SMT DEOKABAIversusUTTAM

                            SMT DEOKABAI                                        A
                                  v.
                                  UTTAM

                              JULY 27, 1993

  [MADAN MOHAN PUNCHHI AND YOGESHWAR DAYAL, .TJ.]                               B

      Specific Relief Act, 1963 : Agreement to sell immovable proper-
ty-Terms of agreement providing execution of sale deed after obtaining
permission of Competent Authority and seller getting suitable alternative
accommodation--Difficulty in getting alternative accommodation-Effect
of-Doctrine of Frustration-Whether applicable-Whether seller obliged to
                                                                                c
part with the property by effecting the sale.

      Interpretation of Deeds & Documents-Terms of a document-To be
read as a whole-Taking out a tenn in isolation-Giving it a meaning tom
from the context could lead to wrong interpretation.                   D

     In January, 1979, the appellant entered into an agreement with the
respondent for sale of a portion of her house, the important terms of the
agreement being that the appellant would get the necessary permission of
the sale from the Competent Authority and after that when she would get
another suitable house, she would get the sale deed registered in the name
                                                                                E
of the respondent. The appellant accordingly obtained permission from the
Competent Authority in May, 1979. On 9.7.1979, respondent sent a notice
to the appellant requiring her to get the sale deed registered in his favour
on the same day and to remain present in the Office of the Registrar for
the said purpose. Since the appellant failed to do so, the respondent filed     F
a· suit for specific performance. The alternative claim of the respondent
         1
was fo; return of the earnest money of Rs.5000 with interest. The Trial
Court held that the respondent was entitled to the relief of specific perfor-
mance.

       On appeal, a Single Judge of the High Court negatived the claim for G
specific performance but decreed the suit for the refund of Rs.5000 along
with interest @ 8% per annum. On further appeal, a Division Bench of the
High Court decreed the suit for specilic performance. However, it affirmed
the view of the Single Judge that the term in the agreement regarding the
appellant getting another suitable house was not a condition precedent to H
                                    409
    410                   SUPREME COURT REPORTS f1993] SUPP.1 S.C.R.

A the execution of the sale. Aggrieved by the said judgment, the appellant
    preferred the present appeal, wbich is confined to the interpretation of th•
    said term in the agreement.

          On behalf of the respondent, it was contended that whatever be the
    alleged cause of frustration, a contract could not be discharged under the
B doctrine of frustration when a contract became onerous merely because of
    the difficulty to perform the same was onerous.

          Allowing the appeal, this Court

          HELD : 1. It is well settled that the terms of a document have to be
C read as a whole. Taking out a term in isolation and giving it a meaning
    torn from the context may tend to lead to a wrong interpretation causing
    injustice. (413-AJ

          2. In the instant case it is clear that the parties had appreciated and
D recognised the appellant's need to have another suitable house and that
    there could arise a difficulty on that score in transferring the house if a
    suitable honse could not be available within a reasonable time. Such an
    important term, specifically included had a positive safeguarding meaning.
                                                                     (413-E-F)
E       3. No frustration as such is involved when the parties are put to
  observe what they were required to under the contract. Viewed in this
  context, close to the heels of the permission granted by the Competent
  Authority the respondent conld not have unabashedly hounded the appel-
  lant to execute the sale deed, knowing fully well her need to obtain another
  suitable accommodation, ignoring her difficulty on that account. Snch
F conduct of the respondent was highly objectionable and unreasonable,
  disentitling him to seek relief of specific performance for sale of the house
  in question. The respondent in the situation, could not straightway ask the
  appellant in to specifically perform the contract unless he initially had put
  the appellant to notice to seek and get another suitable accommodation
G within a reasonable time within which it could reasonably be available.
  Snch a notice obviously could be given only after the grant of permission
  by the Competent Authority to sell the house, because in the event of
  non-grant of permission the search for another suitable accommodation
  would have become unnecessary. [419-F-H; 415-A]

H         4. In the facts and circumstances, the two terms afore-referred to
                    DEOKABAI v. UTIAM [PUNCHHI, J.]                       411

  bore a important contingencies, i.e., the appellant getting a suitable accom· A
  modation before she could be asked to specifically perform the contract of
 ·sale and in case of a genuine difficulty arising, to opt for returning the
  earnest money with interest. Thus, the appellant cannot be obliged to part
  with her property by effecting a Sale in favour ofthe respondent. [415-B-C]

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4249 of                 B
 1986.

      From the Judgment and Order dated 29.7.1986 of the Bombay High
 Court in L.P.A. No. 169 of 1983.

         Rajeev B. Masodkar and R.P. Wadhwani for the Appellant.                 c
         S.B. Wad, Ms. J.S. Wad and Manoj Wad for the Respondent.

         The Judgment of the ~oilrt was delivered by

        PUNCHHI, J. This appeal is directed against the judgment and D
 decree dated July 29, 1986 passed by a Division Bench of the Nagpur
 Bench of the Bombay High Court in Latters Patent Appeal No. 69 of 1983
 arising in First Appeal No. 125 of 1982.

        The appellant herein Deokabai is an aged widow residing in a             E
  portion of a house with her daughter and grand children. On 18.1.79 she
  entered into an agreement to sell that portion of the house in her posses-
. sion with Uttam, the respondent. The total sale consideration was fixed at
  Rs. 48,000 out of which Rs.5,000 was paid to her as earnest money. The
  agreement for sale was reduced to writing. It contained an important term
  to the following effect (as translated by us, the original being in Hindi):-   F
           "Before registration of the sale deed of this house in your name,
           permission of the competent authority, Nagpur, is necessary.
           Therefore, Lshall immediately take steps to obtain the permission.
           After the- date of getting the permission ftom the competent          G
           authority, when I would get another suitable house then I would
           get the sale deed of this house registered in your name."

       In appears that on 19.1.79, the day following the day of the execution
 of the agreement, she entered into another agreement for sale pertaining
 to the other portion of the house with one Jayanti Lal Shah and later H
    412                  SUPREME COURT REPORTS j1993} SUPP. 1 S.C.R.

A executed a sale deed, registered in his favour. So far as the present
    agreement for sale was concerned, she, took the step of applying for
    necessary permission to the Competent Authority, Nagpur on March 3,
    1979. The requisite permission for selling the house was granted to her in
    the month of May, 1979. On 9.7.79, a notice was sent by the respondent to
    the appellant requiring her to get the sale deed executed and registered in
B   his favour on 9.7.1979 and to remain present in the office of Registrar at
    11 a.m. Since the appellant failed to turn up at the appointed time and
    place and the respondent allegedly had taken all steps necessary towards
    completion of the sale deed, like purchase of stamp papers and buying of
    drafts of money, he filed a suit for specific performance on July 26, 1979.
C   The respondent firstly prayed for a decree for specific performance and
    possession of the property in dispute, but in the alternative claimed return
    of the earnest money of Rs.5,000 with interest in case specific performance
    was not allowed

D        Before the trial court, the important point which rose for considera-
  tion was whether the term afore-translated of obtaining a suitable house
  was a condition on the fulfilment which lay the contingency of parting the
  property by way of sale. The trial court took the view that the respondent
  was entitled to relief of specific performance. First Appeal No.125of1982
  preferred by the appellant before the High Court was allowed by a learned
E Single Judge on October 26, 1983 dismissing the claim for specific perfor-
  mance, but decreeing the suit alternatively for the refund of Rs. 5,000 along
  with interest at the rate of 8% per annum. Being aggrieved, the respondent
  filed Letters patent Appeal before a Division Bench of the High Court
  which resulted in decreeing the suit for specific performance. The ground
F on which the learned Single Judge has allowed the First Appeal of the
  appellant were essentially compassionate, such as the appellant· being a
  widow, her 45 years old son having died in the recent past and her living
  with her daughter and grand children in the house in question which was
  her sole property. The learned Single Judge did not agree with the appel-
  lant that the afore-extracted term of the contract bore a contingency. The
G Letters Patent Bench upset the judgment and decree of the learned Single
  Judge based as it was on compassionate and not on legal grounds, but
  otherwise affirmed the view of the learned Single Judge that the term
  afore-referred to did not contain any condition requiring fulfilment before
  which the appellant was required to execute the sale. The appeal before
H us is confined to the interpretation of the said term.
                  DEOKABAI v. UTTAM[PUNCHHl,J.]                          413

       It is well settled that the terms of a document, like the present one,   A
have to be read as a whole. The document as translated, though wrongly
at certain places, figures at pages 45 to 47 of the paper book. Taking out
a term in isolation and giving it a meaning tom from the context may tend
to lead to a wrong interpretation causing injustice. The term afore-ex-
tracted is followed by a term which may lend some colour to the construe-       B
tion. That is (is translated by us from Hindi):-

        "The entire cost of registration of the sale deed of this house shall
        be borne by you. In case there is any complication or difficulty in
        getting the sale deed of this house registered in your name or in
        case it becomes legally impossible for me to get the sale deed of       C
        this house registered in your name, then I shall pay back to you
        this amount of Rs. 5,000 with interest thereon. I shall not put forth
        any excuse :f~r the same. n

       Three situations are conceived of in this term, which may obviate the D
sale. One is that there could be any complication in getting the sale deed
of the house registered in the name of the vendee. The other is that there
could be a difficulty in getting the sale deed of the house registered in the
name of vendee. The third one conceived is that it could become legally
impossible to get the sale deed registered. The difficulty in getting the sale
deed of the house registered was er facie clear as the appellant was asked E
to execute the sale deed at a time when she had not obtained another
suitable accommodation, the respondent overlooking her need to get
another suitable house for accommodating her and her family members.
Such an important term, specifically included, was not mere roughage to
swell the the document. It had a positive safeguarding meaning. These were F
not empty words. The conduct of the respondent in these circumstances
becomes material to be examined before his is accepted.

       It is worthwhile to recount that permission to sell the house was
granted to the appellant in the month of May, 1979. Within a few weeks,
hurriedly the appellant was served with a notice dated 9.7.79 requiring her G
to execute the sale deed totally overlooking her need. to get need to get
another house, on failiog to put her to notice that she was required to
search for and get a suitable house within a reasonable time. Such course
could be suggested to her by the respondent, showing his concern and
willingness. Strangely rather, she was required to come to the office of H
    414                  SUPREME COURT REPORTS [1993] SUPP .1 S.C.R.

A Registrar ten days later, i.e. on 19.7.79 to execute the sale deed. Since the
  respondent had not required of the appellant to search for a house, she
  rightly in her reply dated 9.7.79 did not feel obliged on her own to seek
  time from of the respondent to obt.ain another .~uitable house. She rightly
  ventured otherwise to resist the claim of the respondent for specific per-
B formance. A suit then was filed by the respondent on 26.7.79. So all the
  event took place in a hurried manner from May to July, 1979. In this
  situation, the appellant cannot be attributed any conduct of neglect in not
  searching for another suitable house within a reasonable time. At the same
  time it cannot be lost sight of that Nagpur being a populous town, where
  admittedly rent control legislation was operative, accommodation could not
C easily be had by purchase of lease on the mere asking and it normally was
  expected to take some time, which the parties to the agreement necessarily
  must have been conscious of. It is in this context the two terms afore-
  referred to were required to be read together and interpreted for they
  carried a suitable meaning in so far as the transfer of the house by way of
D sale was concerned. It is more than clear that the parties had appreciated
  and recognised the appellant's need to have another suitable house and
  that there could arise a difficulty on that score in transferring the housing
  if a suitable house could not become available within a reasonable time. In
  that situation, it was stipulated that the sum of Rs.5 ,000 paid as earnest
  money would be returned with interest.
E
           Mr. J.S. Wad, learned counsel appearing for the respondent, relying
    on Paragraph 455 of the Fourth Edition of Halsbury's Laws of England,
  . Vol. 9, contended that whatever the alleged cause offrustration, a contract
    is not discharged under this doctrine when contract becoming is onerous
F merely because of the difficulty to perform is onerous. We can hardly see
    the applicability of this principle to the present set of facts. Here no
    frustration as such is involved when the parties are put to observe what
    they were required to under the contract. Viewed in the context, close to
    the heels of the permission granted in May, 1979, how could the respondent
    unabashedly hound the appellant to execute the sale deed, knowing fully
G well her need to obtain another suitable accommodation ignoring her
    difficulty on that account. Such conduct of the respondent, as it appears
    to us, in the peculiar facts and circumstances of this case, was highly
    objectionable and unreasonable, disentitling him to seek relief of specific
    performance for sale of the house in question. The respondent, in the
H situation, could not straightway ask the appellant to specifically perform
                 DEOKABAI v. UTIAM[PUNCHHJ,J.]                       415

the contract unless he initially had put the appellant to notice to seek and A
get another suitable accommodation within a reasonable time within which
if could reasonably be available in the town of Nagpur. Such a notice
obviously could be given only after the grant of permission to sell by the
Competent Authority, Nagpur, because in the event of non-gra~t of per-
mission the search for another suitable accommodation would have be-
come unnecessary. Thus we are of the view that in the facts and
                                                                             B
circumstances, the two afore-referred to bore important contingencies, i.e.
the appellant getting a suitable accommodation before she could be asked
to specifically perform the contract of sale and in case of a genuine
difficulty arising to opt for returning the earnest money with interest. She
cannot, in the present set of facts, be obliged to part with her property C
by effecting a sale.

       Resultantly, this appeal is allowed. The judgment and decree of the
Letters Bench is set aside and that of the learned Single Judge restored,
keeping decreed the suit of the respondent alternatively to the grant of
refund of Rs.5,000 with interest at the rate of 8% calculable from 18.1.79 D
till payment or recovery. In the circumstances, there shall be no order as
to costs.

G.N.                                                     Appeal allowed.