HANUMAPPA CHANNAPPA HULLUR (D) BY LRS.versusSHIVAMARUTHAPPA PARAPPA KALLI & ORS.

                        [2015] 9 S.C.R. 798


A       HANUMAPPA CHAN NAP PA HULLUR (D) BY LRS.
                                  v. •
         SHIVAMARUTHAPPA PARAPPA KALLI & ORS.
                   (Civil Appeal Nos.411-412 of 2004)
B
                         AUGUST21, 2015
              [M.Y. EQBALAND C. NAGAPPAN, JJ,]

         Specific performance:
c       If vendor-father agrees to sell a property without
  disclosing that it is a joint property and the fact that he had
  only one-third share in the said property and enters into the
  agreement without the concurrence of the other sharers then
D suit for specific performance cannot be enforced against the
  other sharers - Sale agreement enforced against vendor-
  father to the extent of his 1/3rri share in the suit property -
  The impugned judgment of the High Court dismissing the
  suit seeking for specific performance is liable to be set aside
E to that extent.

         English law on grant of specific performance to the extent
    of ownership/interest in joint property- Discussed.

       Specific performance of contract in piecemeal -
F Permissibility - Held: The Court will not as a generai rule
  compel specific performance of a contract unless it can
  execute the whole contract - This principle is based on the
  general law that the Court cannot specifically perform the
G contract in piecemeal, but it must be performed in its entirety
  if performed at all - But in the absence of misrepresentation ..
  or misconduct, the general rule is 4hat where a person is
  jointly interested in an estate with another person and purport
  to deal with the entirety, the specific performance will not be
H                                798
   HANUMAPPA CHANNAPPA HULLUR (D) BY LRS. v.                   799
       SHIVAMARUTHAPPA PARAPPA KALLI

granted against him as to his share.                             A

     Specific Relief Act, 1963: s. 12 - Partial relief of specific
performance - The present case is not a case of the
performance of a part of the contract but the whole of the
contract insofar as the vendor is concerned, since he had B
agreed to sell the property in its entirety but it later turned out
that he had only 1/3'd share in the property - The~ sale
agreement is binding on the vendor as it is without being
fractured - s. 12 is not attracted.
                                                                 c
     Specific Relief Act, 1877: ss. 14 to 17 - Under the old
Act, the party seeking specific performance under the
corresponding provision of s. 15 had to pay the entire amount
of consideration stipulated in the agreement even where he
was seeking enforcement of a part of the contract but under      o
the present Act he has to pay only part of consideration after
abatement in the amount of consideration as mentioned in
the section - Specific Relief Act, 1963 - ss. 12, 14 to 17.

    Disposing of the appeals, the Court                          E
    HELD:

    Per C. Nagappan, J.:

    1. It is not in dispute that the suit property is the joint F
family property belonging to father and two sons namely
defendants 1 to 3. Exh. P-1 is the Sale Agreement
executed by the first defendant father in favour of the
plaintiff. There is no mention therein that the first
defendant father was executing the agreement for G
himself and on behalf of the defendants 2 and 3, who
are his major sons. There is no averment in the
agreement that the suit property is joint family property
and it is being sold for the benefit of joint family. The joint
family members who jointly owned the property have not H
800         SUPREMECOURT REPORTS                   [2015] 9 S.C.R.


A     executed the said agreement to enable them to purchase
      another property in the neighbouring village. Neither the
      plaintiff nor the first defendant have produced evidence
      in the case to show that pursuant to Exh. P-1 sale.
      agreement, any property was purchased by the first
 B    defendant for the benefit of the estate of the joint family.
      The High Court has rightly held that the agreement
      entered into by the first defendant father without the
      concurrence of the other sharers namely defendants 2
      and 3 to sell the joint family property is not legal and valid.
 C    The terms of the sale agreement show that the vendor-
      father represented to the vendee that he was the
      absolute owner of the property and he would come along
      with his children.on the day fixed for the registration of
      the sale deed and he is putting the vendee in physical
 0
      possession of the land. In fact, the High Court has
      confirmed the findings of the courts below that the
      plaintiff-vendee is in possession of the suit property. The
      present case is not a case of the performance of a part
 E    of the contract but the whole of the contract insofar as
      the vendor is concerned, since he had agreed to sell the
      property in its entirety but it later turned out that he had
      only 1/3'd share in the property. The sale agreement is
      binding on the vendor as it is without being fractured.
 F    This is not a case which is covered by Section 12 of the
      Specific Relief Act. There is no impediment for
      enforcement of the sale agreement against vendor-father
      to the extent of his 1/3'd share in the suit property. The
      judgment of the High Court dismissing the suit seeking
 G    for specific performance is liable to be set aside to that
      extent. [Paras 9to12, 15] [805-E-H; 806-A-G; 808-A-B]

      A.Abdul Rashid Khan (Dead) and others v. PA.K.A.
   Shahul Hamid and others (2000) 10 SCC 636; Kammana
 H Sambamurthy (Dead) by LRs. v. Kalipatnapu Atchutamma
   HANUMAPPACHANNAPPAHULLUR (D) BY LRS. v.                      801
       SHIVAMARUTHAPPA PARAPPA KALLI

(Dead) and others 2010 (12) SCR 772: (2011)11 SCC 153;           A
Kartar Singh v. Harjinder Singh (1990) 3 SCC 517 - relied
on.
    HPA International v. Bhagwandas Fateh Chand Daswani
and others 2004 (3) Suppl. SCR 31: (2004) 6 SCC 537 -            B
distinguished.

    Per M.Y. Egbal, J.: (supplementing)

     1. Under the old Specific Relief Act 1877, Sections 14
to 17 laid down different circumstances of the performance C
of granting relief for specific performance of a part of the
contract. Under the Specific Relief Act, 1963, Sections 14
to 17 of the old Act has been amalgamated and new Section
12 has been enacted. However, the principle contained
under Sections 14 to 17 has not been changed while D
enacting Section 12 of the Act. The vital departure from the
old Act and the new Act is that under the
                        /                . old Act, the party
seeking specific performance under the corresponding
provision of Section 15 had to pay the ~ntire amount of
consideration stipulated in the agreement even where he E
was seeking enforcement of a part of a contract, but under
the present Act he has to pay only a part of consideration
after abatement in the amount of consideration as
mentioned in the section. [Para 7] [810-8-E]
                                                                  F
    Jenkins vs. Hiles 6 Ves. 646; Mortlock vs. Buller 10 Ves.
315; Rutherford vs. Acton Adams, AIR 1915 PC 113 -
referred to.

   Book "Fry on Specific Performance", 61h Edition (1921)        G
page 582 para 1257 - referred to.

                     Case Law Reference
    In the judgment of C. Nagappan, J.:
                                                                 H
  (2000) 10 sec 636           relied on.    Paras 7,13,14
802        SUPREME COURT REPORTS                  [2015) 9 S.C.R.


A      2010 (12) SCR 772          relied on.       Paras 7, 14

       2004 (3) Suppl. SCR 31 distinguished. Para 8

        (1990) 3 sec 517           relied on.      Para 14

 B        In the judgment of M.Y. Egbal, J.:

        AIR 1915 PC 113            referred to.       Para 8

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
 c    411-412 of 2004

          From the Judgment and Order dated 11.03.2002 of the
      High Court of Karnataka at Bangalore in RSA Nos. 63/1999
      and 64/1999.

 D        Rajesh Mahale for the Appellants.

         Girish Ananthamurthy (for Vaijayanthi Girish) for the
      Respondents.

 E        The Judgments of the Court were delivered by

       C. NAGAPPAN, J. 1. These two appeals are directed
   against common judgment and decree dated 11.3.2002
   made in RSA No.63/99 and 64/99 made by the High Court
 F of Karnataka at Bangalore, by which the High Court has
   allowed the Second Appeals filed by the respondents
   herein.
       2. The suit in OS 133/82 was filed by deceased
   Hanumappa Channappa Hullur for seeking decree for
 G specific performance of contract on the strength of
   agreement of sale dated 15.10.1981 executed by defendant
   No.1 in his favour in respect of the suit land RS 80/1-2/A
   measuring 11 acres and 24 guntas situated in
   Adavisomapur village in Gadag Taluk restraining the
 H
      HANUMAPPA CHANNAPPA HULLUR (D) BY LRS. v.                803
   SHIVAMARUTHAPPA PARAPPA KALLI [C. NAGAPPAN, J.]

  defendants from interfering in their possession and enjoyment A
. of the suit land and alternatively for refund of earnest money of
  Rs.53,000/- received by defendant No.1 with interest and
  damages. The suit in OS 136/82 was filed by defendants 2
  and 3 in OS 133/82 against the plaintiff-Hanumappa
  Channappa Hullur for seeking decree of declaration that the B
  agreement of sale dated 15.10.1981 said to have been
  executed bytheirfather-Paramma is not binding on them and
  their one-third share in the suit land and for grant of
  consequential relief of permanent injunction restraining
  Hanumappa Channappa Hullur from interfering in their · C
  possession and enjoyment of the suit land.

      3. It is the case of Hanumappa Hullar, that the suit land
 belongs to Parappa as it is his self acquired property and he
 for the sake of legal necessity, i.e. for purchasing the land at D
 Kanavi village offered to sell the land to him. Hence he agreed
 to purchase the same for Rs. 72,000/- and paid a sum of Rs.
 53,000/- as earnest money and Parappa received the same
 and executed an Agreement on 15.12.1981 and on the same
 day delivered possession of the land and since then he is in E
 possession and enjoyment of the same. But the said Parappa
 failed to receive balance consideration amount of Rs.19,000/
 - and execute sale deed as agreed before the end of May
 1982, along with his two sons. So, he gave notice on 24.5.1982 F
 calling upon them to perform their part of contract, since he
 was ready and willing to perform his part of contract. Sons of
 Parappa gave reply to that notice and did not perform their
 part of contract.

       4. It is the case of Parappa and his two sons that there is G
  no agreement of sale, as contended by Hanumappa Hullar,
· but it was a loan transaction and Parappa never received the
  sum of Rs.53,000/- and he did not put Hanumappa Hullar in
  possession of the land, but his signature was taken on a blank H
804         SUPREME COURT REPORTS                   [2015) 9 S.C.R.


A stamped paper and it was misused. It is also contended that
  the suit land is not the self acquired property of Parappa and it
  is not his exclusive ownership. It is the joint family property and
  his two sons have got equal one third share in it. There is no
  legal necessity for sale of land and as such, the alleged sale
B agreement is not binding on them. Hanumappa Hullar, was
  never put in possession of the land. They have filed the suit for
  decree for declaration that the alleged sale agreement is not
  biding on them and also for consequential permanent injunction
  against Hanumappa Hullar.
c
        5. Both the suits were tried together and on a consideration
  of oral and documentary evidence the trial court decreed the
  suit in O.S No.133/1982 and dismissed the suit O.S No.136/
  1982. Aggrieved by the same the defendants 2 and 3 in
D O.S.No.133/1982 and the plaintiffs in O.S. No.136/1982
  preferred appeals in RA No.55/1990 and 56/1990
  respectively. The lower appellate court by common judgment
  dated 17.10.1998 dismissed both the appeals and challenging
  the same the said appellants preferred RSA Nos.63/1999 and
E 64/1999 n the file of the High Court. The High Court allowed
  both the Second Appeals by impugned common judgment and
  dismissed the suit in O.S.No.133/1982 and decreed the suit
  in O.S. No.136/1982 as prayed for. Challenging the same the
F present civil appeals are preferred.

           6. For the sake of convenience in this judgment the parties
      are referred to as arrayed in the suit in OS No.133 of 1982 on
      the file of the trial court.

 G       7. The learned counsel appearing for the appellants
   contended that the sale agreement was entered into by the
   vendor-father after receiving substantial part of consideration
   for the benefit of the estate and the High Court erred in reversing
   the concurrent findings of the courts below, and hence the
 H impugned judgment is liable to be set aside. It is his further
     HANUMAPPA CHAN NAP PA HULLUR (0) BY LRS. v.                   805
  SHIVAMARUTHAPPA PARAPPA KALLI [C. NAGAPPAN, J.]

contention that the deceased appellant sold his only piece of A
property to purchase the suit land and in any case, the sale
agreement could be enforced against the vendor-father to the
extent of his 1/3'd share and he is bound to execute the sale
deed. In support of his submission he relied on the decisions
of this Court in A. Abdul Rashid Khan (Dead) and others B
Vs. P.A.K.A. Shahul Hamid and others [(2000) 10 SCC 636]
and Kammana Sambamurthy (Dead) by LRs. Vs.
Ka/ipatnapu Atchutamma (Dead) and others [(2011)11
sec    153].
                                                                     c
    8. The learned counsel appearing for the respondents
contended that the plaintiff did not exercise the option under
Section 12(3) of the Specific Relief Act for claiming lesser
share viz. 1/3'd share of vendor-father at the available
opportunity and in view of non compliance of the said provision D
even partial relief of specific performance can riot be granted.
Reliance was placed on the decision of this Court in HPA
International Vs. Bhagwandas Fateh Chand Daswani and
others [(2004) 6   sec    537].
                                                                      E
      9. It is not in dispute that the suit property is the joint family
property belonging to father and two sons namely defendants
1 to 3. In fact the courts below held so. Exh. P-1 is the Sale
Agreement dated 15.10.1981 executed by the first defendant
father in favour of the plaintiff. There is no mention therein that F
the first defendant father was executing the agreement for
himself and on behalf of the defendants 2 and 3, who are his
major sons. There is no averment in the agreement that the
suit property is joint family property and it is being sold for the
benefit of joint family. The joint family members who jointly G
owned the property have hot executed the said agreement to
enable them to purchase another property in the neighbouring
village. Neither the plaintiff nor the first defendant have produced
evidence in the case to show that pursuant to Exh. P-1 sale H
806         SUPREME COURT REPORTS                   [2015) 9 S.C.R.


A · agreement, any property was purchased by the first defendant
    for the benefit of the estate of the joint family. The High Court
    has rightly held that the agreement entered into by the first
    defendant father without the concurrence of the other sharers
    namely defendants 2 and 3 to sell the joint family property is
B not legal and valid.

           10. The terms of the sale agreement show that the vendor-
      father represented to the vendee that he was the absolute
      owner of the property and he would come along with his children
 C    on the day fixed for the registration of the sale deed and he is
      putting the vendee in physical possession of the land. In fact,
      the High Court has confirmed the findings of the courts below
      that the plaintiff-vendee is in possession of the suit property.

 D       11. The contention of the learned counsel for the
   respondents .that Section 12 of the Specific Relief Act, 1963
   is attracted to the facts in the present case is devoid of merit
   and the decision relied on in HPA International (supra) is not
   applicable. In the agreement of sale in HPA International
 E case, full interest in the property i.e. life interest of the vendor
   and spes successionis of the reversioners with sanction of
   the court was agreed to be sold. The reversioners were not
   parties to the sale agreement and the parties were conscious
   that the vendor had only life interest in the property. The present
 F case is not a case of the performance of a part of the contract
   but the whole of the contract insofar as the vendor is concerned,
   since he had agreed to sell the property in its entirety but it
   later turned out that he had only 1/3'd share in the property.
   The sale agreement is binding on the vendor as it is without
 G being fractured.

          12. We are, therefore, of the view that this is. not a case
      which is covered by Section 12 of the Act.

 H        13. This Court in the decision in A. Abdul Rashid Khan's
          HANUMAPPACHANNAPPAHULLUR (D) BYLRS. v.                    807
       SHIVAMARUTHAPPA PARAPPA KALLI [C. NAGAPPAN, J.]

     case while considering the grant of relief for specific          A
     performance pertaining to the contract to sell property held
     jointly, laid down thus :

          14. Thus we have no hesitation to hold, even where any
          property is held jointly, and once any party to the contract 8
          has agreed to sell such joint property by agreement, then,
          even if the other co-sharer has not joined, at least to the
          extent of his share, he is bound to execute the sale deed.
          However, in the absence of the qther co-sharer, there
          could not be any decree of any specified part of the c
          property to be partitioned and possession given. The
          decree could only be to the extent of transferring the
          share of the appellants in such property to other such
          contracting party. In the present case, it is not in dispute
          that the appellants have 5/6th share in the property. So, D
          the plaintiff's suit for specific performance to the extent
          of this 5/6th share was rightly decreed by the High Court
          which requires no interference."

              Kammana Sambamurthy Vs. Kalipatnapu E
         14. In
     Atchutamma case (supra) this Court was concerned with a
     case where vendor-husband and his wife had each half share
     in the suit property and the agreement for the sale was executed
     by the vendor-husband concerning the entire suit property. The
     question arose as to whether the agreement be enforced F
     against the vendor-husband to the extent of his half share in
     the property. This Court relying on the decision in Kartar Singh
     Vs. Harjinder Singh [(1990) 3 SCC 517] and the decision in
     A. Abdul Rashid Khan's case (supra) held that the vendee
     is not entitled to seek specific performance of the agreement G
     to the extent of half share of the vendor's wife and there is no
..   impediment for enforcement of the agreement against the
     vendor-husband to the extent of his half share in the property.

         15. In view of the above decisions of this Court and the     H
808          SUPREME COURT REPORTS                       [2015] 9 S.C.R.


A     facts and circumstances which have already been noticed by
      us, we are of the considered opinion that there is no impediment
      for enforcement of the sale agreement against vendor-father-
      first defendant to the extent of his 1/3'd share in the suit property.
      The impugned judgment of the High Court dismissing the suit
B     seeking for specific performance is liable to be set aside to
      the extent indicated above.

           16. In the result Civil Appeal No.411of2004 is partly
      allowed and the suit in OS No.133 of 1982 is partly decreed to
C     the extent of 113m share of the first defendant in the suit property
      is concerned. Civil Appeal No.412 of 2004 is dismissed. No
      order as to costs.

           M.Y. EQBAL, J. I have had the advantage of going through
 o the order proposed by my esteemed Brother C. Nagappan, J.
      While I entirely agree with the conclusion that the appellant
      must succeed to the extent indicated in the order, I wish to add
      a few lines of my own.

 E      2. The Court will not as a general rule compels specific
   performance of a contract unless it can execute the whole
   contract. This principle is based on the general law that the
   Court cannot specifically perform the contract in piecemeal,
   but it must be performed in its entirety if performed at all. In a
 F case where he had held himself contracted out as the owner
   of the whole, the case would have been different. But in the
   absence of misrepresentation or misconduct, the general rule
   is that where a person is jointly interested in an estate with
   another person and purport to deal with the entirety, the specific
 G performance will not be granted against him as to his share.

       3. English law on grant of specific performance to the
   extent of ownership/interest in joint property has been
   elaborately dealt with in a number of cases. In Jenkins vs.
 H Hiles, 6 Ves. 646, the Court of Chanc3ry observed as under:-
   HANUMAPPA CHANNAPPA HULLUR (D) BY LRS. v.      809
 SHIVAMARUTHAPPA PARAPPA KALLI [ryl.Y. EQBAL, J.]

      "I also agree, if a man, having partial interests in an A
      estate, chooses to enter into a contract, representing it,
      and agreeing to sell it, as his own, it is not competent to
      him afterwards to say, though he has valuable interests,
      he has not the entirety; and therefore the purchaser shall
      not have the benefit of his contract. For the purpose of B
      this jurisdiction, the person contracting under those
      circumstances, is bound by the assertion in his contract;
      and, if the vendee chooses to take as much as he can
      have, he has a right to that, and to an abatement; and the
      Court will not hear the objection by the vendor, that the C
      purchaser cannot have the whole."

    4. The Rule of the Court and the principle upon which it is
founded are very distinctly reiterated by Lord Eldon in
Mortlockvs. Buller, 10Ves. 315.                                     D

     5. The principle of law so stated by Lord Eldon has been
 several times adverted to in subsequent cases, but never
·questioned and now treated as a settled rule.
                                                                    E
     6. The Author of the Book "Fry on Specific Performance",
61h Edition (1921), page 582 para 1257, says:- "There is no
reason why an innocent person who gives consideration for
the promise of a charge on the whole should not be in a position
equivalent to that of a purchaser and thus secure an order of       F
partial performance. The Doctrine of Partial Performance has
been discussed in the book "Fry on Specific Performance" at
page 588 paragraph 1270. The Author says:-

      "It is well established principle of equity that where, in the G
      course of concluding a contract, a person has
      represented that he can grant a certain property, or is
      entitled to a certain interest in that property, and it later
      appears that there is a deficiency in his title or interest,
      the other party can obtain an order compelling him to H
810         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A          grant what he has got, and in an appropriate case, to
           submit to a reduction of the consideration for the grant:
           (See Fry on Specific Performance (6th Edition) paragraph
           1257 and 1259 and the case there cited). We will call
           this "the doctrine of partial performance."
 B
       7. Under the old Specific Relief Act 1877, Sections 14 to
  17 laid down different circumstances of the performance of
  granting relief for specific performance of a part of the contract.
  Under the Specific Relief Act, 1963, Sections 14 to 17 of the
c old Act has been amalgamated and new Section 12 has been               ,
  enacted. However, the principle contained under Sections 14
  to 17 has not been changed while enacting Section 12 of the
  Act. The vital departure from the old Act and the new Act is
  that under the old Act, the pariy seeking specific performance
D under the corresponding provision of Section 15 had to pay
  the entire amount of consideration stipulated in the agreement
  even where he was seeking enforcement of a part of a
  contract, but under the present Act he has to pay only a part of
  consideration after abatement in the amount of consideration
E as mentioned in the section.

           8. Section 12, sub-section (2) of the Specific Relief Act,
      is based on the English Law on the subject. The Privy Council
      in Rutherford vs. Acton Adams, AIR 1915 PC 113,
 F    observed:-

           "In exercising its jurisdiction over specific performance,
           a Court of Equity looks at the substance and not merely
           at the letter of the contract. If a vendor sues and is in a
G          position to convey substantially what the purchaser has
           contracted to get, the court will decree specific
           performance with compensation for any small and
           immaterial deficiency, provided that the vendor has not,
           by misrepresentation or otherwise, disentitled himself to
 H         his remedy. In a suit by purchaser another possible case
  HANUMAPPA CHANNAPPA HULLUR (D) BY LRS. v.    811
SHIVAMARUTHAPPA PARAPPA KALLI [M.Y. EQBAL, J.]

      arises where a vendor claims specific performance and A
      the court refuses it, unless the purchaser is willing to
      consent to a decree on terms that the vendor will make
      compensation to the purchaser, who agrees to such a
      decree on condition that he is compensated. If it is the
      purchaser who is suing, the court holds him to have and B
      even larger right. Subject to considerations of hardship,
      he may elect to take all he can get and to have a
      proportionate abatement from the purchase money."

     . 9. In the instant case in view of the findings that the C
appellant had 1/3'd share in the property contracted to be sold
will not bind the sons, the defendant respondent being co-owner
and the property being divisible, a decree for specific
performance to the extent of his share can be enforced on the
doctrine of partial performance.                                D

     10. Having regard to the discussion made above, I fully
agree with the view taken by Brother C. Nagappan, J. thatthe
plaintiff-appellant is entitled to the decree for specific
performance in respect of 1/3'd share in the property and to       E
that extent the impugned judgment and decree is liable to be
set aside.

Devika Gujral                               Appeals disposed of.