Holding

No valid and enforceable contract existed; consequently, specific performance could not be granted.

Summary

Mayawanti sued Kaushalya Devi for specific performance of a 1971 agreement to sell a factory, machinery and related assets for Rs 50,000, having paid Rs 5,000 as earnest money. The dispute centered on whether the document recorded in the petition writer's register (Exhibit PW‑11/A) proved a valid, certain contract and whether the parties were in consensus ad idem. The trial court dismissed the suit for inadmissibility of the exhibit; the High Court later allowed the suit and ordered specific performance, which was set aside on appeal, granting only a refund of the earnest money. The Supreme Court examined the admissibility of PW‑11/A, the certainty of its terms (especially the inclusion of the building and the share‑sale clause), and the requirement of a clear agreement for specific performance. Finding the contract uncertain, lacking mutual assent, and the exhibit insufficient to establish enforceable obligations, the Court held that no valid contract existed and therefore specific performance could not be ordered. The appeal was dismissed.

Issues considered

Whether a valid and enforceable contract for sale existed between the parties.
Whether Exhibit PW‑11/A is admissible as primary or secondary evidence of the agreement.
Whether the terms of the alleged agreement are certain and reflect consensus ad idem.
Whether specific performance is an appropriate remedy in the circumstances.

Legislation cited

Subjects

specific performancecontract validityconsensus ad idemadmissibility of evidencesecondary evidenceproperty saleearnest moneyalternative promisediscretionary jurisdictionSpecific Relief ActIndian Contract Act

Judgment

•

SMT. MAYAWANTI
A v.
SMT. KAUSHALYA DEVI

APRIL 6, 1990

B [S. RANGANATHAN AND K.N. SAIKIA, JJ.]

Specific Relief Act: Section 9-Suit for specific performance of
contract-Considerations to be taken note of by the Court in directing
specific performance.

Contract Act: Whether there was a valid and enforceable con-
e tract-Nature and obligation arising therefrom.

Indian Evidence Act: Whether the document Exhibit PW 11/A
was admissible in evidence?

A civil suit was filed by the appellant herein against the respon-
D
dent herein in the year 1973 praying for a decree for specific perfor-
mance of the contract, in the alternative for a decree for a total sum of
Rs.16,000 including the earnest money of Rs.5,000 on averments inter
alia that she had entered into an agreement dated 16.9. 71 with the
Respondent for the purchase of a property with 2 Koblus of 20 H.P.
electric Motor etc., installed therein and jointly owned by the Respon-
E
dent with her step mother-in-law Smt. Lajwanti, for a consideration of
Rs.50,000; that in case Smt. Lajwanti did not join in the execution of the
sale deed, the Respondent would sell her half share of the property for
half the sale price; that pursuant to this agreement the Respondent
handed over to the PlaintilT-appellant possession of her share of the
property but later as arbitration proceedings were going on between the
F ....
Respondent and her co-sharer Smt. Lajwanti, the Respondent took
hack the said agreement (styled as receipt) and thereafter illegally took I
possession of the property from the appellant and declined to execute
the sale deed in terms of the agreement.

The Respondent contested the suit on the pleas that she never
G
intended to sell the suit property to the Plaintiff; that the agreement was
a mere paper transaction brought into being for putting pressure on her
co-sharer; that the agreement being· not scribed on a proper stamped
paper was inadmissible in evidence; that the agreement related only to
the moveable property; that no advance money was paid as alleged and
lastly that pursuant to the compromise between the parties dated 9.1. 72
H
350
MAYAWANTI v. KAUSHALYA DEVI 351

the agreement dated 16.9.71 stood destroyed.
A
~ The trial Court disallowed the agreement Exhibit PW-11/A which
constituted the foundation of the claim as inadmissible in evidence and
dismissed the suit.

The High Court on revision, allowed the revision petition of the B
appellant with the direction to the trial court to impound the document
in accordance with law and then proceed with the case. Respondent's
Petition for special leave against that order was dismissed by this Court.

Consequent to these orders of the Supreme Court and the High
Court the Trial Court tried the suit afresh and passed a decree for
specific performance which was a!Tmned by the Additional District c
Judge on appeal. However on second appeal the High Court held that
there was no valid and enforceable contract as evidenced by Exhibit
PW· 11/A and thus instead of the decree for specific performance
granted a decree for Rs.5,000 only by way of refund of the earnest
money. D

Hence this appeal by special leave by the Plaintiff.

Dismissing the appeal and upholding the finding of the High
Court, this Court,
E
HELD: The specific performance of a contract is the actual execu-
tion of the contract according to its stipulations and terms, and the
courts direct the party in default to do the very thing which he con·
tracted to do. The stipulations and terms of the contract have, therefore,
to be certain and the parties must have been consensus ad idem. The
burden of showing the stipulations and terms of the contract and that F
the minds were ad idem is, of Course, on the plaintiff. If the stipulations
'
J.. and terms are uncertain and the parties are not ad idem there can be no
specific performance, for there was no contract at all. [362D-E]

Where there are negotiations, the Court has to determine at what
point, if at all, the parties have reached agreement. Negotiations there- G
after would also be material if the agreement is rescinded. In the instant
case the defence of there having not been a contract for lack of consensus
ad idem was available to the defendant. [363F; 364B]

The jurisdiction of the Court in specific performance is discre-
tionary. When a promise is made in an alternative form and one H
352 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

alternative is impossible to perform, the question whether the promisoi
A is bound to perform the other or is altogether excused depends on the
intention of the parties to be ascertained from the nature and terms of
the contract and the circumstances of the particular case. [362F]

The expression 'otherwise pay back the advance and compen-
B sation in the same amount' is capable of being interpreted as pay-
ment of the amount as alternative to performance. Of course the
amount advanced and the compensation was stipulated to be the same
amount. That, however, would not effect the real character of the
promise. T36IG]

CIVIL APPELLATE ruRISDICTION: Civil Appeal No. 4145 of
c 1984.

From the Judgment and Order dated 14.2.1984 of the Punjab and
Haryana High Court in Regular Second Appeal No. 1498 of 1982. __ _,,,(

D Ravi Parkash Gupta, Arvind Varma, Bahar Burqui and Gopal
Subramaniam for the Appellant.

R.F. Nariman, Ms. Madhvi Gupta and Ashok K. Gupta for-the
Respondent.

E The Judgment of the Court was delivered by

K.N. SAIKIA, J. This plaintiff's appeal by special leave is from
the judgment and order dated 14.2.1984 of the High Court of Punjab
and Haryana in Regular Second Appeal No. 1498 of 1982, modifying
those of the courts below and passing a decree for Rs.5,000 only by
F way of refund of earnest money instead of decree for psecific per-
formance.

The appellant herein as plaintiff filed Civil Suit Nos. 195/196 of
1973, averring, inter alia, that she had entered into an agreement dated
16.9.1971 with the respondent (defendant) for purchase of property
G No. B-VII-7 (old) and B-VIII-9 (new) containing 2 Kohlus of 20 H.P.
electric motor etc. for a consideration of Rs.50,000 and also had paid
to the defendant an earnest money of Rs.5,000; that the property was
jointly owned by the defendant with her step mother-in-law Smt. ~
Lajwanti who would also join the execution of the sale deed; that if
Smt. Lajwanti failed to do so the respondent (defendant) would sell
H her half share of the proper!}' for half of the sale price; that the
MAYAWANTI v. KAUSHALYA DEVI [SAIKIA, J.] 353

defendant-respondent pursuant to the agreement delivered possession
A.
of her share of the property to the plaintiff-appellant, whereafter the
plaintiff repaired the property spending Rs.4,200; that thereafter the
partition was also effected between the defendant-respondent and
Smt. Lajwanti; that the defendant thereafter illegally took possession
of the property from the plaintiff-appellant and refused to execute the
sale deed in terms of the agreement dated 16.9.1971 on or before B
September 26, 1971 as stipulated; that as arbitration proceedings bet·
ween defendant and her co-sharer Smt. Lajwanti was gofug on the
defendant took back the said agreement (styled as receipt) and there·
after refused to execute the stipulated sale d.eed and in response to the
plaintiff's lawyer's notice dated 23.7.1971 the defendant took the false
plea that the agreement did not pertain to the builc\ing but only to the
machinery fitted therein. The relief prayed was a decree for specific c
performance of the contract, in the alternative a decree for a total sum
of Rs.16,000 including the earnest money of Rs.5,000.

The defendant-respondent contested the suit on the inter alia
pleas that the agreement being not scribed on a proper stamped paper o
was not permissible in evidence; that it was only a paper transaction
executed to pressurise her co-sharer Smt. Lajwanti; that no earnest
money was paid; that in any case the document related only to the
moveable property; and that pursuant to the compromise between the
parties dated 9.1.1972, the agreement was destroyed.
\....__ E
In the trial court the plaintiff relied mainly on Ext. PW-11/A
being the entry of the transaction in the Petition Writer's Register.
When this Exhibit was disallowed by the trial court vide its order dated
27 .10.1976 as the entry was a duplicate of its original document which
~ had not been produced in the court and t!J.erefore inadmissible, the
plaintiff's revision petition therefrom to the High Court was allowed F
with a direction to impound the document in accordance with law and
J.. then proceed with the case. The High Court in its order dated
18.7.1977 characterised Ext. PW-11/A as the entry in the Petition
Writer's Register and observed that it contained all the details of a
transaction but appeared to be neither a copy nor an extract though a
prima facie duplicate of the original documel)t. The defendant-res- G
pondent's special leave petition therefrom was dismissed by this Court
with the following observation:

"The entry in the writer's register which has been allowed
to be admitted by the High Court subject to impounding
and consequential processes will in our view be eligible .for H
354 SUPREME COURT REPORTS [1990] 2 S.C.R.

admission as evidence. This means that we will not inter-
A
fere with the order of the High Court. However we make it
clear that the trial court which considers this entry will
evaluate it properly and not read mare than what it says or
treat it as equivalent to something which it does not. Full
effect will be given to the entry, no more, no less."
B
In light of the aforesaid orders of the High Court as well as of this
Court, the trial court having decreed the suit and thr defendant-
respondent having been unsuccessful in appeal to the Additional
District Judge, she filed a Regular Second Appeal which was allowed
by the High Court by the impugned judgment and order to the extent
already indicated.
c
Before the High Court the defendant-respondent contended that
if the entry PW-11/A was to be treated as original document or its
counterpart the same did not bear the signatures of one of the parties,
that is, the respondent. The signatures of the husband of the respon-
D dent would be of no avail as there was no evidence on record to show
that he had the authority to execute a document on her behalf and the
document signed unilaterally by one party could not be treated as an
agreement between two persons. Secondly as was admitted by the
witness, the entry was more or less an extract of the original document
and such an extract drawn and maintained by a deed writer according
E to his own light could not form basis of an agreement between the
parties which could be given effect to by way of specific performance.
Both the contentions were sustained by the High Court holding that no
contract could be inferred from the document PW-11/A. Accordingly
the High Court set aside the decree for specific performance, allowed
the appeal and passed a decree to the extent of Rs.5 ,000 being the
F earnest money to be returned by the defendant to the plaintiff.

Mr. Gopal Subramaniam, the learned counsel for the appellant
assails the impugned judgment on the grounds, inter alia, that the High
Court overlooked the relevant provisions of, the Evidence Act as also
this Court's order relating to Ext. PW-11/A. inasmuch as all the find-
G ings of the courts below were in favour of the appellant holding on
issue No. 14 that there was an oral agreement which was also admitted
with its contents and the theory of destruction was found to be false;
that the High Court should not have gone behind the Supreme Court's
order and should not have gone into the admissibility of Ext. PW-11/A
• in face of this Court's order; that the High Court has riot given even a
H single reason as to why the decree ofthe lower courts should have heen
MAYAWANTI v. KAUSHALYA DEVI [SA!KIA, J.] 355

set aside; and that Ext. PW-11/A was nghtly admitted by the courts
A
below in accordance with the Supreme Court's order but the High
-~
Court going behind that order rejected it. Counsel puts the appellant's
case on PW-11/A and also dehors that document.

Mr. R.F. Nariman, the learned counsel for the respondent sub-
mits that the High Court rightly set aside the decree because the trial B
court as well as the lower appellate court were concerned only with the
que.stion as to whether there was an agreement or not, but not with the
y question as to whether specific performance ought to be decreed or
not. Counsel submits that the High Court's holding Ext. PW-11/A to
~
be inadmissible meant only its evaluation as the agreement; and that
the grounds given by the High Court on the merit of the case are
correct. Accordingly to counsel, even assuming that Ext. PW-11/A
c
was a copy of the agreement, it would by no means justify specific
performance due to various patent and latent defects in it, and it did
not create any right in favour of the plaintiff. In view of this submission
we proceed to examine first the contract itself.
D
In a case of specific performance it is settled law, and indeed it
cannot be doubted, that the jurisdiction to order specific performance
of a contract is based on the existence of a valid and enforceable
contract. The Law of Contract is based on the ideal of freedom of
contract and it provides the limiting principles within which the parties
\... are free to make their own contracts. Where a valid and enforceable E
contract has not been made, the court will not make a contract for
them. Specific performance will not be ordered if the contract itself
suffers from some defect which makes the contract invalid or unen-
forceable. The discretion of the court will be there even though the
t contract is otherwise valid and enforceable and it can pass a decree of
specific performance even before there has been any breach of the F
contract. It is, therefore, necessary first to see whether there has been
..I.. a valid and enforceable contract and then to see the nature and obliga-
tion arising out of it. The contract being the foundation of the obliga-
tion the order of specific performance is to enforce that obligation.

Mr. Subramaniam argues that there was an oral agreement. The G
issue No. 1 was "whether there was a valid agreement of sale dated
16.9.1971 between the parties, if so what were its terms". Issue No. 14
~
r· was "whether there was an agreement of sale on 12.9.1971 between
th·e parties, if so what were its terms"? The trial court adjudicated
issue No. 1 in favour of the plaintiff. Before the First Appellate Court it
t was contended by the defendant that the alleged agreement to sell II
356 SUPREME COURT REPORTS [1990] 2 S.C.R.

dated 16.9.1971 was not admissible in evidence for the reason of it
A
having not been scribed on the stamp paper of the requisite value nor
could any secondary evidence be adduced by the plaintiff-respondent
to prove and establish the contents of the said agreement. The de-
fendant averred that she never intended to sell the suit property to the
plaintiff nor was it intended .to be purchased by the plaintiff, and that
B the agreement dated 16.9.1971 was a paper transaction which was
brought into being for exerting pressure on Lajwanti, the other co-
sharer of the property as suggested by plaintiff's husband Master
Kasturi Lal. The plaintiff before the First Appellate Court relied on
Ext. PW-11/A, and the Court observed:
--
"The learned counsel for the defendant-appellant very
c fairly/frankly submitted and conceded at the bar that the
fate of this case hinges in its entirety on the all-important
document Ext. PW-11/A which is claimed by the plaintiff-
respondent to be an agreement to sell dated 16.9.71, the
specific performance of which was sought and enforced in
D the suit by her."

While Mr. Subramaniam asserts that the correspondence
between the parties amply showed admission of the contract on the
part of the defendant-respondent, Mr. Nariman's demurrer is that
there was no such admission, but on the other hand statements on the
E part of the defendant showed that she put an end to what was claimed
to be a contract. Though predominantly a question of fact, in view of
the assertions of counsel, we have ourselves looked into the corres-
pondence on record. The earliest letter on record is from S.K. Singhal,
Advocate for the plaintiff Mayawanti to defendant Kaushalya Devi
and Lajwanti stating inter alia that on 16.9.1971 the latter agree to sell
F one karkhana building with two wheat grinding machines, two kohlus
for expelling oil, one electric motor of 20 H.P., electric connection and
other necessary goods and accessories owned by them and Kaushalya
Devi executed an agreement to sell the building and machinery for
Rs.50,000 and received a sum of Rs.5,000 in advance at the time of
execution of the said agreement; that. in case of default his client was
G entitled to get the sale deed executed through the intervention of the
court and further that in case Lajwanti did not sign the sale deed
Kaushalya Devi would execute it with regard to one half share belong-
iiig to her; that the sale deed was to be executed upto 26.9.1971,; and
that his client was ready and willing to perform her part of the con-
tract. Kaushalya Devi was therefore called upon to execute and regis-
H ter the sale deed in favour of Mayawanti to the extent of one half each
MAYAWANTI v. KAUSHALYA DEVI [SAIKIA, J.] 357

of the karkhana as his client had always been and still was ready and
A
willing to perform her part of the contract. The defendant replied to
the said letter through her Advocate Har Kishan Lal Soni by letter
dated December 29, 1971 stating that Mayawanti agreed to buy a
factory consisting of a flour mill, two kohlus, a 20 H.P. electric connec-
tion installed in property Unit No. B-VIl-7 (old), B-VIIl-9 (new) and
she called upon the plaintiff to arrange to pay the sum of Rs.50,000 B
and get the sale transaction registered within 10 days failing which the

- sender should be at liberty to sell it to any other party at the risk of the
plaintiff for compensation by way of damages suffered from the re-
sale. It is to be noted that there is no mention of any building in this
letter. In their letter dated 4.1.1972 from Mr. Soni to Mr. Singhal,
Advocate for the plaintiff, it was stated that the agreement was to
transfer two kohlus and 20 H.P. electric connection installed in the
c
property Unit No. B-VII-7 (old)/B-VIIl-9 (new) situated on Gokal
Road, Ludhiana lying on the road side nearby excluding the buildings
··~ and the 20 H.P. electric motor on receipt of full price of Rs.50,000 and
that the latter's client seemed to be labouring unnecessarily to include
the building and 20 H.P. electric motor in the bargain. In his letter D
dated 18.1.1972 to the plaintiff, Sham Lal Katya!, Advocate of
Lajwanti intimated that Kaushalya Devi had no right to sell the share
of Lajwanti. In his letter dated 13.7.1973 Sukhpat Rai Wadehra,
Advocate for Mayawanti stated that the defendant entered into an
agreement to sell the property Unit No. B-VII-7 (old) and B-VIII-9
(new) with a flour mill, two kohlus, 20 H.P. factory connection and a E
wooden cabin standing on the roadside and that due to the partition
with her "sister Lajwanti" a sale deed was to be executed on or before
26. 9, 1972 and she having failed to do so Mayawanti was entitled to
specific performance of the agreement to sell and therefore she was
called upon to execute the sale deed of property No. B-VIl-7 (old) and
B-VIII-9 (new). In his letter dated 23.7.1973 Mr. Soni wrote to Mr. F
Wadehra, that the a.greement was without the building and the motor
and that the original agreement was suspected to have been inter-
polated and so not produced by the plaintiff as required by the
defendant. In the letter dated August 3, 1973 from Mr. Wadehra to
Mr. Soni, it was asserted that the agreement was for the building and
the machinery therein and that the agreement was never cancelled G
orally. In the next letter dated 6.9.1973 from Mr. Ahluwalia, the
defendant's lawyer reiterated that the agreement dated 16.9.1971 was
for karkhana only and not for the building and that the plaintiff could
- r not arr.ange money for payment. In this letter it was stated that the
time was of essence of the contract and had Mayawanti paid any
earnest money after the expiry date 26.9.1971. the defendant was H
358 SUPREME COURT REPORTS [1990] 2 S.C.R.

entitled to forfeit the same. Thus, even though the sale deed was to be
A
executed on 26.9.1971 the instant suit was filed long thereafter on
31.7 .1973.
r-
If the above correspondence were true, it would appear that the
contract was in the alternative of either whole or half of the property
B and that the offer and acceptance did not correspond. It is settled law
that if a contract is to he made, the intention of the offeree to accept

" -
the offer m1;1st be expressed without leaving room for doubt as to the

c
fact of acceptance or to the coincidence of the terms of acceptance
with those of the offer. The rule is that the acceptance must be abso-
lute, and must correspond with the terms of the offer. If the two minds
were not ad idem in respect of the property to be sold, there cannot be
said to have been a contract for specific performance. If the parties
.. ~

themselves were not ad idem as to the subject matter of the contract
the court cannot order specific performance. If the plaintiff under-
stood the terms to have included the building but the defendant under-
stood it to have excluded the building and the so called memorandum
D Ext. PW-11/A did not mention the building, there is no contract
before the court for specific performance. While Mr. Subramaniam
would argue that the land was also included, Mr. Nariman rightly
points out that land was nowhere mentioned in PW-11/A. It is true
that Issue Nos. 2 and 3 were whether the defendant delivered posses-
sion of the property to the plaintiff pursuant to the agreement and
E whether the possession was illegally taken by the defendant, and the A
Trial Court found no independent evidence and Kasturilal admitted
that there was no document to prove the delivery of possession. How-
ever, on basis of a suggestion to Kasturilal that it was "incorrect to
suggest that any goods, i.e. gunny bags, oil, khal, was in possession
having been taken out from the factory building at the time of \
F repairs", the trial court concluded that delivery of possession was
there. The first appellate court also took it to be a "vital and material
suggestion" and upheld the finding. Admittedly the possession was ~
~

with the defendant at the time of the suit and there was no proceeding
to recover the possession by the plaintiff. This inferential finding,
therefore, can not have any bearing on the subject matter of the con-
G tract contrary to what was stated in Ext. PW-11/A which was heavily
relied on by the plaintiff.

Mr. Subramaniam then submits that the plaintiff was entitled to
specific performance by virtue of Ext. PW-11/A which was rightly ~
...
admitted and that even if it was excluded from consideration then also
H on the notices, pleadings and evidence. the plaintiff was entitled to. a~
MAYAWANTI v. KAUSHALYA DEVI [SAIKIA, J.] 359

decree and the High Court ought not to have gone behind the order of A
the Supreme Court to hold that Exhibit to be inadmissible and it never
adverted to the admission of the agreement of 16.9.1971. Before us
Mr. Subramaniam argued that Ext. PW-ll/A was either a primary
evidence or a secondary evidence of the original and its impounding
implies its intrinsic value for the purpose of the case. The signatures
B
were not denied. The trial court rightly treated it as the agreement and
in the written statement, the defendant objected to its admissibility
and not to its contents. Mr. Nariman would like us to proceed on the
basis that Ext. PW-11/A was not disputed by the defendant.

Ext. PW-11/A is SI. No. 871 dated 16.9.1971 in the columns of
the register of Atma Ram Gupta, petition writer, Ludhiana for the C
year 1971 and contains the following particulars:

It is styled as "receipt" for Rs.5,000 in column 4, and in column 3
the name and address of the writer is given as Smt. Kosh al ya Devi W/o
Dharam Dev, Ludhiana, Gokal Road, Mohalla Kothi Megh Singh. It
bore 10 n.p. stamp. In writer's. signatures column No. 8 it contains D
writer's signature in English and the R.T.l. of Kaushalya Devi and the
signature in English of Kasturi Lal. It contains the signatures of its
writer Atma Ram Gupta, petition writer, Ludhiana dated 21. I 1. 1971.
Under the column particulars of writing and address for the witnesses,
it contains the following:
\,_ E
"Smt. Mayawanti W/o Master Kasturi Lal, Ludhiana owns
and has a factory, flour mill, Two 'kohlus' for expelling oil.
I and Smt. Lajwanti widow of Baru Ram, Ludhiana have
an electric motor of 20 H.P. connection in working condi-
tion at Gokal Road. To the East Amar Singh, to the West
Mansa Ram, Ramji Das, to the north there is a road, to the F
South there is a Gali. All these are settled to be sold for
Rs.50,000 and Rs.5,000 is taken as advance. The balance
will be taken at the time of registration. The registration
will be done at the expense of the buyer. It will be in the
name of the buyer or in any other name he indicates by
26.9.1971. If any other person has a right or encumbrance G
on it, the advance and compensation will be paid back. If
Lajwanti does not sign these sale deeds, then I will execute
the sale deed of my one of the two shares, otherwise pay
pack the advance and compensation in the same amount.
The buyer may take the advance.
H
360 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

WITNESSES: Dharam Dev, husband of one who gives the
A
receipt, R/o Ludhiana, Kothi Megh Singh, Gokal Road.
Tarsem Kumar Gupta, Stamp Vendor, Khanna Zila, Distt.
Ludhiana, Mohalla Hakim Rehamatullah, Kucha Kaka
Ram House No. 2713 (9)."

B Admittedly witnesses were examined and cross-examined on this
Exhibit and the appellant argued before us on its basis.

The defects pointed out by Mr. Nariman are that it refers to Smt. .•""
Mayawan ti W/o Master Kasturi Lal as the owner of the factory, flour
mill and two kohlus for expelling oil. Mayawanti, the plaintiff-
appellant, was the intending purchaser and not owner of the property.
c The owner and vendor was the defendant/respondent Kaushalya Devi.
It nowhere mentions the land and the building; and it gives the pro-
perty number only. Of course the boundaries of the factory, flour mill
are given. Mr. Subramaniam submits that llll!d was implied in the
description. Mr. Nariman would not agree .. It says: "if Lajwanti does
D not sign this sale deed, then I will execute the sale deed of my one of
the two shares, otherwise pay back the advance and compensation in
the same amounts. The buyer may take the advance." What is the
legal effect of this statement on the agreement? Even assuming that
recitation of Mayawanti as the owner was a mistake and the factory
also implied the land whereupon it stood, the question is whether it /

E amounts to an alternative promise. In Halsbury's Laws of England 4th . ..A
Edn. Vol. 9, Para 446 on alternative promises we read:

"When a promise is made in an alternative form and one
alternative is impossible to perform, the question whether '
.~·
the promisor is bo11nd to perform the other or is altogether
F excused depends on the intention of the parties to be
ascertained from the nature and terms of the contract and
the circumstances of the particular case. The usual result in
such a case will be that the promisor must perform the
alternative which remains possible; but it may be that on
the proper construction of the contract there is not one
G obligation to be performed in alternative ways but one obli-
gation to be performed in one way unless the promisor
chooses to substitute another way, in which case, the pri-
mary obligation being impeded, the promisor is not bound
to exercise the option for the benefit of the other party."

Ap_pl:ting the principle to the instant case, on proper construe-
MAYAWANTI v. KAUSHALYA DEVI [SAIKIA, J.] 361

ti on of Ext. PW-11/A can it be construed that there was not one
obligation to be performed in alternative ways but one obligation to be A
performed in one way unless the promisor choose to substitute another
way? In other words, the primary obligation being impossible was the
promisor bound to exercise the option for the benefit of the other
party? It would_ be reasonable to construe that ifLajwanti failed to sign
the sale deed then the promisor would either execute the sale deed in B
respect of her share, or in the alternative, pay back the advance and
compensation in the same amount, and the buyer would have to take
the advance. Lajwanti having refused to sell her share, the first
alternative became impossible. The question then was whether the
second alternative would automatically follow or option was reserved
by the vendor either to sell her own share or to pay back the advance
and the compensation in the same amount. The first alternative fail- c
ing, if the promisor decided in favour of the other alternative, it could
not be said that there was any breach of any obligation under the
agreement, and if that was so, there could arise no question of specific
performance of the contract.
D
Looking at PW-11/A from another angle the payment was an
alternative to performance. In paragraph 417 of volume 44 of llals-
bury's Laws of England dealing with payment as an alternative to
performance we find:

"There are cases where the court holds, on the construc- E
tion of the contract, that the intention of the parties is that
the act may be done by the contracting party or that pay-
ment may be made by him of the stipulated amount, so that
~- I the contracting party has in effect the option either of doing
t the act which he has contracted to do or paying the
specified sum, the contract being alternative, either to do F
or abstain from doing on payment of the sum in money.
)-. The court may treat covenants to perform or to pay as
alternative - where specific performance would work
unreasonable results.''

The expression 'otherwise pay back the advance and compensation in G
the same amount' is capable of being interpreted as payment of the
amount as alternative to performance. Of course the amount advanced
and the compensation was stipulated to be the same amount. That
however, would not affect the real character of the promise.

We may also refer to another element of uncertainty or ambi- H
362 SUPREME COURT REPORTS [1990] 2 S.C.R.

guity in the contract in the event that has happened viz. Lajwanti's
A
refusal to part with her share in the property. Ex. PW-11/A says that,
in that event, Kaushalya Devi should execute the sale deed of "my one
of the two shares". The share is undefined and the consideration for
the sale price for the half share is also unspecified. This is of impor-
tance because portions of the property are not equally valuable due to
B the situation of the kohlus, flour mill etc. on a part thereof. It is true
that, eventually there was a partition between Kaushalya Devi and
La jwanti and the vendee may have had no difficulty in working out the
portion that should come to her towards the half share agreed to be
sold by Kaushalya Devi. But the question is whether words could be
read into Ext. PW-11/A to spell out an agreement, on the date of that
exhibit, that, in case Lajwanti backed out, Kaushalya Devi would sell
c her half share to the appellant for one half of the total consideration. It
seems difficult to say that the answer should necessarily be in the
affirmative. There are too many i's to be dotted and t's to be crossed
before a clear and unambiguous contract, on the terms sought to be
enforced, could be spelt out of the language of Ext. PW-11/A.
D
The specific performance of a contract is the actual execution of
the contract according to its stipulations and terms, and the courts
direct the party in default to do the very thing which he contracted to
do. The stipulations and terms of the contract have, therefore, to be
certain and the parties must have been consensus ad idem. The burden
E of showing the stipulations and terms of rhe contract and that the j
minds were ad iden is, of course, on the plaintiff. If the stipulations
and terms are uncertain, and the parties are not ad idem, there can be
no specific performance, for there was no contract at all. Where there
are negotiations, the court has to determine at what point, if at all, the /
parties have reached agreement. Negotiations thereafter would also be -~
F materil\l if the agreement is rescinded.

The jurisdiction of the court in specific performance is discre- _.l.
tionary. Fry in his Specific Performance, 6th Edn. P. 19, said:

"There is an observation often made with regard to the
G jurisdiction in specific performance which remains to be
noticed. It is said to be in the discretion of the Court. The
meaning of this proposition is not that the Court may
arbitrarily or capriciously perform one contract and refuse
to perform another, but that the Court has regard to the
conduct of the plaintiff and to circumstances outside the
H contract itself, and that the mere fact of the existence of a
MAYAWANTI v. KAUSHALYA DEVI [SAIKIA, J.] 363

valid contract is not conclusive in the plaintiff's favour. 'If
A
the defendant', said Plumer V.C., can show any circums-
tances dehors, independent of the writing, making it
inequitable to interpose for the purpose of a specific
performance, a Court of Equity, having satisfactory infor-
mation upon that subject, will not interpose."
8
The author goes on to say that of the circumstances calling for the
exercise of this discretion, "the Court judges by settled and fixed rules;
hence the discretion is said to be not arbitrary or capricious but judi-
cial; hence, also, if the contract has been entered into by a competent
party, and is unobjectionable in its nature and circumstances, specific
performance is as much a matter of course, and therefore of right, as
are damages. The mere hardship of the results will not affect the c
discretion of the court."

'>-- Regarding the extent of the jurisdiction Fry wrote:

"If a contract be made and one party to it make default in D
nerformance, there appears to result to the other party a
right at his election either to insist on the actual perfor-
mance of the contract, or to obtain satisfaction for the
non-performance of it. It may be suggested that from this
it follows that a perfect system of jurisprudence ought to
enforce the actual performance of contracts of evry kind E
and class, except only when there are circumstances which
render such enforcement unnecessary or inexpedient, and
that it ought to be assumed that every contract is specifi-
cally enforceable until the contrary be shown. But so broad
a proposition has never, it is believed, been asserted by any
of the Judges of the Court of Chancery, or their successors F
in the High Court of Justice, though, if prophecy were the
function of a law writer, it might be suggested that they will
more and more approximate to such a rule."

As Chitty observes, the "prophecy has not been whQUy fulfilled,
for the scope of the remedy remains subject to many limitations." But G
the author observes a welcome move towards the more liberal view as
to the extent of jurisdiction which was favoured by Lord Justice Fry.
But where no contract has been entered into at all, there is no room for
' y- any liberal view.

Section 9 of the Specific Relief Act says that except as otherwise H
364 SUPREME COURT REPORTS [1990] 2 S.C.R.

provided in that Act where any relief is claimed under Chapter II of
A the Act in respect of a contract, the person against whom the relief is
claimed may plead by way of defence any ground which is available to
him under any law relating to contracts. In the instant case the defence T
of there having not been a contract for lack of consensus ad idem was
available to the defendant.
B
In view of the above conclusion, the appeal has to be dismissed.
We should, however, like before concluding, to refer to certain other
aspects debated before us: .,.
c
( 1) At a late stage of the arguments, it was contended on behalf
of the appellant that the translation of Ext. PW-11/A acted upon
by the High Court, is not accurate and that it does not refer to
•
Mayawanti as the owner of the Kohlus etc. We directed tbe
original records to be called for and also gave leave to the appel-
!ant to file a translation. This has been done but the respondent _,.(
does not accept this. It was also mentioned on behalf of the
D appellant that the translator in the Supreme Court had found the
original too illegible to be translated and it was requested that a
translation may be allowed to be got done by an Advocate of this
Court knowing the language. We cannot permit this at this stage.
The unofficial translation filed tries to improve upon the
recorded translation of Ext. PW-11/A in two respects. First, the
E reference to Mayawanti as the owner is sought to be substituted _,/
by a reference to her as the vendee. So far as this is concerned, as
already pointed out, even if we take the reference to Mayawanti
in the exhibit as due to oversight, there are various other aspects
of uncertainty which render the terms of Ext. PW-11/A specifi-
cally unenforceable. The second improvement is the addition of -lr
F a sentence at the end: "The purchaser either may take earnest
money along with penalty or get the registry done forcibly. I will
have no objection." This is a totally new version which we can- .1-
not permit at this stage when it is objected to by the other side.
After all, the entry PW-11/A in the Deed Writer's Register could
not be treated as preappointed evidence. It was not a piece of
G evidence prescribed in advance by statute as requisite for proof
of the transaction of sale, as distinguished from casual evidence.
But it could not be allowed at the same time to grow out of the
surrounding circumstances. .....,
(2) A reference was made in the argument before us to an oral
H a.greement preceding Ext. PW-11/A. But the terms. of such oral
MAYAWANTI v. KAUSHALYA DEVI [SAIKIA. J.] 365

agreement are nowhere in evidence and the same uncertainties A
surround it as hover around Ext. PW-11/A. The High Court
cannot, therefore, be faulted for not confirming the decree of
specific performance on the basis of an oral agreement.

(3) A good deal of argument was also addressed before us as to
whether PW-11/A was admissible as secondary evidence. We B
have not touched upon this and have proceeded on the assump-
tion that the entries in the document-_writer's register, signed by
the parties, can itself be treated as an agreement between them
the specific performance of which can be sought.

(4) Shri Gopal Subramaniam contended that the High Court has C
erred in holding, contrary to the earlier observations of this
Court, that Ext. PW-11/A was inadmissible. There is no doubt a
certain degree of ambiguity in the observations of the High
Court in this regard. But, reading the High Court's judgment as a
whole, we are inclined to accept the submission of Mr. Nariman
that .he High Court has only evaluated the exhibit in the light of D
the direction of this Court that "full effect will be given to the
entry; no more, no less" and not rejected it as inadmissible, as
contended for by the appellant. We have referred to these
aspects only because counsel had placed considerable· emphasis
on them in the course of arguments but in the view we have taken
of the scope and effect of Ext. PW-11/A, it is unnecessary to E
elaborate on them or to deal with certain other contentions
urged before us.

For the foregoi~~ reasons we uphold the finding of the High
-,. Court that there was no valid and enforceable contract between the
parties as evidenced by Ext. PW-11/A. The result is that this appeal F
fails and is dismissed, but under the peculiar facts and circumstances of
~the case without any order as to costs. Interim orders, if any, stand
vacated.

R.N.J. Appeal dismissed.