to the requisition by the plaintiff, and as per this letter written by the defendant No. 1 to the plaintiff, the time for the performance of the contract, Ex. 76, was extended till 31-3-68. After the appeal of some of the heirs of Tribhovandas had come to be dismissed by the High Court in year 1968 the defendant No. 1 acting through his new constituted attorney, the original defendant No. 2, now the appellant No. 2, had filed execution proceedings before the Civil Court in order to get the defendant No. 1's 15/16th share separated by metes and bounds. The matter was before the executing court on 21-7-69 and was then adjourned to 31-7-69. The parties to those proceedings were the present defendants Nos. 1 and 2 on one hand and other heirs of Tribhovandas Bhaidas on the other. On 25-7-69, the defendant No. 2, acting as the constituted attorney of his father, the defendant No. 1, sold his right, title and interest to and in the suit property by a registered deed in favour of the defendant No. 3, the wife of Chhabildhs Tribhovandas and in favour of the defendant No. 5, the wife of Somabhai Tribhovandas as per the sale-deed ex. 102 and for the ostensible consideration of Rs. 15,999/-.
4. The plaintiff came to know of this sale by the defendants Nos. 1 and 2 in favour of the defendants Nos, 3 and 5 in consequence of some compromise or understanding entered into by and between them. He then filed the present Special Civil Suit No. 65 of 1969 on 29-7-69 for specific performance of the contract of the entire property if possible or for the 15/16th share, which admittedly was adjudged to be belonging to the defendant no. 1 or alternatively for tile return of the amount of Rs 1001.00. In the alternative, the plaintiff had also claimed the-sum of Rs. 21,999/- against whatever defendants who were adjudged liable.
5. The defendants Nos. 3 to 6 had filed their reply ex. 26 and the defendants Nos. I and 2 had filed their reply Ex. 18. Ex. 27 in the further written statement of defendants Nos. 1 & 2 after the plaint was amended by the defendant. The sum and substance of the contention of the defendants was that the sale was affected by the defendant no. I through his son-cum-constituted attorney, the defendant no. 2 with the consent of the plaintiff, who had shown his clear disinclination to have 15/16th share and not the whole of the property and that the plaintiff was not entitled to anything more than Rs. 1001.00 by way of return of the earnest money in pursuance of the specific terms of the contract, ex. 76.
6. Before the learned trial Judge as many as eight issues were raised at ex. 35. At the close of the trial, the learned Judge held that the plaintiff was ever ready and willing to perform his part of the suit agreement dated 19-2-59, that it was the defendants Nos. 1 and 2 who had committed the breach of the terms and conditions of the contract, that the said terms and conditions had not become ineffective or inoperative and the defendants Nos. 1 and 2 had failed to prove that they had returned the earnest money to the plaintiff as per the terms of the suit agreement. The learned Judge consequently held that the plaintiff was entitled to the specific performance of the contract in respect of 15/16th share without actual possession. Consequently the learned Judge held that the further case of relief of damages of Rs. 21999/- or any amount did not survive for consideration. It is this decree of specific performance as granted by the learned trial Judge, which is called seriously in question on behalf of the original defendants, who are appellants before us.
7. For the sake of convenience we shall refer to the parties with reference to the characters they had in the trial court. The respondent will hereinafter be referred to as the plaintiff. The appellant no. 1 Makati Nanchand Kakaldas as the defendant No. 1 and the appellants Nos. 3, 4, 5 and 6 as the defendants nos. 3, 4, 5 & 6.
8. Mr. Joshi, the learned advocate for the appellants raised the following main questions for our consideration:
(1) The suit agreement. Ex. 76, dated 19-2-58 had become inoperative because the defendant no. I had not acquired full and complete proprietary rights over the suit property and was not and could not be in exclusive possession thereof.
(2) The suit agreement had become obsolete and unenforceable at law with the passage of an unduly long period of 10 years;
(3) The suit agreement had become invalid and unenforceable at law inasmuch as Bai Laxmi was found lo have 1/16th share in the suit property and the defendant no. 1 was not in a position to fulfil the contractual obligation of passing the full title and putting the plaintiff into exclusive possession of the properly.
(4) The rights under the suit agreement were relinquished by the plaintiff's brother Jayantilal, who had come to acquire the same on partition of all the joint family properties between the plaintiff and him; and
(5) The suit agreement had become null and void under the terms of the agreement itself:
9. As far as the defendants' contention about relinquishment of the rights under the suit contract ex. 76, by the plaintiff's brother Jayantilal is concerned, the defendants have no case whatsoever. The learned trial Judge has examined the oral evidence very critically in this respect and has rightly found the defendant No 2 at ex. 101, the defendant No. 6 at en. 105 and the defendants' witness Chhabildas Devehand ex. 108 as absolutely unreliable. As we are in concurrence with the conclusions reached by the learned trial Judge in respect of the appreciation of evidence, we do not deal with this aspect afresh and burden the record. However, we have no hesitation in brandishing this laboured defence as a got up one for one very cogent circumstance. Soon after the defendant No. 1 executed the sale deed ex. 102 in favour of the defendants Nos. 3 and 5 as per the registered sale-deed dated 25-7-69, he had addressed & letter to the plaintiff on 28-9-69. It is ex. 89 on the record. This letter is written by the defendant No. 2 as the constituted attorney of the defendant No. 1, The said letter completely explodes the defendants' case of the plaintiff's brother and father having voluntarily relinquished their right under the suit contract. The said letter runs into four pages and it describes in details the history commencing from the execution of the agreement ex. 76 on 19-2-59 and subsequent litigation between the defendant No. 1 on one hand and the heirs of Tribhovandas Bhaidas on the other, The letter emphasised the fact that the defendant No. 1 could establish only 15 annas share in the suit property and that this finding by the trial court in the special civil suit No. 55/60 had come to be confirmed by the High Court in the First Appeal. The letter than proceeds to narrate that it had become impossible for the defendant No. 1 to abide by the terms and conditions of the suit contract, ex, 76, and that consequently as per the terms of the agreement, the said agreement had come to an end because despite serious attempts by the defendant No. 1 Bai Laxmi whose 1/16th share was there in the suit property bad refused to budge an inch. The letter lastly informs the plaintiff that in those circumstances the defendant No. 1 had to sell his share in the suit property to the defendants Nos. 3 and 5 for the sum of Rs. 15999/- by incurring the loss of Rs. 6000/- in so far as the defendant was to get Rs. 21999/- from the plaintiff if he could fulfil the contract. The letter is rounded off by reference to draft for Rs. 1001-, which was annexed to that letter, ex. 89. This letters conspicuously scient about the alleged assignment of the rights under the contract in favour of the plaintiff's brother Jayantilal or lo the voluntary relinquishment of his right by the plaintiff's brother Jayantilal and the plaintiff's father Chhotalal, as is sought to be made out ai the trial. Had there been any shared of genuineness in this account of the alleged relinquishment the right, this letter written on the heels of the sale-deed ex. 102, would live certainly mentioned that fact. The non-mention of such a vital circumstance in the letter ex. 89 is by itself too strong a circumstance to be offset by the laboured and elaborate oral evidence sought lo be pressed into service on behalf of the defendants at the stage of the trial. In our opinion, this is too strong a circumstance to be offset by oral evidence of the interested witnesses, including one allegedly independent witnesses Chhabildas ex. 108. As a matter of Fact, this witness Chhabildas is proved to be highly interested and his entire testimony smacks of a clear partisan attitude harboured by him.
10. The second equally cogent circumstance crying aloud against this theory put in defence is the plaintiff's immediate rush to the court. The plaintiff's brother Jayantilal has been examined and he has categorically stated that he had nothing to do with this contract, ex. 76. The plaintiff has very steadfastly asserted that the contract was entered into by him in his personal capacity and that it was never treated as the joint family property. As a matter of fact, such a contractual right cannot be said to be a property, though it is a right under the contract. The plaintiff's suit had come to be filed on 29-7-69, and this also goes to show that nothing of the sort must have taken place, though it was put forward vigorously by the defendants at the stage of the trial. Mr. Joshi's submission in this Court is that even according to the plaintiff there was a meeting between the plaintiff on one hand and the defendants Nos. 1 and 2 on the other on 22-7-69 and in the submission of Mr. Joshi, this would lend an indirect support to the defendants' theory of some talks having taken place. This is too lame a support that can be called in aid of an intrinsically untenable defence version. We have, therefore, no hesitation in brushing aside the above-mentioned point No. 4, which was reiterated by Mr. Joshi before us.
11. The above-mentioned point No. 2 canvassed by Mr. Joshi also, is equally lame. Simply because 10 years period elapsed between the date of the agreement and the suit by itself would be no adverse circumstance for the plaintiff. It was the gravamen of the contract between the parties that the defendant No. 1 should furnish the plaintiff with full proof title and exclusive possession. The very body of the agreement contained a clause for automatic extension of time for the due performance of the contract by the defendant No. 1. As if this was not enough, the plaintiff went on taking from the defendant No. l's then constituted attorney Hiralal endorsements below the very contract, ex. 76 itself extending the time for due performance of the contract. As many as five endorsements are there below ex. 76. As if this was not enough, the very defendant No. 1 was requested directly by the plaintiff and in reply to the plaintiff's requisition, this very defendant no. 1 had addressed the letter ex. 77 to the plaintiff. Not only did the defendant No. 1 acknowledge the fact of the contract, ex. 76, executed by his constituted attorney Hiralal, but he also assured the plaintiff that the time for the contract was further extended from 31-3-67 to 31-3-68 because of the pendency of the appeal, in the High Court. Mere lapse of 10 years period cannot in and way defeat the solemn contractual obligations and rights incurred and created. Little merit, therefore, do we find in this contention raised on behalf of the appellants-defendants.
12. This brings us to the remaining contentions raised, which veer round the terms of the contract itself. It is to be recalled here that this is not the usual form of bilateral contract executed by both the contracting parties. This is a unilateral writing given by the defendant No. 1 through his constituted attorney Hiralal in favour of the plaintiff, but this aspect does not materially affect the ultimate position because from this very ex. 76 taken by the plaintiff from the defendant No. I the working of the minds of both the parties becomes self evident and it clearly shows what was passing in the mind of the plaintiff also when he invited various terms from the defendant No. 1. This aspect is specifically referred to here because the learned advocate for the respondent Mr. S.B. Vakil tried to make some capital for the plaintiff from this ostensible frame of the document. We shall examine this aspect more elaborately at the proper place. The material terms of the contract when translated as faithfully as possible are as follow:
(1) The agreement has been executed to give this property to you absolutely unencumbered and uncharged, after clearing the full and clear title to the whole property, as detailed below.
(2) In order to make the sale complete, it is made a condition that I have to take the property in my de facto possession by taking appropriate steps and thereafter, after taking the price, the said property is to be sold to you and a registered sale-deed is to be executed by me at your costs in that respect and along with it I have to hand over the de facto real and unhampered possession of the property to you.
(3) Having determined the main terms about making the title cleat in respect of the suit property and on respect of handing over of possession to you, this, agreement has been entered into.
(4) In order to get possession of the property, proceedings are required to be undertaken in a court of law and, therefore, as long as we do not procure the unhampered and real possession of the property or till we procure de facto or real possession of the property or till you, purchaser, desire before that, this contract of sale is to be kept, alive.
(5) On getting possession of the property, I have to inform you in writing and you (the purchaser) have to inform me about completing the sale-deed on your coming to know of it and accordingly within two months of getting the information and on being convinced of the clear and marketable title to the suit property and on your being put in de facto possession of the property, you have to pay the remaining price, get the sale-deed executed and as per the terms of this agreement after giving possession of the property, the sale proceedings are to be completed.
(6) If it so happens that in taking possession of the property, period of more than 18 months from today elapses, you, the purchaser, at your sweet will are entitled to rescind this contract and, in those circumstances, I am bound to return the said amount without interest to you soon on being informed of your decision or rescind the contract.
(7) Moreover, if there is found any difficulty in the full title of the entire property or if there appears some dispute in that connection and if we fail to get the said dispute resolved and fail in establishing your foil title to the suit property and in getting its possession, even then, this agreement is to be treated as null and void (emphasis on phrases is supplied by us)
13. At this stage we have also to note the five endorsements, respectively dated 31-3-62, 24-12-62, 26-3-63. 31-3-64 and 1-3-65, all signed by Hiralal Chunilal, the then constituted attorney of the defendant No. 1 extending the period respectively upto 13-12-62, 13-3-63, 13-12-63, 13-3-64 and 31-3-67. In all these endorsements it is mentioned that the proceedings regarding possession were pending. Last of these five endorsements refers to the High Court appeal no. 405 of 1962. It is to be recalled at this stage very pertinently that when the suit came to be decreed by the trial court, the fate of the defendants No. 1 was to some extent sealed. The trial court had upheld the defendant No. l's title only to the extent of 15/16th share and had clearly held that 1/16th share belonged to Bai Laxmi, widow of Rangildas. The appeal in the High Court, being First Appeal No. 405 of 1962 was filed only by the other members, who wanted to avoid the transfer effected by those co-sharers. As far as the defendant No. l was concerned, the judgment had become final because he had neither preferred any cross-appeal nor filed any cross-objections. It, therefore, should have been clear to him by then, in the year 1963 that there was no possibility for him to get the full title to the property or to get the exclusive possession for the plaintiff. Still, as we have noted above, the defendant No. I was given extension of time for the specific performance of the contract from time to time. Nay, by writing ex. 77 dated 27-3-67, this defendant No. 1 himself had extended the time on the last sixth occasion. This letter was written by the defendant No. I in reply to the plaintiff's requisition and the time was extended till 31-3-68. After the said appeal No. 405 of 1962 came to be dismissed by the High Court in the year 1968, no further extension was sought either by the plaintiff or given by the defendant No. 1, but the defendant No. 1 soon after the dismissal of that appeal had applied in execution for separation of his 15/16th share from the suit property. During pendency of those execution proceedings the matter was once fixed on 21-7-69 and then the matter was adjourned to 31-7-69. On 22-7-69 the plaintiff and the defendant no. I had admittedly met, though the subject matter of discussion or talk is said to be different by both the sides. According to the plaintiff 28-7-69 was the date fixed by the defendant No. I for passing the sale-deed of whatever right he had, whereas according to the defendants, the plaintiff had stated that whatever rights he had under the contract, ex. 76, had gone to his brother Jayantilal's share on partition of the joint family assets and that Jayantilal and his father had jointly told the defendant no. I that they were not interested in the contract, ex. 76, because of the defendant No. l's inability to give the full title and full possession. This part of the say of the defendants has been discussed by us above and negatived for two very cogent reasons. It is to be recalled here that the plaintiff then hastened to file the present suit on 29-7-69. This rushing of the plaintiff to the court itself shows that the plaintiff was not keener particular about having full title and full possession and was ready to rest content with whatever title and possession the plaintiff was capable of passing in the situation that had been confirmed at the conclusion of the litigation between the defendant no. 1 on one hand and the other defendants on the other.
14. The real point of controversy between the parties now begins. As noted by us above, the defendant no. I reached an ex-parte conclusion to go ahead with his fresh agreement or arrangement with the defendants No. 3 to 6. The letter ex. 89 has been already dealt with by us above in paragraph 9. Placing reliance upon clause no. 7 as put up by us in paragraph 12 above, the defendant No. 1 wanted to take advantage of that provision and hastened to go ahead with his new agreement or arrangement with the defendants Nos. 4 to 6, totally ignoring his obligations under the contract ex. 76. This letter has been written by the defendant No. 2 as the constituted attorney of the defendant No. 1. The main question that falls to be now decided is whether the defendant No. 1 could do so or whether it was open to the plaintiff to forget his earlier insistence on the full title and possession and claim whatever was available to him.
15. It was very vehemently contended by Mr. Joshi for the original defendant No. 1 that there was an express provision or agreement between the parties that in case the defendant No. 1 could not procure the full titled and full possession, 'the agreement was to be treated as null and void'. On the other side, Mr. Vakil, for the original plaintiff, urged that Section 12(2) of the Specific Relief Act would govern the facts of this case and that the term about delivery of full possession was meant for the exclusive benefit of the plaintiff, who, under law, was at liberty to waive that benefit.
16. Section 12(1) of the present Specific Relief Act analogous to Section 16 of the 1877 Act lays down as a normal policy of Legislature regarding non-granting of part performance subject to the two exceptions contained in Sections 12(2) and 12(3) of the Act. Section 12(2) provides that if the party liable to perform the whole of his contract is unable to perform the whole he could still be compelled by the court to perform the part or it can call upon the other side to stand by the contract, if the part which must be left unperformed bears only a small proportion to the whole in value and Secondly the unperformed part admits of compensation in money. Relying upon this Section 12(2) of the Act. Mr. Vakil urged that at be instance of either party the contract could be specifically enforced because only 1/16th part, bearing a small proportion to the whole in value would remain unperformed. From the very nature of things, the price of 1/16th part can be proportionately arrived at as far as the plaintiff and the defendant no. 1 are concerned. The plaintiff had shown his readiness and willingness to pay the full price of Rs. 21999/- even for 15/16th share which would go to show that he has forsaken his insistence on the full title and full possession.
17. In this connection Mr. Vakil invited our attention to the case of Dr. Jivanlal and Ors. v. Brij Mohan and Anr. A.I.R. 1973 S.C. 558 which can be said to be a case almost on all fours with the facts of the case on hand. Even a casual glance at this authority goes to show that if there is a stipulation in a contract which is for the exclusive benefit of one contracting party and does not create any liability or burden against the other contracting party, that stipulation for the exclusive benefit of one party can be waived unilaterally by that party for whose benefit it is provided. In that case, the contract could be avoided by the plaintiff there in the event of requisitioning of the premises.
18. Mr. Joshi for the original defendant no. 1, however, invited our specific attention to the following words in paragraph 9 of the said judgment. The Supreme Court while interpreting the clause no. 6 of the agreement in that case further observed as follows:
Nor does it say that the contract would come to an end on the requisitioning of to premises .
Trying to derive full support for his client's case, Mr. Joshi relied upon the above-quoted words and urged that the Supreme Court itself had while decreeing the plaintiff's case envisaged the sustaining of the defendant's contention about rescission of the contract in the event of there being an express condition to that effect. Clause 6 of the agreement in that case which is quoted in the judgment did not contain express stipulation to the effect that requisitioning of the premises would automatically put an end to the contract. The Supreme Court, therefore, incidently observed that the clause there was intended for the exclusive benefit of the plaintiff and it was not open to the defendant there to press that clause into his personal service. The Supreme Court has not laid down that where there is a general clause that the contract will be treated as void on the happening of such an event that clause must necessarily be interpreted to be for the mutual benefit. Whether a particular clause is for the benefit of both sides or for the benefit of one of the parties is a matter of interpretation of the clause In the case on hand, the reading of various classes together and the passing of the writing ex. 76 by the defendant No. 1 in favour of the plaintiff would go to show that whatever contingencies were provided 'were provided for' the benefit of the plaintiff and plaintiff alone. Even from the very nature of things, it is evident that by entering into this transaction the sole and only conceivable benefit that the defendant No. I could derive was the amount of consideration. No other matter would obviously be there of any interest to him. To a man out to dispose of the property for some consideration, the only matter of interest or concern or benefit is the amount of consideration and no other. So we find it almost inevitable to hold that the term, including the term No. 7 as presented by us in paragraph 12 above, were meant for the unilateral benefit of the plaintiff and were not meant' for even the remote benefit of the defendant No. I, who as said above, had the amount of consideration as the only thing of interest for him. If it be so, Section 12(2) of the Specific Relief Act would apply with full vigour. Under this Sub-section (2) either party can insist on the specific performance of the contract and, therefore, it is open to the plaintiff to insist on the specific performance of the, contract. As a matter of fact, in these developments, even the defendant no. I would have been able to constrain the plaintiff to purchase the property and pay the amount of Consideration despite the term in the contract.
19. Mr. Joshi in this connection urged that if the plaintiff was out to rest content with only 15/16th share and constructive possession, there was no necessity for him to wait all these years right from 1962 to 1969. However, all throughout it was the defendant No. 1, who had been telling the plaintiff that the proceedings about possession were pending in the High Court and so the time for his performance of the contract was required to be extended. There is nothing on record to show that till the conclusion of the litigation at the High Court level in the year 1968 or even thereafter the plaintiff had been specifically apprised of the defendant no. l's capacity to transmit to the plaintiff only 15/16th share and not the viral title. It seems that the plaintiff was simply sold from time to time that proceedings about possession were pending in the High Court and so the time for the plaintiff to seek specific performance of the contract and for the defendant no. 1 to give that specific performance of the contract was required to be extended as per the provision made in the contract itself. If the defendant No. 1 or his attorney, the defendant No. 2, had any sincerety and honesty in this connection, it was perfectly open to them to tell the plaintiff that the defendant No. 1 was in a position to give only 15/16th share and that if the plaintiff so desired he could have only that which the defendant no. 1 was capable of giving. The defendant no. I seems to have done nothing of the sort and one fine morning of 25-9-69 proceeded to execute the sale-deed in favour of the defendant nos. 4 to 6. There is something fishy about how the things moved during the period between 21-7-69 and 28-7-69. It appears from ex. 89 that it was the defendant No. 1's unilateral action of rescinding the contract and all he wanted to do for the plaintiff was to return the amount of Rs. 1000/- without any interest. An attempt has been made by the defendant No. 1 to depict him as injured innocence. It is stated by the defendant No. 1 that as against Rs. 21,999/- which the plaintiff had promised to pay to the defendant No. 1 for the fulfilment of the contract, the defendant No. 1 got only Rs. 15,999/-. It is alleged on behalf of the plaintiff that this is an undervaluation of the deed with the ulterior object of saving stamp duty. The plaintiff being out of the picture cannot have any personal knowledge about this, but the hurry and haste with which the defendant No. 1 seems to have taken the ex-parte decision and proceeded to execute the sale-deed in favour of the defendants nos. 4 to 6 at any rate goes to show that the defendant no. 1 had acted surreptitiously and unfairly to the plaintiff.
20. The learned trial Judge in this connection has examined the situation quite clearly in paragraphs 22 and 23 of his judgment. The learned Judge seems to have concluded rightly that if the defendant No. 1 thought that the plaintiff was insisting on the full title and full possession, the defendant No. 1 had every reason to tell the plaintiff as back as in the year 1962 that all that the plaintiff insisted on had gone beyond his reach. As a matter of fact, if that last clause of the contract was meant for the benefit of the defendant No. 1 also, the defendant No. 1 would have terminated the contract as back as in the year 1963 because, as said above, in the year 1963 the defendant no. I had known fully and finally that passing of the full title and conveying of the full possession had become an impossibility for him. If the clause was intended for his benefit also the defendant no. 1 had no reason or keep the matter hanging in balance for the long period of six years.
21. The learned advocate for the appellant Mr. Joshi, however, urged that if the plaintiff was out to waive the benefit, he should have done so before he filed the suit. There is no such time limit for the waiver of onesided benefit. Such a benefit could be waived by the recipient of the benefit at any time. As a matter of fact, the plaintiff in the plaint itself has stated, albeit alternatively, that he was ready to take 15/16th share by paying the full price.
21.1 Mr. Joshi lastly urged that the grant of specific performance of contract is a matter of direction of the court and after the lapse of so many years, the stale claim of the plaintiff should not be entertained. We do not agree. The claim was not stale, but it was Kept as fresh as ever by the defendant No. 1 himself by extending the time on as many as six occasions. Discretion is to be exercised on sound judicial principles. No disadvantage had accrued to the defendant no. 1 because of the lapse of time, nor any untowards benefit has come to accrue to the plaintiff therefrom.
22. In above circumstances, we find that the view taken by the learned trial judge is free from all infirmities and we have no hesitation in confirming the finding and the final order passed by the learned trial Judge. Accordingly we dismiss the appeal. The appellants to pay the costs of the respondent, original plaintiff, and bear their own. The sale-deed is to be executed by the defendants subject to the provisions of Urban Land (Ceiling and Regulation) Act, 1976.