SHIVAJI YALLAPPA PATILversusSRI RANAJEET APPASAHEB PATIL & OTHERS

                          [2018] 6 S.C.R. 739                             739


                   SHIVAJI YALLAPPA PATIL                                 A
                                  v.
        SRI RANAJEET APPASAHEB PATIL & OTHERS
                   (Civil Appeal No. 5012 of 2008)
                           APRIL 16, 2018                                 B
  [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
       Specific Relief Act, 1963 – s.20 – Case of Respondents Nos.1
& 2 that four joint owners of a land agreed to sell their respective
shares to them – Two joint owners expired – Respondent No.3,wife
                                                                          C
of one of the expired joint owners, got share of her husband recorded
in her name – Other co-owners (except Respondent no.3) executed
sale deed in favour of Respondents Nos.1 & 2 and they were put in
actual possession of the land – Respondent No.3 sold her share to
Respondent No.4 – Aggrieved, Respondent Nos.1 & 2 filed suit for
specific performance before Munsiff against respondent Nos.3 &            D
4, which was dismissed – Appeal filed by Respondent Nos.1 & 2
was partly allowed, however, the appellate Court refused to grant
specific performance of contract – During pendency of the appeal,
the appellant purchased the suit property from Respondent No.4 –
In regular second appeal, High Court allowed appeal in favour of
                                                                          E
Respondents Nos.1 & 2 and ordered the specific performance of
the contract – Held: The possibility of injury to the interest of third
party does not, disentitle the plaintiff from specific performance
but it depends upon the facts and circumstances of each case which
will be considered by the court in the exercise of its discretion – In
instant case, the whole case revolves around the question whether         F
Respondent Nos.1 and 2-plaintiffs got possession of entire land –
On facts, on the basis of the findings in a separate suit for permanent
injunction filed by the respondents-plaintiffs, it is well established
that the present Respondent Nos.1 & 2 were put into the possession
of the entire land – The decree passed by the Munsiff regarding
                                                                          G
possession in an independent suit is indicative of the fact that the
plaintiff/respondent Nos.1 & 2 were in possession – Plaintiffs-
Respondent Nos.1 & 2 are entitled for benefit of s.53-A of Transfer
of Property Act – No illegality with the judgment passed by the
High Court in granting specific performance in favour of
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                                 739
740            SUPREME COURT REPORTS                        [2018] 6 S.C.R.


A     Respondent Nos.1 & 2 subject to payment of the sale consideration
      as per prevailing market value – Transfer of Property Act, 1882 –
      s.53A.
            Dismissing the appeal, the Court
            HELD: 1. It is a well settled law that the power to order
B     specific performance of contract is discretionary and parties cannot
      claim it as a matter of right although it is lawful but such discretion
      should be exercised judicially and prudently. [Para 10] [744-G]
            2. The possibility of injury to the interest of third party
      does not, by itself, disentitle the plaintiff from specific performance
C     but it depends upon the facts and circumstances of each case
      which will be considered by the court in the exercise of its
      discretion. The court may properly exercise discretion to decree
      specific performance, in any case where the plaintiff has done
      substantial acts or suffered losses in consequence of a contract
D     capable of specific performance. [Para 11] [746-B]
             3. In the present case, the whole case revolves around the
      one question whether Respondent Nos. 1 and 2 got the possession
      of entire suit land. It is undisputed fact that deceased husband of
      Respondent No.3, along with other owners, entered into an
E     agreement with the Respondent Nos. 1 and 2 but later on
      Respondent No. 3 refused to execute the said agreement. After
      perusal of the factual matrix of the entire case and peculiar facts,
      it is clear that on the basis of the finding in OS No. 129 of 1984
      (separate suit for permanent injunction filed by plaintiffs-
      Respondent Nos. 1 & 2), it is well established that the Respondent
F     Nos. 1 and 2 were put into the possession of entire land. The
      decree passes by the Munsiff in the year 1987 regarding
      possession in an independent suit filed in the year 1984 is
      indicative of the fact that the plaintiffs/Respondent Nos. 1 and 2
      were in possession. Hence, in the interest of justice and since
G     the Respondent Nos. 1 & 2 are in possession of suit land for
      long time, there is no illegality with the reasoned judgment
      passed by the High Court in granting specific performance in
      their favour subject to paying of the sale consideration by them
      as per the present prevailing market value. [Paras 15 and 16]
      [747-E-G; 748-B]
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  SHIVAJI YALLAPPA PATIL v. SRI RANAJEET APPASAHEB                             741
                   PATIL & OTHERS

      Elizabeth Maddison v. John Alderson (1883) 8 App                         A
      Cases 467 – referred to.
                          Case Law Reference
      (1883) 8 App Cases 467             referred to         Para 12
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5012                     B
of 2008.
      From the Judgment and Order dated 29.06.2005 of the High Court
of Karnataka at Bangalore in Regular Second Appeal No. 568 of 2000.
      Shankar Divate, Adv. for the Appellant.
                                                                               C
      S. N. Bhat, Adv. for the Respondents.
      The Judgment of the Court was delivered by
       R. K. AGRAWAL, J. 1. The above appeal has been filed against
the judgment and order dated 29.06.2005 passed by the High Court of
Karnataka at Bangalore in Regular Second Appeal No. 568 of 2000                D
whereby learned single Judge of the High Court allowed the appeal filed
by Respondent Nos. 1 and 2 herein (original plaintiffs) against the judgment
and decree dated 25.02.2000 in Regular Appeal No. 29 of 1997 passed
by the Court of Civil Judge (Sr. Division), Hukeri and the order dated
21.07.1992 in Original Suit No. 123 of 1986.
                                                                               E
      2. Brief facts:
       (a) The suit property is an agricultural land situated at
Khavanewadi village in Hukeri Taluka bearing Survey No. 77, measuring
6 acres 8 guntas wherein several persons were owners of their defined
shares and were in cultivation till 28.05.1981. Later on, the above suit       F
land was divided into two parts as Eastern and Western measuring 3
acres 4 guntas each. In pursuance to the said partition, the joint owners
gave a joint application to the Survey Department for demarcation of
boundary line between the eastern and western land showing their
respective names to their respective parts. The land in the ratio of 1/2,
1/6, 1/6 and 1/6 was given to Ashabai w/o Manohar Kulkarni, Yashwant           G
Kulkarni (Husband of Respondent no. 3 herein), Dattaraya Kulkarni
and Laxmibai Ganesh Kulkarni respectively in the eastern side.
       (b) It is the case of the plaintiffs (Respondent Nos. 1 and 2 herein)
that the above named persons agreed to sell their share to the plaintiffs
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742            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A     (Respondent Nos. 1 and 2 herein). Though the exact division was not
      ascertained, it was decided to execute the sale deed only after the
      division. After settlement, the total price of 3 acres 4 guntas was fixed
      at Rs. 22,000/- and Rs. 2,000/- was paid in advance. The measurement
      was finally carried out and approved on 30.12.1983. By that time,
      Yashwant Kulkarni and Dattaraya Kulkarni expired. Sudha, wife of
B
      Yashwant Kulkarni got 1/6 share of her husband in the eastern side and
      got her name entered in the record of rights for Survey No. 77.
             (c) The co-owners (except Sudha, having 1/6th share) of the
      eastern side executed a sale deed in favour of plaintiffs on 13.02.1984
      and they were put in actual possession of the land. On 21.03.1986,
C     Respondent No. 3 herein (wife of Yashwant Kulkarni), the owner of
      1/6th share of land in Survey No. 77, sold her share to Respondent No. 4
      herein.
             (d) Being aggrieved, the plaintiffs (Respondent Nos. 1 and 2 herein)
      filed an Original Suit being No. 123 of 1986 for specific performance
D     against Respondent Nos. 3 and 4 herein before the Court of the Addl.
      Munsiff, Hukeri. Learned Addl. Munsiff, vide judgment and order dated
      21.07.1992, dismissed the suit.
             (e) Aggrieved by the decision dated 21.07.1992, the plaintiffs filed
      a Regular Appeal being No. 29 of 1997 before the Court of Civil Judge,
E     (Sr. Dn.) Hukeri. During the pendency of the appeal, the appellant
      herein, purchased the suit property through a registered sale deed for
      valuable consideration. It is also alleged by the appellant herein that he
      was put in possession of the suit property. The appellant purchased the
      suit property as he is having his landed property adjacent to the suit
F     property. Learned Civil Judge, vide judgment and order dated 25.02.2000,
      partly allowed the appeal while refusing to grant specific performance
      of the contract.
             (f) Aggrieved by the judgment and order dated 25.02.2000, the
      plaintiffs preferred a Regular Second Appeal being No. 568 of 2000
G     before the High Court. Learned single Judge of the High Court, vide
      judgment and order dated 29.06.2005, allowed the second appeal in favour
      of the plaintiffs and ordered the specific performance of the contract
      provided plaintiffs shall pay prevailing market value within 6 (six) months
      from the date of judgment.

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  SHIVAJI YALLAPPA PATIL v. SRI RANAJEET APPASAHEB                                   743
           PATIL & OTHERS [R. K. AGRAWAL, J.]

       (g) Aggrieved by the judgment and order dated 29.06.2005, the                 A
appellant herein has preferred this appeal by way of special leave before
this Court.
     3. Heard Mr. Shankar Divate, learned counsel for the appellant
and Mr. S.N. Bhat, learned counsel for the respondents.
       Point(s) for consideration:-                                                  B

       4. Whether in the present facts and circumstances of the case
the High Court was right in granting decree for specific performance to
the original plaintiffs (Respondent Nos. 1 and 2 herein)?
       Rival contentions:-                                                           C
       5. At the outset, learned counsel for the appellant contended that
the High court erred in law while interfering in well considered, well
reasoned judgments of the courts below refusing to grant discretionary
relief under Section 20 of the Specific relief Act, 1963 (in short ‘the SR
Act’). It was further contended that the appellant was served with the               D
notice of impleadment only on 02.06.2005 and when the appellant was
making arrangements to enter and defend the matter, the appeal came
to be decided vide judgment dated 29.06.2005. Hence, the principles of
natural justice of the appellant stand violated.
        6. Further, it was contended that the High court has seriously
                                                                                     E
erred in relying upon the judgment dated 24.09.1987 passed by learned
Additional Munsiff in Original Suit No. 129 of 1984 for permanent
injunction by the original plaintiffs while upholding that the original plaintiffs
were in possession of the entire extent of the land. At this juncture, it
was contended that the Respondent No. 3 herein, who was the original
owner of the suit property, was not the party to the said case. Hence,               F
the judgment in the said Suit ought not to be considered for deciding the
issue of possession of share of Respondent No 3. Learned counsel
further contended that two fact finding courts have found no evidence
that the possession of the suit land was handed over to the original
plaintiffs and the plaintiffs even did not aver in plaint in original suit that
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they are ready and willing to perform their part of the contract before
filing the suit.
       7. It was further contended by learned counsel for the appellant
that the High Court failed to see that the owner of 1/6th share of the suit
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744             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A     property sold the same to Respondent No. 4 herein with the possession
      way back in 1986 through a registered sale deed for valuable consideration
      and the appellant purchased the same in 1999 for valuable consideration
      through a registered sale deed and he was put in possession of the suit
      land also. Hence, directing the execution of the sale deed in favour of
      the original plaintiffs after the lapse of a considerable long period is
B
      unjustified and will cause grave injustice to the appellant herein. Learned
      counsel finally contended that the ends of justice demand that decree
      for specific performance should not have been granted.

             8. Per contra, learned counsel for the respondents submitted that
C     the courts below had failed to appreciate the materials on record in
      proper perspective and their findings contained manifest error while
      refusing to grant decree for specific performance to the plaintiffs. The
      dispute raised is a matter of appreciation of evidence and the High Court
      was right in granting the same.

D            9. Learned counsel for the respondents further submitted that the
      appellant herein was brought on record and impleaded as a party to the
      proceedings but the appellant herein never represented himself before
      the High Court or defended the case. Learned counsel further submitted
      that the trial court and the lower appellate court had proceeded to arrive
      at the conclusion that there was no delivery of possession in favour of
E     the original plaintiffs as per the agreement to sell dated 28.05.1981 on
      the ground that there was no mention of delivery of possession in the
      exhibits produced before it whereas the High Court was right in arriving
      at the conclusion with regard to the decree for specific performance
      while setting aside the erroneous findings arrived at by the courts below
F     it. Learned counsel finally submitted that in view of the peculiar
      circumstance of the case, no interference is sought for by this Court in
      the matter.

            Discussion:-

G            10. It is a well settled law that the power to order specific
      performance of contract is discretionary and parties cannot claim it as a
      matter of right although it is lawful but such discretion should be exercised
      judicially and prudently. Section 20 of the SR Act reads as follows:


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SHIVAJI YALLAPPA PATIL v. SRI RANAJEET APPASAHEB                            745
         PATIL & OTHERS [R. K. AGRAWAL, J.]

   “20. Discretion as to decreeing specific performance.—                   A
   (1) The jurisdiction to decree specific performance is discretionary,
   and the court is not bound to grant such relief merely because it is
   lawful to do so; but the discretion of the court is not arbitrary but
   sound and reasonable, guided by judicial principles and capable of
   correction by a court of appeal.                                         B
   (2) The following are cases in which the court may properly
   exercise discretion not to decree specific performance:—
   (a) where the terms of the contract or the conduct of the parties
   at the time of entering into the contract or the other circumstances
   under which the contract was entered into are such that the              C
   contract, though not voidable, gives the plaintiff an unfair advantage
   over the defendant; or
   (b) where the performance of the contract would involve some
   hardship on the defendant which he did not foresee, whereas its
   non-performance would involve no such hardship on the plaintiff;         D
   or
   (c) where the defendant entered into the contract under
   circumstances which though not rendering the contract voidable,
   makes it inequitable to enforce specific performance. Explanation
   1.—Mere inadequacy of consideration, or the mere fact that the           E
   contract is onerous to the defendant or improvident in its nature,
   shall not be deemed to constitute an unfair advantage within the
   meaning of clause (a) or hardship within the meaning of clause
   (b). Explanation 2.— The question whether the performance of a
   contract would involve hardship on the defendant within the              F
   meaning of clause (b) shall, except in cases where the hardship
   has resulted from any act of the plaintiff subsequent to the contract,
   be determined with reference to the circumstances existing at the
   time of the contract.
   (3) The court may properly exercise discretion to decree specific
                                                                            G
   performance in any case where the plaintiff has done substantial
   acts or suffered losses in consequence of a contract capable of
   specific performance.


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746             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A           (4) The court shall not refuse to any party specific performance
            of a contract merely on the ground that the contract is not
            enforceable at the instance of the party.”
             11. The possibility of injury to the interest of third party does not,
      by itself, disentitle the plaintiff from specific performance but it depends
B     upon the facts and circumstances of each case which will be considered
      by the court in the exercise of its discretion. The court may properly
      exercise discretion to decree specific performance, in any case where
      the plaintiff has done substantial acts or suffered losses in consequence
      of a contract capable of specific performance.
C            12. In the instant case, Respondent Nos. 1 and 2 filed an original
      suit for the specific performance of the contract on the ground that
      owners of the suit property transferred the entire possession of property
      to them after agreement to sell and it was done in pursuance of part
      performance. Hence, plaintiffs are entitled for the benefit of Section
      53A of the Transfer of Property Act, 1882 (In short ‘the TP Act’). Section
D     53 A which was added in 1929 and imports into India a modified form of
      the equity of part performance as developed in England in Elizabeth
      Maddison vs. John Alderson (1883) 8 App Cases 467. The following
      postulates are sine qua non for basing a claim on Section 53 A of the
      TP act, 1882:
E           · There must be a contract to transfer for consideration any im-
            movable property.
            · The contract must be in writing signed by the transferor, or by
            someone on his behalf.

F           · The writing must be in such words from which the terms
            necessary to construe the transfer can be ascertained.
            · The transferee must be in part performance of the contract
            take possession of the property, or of any part thereof.
            · The transferee must have done some act in furtherance of the
G           contract.
            · The transferee must have performed or be willing to perform
            his part of the contract.


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  SHIVAJI YALLAPPA PATIL v. SRI RANAJEET APPASAHEB                              747
           PATIL & OTHERS [R. K. AGRAWAL, J.]

       13. It is well settled law that Section 53A of the TP Act confers        A
no right on a party who was not willing to perform his part of the contract.
A transferee has to prove that he was honestly ready and willing to
perform his part under the contract.
       14. In the present case, during the course of hearing, it is brought
to our knowledge that both the trial court as well as the lower appellate       B
court had proceeded to arrive at the conclusion that there was no delivery
of possession in favour of the Respondent Nos. 1 and 2 herein as per the
agreement to sell dated 28.05.1981 on the ground that there was no
mention of delivery of possession. It is submitted that the said courts
below had failed to appreciate the said judgment and decree dated
24.09.1987 of the learned Additional Munsiff, Hukkeri in O.S. No. 129           C
of 1984 in proper prospective which clearly shows that the said court
having found the possession of Respondent Nos. 1 and 2 herein in respect
of the said entire property including suit property had granted injunction
in the matter and restrained the third party to interfere with the possession
of Respondent Nos. 1 and 2 herein. Henceforth, Respondent Nos. 1                D
and 2 have been in possession of suit land against all other persons and
can claim right of possession even against the subsequent
purchaser.
        15. In the present case, the whole case revolves around the one
question whether Respondent Nos. 1 and 2 got the possession of entire           E
suit land. It is undisputed fact that deceased husband of Respondent
No.3, along with other owners in Survey No. 77, entered into an
agreement with the Respondent Nos. 1 and 2 but later on Respondent
No. 3 refused to execute the said agreement. In pursuance of the same,
it is alleged that the possession of the entire land got transferred to
Respondent Nos. 1 and 2. However, Respondent No. 3 herein denied                F
this fact and alleged that possession of her share never transferred to
the original plaintiffs. After perusal of the factual matrix of the entire
case and peculiar facts, we are of the considered view that on the basis
of the finding in OS No. 129 of 1984, it is well established that the present
Respondent Nos. 1 and 2 were put into the possession of entire land.            G
The decree passes by the Munsiff in the year 1987 regarding possession
in an independent suit filed in the year 1984 is indicative of the fact that
the plaintiffs/respondent Nos. 1 and 2 were in possession.


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748                SUPREME COURT REPORTS                      [2018] 6 S.C.R.


A           Conclusion:-
              16. In view of the foregoing discussion, we do not find any reason
      for not granting specific performance in favour of Respondent Nos. 1
      and 2. Hence, in the interest of justice and since the Respondent Nos. 1
      & 2 are in possession of suit land for long time, we do not find any
B     illegality with the reasoned judgment passed by the High Court in granting
      specific performance in their favour subject to paying of the sale
      consideration by them as per the present prevailing market value within
      six months from today. The appeal is dismissed with no order as to
      costs.
C
      Ankit Gyan                                                 Appeal dismissed.




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