Holding

Under Section 12(3) of the Specific Relief Act, specific performance may be granted for the portion of the contract that can be performed, and the requirement of court permission for the minor’s share is not an essential condition precedent, so the appeal is allowed.

Summary

The appellant, P.C. Vargese, sued the respondents for specific performance of a sale agreement covering 19 cents of land, seeking also a decree of partition. The agreement required the respondents to obtain court permission to sell the minor’s one‑fourth share, which was denied during the suit. The appellant amended his prayer to exclude the minor’s share and asked for specific performance of the remaining portion. The High Court held the permission clause was an essential condition precedent, voiding the whole contract. The Supreme Court reversed, holding that under Section 12(3) of the Specific Relief Act a decree can be granted for the part of the contract that can be performed, and the permission clause was not essential; thus the appeal was allowed and the decree set aside. The Court also affirmed that a decree for partition and separate possession may be granted alongside specific performance under Section 22(1)(a).

Issues considered

Whether the plaintiff is entitled to specific performance of the sale agreement despite the failure to obtain court permission for the minor’s share.
Whether the condition of obtaining permission for the minor’s share is an essential condition precedent or a non‑essential term.
Whether Section 12(3) of the Specific Relief Act permits specific performance of the portion of the contract that can be performed.
Whether a decree for partition and separate possession can be granted in addition to specific performance under Section 22(1)(a).
Whether the respondents, including the minor’s guardian, can be impleaded and bound by the decree.

Legislation cited

Specific Relief Act, 1963s. 12(3), s. 20, s. 22(1)(a)

Subjects

specific performancepartial performanceSection 12(3) Specific Relief Actminor's sharecondition precedentpartition decreecontract of salecourt permissionequitable relief

Judgment

P.C. VARGHESE A
V.
DEYAKI AMMA BALAMBIKA DEVI AND ORS.

OCTOBER 07, 2005

[S.B. SINHA AND R.V. RA VEENDRAN, JJ.] B

Specific Relief Act, 1963-Section 12(3)-Suitfor specific performance
of sale of immovable property-Minor's share subject to court permission-
During pendency ofsuit court permission rejected in respect of minor's share- C
Prayer ofplaintiff amended to exclude minor's share-Held, relief of specific
performance can be granted in respect ofthat portion which can be performed-
Further held, the contract was not subject to court permission.

Section 22(J)(a)-Plaintiff in a specific pe1formance suit seeking partition
and separate possession a major portion ofproperty excluding minor's share- D
No objection to the prayer raised by defendants-Minor share also made
party through guardian-Held, in order to avoid multiplicity of proceeding
such a relief can be prayed for.

Appellant filed the suit against the Respondent Nos. 1 to 5 for a
decree of specific performance of contract under agreement of sale in E
respect of 19 cents. He also made an alternative prayer, praying that if
specific performance could not be granted in regard to entire extent, he
may be allowed to take a sale deed in respect of the share of Defendants
1 to 3 except the minor's share and may be allowed to recover possession
of that much property form defendants through court.
F
During the pendency of the suit, the application by Respondent filed
for obtaining permission for sale of minor's share was dismissed. The
Appellant thereafter filed an application for amendment of plaint praying
for substitution of prayer. The application for amendment was allowed
and prayer 'C' amended to include a prayer for property excluding G
minor's share and for a decree of partition and separate possession.

Respondents raised a contention that the Civil Court having refused
to grant permission to sell the minor's share, performance on their part
became impossible, that the purpose for agreeing to sell the property was
267 H
l
268 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A lfor meeting the marriage expenses of the Third Respondent but as
Respondent Nos. I and 5 were able to meet the expenses therefor without
selling the property, the very purpose thereof became futile.

The suit filed by the Appellant herein was decreed by the Trial Judge
Original Defendant Nos. 4 and 5 did not prefer any appeal against the
B said judgment and decree. Respondent Nos. 1 to 3 herein only preferred
an appeal. Appellant-Plaintiff filed a cross appeal. High Court allowed the
appeal preferred by Respondent Nos. I to 3 herein holding that the
contract being an integrated one, the conditions mentioned therein as
regard obtaining the necessary permission from the Civil Court relating
C to minor's share was an essential term for execution of the contract and
since such permission had not been granted, the entire contract failed.

On a11peal before this Court, Appellant contended that having regard ~-

to the facts and circumstances of the case, the High Court committed a
manifest error in misreading and misinterpreting the agreement of.sale;
D that Section.J 2 of the Specific Relief Act enables the court to grant a dtcree
in respect of a part of contract in a case where party to a contract is u~able
to perform the whole of hi~ part of it; that the High Court, therefore,
wrongly reversed the judgment and decree of the Trial Court holding that
the condition as regard obtaining permission from the Civil Court was a
condition precedent and that the findings of the High Court cannot be
E sustained in view of the fact that out of 19 cents only 3. 75 cents came to
the share of the minor and, thus, the provision of Section 12(3) of the
Specific Relief Act was clearly attracted.

Respondent Nos. I to 3, contended that the contract in question is a
F contingent one and in view of the fact that application for obtaining
permission to sell the share of the minor was sought for and refused, the
entire agreement became unenforceable in law, the discretionary relief
under Section 20 of the Specific Relief Act should not granted in favour
of the Appellant. Respondents 4 and 5 contended that they have
unnecessarily been added in the instant case.
G
Allowing the appeal, the Court

HELD: I. The agreement nowhere states that in the event the
permission to sell the minor's share is not obtained within the period
specified therein, the same shall become invalid or otherwise unenforceable
H in law. The application for grant of permission to sell the minor's share
P.C. VARGHESE v. DEY AKI AMMA BALAMBIKA DEVI 269

was rejected only during the pendency of the suit. It may be true that the A
agreement was to be performed within a period of three months, but it
was extended. The Appellant herein not only in the suit but also even prior
thereto asked the Respondents by a notice dated 23.03.1981 (Ex. P2) to
execute a deed of sale in relation to the shares of Respondent Nos. I to 3
i.e. excluding the share of the minor. It is not in dispute that the Appellant ' B
was all along ready and willing to perform his part of the contract. Sub-
section (3) of Section 12 of the Specific Relief Act, 1963 (for short "the
Act") was enacted with a view to meet such eventualities when the whole
of the contract cannot be performed, by the vendor. The said provision
has been enacted for the benefit of the purchaser and, thus, cannot operate
to his detriment. Under the old Specific Relief Act, the Plaintiff was not C
only required to relinquish his claim of specific contract as regard that
part of the contract which cannot be performed but also was required to
pay the entire amount of consideration; whereas in terms of Section 12(3)
of the new Specific Relief Act, 1963 he is now required to pay the amount
of consideration proportionately. [275-F, G, H; 276-E, F; 277-C-DJ
D
De/sukh M. Pancholi v. The Guarantee Life and Employment Insurance
Co. Ltd. and Ors., AIR (1947) PC 182; T.V. Kochuvareed and Anr. v.
P.Mariappa Goundr and Ors., AIR (1954) Travancore-Cochin 10; Sardar
Singh v. Krishna Devi (Smt.) and Anr.. [1994) 4 SCC 18; Rachakonda
Narayana v. Pontha/a Parvathamma and Anr., [2001) 8 SCC 173; Surinder E
Singh v. Kapoor Singh (Dead) through LRs. and Ors., [2005) 5 SCC 142;
Kartar Singh v. Harjinder Singh, [1990) 3 SCC 517 and HPA International
etc v. Bhagwandas Fatehchand Daswani and Ors. etc., [2004) 6 SCC 537,
relied on.

2. The submission of respondents to the effect that this Court should F
not exercise its discr~tionary jurisdiction is stated to be rejected. No such
contention has been raised before the High Court. Even otherwise it has
not been shown, having regard to the conduct of the parties, as to why
such a discretionary jurisdiction should not be exercised. An alternative
plea of refund of earnest amount and damage cannot itself be a bar to
claim a decree for specific performance of contract. [279-EJ G

3. In view of Section 22(1)(a) of the Act a decree for partition and
separate possession of the property can be granted in addition to a decree
for specific performance of contract. As in this case, the Appellant herein
in view of amended prayer 'C' relinquished his claim in respect of the H
270 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A property belonging to the minor-Respondent No. 4, he also prayed for a
decree for partition and such a prayer having been allowed, no exception
thereto can be taken. In any event, the said question has not been raised
by the Respondents before the High Court at all. Section 22 enacts a rule
of pleading that in order to avoid multiplicity of proceedings, the plaintiff
may claim a decree for possession and/or partition in a suit for specific
B performance. Even though strictly speaking, the right to possession accrues
only when a suit for specific performance is decreed, indisputably such a
decree for possession and/or partition is prayed for in anticipation of the
grant of prayer for specific performance of contract. The decree for
partition, has attained finality. No decree for specific performance of
C contract, however, has been passed as against Respondent Nos. 4 and 5.
They are, however, otherwise bound by the decree passed by the Trial
Judge. Therefore, they are also proper parties, though not necessary
parties. [279-G, H; 280-A-B-C-DI

Babu Lal v. Mis. Hazari Lal Kishori Lal and Ors., [19821 I SCC 525,
D referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1984 of2002.

From the Judgment and Order dated 25.7.2000 of the Kerala High
Court in A.S. No. 237 of 1989.
E
John Mathew, M.T. George and Ms. Sumathi for the Appellant.

V.R. Reddy T.L.V. Iyer, C.N. Sree Kumar, Ms. Deepa S. Monappan
and Subramonium Prasad for the Respondents.

F The Judgment of the Court was delivered by

S.B. SINHA, J. The First Respondent herein is the wife of K.R.
Narayana Pillai (Respondent No. 5). Respondent Nos. 2 and 3 are daughters
of the First and the Fifth Respondent herein. The Fourth Respondent was
their minor daughter. 15 cents out of the land in question measuring 19 cents
G were obtained by Respondent Nos. 1 to 3 by reason of a partition under deed
No. 1598 of 1973. As Respondent No. 4 was born subsequent to the execution
of the said deed of partition, she became entitled to a one-fourth share in 15
cents which comes to 3.75 cents. The balance 4 cents absolutely belonged to
the First Respondent on the death of one Narayana Pillai and Devaki Amma.
H Respondent Nos. I to 3 and 5 agreed to sell the said property to the Appellant
P.C. VARGHE'.SE v. DEV AKI AMMA BALAMBIKA DEVI [SINHA, J.] 271

herein, wherefor an agreement of sale was executed on 13.09.1980 in his A
· favour. In terms of the said agreement, a sum of Rs.5,05,000/- was fixed as
total consideration; and a sum ofRs.10,000/- was received by the Respondents
by way of advance. The agreement contained a condition that the Respondents
would obtain requisite permission from the appropriate court for sale of the
minor's share therein. Such permission was to be obtained within a period of B
three months which was also the period fixed for performance of the terms
of the agreement. However, an extension thereof had been 'granted. The
Appellant made several requests to th,e Respondents to pe~form their part of
contract. According to him, the Respondents had deliberately been delaying
the disposal of the application for obtaining the aforementioned permission.
A letter was also sent to the Fifth Respondent requesting him to get the sale C
deed executed at least with regard to the shares of Respondent Nos. I to 3 on
receipt of proportionate amount of consideration and to execute the sale deed
relating to the minor's share after such permission was obtained.

The Respondents, however, did not perform their part of contract. The
Appellant deposited a sum of Rs.5,00,000/- in his name and in the names of D
his wife and children in fixed deposit No.28517-57-81 dated 03.08.1981 in
the Fede'ral Bank Limited. He also served a registered notice through his
advocate asking the Respondents to execute the sale deed, in respect whereto
a reply was sent by the Respondents stating that the sale deed can be executed
only after obtaining the permission from the Court. E
The Appellant filed the suit against the Respondent Nos. I to 5 herein,
inter alia, for a decree of specific performance of contract in respect of the
said agreement of sale in respect of the entire 19 cents. He also made an
alternative p_rayer, as per para 23C praying that if specific performance could
not be granted in regard to entire extent, he may be allowed to take a sale F
deed in respect of the share of Defendants I to 3 and may be allowed to
recover possession of that much property from defendants through court.

It is, however, not in dispute that during the pendency of the suit, the
application filed for obtaining permission for sale of minor's share was
dismissed. The Appellant thereafter filed an application for amendment of G
plaint praying for substitution of prayer 'C'. The application for amendment
was allowed and amended prayer 'C' reads as under :

"C- If for any reason this Hon'ble Court finds prayers A & B
cannot be allowed as such, the plaintiff may be allowed to take a sale
deed of the share of defendants I to 3 in the plaint schedule property, H
272 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A through court, in the name of his wife and children as mentioned
above. And for that purpose pass a preliminary decree to divide the
aforesaid 15 cents in the schedule property separating the 3/4th share
of the defendants I to 3 from the I/4th share of the minor 4th defendant
by metes and bounds and allowing plaintiff to recover possession of
the four cents belonging to the first defendant and 3/4th share of
B defendants I to 3 in the 15 cents on payment by the plaintiff of the
consideration agreed in the agreement for sale less the proportionate
value of his minor's share."

The Respondents in their written-statement raised a contention that the
C Civil Court having refused to grant permission to sell the minor's share,
performance on their part became impossible. It was further contended that
the purpose for agreeing to sell the property was for meeting the marriage
expenses of the Third Respondent but ad Respondent Nos. I and 5 were able
to meet the expenses therefor without selling the property, the very purpose
thereof became futile.
D
The learned Trial Judge in view of the rival contentions of the parties
framed as many as seven issues. Issue Nos. 5 and 7 read as under :

"(5) Is not a plaintiff entitled to specific performance of the agreement
of sale dated 13.09.1980?
E
(7) Whether the Specific Performance of the part of the agreement is
allowable ?"

The suit filed by the Appellant herein was decreed by the Trial Judge
in the following terms :
F "In the result, a preliminary decree for partition is passed on the
following terms :

(I) The 3/4th share of the property of the defendants I to 3 shall
be partitioned from the 15 cents of property which belongs to
defendants I to 4 as also the 4 cents absolutely belongs to the first
G defendant.

(2) The plaintiff is allowed to apply for passing a Final Decree
for effecting the partition of 3/4th share in the 15 cents of property.
·'
(3) The plaintiff is also allowed to apply for issue of a Commission
H to effect partition of Y. share of defendants I to 3 in 15 cents of
P.C. VARGHESE v. DEV AKI AMMA BALAMBIKA DEVI [SINHA, J.] 273

property and to ascertain the value of I /4th share of the minor 4th A
defendant in the 15 cents of property.

(4) The defendants I to 3 are directed to execute the sale deed for
their 3/4th share in 15 cents plus 4 cents when they will be allotted
their shares in the final decree on receiving the sale consideration
minus the value of the share of the minor 4th defendant which was B
ascertained in the Final Decree Proceedings within two months from
the date of passing the Final Decree.

(5) The plaintiff is directed to deposit the sale consideration as
per the terms of the contract deducting the proportionate value of the
minor's share within two months from the date of the final decree. C
(6) In case defendants 1 to 3 failed to execute the sale deed for
·the property allotted to them in the final decree within two months
from the date of passing final decree after paying the proportionate
sale consideration.
D
(7) The plaintiff is allowed to get the document executed for 19
cents of property as scheduled in the plaint as stated above through
court and plaintiff is also entitled to get delivery of that property
from the defendant in execution of this decree.

(8) In the circumstances of the case both parties are directed to E
suffer their respective costs."

The Original Defendant Nos.4 and 5 did not prefer any appeal against
the said judgment and decree. The Respondent Nos. I to 3 herein only preferred
an appeal. A cross-appeal was also filed by the Plaintiff-Appel)ant.
F
The High Court allowed the appeal preferred by Respondent Nos. I to
3 herein holding that the contract being an integrated one, the conditions
mentioned therein as regard obtaining the necessary permission from the
Civil Court relating to minor's share was an essential term for execution of
the contract and since such permission had not been granted, the entire contract G
failed. The Appellant is, thus, before us.
0

As Respondent Nos. 4 and 5 were not parties to the appeal before the
High Court, they were not impleaded as parties; subsequently an application
for impleading them was filed. The said application was allowed. However,
an application has been filed by the said added Respondents contending that H
274 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A they have unnecessarily been impleaded as parties.
Mr. John Mathew, the learned Senior Counsel appearing on behalf of
the Appellant, would submit that having regard to the facts and circumstances
of this case, the High Court committed a manifest error in misreading and .
misinterpreting the agreement of sale dated 13 .09 .1980.
B
Section 12 of the Specific Relief Act, the learned counsel would contend,
enables the court to grant a decree in respect of a part of contract in a case
where party to a contract is unable to perform the whole of his part of it. He
contended that the High Court, therefore, wrongly reversed the judgment and
C decree of the Trial Court relying on Delsukh M Pancholi v. The Guarantee
Life and Employment Insurance Co. Ltd and Ors., AIR (1947) PC 182 and
T. V. Kochuvareed and Anr. v. P. Mariappa Gounder and Ors., AIR 1954
Travancore-Cochin I0, holding that the condition as regard obtaining
permission from the Civil Court was a condition precedent.

D Mr. Mathew would urge that the findings of the High Court cannot be
sustained in view of the fact that out of 19 cents only 3.75 cents came to the
share of the minor and, thus, the provision of Section 12(3) of the Specific
Relief Act was clearly attracted.

Mr. V.R. Reddy, the learned Senior Counsel appearing on behalf of the
E Respondent Nos. I to 3, would submit that the contract in question is a
contingent one and in view of the fact that application for obtaining permission
to sell the share of the minor was sought for and refused, the entire agreement
became unenforceable in law. Ini any event, the learned counsel would contend,
the discretionary relief under Section 20 of the Specific Relief Act should not
F granted in favour of the Appellant herein.

Mr. T.L.V. Iyer, the learned Senior Counsel appearing on behalf of the
added Respondents, (Respondent Nos.4 and 5), would submit that Respondent
Nos. 4 and 5 have unnecessarily been added in the instant case.

G The property belonged to Respondents Nos. I to 4. Respondent No.5
being the father of Respondent NoA, who was a minor at the relevant time,
-
executed the agreement on her behalf. The said agreement was entered .into
by the Respondent Nos. I to 3 on their own behalf and by Respondent No.5
as the guardian of the minor Respondent No. 4.

H In terms of the said agreement, the Respondents agreed :
P.C. VARGHESE v. DEV AKI AMMA BALAMBIKA DEVI [SINHA, J.] 275

(i) to satisfy the purchaser about their title in respect of the property A
and also clear any encumbrance certificate, if found on verification;

(ii) ascertain the extent of the property by measuring it and if there
was any deficiency, agree for deduction of proportionate consideration;

. (iii) put up a wall separating the boundary at the entrance, B
(iv) change the names and enter new names in revenue records;

(v) comply with all formalities which they were required to do under
the law;

(vi) obtain guardian and ward certificate, clearance certificate, C
permission of Town Planning Authority etc.;

(vii) secure the amount of consideration payable to the minor in
terms of the guardian and ward certificate which was to be obtained
on application filed by Respondent No.5;
D
(viii) receive the balance consideration and on the date specified by
the Appellant, appear before the Sub-Registrar and register the deed
of sale.

It was further stipulated that in the event, the Respondents failed to
register the sale deed in terms of the said agreement, the Appellant would be E
entitled to deposit in the court the balance consideration after adjusting the
amount of advance; file a suit and obtain a decree for specific performance.

We fail to understand as to how the agreement for sale can be said to
be a contingent contract, as was submitted by Mr. Reddy. The agree~ent
nowhere states that in the event the permission to sell the minor's share is not F
obtained within the period specified therein, the same shall become invalid
or otherwise unenforceable in law. The application for grant of permission to
sell the minor's share, as noticed hereinbefore, was rejected only during the
pendency of the suit.

It may be true that the agreement was to be performed within a period G
of three months, but it was extended. The Appellant herein not only in the
suit but also even prior thereto asked the Respondents herein by a notice
dated 23.03.1981 (Ex. P2) to execute a deed of sale in relation to the shares
of Respondent Nos. I to 3 herein i.e. excluding the share of the minor, stating:
H
276 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A " ........ Even now I stick on to this suggestion and am prepared to
purchase the remaining portion of the property minus the minor's
share and is prepared to purchase the minor's share also after obtaining
the permission from court.

It is further strange to see that in your letter under reference you
B have only invited my attention to the aforesaid suggestion of mine
without specifically, unambiguously stating whether you are prepared
the suggestion and if so on which date the document can be executed
for the remaining share of the property after deducting the minor's
share. So kindly inform me whether you accept the aforesaid
sugge~tion and if so, on which date we can execute the document. In
c that case let the court take its own time to grant the permission
certificate and after you obtain the said certificate from the court, I
will purchase the minor's share also. Further I request you to extend
the period of agreement in writing."

D In reply to the said notice, the Respondent No.5 contended that as the
share of the Fourth Respondent was not demarcated, the Appellant will have
to wait till the required documents from the authorities are obtained. Thereafter,
another legal notice was issued on 31.07 .1981 asking the Respondents to
execute the sale deed in his favour and his nominee failing which a legal
proceeding shall be initiated for specific performance of the said agreement
E for sale. It is not in dispute that the Appellant was all along ready and willing
to perform his part of contract.

Sub-section (3) of Section 12 of the Specific Relief Act, 1963 (for
short "the Act") was enacted with a view to meet such eventualities when the
whole of the contract cannot be performed, by the vendor. It reads as under:
F
(3) Where a party to a contract is unable to perform the whole of his
part of it, and the part which must be left unperformed either-
(a) forms a considerable part of the whole, though admitting of
compensation in money; or
G (b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but
the court may, at the suit of the other party, direct the party in
default to perform specifically so much of his part of the contract
as he can perform, if the other party-
H
P.C. VARGHESE v. DEV AKI AMMA BALAMBIKA DEVI.[SINHA, J.] 277

(i) in a case falling under clause (a), pays or has paid the agreed A
consideration for the whole of the contract reduced by the
consideration for the part which must be left unperformed and a
case falling under clause (b ), [pays or had paid] the consideration
for the whole of the contract without any ,abatement; and

(ii) in either case, relinquishes all claims to the performance of the B
remai.ning part of the contract and all right to compensation,
either for the deficiency or for the loss or damage sustained by
him through the default of the defendant."

The said provision has been enacted for the benefit of the purchaser
and, thus, cannot operate to his detriment. We may notice that under the old C
Specific Relief Act, the Plaintiff was not only required to relinquish his claim
of specific contract as regard that part of the contract which cannot be
performed but also was required to pay the entire amount of consideration;
whereas in terms of Section 12(3) of the new Specific Relief Act, 1963 he
is now required to pay the amount of consideration proportionately.
D
In Sardar Singh v. Krishna Devi (Smt.) and Anr., [1994] 4 SCC 18, it
was held :

" .... The house being divisible and the appellant being not a consenting t
party to the contract, equity and justice demand partial enforcement
of the contract, instead of refusing specific performance in its entirety, E
which would meet the ends of justice...."

In Rachakonda Narayana v. Ponthala Parvathamma and Anr., [2001]
8 SCC 173], Khare, J., the learned Chief Justice as he then was, observed :

" ..... Thus, the ~ngredients which would attract specific performance F
of the part of the contract, are: (i) if a party to an agreement is unable
to perform a part of the contract, he is to be treated as defaulting
party to that extent, and (ii) the other party to an agreement must, in
a suit for such specific performance, either pay or has paid the whole
of the agreed amount, for that part of the contract which is capable G
of being performed by the defaulting party and also relinquish his
claim in respect of the other part of the contract which the defaulting
party is not capable to perform and relinquishes the claim of
compensation in respect of loss sustained by him. If such ingredients
are satisfied, the discretionary relief of specific performance is
ordinarily granted unless there is delay or !aches or any other disability H
278 SUPREME COURT REPORTS (2005) SUPP. 4 S.C.R.

A on the part of the other party."

In Surinder Singh v. Kapoor Singh (Dead) through LRs. and Ors.,
[2005) 5 SCC l '42, (wherein Dharmadhikari, J. was a member) a three-Judge
B.ench of this Court on a reference made on the purported conflict in Kartar
Singh v. Harjinder Singh, [1990) 3 SCC 517 and Rachakonda Narayana
B (supra), opined :

"In this case, the Division Bench of the High Court passed a decree
of specific performance of contract relying on or on the basis of a
decision of this Court in Kartar Singh. ".

C Strong reliance, however, has been placed by Mr. Reddy on HPA
International etc. v. Bhagwandas Fatehchand Daswani amd Ors., etc. [2004)
6 SCC 537. Therein, Dharmadhikari, J. in the facts and circumstances of the
case held :

"70. There was one integrated and indivisible contract by the vendor
D to convey full interest in the property i.e. his own life interest and the
interest of the reversioners with sanction of the Court. As the Court
had not granted the sanction, the contract could not be specifically
enforced. The lesser relief of transfer of life interest was not claimed
within a reasonable time after the vendor had intimated that the ·
contract, as agreed for full interest, was not possible of performance.
E We find that neither equity nor law is in favour of the plaintiffvendee."

Therein, in the agreement not only the interest of the vendor in presenti
but also the interest of the remaindermen or reversioners after his death was
the subject matter of contract. The agreement was furthermore subject to the
F passing of the vendor's title to the property and of the vendor's right to sell
the entire interest, present and future in the property by the purchaser's
advocate. We may also notice that in that case one of the terms contained in
the agreement for sale was :

"6. In case sanction of the Court is not accorded as aforesaid, this
G agreement shall forthwith stand cancelled and the vendor shall
forthwith return the advance amount of rupees twenty-five thousand
to the purchaser."

A perusal of the said decision clearly shows that conduct of the plaintiff
therein was such which precluded him from obtaining a decree for specific
H performance of contract. In the aforementioned facts and circumstances of
P.C. VARGHESE v. DEVAKI AMMA BALAMBIKA DEVI [SINHA, J.] 279
the case, it was held that recession. of contract due to non-grant of sanction A
by the court within the stipulated period was not an act of breach of contract
on the part of the vendor. The said decision has no application in the facts
and circumstances of this case.

In Dalsukh M. Pancholi (supra), two questions were posed by the court
(a) was the term "subject to the court's approval" an essential term of the B
agreement?, and (b) if it was essential, by whose default did it fail? Therein,
in the facts of the case, the Privy Council opine'd that the approval of the
attaching court was insisted on as a necessary condition for effecting the sale,
for without it the title to the property was not at all safe. Once such condition
was found to be essential one, the contract was held to be. a composite
contract. However, in that case, the vendor therein was not in a position to
c
convey his own interest in the property without the court's sanction and the
contract. In the facts and circumstances of the case, the Defendant Nos. I to
3 could transfer their properties having definite share in favour of the
Appellant.
D
The decision ofTravancore and Cochin High Court in T. V. Kochuvareed
(supra), has also no application in the fact of the present case.

The submission of Mr. Reddy to the effect that this Court should not
exercise its discretionary jurisdiction is stated to be rejected. No such
contention has been raised before the High Court. Even otherwise it has not E
been shown, having regard to the conduct of the parties, as to why such a
discretionary jurisdiction should not be exercised. An alternative plea of
refund of earnest amount and damage cannot itself be a bar to claim a decree
for specific performance of contract.

The Trial Court not only granted a decree for specific performance of F
contract but also a preliminary decree for partition.

The submission of Mr. Reddy to the effect that the learned Trial Judge
committed a serious error in granting a decree for partition along with a
decree for specific performance of contract need not detain us long as in view G
of Section 22(1)(a) of the Act a decree for partition and separate possession
of the property can be granted in addition to a decree for specific performance
of contract. As in this case, the Appellant herein in view of amended prayer
'C' relinquished his claim in respect of the property belonging to the minor
- Respondent No. 4, he also prayed for a decree for partition and such a
prayer having been allowed, no exception thereto can be taken. In any event, H
280 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A the said question has not been raised by the Respondents before the High
Court at all. Section 22 enacts a rule of pleading that in order to avoid
multiplicity of proceedings, the plaintiff may claim a decree for possession
and/ or partition in a suit for specific performance. Even though strictly
speaking, the right to possession accrues only when a suit for specific
performance is decreed, indisputably such a decree for possession and/ or
B partition is prayed for in anticipation of the grant of prayer for specific
performance of contract. [See Babu Lal v. Mis. Hazari Lal Kishori Lal and
Ors., [ 1982) 1 sec 525)

The only person who could question the said decree for partition was
C Respondent No. 4. As noticed hereinbefore, a decree as against him has
attained finality as she did not preferred any appeal thereagainst.

The said decree for partition, therefore, has attained finality. No decree
for specific performance of contract, however, has been passed as against the
Respondent Nos. 4 and 5. They are, however, otherwise bound by the decree
D passed by the learned Trial Judge. Therefore, they are also proper parties,
though not necessary parties.

Before parting with this case, however, we may observe that the manner
in which the decree has been passed by the learned Trial Court is open to
question inasmuch as a relief in terms of Section 22 of the Specific Relief
E Act being incidental or ancillary to the main relief of specific performance
of contract and; furthermore, being in addition thereto, ordinarily, a proceeding
for grant of a final decree for partition should be initiated after the sale deed
in terms of the decree for specific performance of contract is executed and
registered and not vice-versa.
F For the reasons aforementioned,, the impugned judgment cannot be
sustained, which is set aside accordingly. The Appeal is allowed. No costs.

V.M. Appeal allowed.