Holding

A change in survey numbers does not defeat specific performance if the land remains essentially the same, and the plaintiff satisfied Section 16(c); therefore, the decree for specific performance is proper.

Summary

The plaintiff entered into a 1964 agreement of sale with the vendor, paid half the price and sought specific performance after the vendor failed to appear for registration and later died. Subsequent consolidation altered the revenue survey (Khasra/Khewat) numbers of the land, leading the trial court to deny specific performance on the ground that the plaintiff had not satisfied Section 16(c) of the Specific Relief Act and that the change in survey numbers negated the contract. The first appellate court reversed the readiness finding but held the contract ended due to the changed numbers; the High Court allowed specific performance. The Supreme Court held that a mere change in survey numbers does not alter the substantive subject matter of the land, and the plaintiff’s overall pleadings demonstrated readiness and willingness, satisfying Section 16(c). Consequently, a decree for specific performance was appropriate, with the plaintiff directed to pay an additional sum of Rs 30,000, and the appeal was partly allowed.

Issues considered

Whether a change in revenue survey numbers (Khasra/Khewat) constitutes a substantive alteration of the subject matter, thereby negating the contract of sale.
Whether the plaintiff satisfied the requirements of Section 16(c) of the Specific Relief Act, i.e., demonstrated readiness and willingness to perform.
Whether a decree for specific performance can be granted when part of the land description changes, and whether Section 12 of the Specific Relief Act bars such a decree.
Whether the questions framed by the High Court qualify as substantial questions of law under Section 100(5) of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order 7 Rule 7, s. Section 100(5)
Specific Relief Act, 1963s. 12, s. 16(c), s. 20, s. 28

Subjects

Specific performanceSale agreementReadiness and willingnessSection 16(c)Change of survey numbersKhasraKhewatSpecific Relief ActCivil ProcedureSubstantial question of lawArticle 136Article 142

Judgment

[2008] 5 S.C.R. 163

GURDIAL KAUR (D) THROUGH LRS. A
V.
PIARA SINGH (D) THROUGH LRS.
(Civil Appeal No. 2005 of 2008)
MARCH 14, 2008
B
[S.B. SINHA AND. V.S. SIRPURKAR, JJ.]

Specific Relief Act, 1963 - ss. 12, 16 ( c ), 20 and 28 -
Agreement of sale - Failure to execute sale deed - Suit for
specific performance of contract - Subsequent change in the c
revenue survey numbers in respect of the land in question -
Trial court denying decree of specific performance holding that
vendee failed to comply with requirements of s. 16 (c) having
failed to state that he was always ready and willing - However
directed refund of the advance amount paid by the vendee - D
First appellate court denying the decree of specific
~·
performance on the ground that there was failure to show
readiness and willingness in respect of the changed revenue
survey numbers - High Court in second appeal decreeing
the suit - On appeal, held: Decree of specific performance is
E
liable to be passed in respect of the land which formed subject
matter of the original agreement - Change in revenue survey
numbers in respect of those lands would not bring the contract
of sale to an end as the subject matter of the agreement
substantially remained the same - In the facts of the case
F
vendee has fulfilled the critirea of readiness and willingness -
~ Further avermentlproof regarding readiness and willingness
after change in survey numbers not required, to the extent

' subject matter was same - In the facts of the case direction to
the vendee to pay a further sum to the vendor - Constitution
of India, 1950 - Articles 136 and 142 - Code of Civil G
Procedure, 1908 - s. 100 (5).
Predecessor in interest of the appellants-defendants
entered into an agreement of sale in respect of the land in
163 H
164 SUPREME COURT REPORTS [2008] 5 S.C.R.

A question in favour of the respondent. Respondent paid >-
half of the consideration amount on the same day. The
deed of sale was required to be registered. Respondent
went to the Registration Office but the vendor did not turn
up. Thereafter the vendor died. Respondent filed suit for
B specific performance of the sale agreement. In the
alternative he prayed for return of the advance amount
with interest. The suit was decreed. In appeal thereagainst,
appellate court remanded the case to the trial court for
fresh consideration. Thereafter, respondent-plaintiff filed
c the applications seeking amendment of the area of the
land. Appellants-defendants also filed a suit against the
respondent-plaintiff seeking recovery of possession.
Trial court rnfused to grant decree for specific
performance of agreement of sale, but decreed the suit
D granting the alternative remedy sought by the respondent-
plaintiff. Trial court held that respondent-plaintiff has failed
to satisfy the requirement u/s 16 (c) of specific
Performance Act regarding readiness and willingness on
the part of the vendee as he failed to aver that he was
E always willing and ready to perform. First appellate Court
disagreed with the finding regarding readiness and
willingness, but held that contract of sale came to an end
on account of change of Khasra Nos. of the Land as he
failed to show his readiness and willingness in respect
F thereof. High court allowed the second appeals.
In appeal to this court, appellant-defendant
contended that the questions formulated could not be saiJ
to be substantial questions of law; and that decree could
not have been passed in favour of the respondent-plaintiff
G as the subject matter of the agreement had altered.

Partly allowing the appeal, the Court
HELD: 1.1 A suit for specific performance of contract
provides for a discretionary remedy. The Court in terms '"
H of Section 20 of Specific Relief Act, 1963, may for sufficient
GURDIAL KAUR (D) TRHOUGH LRS. v. PIARA SINGH 165
(D) THROUGH LRS.

and cogent reasons refuse to grant a decree for specific A
performance of contract. Like any other suit, the Court in
terms of Order 7 Rule 7 CPC may, however, take into
consideration the subsequent events including the
change in the revenue ·survey numbers in respect of a
particular land. In other words, if the land in suit remains B
the same which was the subject matter of an Agreement
of Sale, a decree for specific performance can be granted.
The m~tter, however, would be different where having
regard to the consolidation or any other proceedings, the
subject matter of land itself changes resulting in C
substantive change in the original agreement. [Para 13]
[174-D-G]
1.2 The appellants did not spell out as to what were
his objections in regard to amendment of plaint. When
the second application for amendment of plaint was filed, D
no objection thereto was raised. Allegedly, in the suit for
recovery of possession, the appellants mentioned the
same description of land. How despite alteration in the
description of the land in respect of a part of the suit
premises, the respondent came into possession, if at all, E
is not known. The plaintiff/respondent did not bring on
records any material to show that owing to consolidation
proceedings or otherwise, there had been a change in
the suit land in the sense that some other lands had been
allotted to the predecessor of the appellant instead and F
in place of the lands in suits. The plaintiff/respondent was
categorical in his statement as to why the amendment had
to be brought about, but neither the same was opposed
nor any amended written statement/additional written
statement was filed. Except the two plots, identity of G
the rest of the plots remained the same. (Paras 14, 15 16
and 17] [176-A, C, D, E, FJ
2.1 The rigours of Section 16(c) of the Act, however,
are not such which would for all intent and purport to be
strictly construed. It is, however, trite that, even for the H
166 SUPREME COURT REPORTS [2008] 5 S.C.R.

A said purpose, the entirety of the plaint must be taken into
consideration. If upein reading the plaint in its entirety, the
Court comes to thE! conclusion that for all intent and
purport, the requirements of Section 16(c) stood complied
with, no exception thereto can be taken. [Paras 19 and
B 20) [178-E, F, G]
2.2 In the instant case, the plaintiff has not only
expressed his readiness to purchase the land, his
willingness to do so can be culled out from other
averments made in the plaint as and in particular the one
·C where he had stated that he had gone to the Registration
Office for getting th•:! deed of sale executed and registered
but it was the defendant, who did not turn up thereafter.
He has also fulfill1ed the criteria of his readiness and
willingness to perform his part of the contract as not only
D he had paid half of the consideration amount on the date
of the execution of the agreement, he had deposited a
balance sum on the date of presentation of the plaint.
Thus, the Court of First Appeal was right in holding that
he was ready and willing to perform his part of the
E contract. [Para 20) [178-G, H; 179-A, B, CJ
2.3 The Court of First Appeal, however, committed a
serious error insofar as it failed to take into consideration
that the identity 01' a part of the land being the same, it
was not necessary to make any further averment or proof
F that he had been ready and willing to perform his part of
the contract in r1espect of the subject matter of the •
agreement. Readiness and willingness to perform one's
part of the contraclt must be confined to the subject matter
thereof. If subject matter of the suit remained the same
G only because Khewat Nos. or Khatauni Nos. changed, the
same ipso facto would not change. To the extent the
subject matter of the agreement remains the same, a suit
for specific performance of the contract can be decreed.
[Para 21) [179-D, E, F]
H
GURDIAL KAUR (D} TRHOUGH LRS. v. PIARA SINGH 167
(D) THROUGH LRS.

·~ -1 Ramakrishna Pillai and Anr. v. Muhammed Kunju and A
Ors. 2008 (2) SCALE 696 - referred to.
3.1 Purported substantial questions of law as framed
stricto sensu do not answer the description as contained
in sub-Section (5) of Section 100 of the Code of Civil
Procedure. Proper substantial question which should B
_,. .. have been framed having regard to the admitted position
is as to whether the contract of sale came to an end only
on account of change of Khasra Nos., although the
subject matter of the agreement substantially remained
the same. [Para 18) [176-G, H; 177-A] c
3.2 If on the admitted fact, it is found that at least
substantial portion of the land remained the same, there
does not exist any bar in granting a decree in respect of a
part of the suit property. For the said purpose, even
D
Section 12 of the Specific Relief Act would not stand as a
bar. If a decree for specific performance cannot be granted
-t in respect of the entirety, an option in terms thereof has
to- be exercised. [ Para 19) [177-B, 178-D]
4. Respondent, furthermore has all along been in E
possession of the major portion of the land since a long
time. He is said to have made improvements on the land.
It would be not, thus, equitable to deprive him from
possession at least from that portion of the land which
was the subject matter of the original agreement. F
[Para 21) [179-F, G]

~ 5. This Court in exercise of its jurisdiction under
Article 136 of the Constitution of India would refuse to
interfere with the judgment of the High Court, save and
except to the extent the decree passed in respect of two G
new Khasra Nos. namely 63-M/13/2(6-8) and 53M/13/1 (0-
16). [Para 23) [180-E, F]
6. However, having regard to the fact that the plaintiff/
respondent No. 1 was denied the decree for specific
H
168 SUPREME COURT REPORTS [2008] 5 S.C.R.

A performance of contract by two courts, although he had ;- ••
been in possession of the lands, in question from 1964,
this Court in exercise of its discretionary jurisdiction under
Article 142 of the Constitution of India as also Section 28
of the Specific Relie!f Act directs him to pay a further sum
B of Rs. 30,000/- to the appellant. [Para 24] [180-G; 181-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
,, .._
2005 of 2008.

From the final Judgment and Order dated 09.08.2006 of
c the High Court of Punjab and Haryana at Chandigarh in Regular
Second Appeal Nos. 1474 & 1475 of 1980.

L. Nageswara l=<ao, Amit Sharma, Suchit Mohanty and
Anupam Lal Das for the Appellants.

Paramjit Singh Patwalia, Aman Preet Singh Rahi, Devash
D
Stripathi, Tania VValia and Ashok K. Mahajan for the
Respondents.
·~
)'
The Jugdment of the Court was delivered by

S.B. SINHA, J. Leave granted.
E
1. Defendants in the Court below are the appellants before
us. They are heirs and legal representatives of one Gurcharan
Singh. He was the owner of the lands bearing Survey Nos. 101,
102, 159, 38, 85, Khatauni Nos. 118, 119, 224, 228, 45, 100
F admeasuring 98 canals 19 marlas situated in Villag.e Bora Walli,
Tehsil Zira in the State of Punjab. He entered into an agreement
for sale of the aforementioned lands on or about 5.10.1964 with .s.
the plaintiff-respondent A registered deed of sale was to be
executed in terms thereof on or before 15.6.1965. Indisputably,
the respondent paiid a sum of Rs. 7,000/- out of a total
G
consideration of Rs. 15,000/- to the said Gurcharan Singh on
5.10.1964. He died on 13.3.1965.

2. Allegedly, prior thereto, the said Gurcharan Singh
despite having been called upon to execute and register the
H document did not come to the Registration Office. A suit for
GURDIAL KAUR (D) TRHOUGH LRS. v. PIARA SINGH 169
(D) THROUGH LRS. [S.B. SINHA, J.]
,• specific performance of the agreement was filed against the A
1
appellants on 25.3.1966. In the alternative, it was prayed that a
sum of Rs. 7,000/- be paid to the respondent together with
interest.
I
3. Appellants herein in their written statement denied and
disputed execution of the said agreement by Gurcharan Singh B
}- ·{
alleging that he was a drunkard. It was also alleged that
Gurcharan Singh had executed a Will in their favour. In terms of
a stipulation contained in the said agreement dated 5.10.1964
the possession of the lands was delivered to the vendee.
c
The said suit was decreed on 31.5.1966.
4. Appellants preferred an appeal thereagainst. By a
judgment and order dated 20.10.1976, the said appeal was
allowed and tha suit was remanded to the Trial Court for a fresh
decision. D

_,. 5. First respondent filed an application for amendment of
plaint changing the area of the land from 98 canals, 19 marlas
to 89 canals, 17 marlas. Appellant in response to the said
application, although admitted the relationship between the
parties, but without making any specific averments stated that E
as to why the said application should not be allowed merely
"other amendments are opposed".
Appellants also filed a suit against the first respondent for
recovery of possession on 19.12.1977. F
6. Respondent No. 1 filed another application for
.l amendment whereby the area of the suit land was amended to
94 canals 3 marlas.
7. Both the suits were heard together. The learned Trial
G
Judge, refused to grant a decree for specific performance of
the agreement of sale, but decreed the suit in favour of
respondent No. 1 granting his alternative prayer for recovery for
a sum of Rs. 8,260/- from the appellants herein. In arriving at
the said conclusion, the learned Trial Judge noticed the
H
170 SUPREME COURT REPORTS [2008] 5 S.C.R.

A averments made in the plaint which are as under:- ,. / '

''The plaintiff has been and is ready to perform his part
of the contract. The plaintiff served a notice on Shrimati
Prithpal Kaur for herself on behalf of her minor sons and
daughter who are defendants through his counsel on
B 8.6.65 intimating her about the above contract. Defendant
No. 2 Shrimati Prithpal Kaur refused to take delivery of ,, ""
the notice. The! notice is attached therewith."

Opining that the requirements to make averments in
c regard to readiness and willingness on the part of vendee to
perform his part olf contract as contained in clause (c) of
Section 16 of the Specific Relief Act, had not been satisfied,
it was held:-
"The language! of paras Nos. 3 and 5 of plaint will show
D that the plaintiff has averred that he is ready to perform his
part of the contract, but he has failed to aver that he has
always been also wiling to perform his part of the j-
contract."
8. An appeal was preferred thereagainst by the respondent
E
No. 1 which was marked as Civil Appeal No. 32 of 1978.
9. The First Appellate Court disagreed with the findings of
the learned Trial Judge as regards readiness and willingness
on the part of the first respondent to perform his part of contract
F holding that such a strict construction of the pleading are not
warranted.
It was opined:- J.
"The appellant stated that he had always been ready to
G perform his part of the contract. It was contended that it
was not necessary to allege in the plaint that the plaintiff
was ready and willing to perform his part of the contract
but it is to be seen from the circumstances of the case
whether he was so ready and willing to get the sale deed )'--

executed. The conduct of the appellant from the very
H
GUROIAL KAUR (0) TRHOUGH LRS. v. PIARA SINGH 171
(0) THROUGH LRS. [S.B. SINHA, J.]

• -f beginning was that he made all efforts to get the sale A
deed executed and he had the required money with him.
It was contended that the word readiness denotes the
capacity of a purchaser to purchase the land while the
word willingness denotes his conduct. In the plaint it was
mentioned that the appellant was ready to perform his B
#} y part of the contract and his willingness was to be inferred
from his conduct and even if the word willingness was
missing in the plaint that would not disentitle the plaintiff
from the specific performance of the contract because in
case all immoveable property damages do not furnish c
adequate relief .... "
The Court of First Appeal was of the opinion that as the
plaintiff/respondent failed to show his readiness and willingness
to perform his part of contract as contained in the said
agreement of sale dated 5.10.1964, so far as the new khasra 0
Nos. are concerned, he was not entitled to a decree for specific
_,,., performance of contract stating:
"In the present case by adding two khasra numbers
regarding which there was no contract of sale the plaintiff-
appellant made a change in the essential conditions of E
the contract and thus he was not entitled to specific
performance of the contract just as willingness of a
purchaser can be inferred from his conduct. Similarly his
willingness in words is not necessary. Where a purchaser
includes land in the plaint seeking its sale by way of specific F
r performance of the contract which was not originally the
II .,. subject matter of the agreement he cannot be considered
to be a person who is willing to perform his part of the
contract. The plaintiff should be ready and willing to perform
'1!/ his part of the contract through-out the proceedings till the G
date of the decree and if prior to that he negatives ,his
readiness and willingness to perform his part of the contract
by his conduct he cannot claim specific relief of the
--«(
contract."
H
172 SUPREME COURT REPORTS [2008) 5 S.C.R.

A It was furthermore observed:
II
..... In a suit for specific performance of the contract of
~
·•
sale the distinction between the conduct which would
disentitle the plaintiff from specific performance and the
conduct which would not so disentitle him is that the
B plaintiff's conduct shows that he was really unwilling to buy
the property then he is disqualified from specific
y' "'
performance but he was always willing to buy the property
but in doing so made a mistake in insisting on something
which he was not entitled to get from the defendant then
c such mistake would not disqualify him from specific
)II
performance if the mistake was corrected in time and the
plaintiff had made it clear that he had withdrawn the
mistaken demand and the mistake did not detract his
essential willingness to purchase the property."
D
10. Two second appeals were filed by the first respondent
before the High Court. A learned Single Judge of the Punjab
-;-
' .
and Haryana High Court did not frame any substantial question
of law at the outset and recorded as under:-

E "After going through the record, I find that the application
for amendment was filed on the basis that in the Revenue
papers the ownership of Gurcharan Singh vendor was
changed which must be due to Consolidation and the
application was not opposed by the opposite side except
F claim in costs which were allowed by the order of the Trial
Court dated 1st January, 1977. It is further clear from the
1
record that in the written statement no plea was taken that ,.. I
I
because of amendment there has been negc;ition of !

contract. On this basis it is urged by the learned counsel
that the first appellate court had made out a new case in
G
deciding the relief to the appellant on the ground of negation
of contract.
The other finding in the end of para is to the effect that the loo
.,....
appellant had been ready and willing to perform his part
H of the contract. Admitted stay to continue."
GURDIAL KAUR (D) TRHOUGH LRS. v. PIARA SINGH 173
(D) THROUGH LRS. [S.B. SINHA, J.)
·'" ... However, it appears that at a later stage, three substantial A
questions of law were formulated namely:
1. Whether there is negation of contract on account of
change of khasra No. pleaded by the plaintiff by way
of amendment in the plaint?
B
> -.,,- 2. Whether the plaintiff was ready and willing to perform
his part of the contract?
3. Whether the plaintiff is entitled to a decree for specific
performance of agreement in the facts and
circumstances of the case? c
The said appeals were allowed.
11. Mr. L. Nageswara Rao, the learned senior counsel
appearing on behalf of the appellant would submit that none of
the questions aforementioned give rise to any substantial D
question of law. The third purported question according to the
.... learned counsel is not at all a substantial question of law.
The first question according to the learned counsel is
essentially a question of fact. In regard to the second question,
E
it was submitted that although this Court in some decisions
opined that it would be essentially a question of fact but in some
decisions point out that it would be a mixed question of law
and fact and thus, in any event, the same being not a
substantial question of law, the impugned judgment cannot be
sustained. F
..._ It was furthermore urged that the High Court committed a
serious error as a decree could not have been passed in favour
of the first respondent as the subject matter of the agreement
had altered. G
12. Mr. Paramjit Singh Patwalia, the learned senior counsel
appearing on behalf of the respondent, on the other hand,
~
submitted that in view of the change in the Khasra Nos. or
Khewat Nos. in the revenue records, an amendment had to be
brought about. The amendment having taken effect from the date H
174 SUPREME COURT REPORTS [2008] 5 S. C.R.

A of the institution of the suit, the judgment of the High Court should ~
'
Al
not be interfered with. It was urged that the learned Trial Judge
as also the first Appe~llate Court having rejected the plea of the
appellants as regards the genuineness of the agreement dated
5.10.1964 and/or purported execution of the Will by Gurcharan
B Singh, it is not a fit case where this Court should exercise its
discretionary jurisdiction under Article 136 of the Constitution ""
of India.
It was submitted that escalation in price by itself may also
not be a sufficient ground for interfering with the impugned
c judgment particularly when the respondent had been in
possession of the said land for a long time and had made
improvements then~upon.
13. A suit for specific performance of contract provides for
a discretionary remedy. The Court in terms of Section 20 of the
D
said Act may for sufficient and cogent reasons refuse to grant a
decree for specific performance of contract. In a case of this -,..
nature, the Court essentially would be concerned with the identity
of the land which was the subject matter of agreement. Like any
other suit, the Court in terms of Order 7 Rule 7 of the Code of
E Civil Procedure may, however, take into consideration the
subsequent events including the change in the revenue survey
numbers in respect of a particular land. In other words, if the
land in suit remains the same which was the subject matter of
an Agreement of Sale, a decree for specific.performance can
F ·be granted.

The matter, however, would be different where having ..... '
regard to the consolidation or any other proceedings, the subject
matter of land itself changes resulting in substantive change in
the original agreiement. In terms of Section 16(c) of the Specific
G
Relief Act , the Court must arrive at a finding that the plaintiff
had not only averred, but also established readiness and

.... I
willingness on his part to perform his part of the contract. In this
case, the appellant paid a sum of Rs. 7 ,0001- on the date of the
execution of the agreement. It has been stated before us which
H
GURDIAL KAUR (D) TRHOUGH LRS. v. PIARA SINGH 175

.,
'
....,
(D) THROUGH LRS. [S.B. SINHA, J.]

has not been denied or disputed that at the time of filing of the A
suit itself, the first respondent deposited the balance amount of
Rs. 8,000/- in the Court.
The original description of the suit land was as under:-
"Suit for specific performance of contract of sale in respect B
' ...,,,
~
of the land measuring 98 Kls 19 marlas, Khewat No. 101,
102, 159, 38, 85, Khatauni Nos. 118, 119, 224, 220, 228,
45, 100, Khasra Nos. 63
7(8-0) 8(8-0) 9(8-0)

63
c
13/1(1-2) 14(8-0) 17/1(7-7) 6/3 (0-16) 5/1 (5-0) 6/2 (5-0)
-I
62
14(8-0) 7/2(0-13 3/2(2-0) 4(8-0) 7/1 (7-7)
D
55 56 63
., 20/1(3-16) 13/1 (1-10) 10(8-0) 18(8-0)"
However, upon amendment, the description of the suit lands
as they stand now are as under:-
E
"Suit for specific performance of agreement of sale dated
5.10.64, that the defendant Kirandip Kaur or in the
alternative all the defendants should execute a sale deed
in resp~ct of land measuring 94-kanals 3 marlas, khewat
No. 47, khatoni Nos. 76 min, 76, 79, lilla Nos: F
Rect. 58 Rect. 56 Rect. 62
.....
13/1 (0-16) 13(1(1-10), 7/1/2(2-0), 7/1/3(3-5)
Rect. 62
3/2(2-0) 4/1 (2-8) 7/2(0-13) 14(8-0), 5/1 (5-0) 6/2 (5-8) G

Rect 65
6/5(0-16) 7(8-0) 9(8-0) 10/1 (6-12) 13/2 (6-10) 14(8-0)
.. ~-"(

17/1 (7-17) 18(8-0)"
H
176 SUPREME COURT REPORTS (2008] 5 S.C.R.

,...,,
~
A 14. We have noticed hereinbefore that the appellants did
not spell out as to what were his objections in regard to
amendment of plaint. It was merely stated that "other
amendments are opposed". In response to the application for
amendment it was stated;
B "the application for amendments is opposed, it is belated
and after thou£1ht"
'1"
-
15. It is therefore, evident that Gurcharan Singh was given
two new plots which were not the subject matter of the original
c agreement. The are!a also diminished.

When the second application for amendment of plaint was
filed, no objection thereto was raised. Allegedly, in the suit for
recovery of possession, the appellants mentioned the same
description of land. How despite alteration in the description of
D the land in respect of a part of the suit premises, the respondent
came into possession, if at all, is not known.
r
16. We are not oblivious of the findings of the learned Court
or the First Appellate Court that the plaintiff/respondent did not
bring on records any material to show that owing to consolidation
E
proceedings or otherwise, there had been a change in the suit
land in the sense that some other lands had been allotted to
Gurcharan Singh in stead and in place of the lands in suits.
17. We hav'e noticed hereinbefore that the plaintiff/
F respondent was categorical in his statement as to why the
amendment had to be brought about, but neither the same was
...._
opposed nor any amended written statement/additional written
statement was filed. Except the two plots, identity of the rest of
Hie plots remained the same.
G 18. Mr. L. Nageshwar Rao, learned senior counsel may
be right in his submission that purported substantial questions
of law as framed stricto sensu do not answer the description as
contained in sub-Section (5) of Section 100 of the Code of Civil )V

Procedure. We, however, feel that the proper substantial
H question which should have been framed having regard to the
GURDIAL KAUR (D) TRHOUGH LRS. v. PIARA SINGH 177
(D) THROUGH LRS. [S.B. SINHA, J.] .
,\
-"' admitted position is as to whether the contract of sale came to A
an end only on account of change of Khasra Nos., although the
subject matter of the agreement substantially remained the
same.
19. If on the admitted fact, it is found that at least substantial
portion of the land remained the same, in our opinion, there B
" -r
does not exist any bar in granting a decree in respect of a part
of the suit property. For the said purpose, even Section 12 of
the Specific Relief Act would not stand as a bar. Section 12 of
the Specific Relief Act reads thus;
c
"Section 12 - Specific performance of part of contract
'
'
(1) Except as otherwise hereinafter provided in this section
~
the court shall not direct the specific performance of a part
of a contract.
D
(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 be a 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 E
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 F
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;
G
he is not entitled to obtain a decree for specific
I
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- H
178 SUPREME COURT REPORTS (2008] 5 S.C.R.

,)._ '
A (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 a case falling under clause
(b),1[pays or had paid] the consideration for the whole
B 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 or damage sustained by him through
c the default of the defendant.

(4) When a part of a 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
D
specifically performed, the court may direct specific
performance of the former part." )-

Thus, for the reasons stated in the statutory provision, if a
decree for specific performance cannot be granted in respect
E of the entirety, an option in terms thereof has to be exercised.

The rigours of Section 16(c) of the Act, however, are not
such which would for all intent and purport to be strictly construed.
Indisputably, it is necessary to make averments in regard to the
readiness and willingness as is required under Section 16(c)
F of the Act in terms of Form 47 appended to the Code of Civil
Procedure. ,4.
'
20. It is, however, trite that, even for the said purpose, the
entirety of the plaint must be taken into consideration. If upon
reaqing the plaint in its 1antirety, the Court comes to the conclusion
G
that for all interit and purport, the requirements of Section 16(c)
of the Specific Relief Act stood complied with, no exception
thereto can be. taken. We have noticed hereinbefore that the
First Appellate Court inter alia opined that not only the plaintiff
has expressed his readiness to purchase the land, his
H
GURDIAL KAUR (D) TRHOUGH LRS. v. PIARA SINGH 179
(D) THROUGH LRS. [S.B. SINHA, J.]
,,
..... willingness to do so can be culled out from other averments A
made in the plaint as and in particular the one where he had
stated that he had gone to the Registration Office for getting the
deed of sale executed and registered but it was the defendant,
who did not turn up thereafter. He has also fulfilled the criteria of
his readiness and willingness to perform his part of the contract B
f ...,
as not only he had paid a sum of Rs. 7 ,0001- on the date of the
execution of the agreement, he had deposited a balance sum
of Rs. 8,000/- on the date of presentation of the plaint. As a
vendee what he could do was to offer the balance amount of
consideration to the vendor and make arrangements for getting c
the sale deed executed and registered. If he has done all that,
we are of the opinion that the Court of First Appeal was right in
holding that he was ready and willing to perform his part of the
contract.

21. The Court of First Appeal, however, committed a D
~
serious error insofar as it failed to take into consideration that
~
the identity of a part of the land being the same, it was not
necessary to make any further averment or proof that he had
been ready and willing to perform his part of the contract in
respect of the subject matter of the agreement. Readiness and E
willingness to perform one's part of the contract must be confined
to the subject matter thereof. If subject matter of the suit remained
the same only because Khewat Nos. or Khatauni Nos. changed,
the same ipso facto would not change. To the extent the subject
matter of the agreement remains the same, a suit for specific F
performance of the contract can be decreed. Respondent,
~ furthermore has all along been in possession of the major portion
of the land since a long time. He is said to have made
improvements on the land. It would be not, thus, equitable to
deprive him from possession at least from that portion of the
G
land which was the subject matter of the original agreement.
22. We may at this stage also refer to a recent decision of
._j.. this Court in Ramakrishna Pillai and Anr. v. Muhammed Kunju
and Ors. [2008 (2) SCALE 696). The dispute before this court
was whether the High Court had erred in holding that the plea of H
180 SUPREME COURT REPORTS [2008] 5 S.C.R.

,,
A readiness and willingness was not raised by the plaintiffs. ;..

Allowing the appeal, it was held:
"The High Court's judgment is clearly vulnerable. Firstly,
there was no dispute ever raised by the defendants about
the readiness and willingness of the plaintiffs to fulfill their
B obligations. The High Court was clearly in error in holding
~ '
that no plea regarding readiness and willingness was
raised. As noted above, the trial court in its judgment has
referred to various portions of the averments in the plaint
where the plaintiffs had categorically stated that they were
c and are always willing to fulfill their part of the obligations.
The High Court also failed to notice that there was no plea .
either the written statement or in the cross objections filed
in the appeal before the High Court that the plaintiffs were
not ready and willing to fulfill their part of the obligation."
D
held:
As regards the findings of the High Court it was further

'The conclusions are clearly contrary to the pleadings of
'r -
•
the plaintiffs. It was categorically stated in the plaint in
E both the suits that the plaintiffs are always ready and willing
to fulfill their part of the obligations and that defendants
were evadin~l the execution for one reason or the other."
23. For the views we have taken, we are of the opinion
that we in exercise of our jurisdiction under Article 136 of the
F Constitution of India would refuse to interfere with the judgment
of the High Court, save and except to the extent the decree '
-4-
passed in respect of two new Khasra Nos. namely 63-M/13/
2(6-8) and 53M/13/1(0-16).
24. However, having regard to the fact that the plaintiff/
G
respondent No. 1 was denied the decree for specific
performance of contract by two courts, although he had beef'I' (n
possession of the lands, in question from 1964, this Court in
exercise of its discretionary jurisdiction under Article 142 of the -./..--

H
Constitution of India as also Section 28 of the Specific Relief

-
GURDIAL KAUR (D) TRHOUGH LRS. v. PIARA SINGH 181
(D) THROUGH LRS. [S.B. SINHA, J.]

Act direct him to pay a further sum of Rs. 30,000/- to the appellant. A
The said sum may be deposited within a period of six weeks
from date.
On deposit of the said sum, the Court should draw up a
decree in terms of this judgment.
B
~ ..,. This appeal is allowed to the aforementioned extent. There
shall, however, in the facts and circumstances of the case no
order as to costs.
K.K.T. Appeal partly allowed.
c