SUBHADRA AND ORS.versusTHANKAM

                   (2010]. 8 S .C:R. 299
                               0




                   SUBHADRA AND ORS.                                 A
                                   v.
                         THANKAM
            (Civil Appeal Nos .. 291'"292 of 2006)
                         JULY'S, ·2-010
                                                                     B
 [DR. .e:s. CHAUHAN' 'AND :sWATANtER KUMAR, ,JJ.]

     Specific Relief.Act, 1983 - -s.26·--Applicability of - Suit
for specific performance of agreement: to ·sell -·Decreed -
Decre·e challenge·d -·Ple·a of defendant:that the agreement          C
in question suffered from ambiguity-as regards description of
the property and hence rectification of the agreement uls. 26
was a condition precedent for passing·a de·cree'for specific
performance - Held:. Plea riot tenable - Relief of rectification
can be claimed where it is through fraud·ora mutualmistake           D
of the parties·that real intention of the parties is not expressed
in relation to an instrument - 'On·facts, ·the· agreement in
question related to sale of specific property and there was no
ambiguity or mutual mistake therein.
                                                                     E
    The appellant entered into ·an·agreement•to·sell
property (Ext. 'A1) in :favour of respondent·for·money
consideration. The respondent paid earnest·money and
subsequently approached.the appellant with·the·balance
consideration to get'. the sale deed executed.' However, a
dispute arose between the· parties with ·regard to the               F
correct.extent/ identity of'the pro-perty·agreed to be sold
by the.appellant in favour of:the·respondent. While the
appellant. took the stand that only ·5 cents ·of land was
agreed to be sold to.the·respondent,·the tatter·stated·that
though the land agreed~to be sotd•was·S cents, but in                G
addition.thereto, .the ottler structures as contemplated in
Ex. e·1 were also to be .sold for consideration.

     The respondent filed suit for specific performance.
                          299                                        H
    300      SUPREME COURT REPORTS             [2010] 8 S.C.R.


A   The trial court decreed the suit. The High Court upheld
    the decree.

       In the instant appeals, it was contended that the
  language of Ext. A1 was ambiguous and uncertain and
  that the respondent ought to have sought rectification of
8
  the deed in relation to that extent of the property in terms
  of Section 26 of the Specific Relief Act 1963, and since
  no such relief for rectification was prayed by the
  respondent, the decree for specific performance ought
C not to have been granted.

          Dismissing the appeals, the Court

       HELD: 1.1. The provisions of Section 26 of the
  Specific Relief Act, 1963 would be attracted in limited
0 cases and do not have a general application. These
  provisions can be attracted in the cases only where the
  ingredients stated in the Section are satisfied. The relief
  of rectification can be claimed where it is through fraud
  or a mutual mistake of the parties that real intention of the
E parties is not expressed in relation to an instrument.
  Even then the party claiming will have to make specific
  pleadings and claim an issue in that behalf. [Para 7] [308-
  D-F]

       1.2. The plea of the appellant that since no relief for
F rectification has been prayed, the decree for specific
  performance ought not to be granted is not tenable.
  Section 26(4) of the Act only says that no relief for the
  rectification of an instrument shall be granted to any party
  under this section unless it has been specifically claimed.
G However, proviso to Section 26(4) of the Act makes it clear
  that when such a relief has not been claimed by the
  concerned parties, the Court shall, at any stage of the
  proceedings allow him to amend the ple~dings on such
  terms, as may be just, for including such a claim and it
H would be necessary for the party to file a separate suit.
        SUBHADRA AND ORS. v. THANKAM                301


The legislative intent in incorporating this provision,    A
therefore, is unambiguous (!nd clear. The purpose is not
to generate multiplicity of litigation but to decide all
issues in relation thereto in the same suit provided the
provisions of Section 26 of the Act are attracted in the
facts of a given case. [Para 8) [308-G-H; 309-A-C]         B

     1.3. In the present case, the bare reading of the
materials on record shows that something in addition to
the bare land was intended to be sold. The description
of the entire property has been given in Ext.81. In other C
words, 5 cents and complete description of Ext. 81 was
the subject matter of the sale in terms of Ext.A1. This , '
aspect of the case stands fully clarified and Ext.A1 has
been completely clarified with certainty by the report of
the Commissioner, which was relied upon by the trial
court. In face of the matters being beyond ambiguity, D
there is no occasion for this Court to interfere with this
finding of fact. [Para 7] [308-8-D]

     1.4. The provisions of Section 26 of the Act are not
attracted in the facts and circumstances of. the present E
case. On the contrary, the respondent had specifically.
taken up the plea that Exts. A1 and 81 relate to sale of
specific property and there was no ambiguity or mutual
mistake. Both the courts below have returned a
concurrent finding in favour of the respondent and there F
is no reason to disturb the said finding. There is no
controversy in. the appreciation of evidence and the
courts below have recorded the concurrent finding on
the basis of evidence documentary and oral, adduced
before them and have taken a view which is permissible G
and in accordance with law. [Para 8) [308-C-F]

    Pu ram Ram v. Bhaguram, (2008) 4 SCC 102,
explained.

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    302      SUPREME COURT REPORTS               [2010} 8 S,C.R.

A                        Case Law Reference:

          (2008) 4 sec 102        explained             Para.a

        ClVlLAPPELLATE JURISOlCTlON: Civil Appeal No. 291-
    292 of.2006.
B
        From the Judgment & Order dated 11.11.2003 of the High
    Court of Kerata at Ernkulam in A.S. 354 of 1994 and 667 of
    1995.

          Romy ChackQ for the Appellants.
c
          K. Parameshwar, A. Raghunath for the Respondent.

          The Judgment of the Court was deHvered by

          SWATANTER KUMAR, J. 1. Ramakrishna Menon, who
D unfortunately died during the pendency of the litigation, entered
  into an agreement to sell, dated 20th June, 1979, in favour of
  Thankam for sale of the full rights over the property measuring
  about 5 cents ofland ·in Sy. No. 460/3 in Peringavu Village and
  all improvements purchased-and processed by him under the
E Document No. 1887 of 1969 and registered in Paras 283 to
  285 of Book No. 1 Volume 54 of Thrissur, Sub Registrar Office
  for a total consideration of Rs.45,250/-. A sum of Rs.5,000/-
  was paid by way of earnest money and it was agreed that the
  sale deed would be executed in favour of ·the predecessor,
F within six months from the date of the execution of the
  Agreement. It was also stated in the Agreement, which came
  to be exhibited as ExtA1 dur-ing the course of recording of
  evidence, that all receipts, encumbrance certificate etc. should
  be taken and handed over to· the predecessor at the time of
G execution of the sate deed. In other words, the sale deed was
  to be executed on or before 20th December, 1979. Thankam
  served the Registered Notice dated 10th December, 1979
  upon the seller stating that they were always ready and willing
  to purchase the property and were ready to execute a sale
H
         SUBHADRA AND ORS. v. THANKAM'                       303
             [SWATANTER KUMAA, J.)
deed, free ofencumbrance, in their favour. Areply to the above A
notice was given on 12th December 1979, saying that the seller
was'prepared.to·give the land lying within the four well-defined
boundaries, .but only 5 cents would be given to the plaintiff.
Thereafter, the· defendant tried to demolish the northern
boundary wall and.tried to.shift ittowards-the south. A suit.was B
instituted by Thankam as O.S. No. 1387 of 1979 simply.to
preventthis mischief in-which a commissioner was appointed
            0


to file a report after making:an inspection· of the property.
Thereafter, the predecessor in interest and her husband
approached-the .defendant with· the balance consideration to get · c
the sale deed executed, which was not so done and they, then,
filed a-suit·for specific performance, which came to be
registered as O:S. No. 3 of 1980.

     2. Thankam, the plaintiff in·this Suit·is·the~respondent
before this Court, while the applicants are the legal                D
representatives ofthe deceased seller who, as already noticed,
were brought"on-record: The· learned-Trial Court framed the
following 'issues:

            (i)     What:is the·correct extent or identity of the    E
                    property agreed to be sold?.

            (ii)    Whether the defendant had committed
                    breach of.the agreement?

            (iii)   Whether the plaintiff ·is entitled to specific   F
                    performance.ofthe agreement?

      3. Both the above suitswere1ried together and finally, vide
its judgment and decree dated 24th March, 1994, a decree was
passed ·in favour of the respondent in both the suits. While G
granting a decree for specific performance, the Court-directed
the payment of the balance price·of'Rs.45,250/- at·the·time·of
registration of the sale deed. In the event the appellanUailed
to get-the sale deed executed, the-same was to be executed
through the Court at the costof the appellant. This judgment H
        304     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


    A and decree of the trial Court was challenged by the appellants
      by filing two separate appeals being Appeal Nos. 354 of 1994
      and 667of1995 before the High Court of Kerala at Ernakulam.
      The High Court rejected both the appeals and while relying upon
      the report of the commissioner Ext.C1, it held that in the
    B agreement, the intention of the parties was to sell the entire
      property obtained by him as per Ext.81, in which the property
      had been fully described and 5 cents did not refer to the entire
      subject matter agreed to be sold under the terms of Agreement
      Ext.A 1. Being aggrieved by the judgment of the High Court
    c dated 11th November, 2003, the appellant has filed the present
      two appeals being Civil Appeal Nos. 291-292 of 2006. The
      main contentions raised before us are that the language of
      Agreement Ex.A 1 is ambiguous, uncertain and that the
      respondent ought to have sought rectification of the deed in
      relation to that extent of the property in terms of Section 26 of
    0
      the Specific Relief Act 1963 (hereinafter refer to as 'the Act').
      It is further argued that the Courts in the judgments under appeal
      have failed to appreciate the documentary and oral evidence
      in its correct perspective inasmuch as only 5 cents of land have
      been agreed to be sold to the respondent by the appellant and/
    E or their predecessor in interest and that much of land was not
      available.                           -

           4. At the very outset, we may notice that at page 18 of the
      paper book translated copy of Ext.A 1 has been filed. This
    F document does not contain any reference or mention about 5
      cents of land of the Sy. No. argued to be sold. However, the
      original document which was shown to us during the course of
      the hearing does indicate measurement of land as 5 cents. The
      Learned Counsel appearing for the respondent stated that the
    G land agreed to be sold was 5 cents, but in addition thereto, the
      other structures as contemplated in Ex.81 were also to be sold
'     for the consideration stated in Ex.A 1. Thus, according to the
      Learned Counsel appearing for the respondent, there was
      hardly any dispute or appropriate defence raised to the claim
    H of the respondent before the Trial Court, as such decree in
         SUBHADRA AND ORS. v. THANKAM                        305
             [SWATANTER KUMAR, J.]
favour of the respondent has been passed in accordance with          A
law and did not call for any interference by this Court.

     5. At the very outset, we may notice that there are
concurrent findings of facts recorded by the Courts in the
impugned judgments as such we do not propose to interfere
                                                                     8
in such findings of facts. We would only refer to the necessary
factual matrix of the case for the purpose of determination of
the legal controversy as to whether the agreement suffers from
any ambiguity and whether rectification of the document, in the
facts and circumstances of the case, was a condition precedent
for passing a decree for specific performance. We may refer          C
to the findings recorded by the Learned Trial Court in regard
to the description of the property and other facts which may be
of relevance for the purposes of determining the main
controversy between the parties which reads as under:
                                                                     D
    "16. This document is marked as Ext.81. The description
    of the property given in Ext. 81 would show that it is about
    5 cents of land comprised in Sy. 460/3. It is the southern
    portion of the property of the entire extent that was sold. In
    the document there is the reference to the building in the       E
    property and the right to collect the rent from the
    occupants ..... .

    ... .. The commissioner on the basis of the above said
    document tried to fix the northern boundary of the property
    promised to be sold. When he measured 5 cents of land,           F
    it is his report that the northern old boundary wall was found
                                                 I
    to be about % dannu to .16 dannu further north to the
    boundary fixed by measuring the property to the extent of
    5 cents. The eastern property of Kuttappan Master was
    found to be 2.4 dannu away from the eastern boundary of          G
    the 5 cents of land. But the commissioner was not directed
    to find out the length and breadth of the property which Is
    given in Ext. 81 as 4 dannu and 6 Y.. dannu. It is also the
    report of the commissioner that when the 5 cents of land
    was separately measured, the northern boundary so fixed          H
    306      SUPREME COURT REPORTS                     [2010] 8 S.C.R.


A         would pass through the existing latrine and bath room,
          which was an old constrnct+oo near to the northern
          boundary. Thus it is very clear that when the property is
          measured on the basis of the extent shown in Ext. 81, there
          is discrepancy with respect to the description of the
B         property in Ext. 81 document. In Ext. 81 document there
          is the mentioning of occupation of the building by tenants
          and it is the admitted case that there are old latrine and
          bath room existing on the northern side of the property that
          being in the use of the tenants. It is the case of the plaintiff
          that there are two tenants in the property occupying the two
c         portions of the building constructed under the same roof.
          It is the admitted case of the defendant that he renewed
          the rental transactions with the tenants occupying the
          building. The earlier commission report shows that on the
          northern wall there is a gap for entering into the plaint
D
          schedule property from the rest of the property owned by
          the mother-in-law of the defendant. In Ext.C1 report the
          commissioner has made it very clear that the property is
          having about 4 dannu and 1 Y:i kole width. In the second
          report it is stated that the length of the property is more
E         than 2.4 dannu than what is stated in Ext.81. But as far as
          eastern boundary is concerned, it is clearly stated in Ext.
          B 1 document that it is the property owned by Kuttappan
          Master. As far as the width of the property is concerned,
          the measurement of 4 dannu is almost accurate. When
F         there is discrepancy among Sy. No., extent and
          boundaries of a property, the more certain one is to prevail
          upon that.

          17. The vend er of the property was not examined to
G         ascertain that she is having property further south to her
          southern compound wall mentioned in the plaint as the
          northern compound wall. So long as the vendor was not
          examined, it cannot be said that she is claiming ,to have
          any property beyond the southern compound wall which is
          the northern boundary of the property sold by Ext. 81. It is
H
         SU8HADRA AND ORS. v. THANKAM                          307
             [SWATANTER KUMAR, J.]
     already found that there.is no separate description of the        A
     property in Ext. A 1 karar. The mentioning is that of the
     property purchased on·the basis of Ext. 81 document.
     Nothing is stated in Ext.81 document regarding the
     balance of the property to be retained by·the intended
     seller obtained on the basis .of Ext. 81. There is no             8
     mentioning of value of the property. per cent. Thus Ext. A 1
     karar was executed with the intention to sell the entire
     property.obtained by.the defendant on the basis of Ext. 81
     document. It that is so, the assertion of the plaintiff that he
     was willing:to execute the document after parting with the        C
     balance of•consideration is to be upheld. The insistence
     of the defendant that the·property should be measured so
     as to fix,the extent i.e 5 cents, is,only an attempt to evade
     the execution-of the document. The ·parties never·intended
     to execute:any document only fort5 cents as the·intention
                                                                       0
     is to·sell the:entire ·property covered ·by Ext. 81: If that is
     so; the plaintiff is entitled:to·get a decree· for specific
     performar:ice-of contract. The-prohibitory injunction sought
     by the·plaintiff is alsoAo·be:upheld as tampering with the
     northern b0undary.wall is only.with the intention to defeat
     the legitimate right of the plaintiff to get the document         E
     executed on·the basis of-Ext. A1 agreement. Therefore,
    .boththe·suits are to be decreed. The issues are answered
     accordingly."

      6. The above finding of facts was confirmed .by the High         F
Court in the exercise ofits appellate jurisdiction. Both the suits
filed have been decreed by a common judgment dated 31st
January, 1984. The decree was set aside by the-High Court
vide·its order dated 22nd August, 1990 wherein it remanded
the· suit for fresh disposal after fixing the boundaries·ofthe         G
property in dispute. The Trial Court conducted fresh trial in
furtherance to this direction and passed a decree afresh vide
itsjudgmenLdated24th March, 1994.

    The·relevant·para ofEx. P1 reads:as under:
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    308       SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A         "The first party hereby argues (sic= agrees) to sell his full
          rights over the property Sy. 460/3 of Peringavu Village and
          all improvements purchased and possessed by 1st party
          under document No. 1887 of 1969 and resisted in Paras
          283 to 285 of Book 1 Volume 54 of Thrissur Sub Registrar
B         office to the Second party will and any encumbrance for a
          price of Rs.45,250/-."

        7. The bare reading of this portion shows that something
  in addition to the bare land was intended to be sold. The
  description of the entire property has been given in Ext.81. In
C other words, 5 cents and complete description of Ext. 81 was
  the subject matter of the sale in terms of Ext.A 1. This aspect
  of the case stands fully clarified and Ext.A 1 has been completely
  clarified with certainty by the report of the Commissioner, which
  was relied upon by the trial Court. In face of the matters being
D beyond ambiguity, there is no occasion for this Court to interfere
  with this finding of fact. Furthermore, the question of rectification
  in terms of Section 26 of the Act would, thus, not arise. The
  provisions of Section 26 of the Act would be attracted in limited
  cases. The provisions of this Section do not have a general
E application. These provisions can be attracted in the cases only
  where the ingredients stated in the Section are satisfied. The
  relief of rectification can be clajmed where it is through fraud
  or a mutual mistake of the parties that real intention of the
  parties is not expressed in relation to an instrument. Even then
F the party claiming will have to make specific pleadings and
  claim an issue in that behalf.

       8. The Learned Counsel appearing for the appellant
  placed reliance on the case of Puram Ram v. Bhaguram,
G [(2008) 4 SCC 102] and contended that since no relief for
  rectification has been prayed, the decree for specific
  performance ought not to be granted. This submission is based
  upon the misreading of the judgment of this Court. All that has
  been stated in the judgment is that Section 26 (4) of the Act
  only says that no relief for the rectification of an instrument shall
H
         SU8HADRA AND ORS. v. THANKAM                          309
             [SWATANTER KUMAR; J.]
be granted to any party under this section unless it has been          A
specifically claimed. However, proviso to Section 26 (4) of the
Act makes it clear that when such a relief has not been claimed
by the concerned parties, the Court shall, at any stage of the
proceedings allow him to amend the pleadings on such terms,
as may be just, for including such a claim and it would be             8
necessary for the party to file a separate suit. The legislative
intent in incorporating this provision, therefore, is unambiguous
and clear. The purpose is not to generate multiplicity of litigation
but to decide all issues in relation thereto in the same suit
provided the provisions of Section 26 of the Act are attracted         c
in the facts of a given case. We have already stated that the
provisions of Section 26 of the Act are not attracted in the facts
and circumstances of the present case. On the contrary; the
respondent had specifically taken up the plea that Ext. A 1 and
81 relate to sale of specific property and there was no·               0
ambiguity or mutual mistake. The Courts have returned a
concurrent finding in favour of the respondent and we see no
reason to disturb the said finding. _Th_e High Court has
specifically noticed that perusal of Ext. 81 shows that the
eastern boundary is the property owned by one Kuttappan
                                                                       E
Master and the northern boundary is shown as rest of the
property as old one. There is no controversy in the appreciation
of evidence and the Courts have recorded the concurrent
finding on the basis of evidence documentary and oral,
adduced before them and have taken a view which is
permissible and in accordance with law. The contention of law          F
raised before us on behalf of the appellant, in any case, has
no merit as aforestated.

     9. For the reasons afore recorded, we see no merit in the
present appeals and same are dismissed. While declining to             G
interfere in the concurrent judgment of the courts, we dismiss
these appeals. The parties are, however, left to bear their own
costs.

8.8.8.                                       Appeals dismissed.
                                                                       H