Holding

Specific performance may be ordered notwithstanding a penalty clause, provided the plaintiff is ready to perform, and part performance is permissible; orchard land is excluded from agrarian reform prohibitions, so the decree stands.

Summary

The defendants appealed against a Jammu & Kashmir High Court decree ordering specific performance of an agreement to sell orchard land. The Supreme Court examined whether a penalty clause in the contract barred specific performance, whether the plaintiff was ready to perform, and whether part performance was permissible under Section 15 of the Specific Relief Act. It also considered whether the land, being an orchard, fell within the definition of "land" under the J&K Agrarian Reforms Acts and whether the prohibition on alienating orchards under the 1975 Act precluded the decree. The Court held that a penalty clause does not defeat specific performance, that the plaintiff was ready and willing, and that part performance of the share owned by the defendant was permissible. Moreover, orchard land is excluded from the agrarian reform restrictions, and the prohibition on alienation is not absolute. Consequently, the Supreme Court dismissed the defendants' appeals and upheld the High Court decree.

Issues considered

Can a decree for specific performance be granted despite a contractual penalty clause providing damages?
Was the plaintiff ready and willing to perform his part of the contract, and does any delay bar specific performance?
Does the indivisibility of the contract preclude specific performance of a part (1/3 or 2/3 share) under Section 15 of the Specific Relief Act?
Is the orchard land covered by the definition of "land" in the J&K Agrarian Reforms Acts, thereby prohibiting its alienation?
Does the J&K Prohibition on Conservation of Land and Alienation of Orchards Act, 1975 bar the suit for specific performance?
Whether the father could transfer the minor son's share of the orchard land.

Legislation cited

Jammu & Kashmir Agrarian Reforms Act, 1972s. 2(4), s. 2(5)
Jammu & Kashmir Agrarian Reforms Act, 1976s. 2(10), s. 2(9)

Subjects

Specific performancePenalty clauseSpecific Relief ActJammu & KashmirAgrarian Reforms ActOrchard landPart performanceContract lawCivil appealLand transfer prohibition

Judgment

A MANZOOR AHMED MARGRAY ETC.
v
GULAM HASSAN ARAM AND ORS.

OCTOBER 5, 1999

B [D.P. WADHWA AND M.B. SHAH, JJ.]

Specific Relief Act, 1977 ( 1920 A.D.) of Jammu & Kashmir:·

S.2oi--Suit for specific pe1fonnance of contract-Grant of-Agreement
C to sell land-Non-fulfilmeni ofcontract:-Default clause in contract providing
damages for non-fulfilment of contract-Effect of-Held, specific perfonnance
of contract can be enforced despite existence of default clause in con-
tract-High Court justified in granting decree for specific perfonnance of
contract.

D S.l~Agreement to sell-Part performance of contracf-Scope
of-Held, where a party is unable to perfonn whole of the contract, Court may
direct the party to pe1fonn specially so much of his pa1t of the contract-Thus,
High Court justified in granting decree for specific perfom1a11ce of I/3rd or
2/3rd shares owned by contracting pwties.

E J & K Agrarian Refonns Act, 1972/ J & K Agrarian Refom1s Act,
1976-S.2(4)-Prohibition on transfer or alienation of lwui-Applicability
of-Agreeme1it to sell 'orchard' land-Default in performance of con-
tract-Suit for specific perfonnance of contract-Grant of-Held, land which
is an 'orchard' is specifically excluded from the definition of 'land' under the
F Act-171us, prohibition not applicable to suit property.

J & K Prohibition on Conservation of Land and Alienation of Orchards
Act, 1975-,-S.3-f'rohibition on alienation or tra11sfer of land-'Orchard
iand-Agreement to sell-Default in perfonnance of contract-Suit for specific
G perfonnance--Grant of-Held, prohibition on transfer of 'Orchard' is not
absolute and pennission for alienation can be obtained after decree is
passed-Thus, no bar on the maintainability of suit for specific peifonnance.

Words and Phrases .:

H 'Land' and 'Orchard'-Meaning of in the context of J & K Agrarian
380
MANZOOR AHMED MARG RA Y,Erc, v. GULAM HASSAN ARAM 381

Refonns Act, 1972/J & K tfgrarian Refonns Act, 1977-S.2(4) and (5)12(9) A
and (10).

Appellant-defendant No. 1 entered into an agreement for sale of
'orchard' land in favour of respondent-plaintiff. The said land was pur-
chased by defendant No. 1, and his younger.brother viz. defendant No. 2
and minor son viz. defendant No. 3 were co-owners. Defendant No. 1 B
refused to perform his part of the contract due to escalation in land
prices. Consequently, plaintiff issued a notice for specific performance of
contract and also filed a suit for injunction to prevent the defendants
from alienating the suit land. Thereafter, a suit was filed in the High
Court for execution of sale deed. Single Judge of High Court partly c
decreed the suit of plaintiff against defendant No. 1 but dismissed the
suit against defendant Nos. 2 and 3. On appeals, Division Bench of High
Court, while dismissing the. appeals filed by defendant No. 1, partly .al-
lowed the appeal filed by plaintiff by passing a decree for specific perfor-
mance against defendant No. 3. Hence the present appeal.
D
On behalf of appellant-defendants it was contended tbat the agree-
ment itself provides a default clause to the effect that in case of non-ful-
filment of the agreement, defaulting party shall pay to the other, an
amount as damages and shall be bound to pay the. same. Therefore, in
view of S. 23 of Specific Relief Act, 1977 of Jammu & Kashmir, decree E
for specific performance was not required to be granted; plaintiff was not
ready and willing to perform his part :if the contract and there was delay
in filing the suit; the contract is indivisible and, therefore, there was no
question of granting specific performance of the contract of 1/3rd share
or 2/3rd share; suit land cannot be alienated· or transferred in view of the
Jammu & Kashmir Agrarian Reforms Act, 1972 and the Jammu & Kash- F
mir Prohibition on Conservation ofLand and Alienation of Orchards Act,
1975.

Disposing of the appeal, the Court

HELD : 1.1. Decree for specific performance of contraet can be
G
granted despite default clause in contract providing payment of damages ·
for breach. of contract. [386-C-G]

1.2. S. 20 and iHustration therein of Specific Relief Act, 1977 (1920
A.D.) of Jammu & Kashmir makes it clear that though a sum be named H
382 Sl!PREMF COURT REPORTS (1999] SUPP. 3 SC R

A in the contract as lht amount to be paid in c_:i;;c ol it> t.ci:ach, imd tl1t
party in default is willing to pay the same, such contract may sii!I be
enforced. Further, the penalty clause in the agreement only provides that
if any party violates the terms and conditions of the agreement, he would
be liable to pay. a penalty. This would not mean that the contract is not
B to be performed. [388-E-F]
M.L. Devender Singh v. Syed Khaji, (1973] 2 SCC 515 and Prt.'a;sh
Chand v. Angad Lal, [1979] 4 SCC 393, referred to.

Sir Edward Fry's "Treatise on the Specific Perfomzance of Comract"
C (Sixth Edition p. 65), referred to.

2.1. High Court was justified in holding that the plaintiff was ready
and willing to perform his part of the contract. Plaintiff has averred in ihe
plaint and deposed that he was ready and willing to perform his part of th~
contract. He has al:So denied the suggestion that he was not ready to pur-
D chase the suit land within stipulated time. He also deposed that he was in a
position to pay the sale consideration amount which was not challenged in
the cross-examination. There is nothing on record to suggest that defen-
dants have shown readiness and willingness to perform their part of the
contract or that they have called upon the plaintiff to get the sale deed ex-
ecuted in his favour or to do the needful. [389-B-G]
E
2.2. The suit is filed within period of limitation and there is no delay
on the part of plaintiff which would disentitle him to have equitable relief.
[389-H]
3. S.15 of Specific Relief Act, 1977 of Jammu & Kashmir makes it
F abundantly clear that where a party to a· contract is unable to perform
the whole of his part of it, the Court may at the suit of the other party,
direct the party in default to perform specifically so much of his par·t of
the contract as be can perform. Hence, there is no bar for passing the
decree for specific relief with regard to li3rd or 2/3rd ;,h..r~ owi11:d by tl1t
G contracting party for which he can execute the sale deed. (391-C-D]

Kartar Singh v. Harjinder Singh & Ors., [1990] 3 SCC 517, relied on.

4.1. The definition under S. 2(4) of the J & K Agrarian Reforms Act,
1972 specifically excludes 'land' which was an orchard on the first day of
H September, 1971. Sub-section (5) of S. 2 defines 'Orchard' to mean a
MANZOOR AHMED MARG RA y ETC. v. ouµ.M HASSAN ARAM 383

compact area of land having fruit trees grown thereon or devoted to A
cultivation of fruit trees in such number that the main use to which the
land is put is growing of fruits or fruit trees. In the instant case, agreement
to sell was executed in respect Qf an orchard land. Therefore, the said Act
was not applicable-to the land in dispute. Similar provisions are there in
the Agrarian Reforms Act, 1976 which gives the definition of the word B
'land' under S. 2(9) and definition of the word 'orchard' under S. Z\10).
Thus, from the definition it is apparent that orchard is excluded from the
operation of the Agrarian Reforms Act. [392-B; C; DJ

4.2. S. 3 of the J & K Prohibition on Conservation of Land and
Alienation of Orchards Act, 1975 provides that prohibition on transfer of C
orchards is not absolute and the question of obtaining previous permis-
sion as contemplated under S. 3(1) (a) would arise at the time of execution
of the sale deed on the basis of decree for the specific performance. S. 3
does not bar the maintainability of the suit and permission can be obtained
by filing proper application after the decree is passed. Therefore, it cannot D
be stated that decree for specific performance is not required to be passed.
Further, under S. 3, prohibition on transfer is limited. Firstly, the proviso
makes it clear that alienation of orchards to the extent of four kanals only
in favour of one or more persons for residential purposes will not require
any permission. Secondly, for more than four kanals of land, previous E
permission of the Revenue Minister or such officer as may be authorised
by him in this behalf is required to be obtained. [393-A-D]

Bai Dosabai v. Mathuradas Govinddas & Ors., [1980] ~ SCR 762,
referred to.
F
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5726-27
of 1999 Etc.

From the Judgment and Order dated 14.8.98 of the Jammu &
Kashmir High Court in C.l.A. No. 6 and 8 of 1982.
G
M.L. Verma, M.L. Bhat, Mushraff Choudhary, Krishan Mahajan,
P.H. Parekh, N.N. Bhat, A.H. Laskar, Ms. Sunita Sharma, Ms. G.M.
Kawoosa and Ashok Mathur for the appearing parties.

The Judgment of the Court was delivered by H
384 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A SHAH, J.; Leave granted.

These appeals are filed by Original Defendant No. 1, Mohammad
Yousuf Magray, Defendant No. 3 (Manzoor Ahmed Magray, son of
Mohammad Yousuf Magray) against the Judgment and decree dated 14th
August, 1998 in CIA Nos. 6 & 8 of 1982 passed by the High Court of
B Jammu and Kashmir, Srinagar. The dispute pertains to orchard land
measuring 17 kanals and 2 marlas, comprised in Khasra No. 191/45, Khewat
No. 43, situated at Shankerpora, Tehsil Chadoora, District Srinagar along
with trees. It is the case of the plaintiff that Mohammad Yusuf Magray had
entered into an agreement dated 14th July, 1971 for sale of suit land in
C favour of the plaintiff; the price of the land was fixed at Rs. 4,250 per Kanai
and the advance of Rs. 2,000 was paid by the plaintiff to defendant No. 1;
the sale transaction was to be completed within one and a half months. The
agreement further stated that defendant No. 1 had an authority from his
younger brother, defendant No. 2 to sell the land and was also entitled to
D transfer the same on behalf of his minor son, defendant No. 3. It was stated
that the land. was purchased by him. His younger brother and son (both
minor) were benamidar co-owners. Out of the agreed sale consideration
of Rs. 72,500 , sum of Rs. 60,000 wc.s to be paid by the plaintiff to defendant
No. 1 at the time of execution of the sale deed and delivery of possession.
· Balance amount was to be paid by the plaintiff at the time of registration
E of the sale deed. It was contended by the plaintiff that as there was
escalation in the prices of land, defendant No. 1 dishonestly refused to
perform his part of the contract and, therefore, notice was issued for
performance of the contract. As plaintiff apprehended that defendants
were likely to alienate the suit land, plaintiff filed the suit for injunction in
F the Court of Ilnd Additional Munsif, Srinagar. Thereafter, as the defendant
refused to execute the sale deed, plaintiff had filed the present suit No. 22
of 1974 on 24th May, 1974 for specific performanct: of the contract before
the High Court of Jammu and Kashmir.

On the day when the suit was filed, defendant No. 2 (brother of
G defendant No. 1) was major. However, defendant No. 3 was minor and,
therefore, court appointed Sh. K.K. Dhar as guardian who appeared on his
behalf during the course of trial. In the written statement filed by defendant
No. 1, he has _admitted the execution of the agreement dated 14th July,
1971. However,, he denied that defendant Nos. 2 and 3 were his
H benamidars. It was contended that entire land did not belong to him but
MANWOR AHMED MARG RAY ETC. v. GU LAM HASSAN ARAM {SHAH, J.] 385

defendant Nos. 2 and 3 were co-owners. He submitted that he had offered A
to execute the sale deed in favour of the plaintiff qua his share but it could
not materialise because plaintiff was unable to pursuade other defendants
to similarly execute the sale deed of their respective shares. Lastly, it was
contended that plaintiff had no ready money and he was not ready and
willing to perform his part of the contract. Additionally, it was contended
B
that as the agreement was not executed by all the co-owners, it could not
be specifically enforced. In his written statement, defendant No. 2 stated
that land was purchased jointly and that all the three defendants were full
fledged owners of the 1/3rd share each. Regarding the agreement to sale,
he feigned ignorance. On behalf of the defendant No. 3, written submission

- was filed contending that defendant No. 1 had no authority to permanently
transfer his share in the land.
c

It has to be stated that at the time of trial, defendants never stepped
into witness box.. The learned Single Judge after considering the evidence
on record partly decreed the suit of the plaintiff for specific performance D
of the contract so far it related to 1/3rd share of Mohammad Yusuf l\1agray
(defendant No. 1) and disfilissed the suit against defendant Nos. 2 and 3.
Against the said judgment, original plaintiff Ghulam Hassan Aram
preferred CIA No. 6 of 1982; defendant No. 1 preferred CIA No. 8 of 1982
which came up for hearing before the Division Bench. The Court dismissed
the appeal (CIA No. 8/82) filed by defendant No. 1 with costs and partly E
allowed the appeal filed by the plaintiff and decreed so far as it related to
1/3rd share of Manzoor Ahmad Magray, son of defendant No. 1.

Against that judgment and decree, defendant No.l has filed SLP
Nos. 18241-42/98 and defendant No. 3 has filed SLP Nos. 16649- 50/98. At F
the time of hearing of this appeal, learned counsel, Mr. Thakur, appearing
on behalf of the appellant submitted that the judgment and decree passed
by the High Court is illegal and erroneous because :

-· (a) The agreement itself provides a default clause to the effect that G
m case of non-fulfilment of the agreement, defaulting party shall pay
to the other, an amount of Rs. 10,000 as damages and shall be bound to
pay the same. Therefore, in view of Section 23 of Jammu & Kashmir
Specific Relief Act, decree for the specific performance is not required to
be granted. H
386 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A (b) Plaintiff was not ready and willing to perform his part of the
contract and there is the specific condition in the agreement that the sale
deed is to be executed within a period o~ one and a half months after
obtaining the copies of the site plan and extracts of the revenue entries
from the patwari concerned.

B (c) Delay in filing the suit which also indicates that plaintiff was not
ready and willing to perform his part of the contract and in such cases, it
is the discretion of the Court not to grant relief of specific performance.

(d) The contract is indivisible and, therefore, there was no question
C of granting specific performance of the contract of 1/3rd share or 2/3rd
share. For this purpose, he relied upon Sections 14 & 15 of the J & K
Specific Relief Act, 1963.
-
(e) Suit land cannot be alienated or transferred in view of the
Jammu and Kashmir Agrarian Reforms Act, 1972 and the Jammu and
D Kashmir Pro~ibition on Conversion of Land and Alienation of Orchards
Act, 1975. ....
Re: Contention (a) the default clause providing for damage of Rs. 10,000,
decree specifically cannot be granted.

E Learned Counsel for the appellant in support of his contention
referred to last part of the agreement which provides that if any party
violates the terms and conditions of the agreement, he will be liable to pay
Rs. 10,000 as penalty to another party. He, therefore, submitted that at the
most, plaintiff was entitled to recover damages to the tune of Rs. 10,000
F and there is no question of passing decree for specific performance.

From a reading of the aforesaid clause in the agreement, it can be
stated that it is strictly a penalty clause for securing the performance of the
contract. It only provides that if any party violates the terms and conditions
of the agreement, he would be liable to pay a penalty of Rs.10,000 . This
G would not mean that contract is not to be performed. It would only mean
that if there is breach of some terms and conditions of the contract, the
-
defaulting party has to pay the penalty specified therein. The said clause,
also, does not provide that in case a sale deed is not executed, dama~es to
the tune of Rs.10,000 are to be awarded. While dealing with a similar
H contention and a clause in the contract providing that in case of failure of
MANZOORAHMED MARGRAYETC v. Gui.AM HASSAN ARAM [SHAH,J] 387

compliance of terms of agreement, vendor will be liable to refund security A
deposit and to pay damages equal to the security, this Court in M.L.
Devender Singh v. Syed Khaji, (1973) 2 SCC 515 .held that there was no
mention anywhere in the contract that the party to it will have the option
to either fulfil the contract to buy or sell or to pay the liquidated damages
or penalty of Rs. 20,000 stipulated for a breach as an alternative to B
performance of the contract to buy or sell. The Court considered the,
provisions of Specific Relief Act, 1963, particularly Section 23 (which is
similar to Section 20 of the Act of 1877) and held that Section 23 of the
Act of 1963 contains a comprehensive statement of the principles on which,
even before the Act of 1963, the presence of a term in a contract specifying

- a sum ofmoney to be paid for a breach of the contract is to be construed. C
The Court observed :

"Where a payment is an alternative to carrying out the other terms
of the contract, it would exclude, by the terms of the contract itself, specific
performance of the contract to convey a property."
D
- . Thereafter the Court quoted with approval the following principles
stated in Sir Edward Fry's "Treatise on the Specific Performance of
Contract" (Sixth Edition at p.65) :

"From what has been said it will be gathered that contracts of the
kind now under discussion are divisible into three classes - E
(i) where the sum mentioned is strictly a penalty --- a sum named
by way of securing the performance of the contract, as the
penalty is a bond;

(ii) where the sum named is to be paid as liquidated damages for F
a breach of the contract;

(iii) where the sum named is an amount the payment of which
may be substituted for the performance of the act at the
election of the person by whom the money is to be paid or G
the act done.

Where the stipulated payment comes under either of the two
first-mentioned heads, the Court will enforce the contract, if in
other respects it can and ought to be enforced, just in the same
way as a contract not to do a particular act, with a penalty added H
388 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A to secure its performance or a sum named as liquidated damages, .
may be specifically enforced by means of an injunction against
breaking it. On the other hand, where the contract comes under
the third head, it is satisfied by the payment of the money, and
'there is no ground for the Court to compel the specific perfor-
mance of the other alternative of the contract."
B
The Court also held that the fact that the parties themselves have
provided a sum to be paid by the party breaking the contract does not, by
itself, remove the strong presumption contemplated by the use of the words
'unless and until the contrary is proved" in Section 10 of the Specific Relief
C Act of 1963. The sufficiency or insufficiency of any evidence to remove such
a presumption is a matter of evidence. Similar clause was interpreted by
this Court in the case of Prakash Chand v. Angad Lal, [1979] 4 SCC 393
-
and it was observed that a perusal of the terms of the contract indicated
that stipulation for damages was made only for the purpose of securing
D performance of the contract and not for the purpose of giving an option
of paying money in lieu of specific performance. Court observed: -

"Even if a sum has been named in the contract for the sale as
the amount to be paid in case of a breach, the appellant is entitled
in law to the enforcement of the agreement."
E
Further, for the purpose of present matter, Section 20 and illustration
therein of Specific Relief Act, 1977(1920 AD.) of Jammu & Kashmir which
is applicable to the parties makes it explicitly clear thus :

"A contract, otherwise proper to be specifically enforced, may
F be thus enforced, though a sum be named in it as the amount to
be paid in case of its breach, and the party in default is willing to
pay the same."

Illustration
G A contracts to grant B an under-lease of property held by A
under C, and that he will apply to C for a licence necessary to
the validity of the under-lease, and that, if the licence is not
procured, A will pay B Rs. 10,000. A refuses to apply for the
licence and offers to pay B Rs. 10,000. B is nevertheless entitled
H to have the contract specifically enforced if C consents to give
MANZOORAHMED MARG RAY ETC. v. GULAM HASSAN ARAM [SHAH, J.) 389

the licence. A

Hence, there is no substance in aforesaid contention of the learned
counsel for the appell_'.lnt.

Re: (b) & (c) Plaintiff not ready and willing to perform his part of the contract
and that there. was delay in filing the suit
B

For this contention, it is to be stated that it depends upon the
evidence which is led by the parties before the Court. In the plaint, plaintiff
has averred that he was ready and willing to perform his part of the
contract and to abide by its terms. In the written statement filed by the C
defendant No, 1, it has been stated that he was always ready and willing to
execute the sale deed in favour of the plaintiff to the extent of his share in
the suit land but plaintiff was avoiding because he was pursuing other
defendants who were not ready to execute the sale deed for their shares.
Defendant No. 1 has also stated that plaintiff had no ready money with him D
and, therefore, also he avoided execution of the document. It is to be stated
that after filing his written statement, defendant No. 1 has not stepped into
the witness box. Still, however, from the written statement of the defendant
No. 1, it is clear that the sale deed could not be executed only because
defendants Nos. 2 & 3 were not prepared to execute the sale deed. Hence,
E
it cannot be stated that there was any delay on the part of the plaintiff
which would disentitle him to get the equitable relief. Further, plaintiff has
deposed that he was ready and willing to perform his part of the contract.
Notice dated 23rd November, 1972 was also served on Mohd. Yousuf for
execution of the sale deed. He has also denied the suggestion that he was
not ready to purchase the suit land within stipulated time. He also deposed F
that he was in a position to pay the sale consideration of Rs. 70,000 , which
was not challenged in the cross-examination. There is nothing on record to
suggest that defendants have shown readiness and willingness to perform
their part of the contract or that they have called upon the plaintiff to get
the sale deed executed "in. his favour or to do the needful. Therefore, it G
cannot be said that the High Court erred in giving finding in favour of the
plaintiff that he was ready and willing to perform his part of the contract.
The suit is filed within period of limitation and that there is no delay on
the part of plaintiff which would disentitle him to have equitable relief.
Hence, there is no substance in the aforesaid contention. H
390 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A (d) Re: The contract is indivisible and hence there was no question of
granting specific peiformance of I/3rd or 2/3rd share :

The aforesaid contention is also against the provision of Section 15
of the Specific Relief Act as applicable in Jammu & Kashmir which is as
under:
B
"Where a party to a contract is unable to perform the whole of his
part of it, and the part which must be left unperformed forms a
considerable portion of the whole, or does not admit of compen-
sation. in money, he is not entitled to obtain a decree for specific
c 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 ran perform: provided that the plaintiff
relinquishes all claim to further performance, and all right to
compensation either for the deficiency, or for the loss or damage
sustained by him through the default of the defendant."
D
The illustration given under the said section further makes the
position abundantly clear. Illustration (a) is thus :

A contracts to sell to B a piece of land consisting of 100 bighas.
E It turns out that 50 bighas of the land belong to A, and the other
50 bighas to a stranger, who refuses to part with them. A cannot
obtain a decree against B for the specific performance of the
contract; but if B is willing to pay the price agreed upon, and to
-
take the 50 bighas which belong to A, waiving all right to compen-
sation either for the deficiency or for loss sustained by him through
F
A's neglect or default, B is entitled to a decree directing A to
convey those 50 bighas to him on payment of the purchase-money.

Further, in the present case, defendant No. 1 Mohd. Yousuf Magray
entered. into an agreement to sell the land purchased by him in 1968-69 in
G three names, namely, himself, his brother (Ghulam Rasool at the relevant
time - minor) and his minor son (Manzoor Ahmad Magray). Clause 2 of
the agreement stipulated that Mohd. Yousuf would be bound to include
and join his brother Ghulam Rasool for the execution and completion of
the sale deed in respect of the said land. The learned Single Judge by
H judgment and decree dated 16th November, 1981 granted relief for specific
MANZOORAHMED MARGRA Y ETC. v. GU LAM HASSAN ARAM !SHAH, J.J 391

performance of the contract only for l/3rd ;hare of Mohd. Yousuf A
(Defendant No. 1). Against that judgment the plaintiff as well as defendant
No. 1 filed appeals. The Division Bench dismissed the appeal filed by
Mohd. Yousuf. It .allowed the appeal of the plaintiff qua the share of minor
son of defendant No.1 by holding that land was purchased by Mohd.
Yousuf in the name of his son and in fact, it was owned by him. The B
Division Bench, however, dismissed the claim for specific performance in
respect of 1/3rd share of Ghulam Rasool. Against that part of the decree,
plaintiff has not preferred any appeal.

As stated above, Section 15 of the J & K Act makes it abundantly
clear that where a party to a contract is unable to perform the whole of c
his part of it,. the Court may at the rnit of the other party, direct the party
in default to perform specifically so much of his part of the contract as he
can perform. Hence, there is no bar for passing the decree for specific
relief with regard to 1/3rd or 2/3rd share owned by the contracting party
for which he can execute the sale deed. For the share of Ghulam Rasool D
(brother of defendant No. 1) admittedly, no decree is passed by the High
Court. Dealing with the similar contention where agreement was for sale
of property belonging to brother and sister each having half share, the
Court in Kartar Singh V. Harjinder Singh and Others, [1990] 3 sec 517 held
that when the absentee vendor, for some reason or the other refused to
accept the agreement, there is no reason why the agreement should not be E
enforced against the vendor who had signed and his property is identifiable
by specific share. The Court further held that such case is not covered by
Section 12 of the Specific Relief Act, 1963 which relates to specific perfor-
mance of a part of a contract. Such type of case would be the case where
specific performance of the whole of the contract so far as contracting F
party is concerned. Further, whenever a share in the property is sold the
vendee has right to apply for the partition of the property and get the share
demarcated. Hence there would not be any difficulty in granting specific
performance of the contract to the extent to which it is binding between
the parties.

- Re : (e) Suit land cannot be alienated or tran sferred.
G

It is to be stated that the appellant has neither raised the said
contention in the written statement nor during the trial. However, in the
appeal, the appellant sought to raise the contention that the specific H
392 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R. .
A performance qua the suit land cannot be granted as the transfer or.aliena-
tion of the suit property is prohibited under the provisions of the J & K
Agrarian Reforms Act, 1972, the J & K Agrarian Reforms Act, 1976 and
the J & K Prohibition on Conservation of Lands and Alienation of Or-
chards Act, 1975. The Court declined to entertain the plea on the ground
that it was raised almost 24 years after the filing of the suit by the plaintiff
B and the same, if permitted to be raised, would prejudice the rights of the
plaintiff. Even considering that the said plea is pure question of law, in our
view, it is without any substance. The definition under Section 2( 4) of the
J & K Agrarian Reforms Act, 1972 specifically excludes 'land' which was
an orchard on the first day of September, 1971. Sub-section (5) of Section
c 2 defines 'orchard' to mean a compact area of land having fruit trees grown
thereon or devoted to cultivation of fruit trees in such number that the
main use to which the land is put is growing of fruits or fruit trees. In the
present case, agreement to sell was executed on 14.7.1971 in respect of an
orchard land: Therefore, the said Act was not applicable to the land in
-
dispute. Similar provisions are there in the Agrarian Reforms Act, 1976
D
which gives the definition of the word 'land' under Section 2(9) and
definition of the word 'orchard' under Section 2(10). From the said defini-
tion, it is apparent that orchard is excluded from the operation of the
Agrarian Reforms Act.
---
E Learned counsel for the appellant, however, further referred to
Section 3 of the J & K Prohibition on Conservation of Land and Alienation ,.
of Orchards Act, 1975 which is as under: -

"3. Prohibition on conversion of land and alienation of orchards.(1)
Notwithstanding anything contained in any other law for the time
F
being in force -

(a) no person shall alienate an orchard except with the previous
permission of the Revenue Minister or such officer. as may
be authorised by him in this behalf;
G
[Provided that alienation of orchards to the extent of Four Kanals
only in favour of one or more persons for residential purposes shall
not need any permission.]

H (b) ... "
MANZOOR AHMED MARG RAY ETC. v. GULAM HASSAN ARAM (SHAH, J.] 393

Considering the aforesaid section, it is apparent that prohibition on A
transfer of orchards is not absolute and the question of obtaining previous
permission as contemplated under Section 3(1)(a) would arise at the time

1 of execution of the sale deed on the basis of decree for the specific
performance. Section 3 does not bar the maintainability of the suit and
) permission can be obtained by filing proper application after the decree is
passed. Therefore, it cannot be stated that decree for specific performance
B
is not required to be passed. Furtl:ier, under Section 3 of the J & K
Prohibition on Conservation of Land and Alienation of Orchards Act,
1975, prohibition on transfer is limited. Firstly, the proviso makes it clear
that alienation of orchards to the extent of four kanals only in favour of
one or more persons for residential purposes will not require any permis- c
sion. Secondly, for more than four kanals of land, previous permission of
the Revenue Minister or such Officer as may be authorised by him in this
behalf is required to be obtained. Dealing with similar contention, this
Court in Bai Dosabai v. Mathuradas Govinddas and Others, (1980] 3 SCR
762 observed that even if the Act prohibits alienation of land, if the decree D
is passed in favour of the plaintiff, it is required to be moulded suitably.

Lastly, the learned counsel for the appellant submitted that defen-
dant No.1, father had no right to transfer the share of his minor son in the
suit land. In our view, the High Court has arrived at the conclusion that
the land was purchased by the father from his own funds and that father . E
was in fact the owner of the said property. The defendants have not led
any evidence. Further, after obtaining majority also defendant No.3 has not
stepped into the witness box or raised any contention to controvert the
. evidence of the plaintiff that defendant No.1 was owner of the suit land as
he had purchased the suit land from his money. In the agreement to sell, F
it has been specifically mentioned that defendant No.1 - first party has
purchased one share of the said land in the name of his minor son. Hence
for want of any other evidence on record the said findings cannot be said
in any way illegal or erroenous, which would call for our interference in
these appeals.
G
In the result, there is no substance in these appeals. It is pointed out
by the learned counsel for the respondents that on 11.5.1982 defendant no.l
had executed the sale deed in respect of"'l/3rd share of the total area of
17-kanals and 2-marlas of orchard in favour of the plaintiff on the basis of
the decree passed by the Trial Court. However, the possession of the said H
394 SUPREME COURT REPORTS [1999j SUPP. 3 S.C.R.

A land was handed over to the Receiver as ordered by the High Court. IL is
also pointed out that by order <lated 21.5.1982 the High Court had directed
the parties to maintain status-quo in respect of the possession of the suit
land. Defendants were restrained from alienating the suit land till further
orders of the Court. In this view of the matter, Receiver is directed to hand
over possession of the land for which the sale deed is executed in favour
B of the plaintiff. Further, if any permission for execution of the sale deed is
required, as contemplated under Section 3 of the J & K Prohibition on
Conservation of Land and Alienation of Orchards Act, 1975, in executing
the sale deed on the basis of decree passed by the High Court then the J
parties would file proper application for obtaining the said permission. If
C defendants fail to cooperate, the Registrar of the High Court would take
appropriate steps. After permission is granted then the sale dc"d with
regard to the remaining 1/3rd share in the suit bnd sh~Jl he execu!ed in
favour of the plaintiff.

In the result, the appeals stand disposed of accordingly with no order
D as to costs.

S.V.K. Appeals disposed of.

I