REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 3249 OF 2005

Shanker Singh ...   Appellant Versus

Narinder Singh & Ors. ...         Respondents

J U D G  E M E N T

H.L. Gokhale J.   

This appeal by special leave under Article 136 of the Constitution of  

India, seeks to challenge the judgment and order dated 8.4.2003 rendered by a  

learned Single Judge of the Punjab and Haryana High Court,  in Civil  Regular  

Second Appeal No. 1338/1983.  The learned Single Judge has allowed the said  

second appeal  by the respondent  Nos.  1 and 2 (contesting respondents  and  

original plaintiffs), who had filed a suit for specific performance of an agreement  

entered into with the appellant  (original  defendant  No. 1).   Although various  

questions of law are sought to be raised in this appeal, the relevant questions for  

our determination are mainly two viz. (a) whether the High Court has erred in  

applying the provisions of Sections 12, 14 and 20 of the Specific Relief Act 1963  

(hereinafter referred as ‘the act’ for short), and (b) whether the agreement in  

question being vague in nature was incapable of being performed?

Facts leading to this present appeal are as follows:-

2. On  12.1.1977  the  appellant  herein,  a  resident  of  Village  Dera  

Saidan entered into an agreement to sell certain property with the respondent  

No. 1, a resident of Dera Mainda, both villages being in Tehsil Sultanpur, Distt.  

Kapurthala of State of Punjab.  The property to be sold consisted of two parts  

viz. agricultural land, and a house property.  The Agricultural lands were bearing  

Khasra  nos.  25/21/1-1/11-19,  26//24/6-11,  10/8-0,  12/5-8,  19/6-13,  20/8-0,  

25//5/8-0, 15/8-0, 16/8-0, 17-8-0, 18/6-14, 21/2/5/7, 22/5-14, 23/8-0, 24/8-0,  

25/7-18, 26/2-0, 34//2/6-14, 25//13/3-13.  

3.  The relevant clause of the agreement stated as follows:-

“Whereas the first party is the owner of ½ share in 65-13 and the total  

area of the first party is 92-K-17M and the remaining one house in the abadi  

Dera Saidan bounded by the custodian on the east, Kartar Singh on west, Pahar-

passage on the south and the ½ share belongs to the wife of the first party  

namely Pritam Kaur.  Now I am in need of purchasing property and therefore,  

now I am executing this writing in my full senses and dealing to sell the ½ share  

in lands measuring 92K-17M along with motor, bore, passage, fan and water  

pump fitted with engine and without engine along with the place for placing  

garbage including shamlat and including passage and all the rights which vest in  

Pritam Kaur and also execute this deal for sale on behalf of Pritam, with the  

party  of  the  2nd part  for  a  total  consideration  of  Rs.  1,24,500/-  and  I  have

received  a  sum of  Rs.  28,000/-  in  cash  as  advance  money  in  front  of  the  

witnesses.  The purchaser will  get the registry executed on 25 th day of Magh  

2034 and the possession will be handed over at the time of registry.”

It was also agreed that if the appellant violated the terms of the  

agreement, then the respondents were entitled to the recovery of Rs. 28,000/-  

as earnest money and Rs. 28,000/- as damages, the total coming to Rs. 56,000/.  

It was further agreed that if  there was any addition or decrease in the area  

agreed  to  be  sold  belonging  to  appellant,  the  price  of  the  same was  to  be  

adjusted accordingly.

4. It  so  transpired,  that  on  the  agreed  date  of  registration  the  

appellant  did  not  turn  up at  the  office  of  the  Sub-Registrar,  and hence the  

respondent  gave  a  notice  to  the  appellant  to  execute  the  sale  deed.  The  

appellant  did not respond, and therefore the respondent No. 1 filed Suit No.  

21/1978 in the Court of Sub Judge 1st Class, Sultanpur Lodhi for the specific  

performance of the agreement.  The wife of Shanker Singh, Pritam Kaur was  

joined as defendant No.2.  (She is reported to have expired in 1997).  The other  

co-sharers of the land had sold their land in dispute in favour of one Joginder  

Kaur and three others who were joined as defendant Nos. 3 to 6 (Respondent  

Nos.  4 to 7 in the Civil Appeal).

5. The appellant  raised various defences.  Firstly he denied having  

entered into the agreement, and then he claimed of having received only Rs.  

8,000/- and not Rs. 28,000/- as earnest money.  Thereafter, he contended that

he did not have the authority to enter into the agreement to sell ½ share in the  

house  property  which  belonged  to  his  wife.   Lastly  he  contended  that  he  

alongwith his two minor sons Amrik Singh and Balbinder Singh formed a Hindu  

Undivided Family (HUF), and that he could not sell  the coparcenery property  

except in the case of legal necessity and for the benefit of the family.

6. The Trial Court framed the following issues:

1) Whether  the  agreement  in  question  was  executed  by  Shanker   

Singh defendant in his own behalf and on behalf of defendant No.  

2 for consideration?

2) Whether Shanker Singh was competent to enter into agreement on  

behalf of defendant No. 2?  

3) Whether  the  property  in  suit  is  the  co-parcenary  property  as   

alleged in para No. 1 (on merits) of the written statement filed by  

defendants No. 1 & 2?

4) Whether the plaintiffs have been ready and willing to perform their  

part of the agreement?

5) Whether defendant No. 1 has committed breach of the agreement?

6) Whether the plaintiffs are entitled for specific performance of the  

amount claimed?

7) Relief.

7. The respondent examined himself, the writer of the agreement and  

one of the witnesses of the agreement to prove the document of sale.  The Trial   

Court held on issue No. 1 that the evidence of the writer of the agreement and  

that  of  the  attesting  witness  was  reliable,  and  that  the  earnest  money  of  

Rs. 28,000/- had in fact been paid.  The agreement in question was therefore  

proved to be a duly executed document.  This finding has been left undisturbed  

in the first appeal as well as in the second appeal.

8. As far as the second issue with respect to the competence of the  

appellant  to  enter  into  the  agreement  on  behalf  of  his  wife  is  concerned,  

although  the  wife  of  appellant  Smt.  Pritam  Kaur  did  file  a  separate  written  

statement, she did not enter into the witness box.  The Trial Court therefore,  

held that an adverse inference will have to be drawn that she had given such an  

authority to her husband to sell her property.  It further held that when Shanker  

Singh had agreed to sell his entire land, there was no logic on his part to retain  

the house, when he alongwith his wife had decided to shift to some other place  

after purchasing some other property as is evidenced from the agreement.   

9. As far as issue No. 3 is concerned, the appellant contended that he  

had purchased the land in dispute from the proceeds of the sale of his ancestral  

land at village Nihaluwal, which ancestral land belonged to his father Lachhman  

Singh.  He produced documents which showed that he as well as his brother  

Puran Singh and his sisters had sold their lands at village Nihaluwal.  However,  

the appellant could not prove that the land in dispute was purchased from the  

proceeds of the sale of the land which came to his share from his father.  The  

learned Single Judge noted that in any case the property in dispute was not one  

inherited by the appellant from his father.  He observed that the land in dispute  

for being proved to be an ancestral one, must be shown to have been held at  

one time by the ancestor, and that it has come to the appellant by survivorship.

The learned Trial Judge therefore held that the disputed land could not be held  

to be a co-parcenery property wherein the minors had any share.  The burden  

that the disputed land, was a co-parcenery property was on the appellant, and  

he had failed to discharge the same.

10. The Trial  Judge held that the respondents were of course ready  

and willing to perform their part of agreement, and it is the appellant who had  

failed to discharge his obligation.  The learned Judge therefore decreed the suit  

for specific performance by his judgment and order dated 20.2.1980.

11. The appellant herein challenged this judgment in Civil Appeal No.  

62 of 1980 (which appears to have been numbered subsequently as Civil Appeal  

No. 92 of 1981).  The learned Additional District Judge who heard the appeal  

held  that  as  far  as  the  agreement  is  concerned,  the  same  had  been  duly  

executed, and that the appellant had received the amount of Rs. 28,000/- as  

earnest money.  As far as the issue with respect to the interest of the minors is  

concerned, he held that for proving the property to be ancestral, the appellant  

had to show that the land in Village Nihaluwal was originally held by his father  

Lachhman Singh, and it was the same land which was sold by him and those  

proceeds had led to the purchase of the land at Dera Saidan.  The learned Judge  

however, noted that no documentary evidence of holding of Lachhman Singh  

with respect to the land at Nihaluwal had been produced, nor was there any  

revenue entry of  the name of Lachhman Singh in the disputed land at Dera  

Saidan.  Hence the disputed land could not be held to be co-parcenery property.

12. The First Appellate Court however found fault with the respondents’  

claim on two counts.  Firstly, it noted in para 6 of its judgment that ‘although it   

has not been made clear in the agreement, it appears that Puran Singh, (the  

brother of the appellant) was the owner of the other ½ share in the house as  

Puran Singh and Shanker Singh had purchased their land jointly in equal shares  

in Village Dera Saidan.’  There was no dispute that ½ share of the house was  

owned by Pritam Kaur, wife of the appellant.  She had filed a written statement  

opposing the decree.  Therefore, in the same paragraph the court subsequently  

observed ‘it has already been held that even in respect of half the share in the  

house, Shanker Singh, defendant No. 1 had no authority to sell the same and the  

plaintiffs have no right to claim a decree for the same.’  The Court therefore held  

by its judgment and order dated 23.2.1983 that the appellant could not sell, or  

agree to sell the property of his wife without her written consent, and therefore  

the agreement was incapable of being performed in respect of the house.   

13. The second count  on which the First  Appellate  Court  found the  

claim of the respondents to be incapable of acceptance was that though the  

agreement provided for  the sale of  92 Kanals  and 17 Marlas of  land, it  was  

actually found to be 94 Kanals and 16 Marlas (i.e. 1 Kanal and 19 Marlas in  

excess).   After  examining  the  evidence  on  record,  the  Court  observed  as  

follows:-

“……Now in the agreement Ex. P.1 the consideration of the   whole  property  has  been  fixed  at  Rs.  1,24,500/-  and  the   consideration for the house has not been determined separately.   Again, the agreement provides for the sale of 92 Kanals 17 Marlas   of land and at the end it  has been added that if  any land was   found to be in excess or deficient, then the consideration would be  

increased or decreased correspondingly.  Now, in actual fact it has   been found that  the  holding  of  Shanker  Singh is  94  Kanals  16   Marlas.  However, in the agreement no separate consideration for   the land has been given nor is the rate of the sale given and it is   not possible  to determine as to what should be the cost of the   excess land of 1 Kanals 10 Marlas. Had the price of the land been   mentioned separately, it could have been possible to work out the   price of  the excess area by mathematical  calculation but as the   agreement stands this is not possible…..”

It  was obvious  that  such an excess share of  land could not  be  

segregated.  The court therefore,  held that the whole of the agreement was  

incapable  of  specific  performance.   Hence it  set  aside  the decree  of  specific  

performance.  The Court found fault with the appellant also for entering into the  

agreement for sale of ½ share in the house belonging to his wife without any  

authority.  It, therefore, directed refund of the earnest money of Rs. 28,000/-.

14. The respondents  challenged the judgment of  the First  Appellate  

Court by filing a Regular Second Appeal No. 1338 of 1983 in the High Court.  

However, having noted the finding of the First Appellate Court that Smt. Pritam  

Kaur  had  ½ share  in  the  house  property,  and  it  could  not  be  sold  by  the  

appellant herein, and also since the land was found to be in excess by 1 Kanal   

and 19 Marlas,  the respondents  submitted  in  the High  Court  that they were  

ready to give up the claim for ½ the share of Smt. Pritam Kaur in the house, and  

were also ready to restrict themselves to the purchase of land of 92 Kanals and  

17 Marlas as per the agreement, and nothing more.  The order passed at the  

time of admission of the second appeal reads as follows:-

“ Dt. The 19th October, 1983.    Present

The Hon’ble Mr. Justice J.M. Tandon For the appellant  :-  Mr. Anand Swaroop, Sr. Advocate  

with Mr. Sanjiv Pabbi, Adv.     

For the respondents:- Mr. H.S. Kathuria, Adv. For Res. No. 1 and 2

Order

Mr. Sanjiv Pabbi, learned counsel for the appellants, states that the   appellants are prepared to pay full consideration of Rs. 1,24,000/- as   stipulated in the agreement for the purchase of the land and the share   of  Shanker  Singh  respondent  in  the  house.   Says  further  that  the   appellants  will  not  press  for  the transfer  of  half  share of  the house   which is owned by Pritam Kaur, wife of Shanker Singh.

Admitted. Sd/-

 J.M.  Tandon                  Judge”

15. The High Court therefore, framed the substantial questions of law  

as follows:-  

“Whether the plaintiffs are entitled to specific performance   of  the agreement  in  respect  of  valid  part  of  the agreement  on   payment of the entire sale consideration in terms of Section 12 of   Specific Relief Act, 1963.”

It was submitted on behalf  of  the respondents herein  that they  

were entitled to relinquish the part of the agreement which was not enforceable,  

and the same was permissible under Section 12 (3) of the Act.  They relied upon  

the dicta of this Court in  Kalyanpur Lime Works Ltd. Vs. State of Bihar  

reported in AIR 1954 SC 165 to the effect that such an relinquishment can be  

made at any stage of the proceedings.  This proposition of a Bench of three  

Judges in Kalyanpur Lime Works (supra) has been reiterated by this Court in  

Rachakonda Narayana Vs. Ponthala Parvathamma reported in  2001 (8)

SCC  173.   The  learned  Judge  hearing  the  second  appeal  accepted  this  

submission,  and  by  his  impugned  judgment  and  order  allowed  the  second  

appeal, and decreed the suit filed by the respondents for specific performance  

for agriculture land admeasuring 92 Kanals and 17 Marlas after recording the  

statement of the counsel for the respondents that they were relinquishing that  

part of the agreement which was not capable of being performed.

16. Mr.  Venkataramani,  learned  senior  counsel  appearing  for  the  

appellant assailed the impugned judgment on various grounds, as against which  

Mr.  Vishwanathan,  learned  senior  counsel  appearing  for  the  respondents  

defended the judgment as a proper one in the facts of the case.  Amongst other  

submissions, it was contented on behalf of the appellant that minors’ share could  

not have been sold without the permission of the Court in view of the provision  

of Section 8 (2) of the Hindu Minority and Guardianship Act, 1956.  However in  

view of the concurrent findings as recorded all throughout in the present case,  

one  cannot  say  that  the  minor  sons  of  the  appellant  had  any  share  in  the  

concerned property which required the permission of the Court for its sale.  It is,  

therefore, not possible to accept this submission.

17. It was then submitted that the agreement was incapable of being  

implemented as rightly held by the Additional District Judge, and that the High  

Court had erred in its application of the provisions of Section 12, 14 and 20 of  

the act. Firstly, this was on the ground that there was no specific reference to  

the price of the land per Kanal or per Marla as held by the Additional District  

Judge.   Secondly,  it  was  submitted  that  the  relinquishment  was  not

unambiguous.   The respondents  had offered  to give  up their  claim for  such  

excess land, but it was not possible to state that the claim was being given up  

with respect to a particular parcel of land bearing a specific Khasra number.  The  

agreement was vague in nature and since the proposed relinquishment was also  

ambiguous, the agreement was incapable of being performed.   

Consideration of the rival submissions

18. In this connection, we may refer to the relevant provisions of the  

Act.  Section 12(3) of the Act permits a party to an agreement to relinquish a  

part of the agreement which is not enforceable.  However, it should be possible  

to  identify  and  demarcate  that  part  of  the  agreement  which  is  not  to  be  

enforced.  We must also keep in mind the provision of Section 14 of the Act  

which  deals  with  contracts  which  are  not  specifically  enforceable,  and  Sub-

Section 1 (b) thereof includes  therein a contract  which runs into minute and  

numerous details, as is seen in the present case.  In this connection, we must as  

well refer to Section 20 (1) of the Act which reads as follows:-

“Section  20.  Discretion  as  to  decreeing  specific   performance – (1) The jurisdiction to decree specific performance   is discretionary,  and the court  is  not bound to grant such relief   merely because it is lawful to do so; but the discretion of the court   is  not  arbitrary  but  sound  and  reasonable,  guided  by  judicial   principles and capable of correction by a court of appeal.”

19. Damages  and  specific  performance  are  both  remedies  available  

upon breach of obligations by a party to the contract.  The former is considered  

to be a substantial remedy, whereas the latter is of course a specific remedy.  It  

is true that explanation (i) to Section 10 of the Act provides that unless and until  

the  contrary  is  proved,  the  Court  shall  presume  that  breach  of  contract  to  

transfer immovable property cannot be adequately relieved by compensation in  

money.  However, this presumption is not an irrebuttable one.  That apart, for a  

specific performance of a contract of sale of immovable property, there must be  

certainty with respect to the property to be sold.  As held by this Court in para  

18 of Mayawanti Vs. Kaushalya Devi reported in 1990 (3) SCC 1 :-

“18.  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 of showing the stipulations and   terms  of  the  contract  and that  the  minds  were  ad idem 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………….”

20. Mr.  Vishwanathan,  learned  senior  counsel  for  the  respondents  

submitted that the relinquishment of a part of the agreement was permissible.  

As far as the propositions of law concerning relinquishment as canvassed by the  

respondents  are  concerned,  there  is  no  difficulty  in  accepting  the  same.  

However, the relinquishment has to be unambiguous.  As held by this Court in  

Surjit Kaur Vs. Naurata Singh  reported in  2000 (7) SCC 379, the party  

seeking  part  performance  must  unambiguously  relinquish  all  claims  to  

performance of remaining part of the contract.  In the present case the offer of  

relinquishment by the respondents cannot be said to be an unambiguous one,  

and  it  will  be  difficult  to  decide  as  to  which  portion  of  the  land  is  to  be  

segregated to be retained with the appellant, and which portion is to be sold.

Firstly,  this  is  because  as  rightly  noted by  the  Additional  District  Judge,  the  

agreement  does  not  specifically  mention  the  price  of  the  land,  and  in  the  

proposed relinquishment, the respondents have not stated as to which portion of  

land (admeasuring 1 Kanal and 19 Marlas) they were agreeable to retain with  

the appellant.  Secondly, in the agreement there is also a mention of ‘a motor,   

bore, passage, fan and water pump fitted with engine and without engine along  

with the place for placing garbage including shamlat’  amongst the properties  

which were being sold.  It is not on record as to which parcel of land is having all  

these features.  A question will therefore arise as to with whom such a parcel of  

land is to be retained.  Obviously, a segregation of the land in dispute into two  

portions will be difficult.  

21. In the present case there is one more difficulty viz. with respect to  

the  relinquishment  concerning  the  house.  The  First  Appellate  Court  had  

categorically  observed  in  para  6  of  its  judgment  as  quoted  above,  that  the  

brother of the appellant, Puran Singh appeared to be the owner of the other ½  

share of the house, and the remaining ½ share was in the name of Pritam Kaur,  

and that Shanker Singh did not have any authority to sell it.  The judgment of  

the  High  Court  does  not  show that  this  finding  had been challenged  in  the  

Second Appeal.  Nor was any submission made in this behalf before this Court.  

What the respondents offered was to give up the claim for the share of Pritam  

Kaur, and also the claim for the excess land of 1 Kanal and 19 Marlas which was  

accepted  by  the  High  Court  in  its  impugned  judgment.   The  respondents,

however, claimed to retain the alleged ½ share of Shanker Singh, as can be  

seen from the order dated 19.10.1983 which is passed at the time of admission.

22. Thus, the respondents made a statement at the admission stage  

that they were ready to pay the full consideration for the land as stipulated in  

the agreement, and for the share of Shanker Singh in the house.  This order  

dated 19.10.1983 records that the respondents were ready to give up their claim  

for ½ the share of the house owned by Pritam Kaur, but maintained the claim  

for the share of Shanker Singh in the house.  As against that it appears from the  

judgment of the First Appellate Court, that Shanker Singh did not have any such  

share in the house.  His wife had ½ share, and his brother Puran Singh had ½  

share.  In the teeth of this finding of the First Appellate Court, which is neither  

challenged nor reversed by the High Court, the proposed relinquishment cannot  

be said to be a correct and unambiguous one.  It does not alter the scenario and  

the agreement continues to remain incapable of performance.  In any case it is  

not clear as to how such an agreement could be acted upon.

23. Therefore, for the reasons stated above, we have to hold in the  

peculiar  facts  and  circumstances  of  this  case  that  inspite  of  the  offer  of  

relinquishment made by the respondents herein, the specific performance of the  

agreement cannot be granted, solely on the ground that it is incapable of being  

performed.   We have also to hold that the High Court  erred in applying the  

provisions of Sections 12, 14 and 20 of the Act to the facts of the present case  

and  in  exercising  its  discretion,  since  this  was  not  a  case  for  specific

performance.  We have therefore to allow this appeal and set-aside the order  

passed by the High Court in Regular Second Appeal No. 1338 of 1983.  The suit  

filed by the respondents will have to be dismissed.   

24. We  have  however  to  note  that  the  respondents  had  paid  the  

earnest money of Rs. 28,000/- at the time of entering into the agreement way  

back on 12.1.1977 i.e. nearly 35 years ago. The respondents will therefore have  

to  be  compensated  adequately.   On  the  question  of  the  appropriate  

compensation, it was submitted by Mr. Venktaramani, the learned senior counsel  

for the appellant that the agreement was made at a difficult time in the social life  

of Punjab for a throw away price. However, no evidence is placed on record to  

that effect.  He then pointed out that the appellant had contended in the lower  

courts that respondents were influential people.  Even so, it cannot be ignored  

that  inspite  of  the  agreement,  the  land  has  remained  with  the  appellant  all  

through out in view of the orders passed by the courts from time to time, due to  

which he has benefited.  The specific performance of the agreement is being  

denied basically  because of  the finding that the agreement was incapable  of  

being performed inspite  of  the  offer  of  relinquishment.   It  is  an  adage that  

money doubles itself in ten years, and on that basis the amount of Rs. 28,000/-  

with an appropriate interest will come to atleast Rs. 3,50,000/-.   If the land was  

with the respondents, they would have earned much more.  Having seen this  

position, Mr. Venktaramani has fairly left it to the Court to decide an adequate  

amount to be paid to the respondents by way of compensation and in lieu of  

specific  performance  of  the  concerned  agreement.  Accordingly,  having

considered all the relevant aspects, we are of the view that to meet the ends of  

justice, the appellant should be directed to pay the respondents an amount of  

Rs.  5,00,000/-  which  will  be inclusive of  the earnest  money with  due return  

thereon, and compensation.  

25. We, therefore, allow this appeal and set-aside the judgment and  

order dated 8.4.2003 passed by the High Court in Civil Regular Second Appeal  

No.1338/1983, as well as the one dated 20.2.1980 rendered by the Sub Judge at  

Sultanpur Lodhi in Suit No.21/1978.  The suit shall stand dismissed.  There will  

be no order as to costs.  However, the appellant is hereby directed to pay an  

amount of Rs. 5,00,000/- to the respondents which amount shall be paid in any  

case by the end of March, 2012.

…………..……………………..J.  ( P. Sathasivam  )

  …………………………………..J.  ( H.L. Gokhale  )

New Delhi  

Dated: December 15, 2011