Whether the court can decree specific performance of part of the contract?

 Since title in respect of 100 square yards had passed to Pratap

Reddy and the suit for specific performance was barred by limitation, the Trial Court was constrained to decree the suit for specific performance in part, and direct that a Deed of Conveyance be executed in respect of the balance 200 square yards of the suit land, under the ownership and control of the Vendor.

87. Section 12 of the SRA is to be construed and interpreted in a

purposive and meaningful manner to empower the Court to direct specific performance by the defaulting party, of so much of the contract, as can be performed, in a case like this. To hold otherwise would permit a party to a contract for sale of land, to deliberately frustrate the entire contract by transferring a part of the suit property and creating third party interests over the same.

88. Section 12 has to be construed in a liberal, purposive manner

that is fair and promotes justice. A contractee who frustrates a

contract deliberately by his own wrongful acts cannot be permitted to escape scot free.

89. After having entered into an agreement for sale of 300 Sq.

yards of land, with her eyes open, and accepted a major part of the consideration (Rs.45,000/- out of Rs.75,000/-) it does not lie in the mouth of the Vendor to contend that the contract should not have specifically been enforced in part, in respect of the balance 200 sq. yards meters of the suit land which the Vendor still owned. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3574 OF 2009

B. SANTOSHAMMA & ANR. Vs D. SARALA & ANR. 

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Supreme Court: Agreement of sale signed by the vendor alone is valid

All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6197 of 2000

Decided On: 17.12.2008

 Alka Bose  Vs.  Parmatma Devi and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and P. Sathasivam, JJ.

Citation: AIR 2009 SC. 1527 

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Whether plaintiff can be denied specific performance of contract if he fails to verify that vendor alone is not entitled to execute agreement of sale?

Furthermore, considering the recitals contained in the partition deed marked as Ex.A1, which had been entrusted to the plaintiff at the time of the execution of the sale agreement, it is highly doubtful whether at all the defendants would be having absolute interest in respect of the suit property and the plaintiff had not endeavored to ascertain the entitlement of the defendants to the suit property by obtaining the encumbrance certificate with reference to the same and when it is found that as determined by the first appellate court in particular, there are other co sharers in respect of the said property and as the defendants would not   be entitled to convey the suit property in entirety to the plaintiff and the plaintiff is found to be not a vigilant purchaser and proceeded to enter into the sale transaction blindly, particularly without ascertaining the title  of the defendants to the suit property, in such view of the matter also, as determined by the first appellate court in particular, the plaintiff would not be entitled to obtain the sale deed from the defendants for the entire suit property as claimed in the plaint.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

PRONOUNCED ON:03.06.2019

CORAM:

THE HONBLE MR.JUSTICE T.RAVINDRAN

S.A.No.102 of 2007

and

M.P.No.1 of 2007

K.Govindarajan Vs.  Subramaniam

Citation: AIR 2020(NOC) 27 Mad

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Whether sale deed can be unilaterally cancelled by vendor by executing cancellation deed?

 The legal decision in this regard has also been reiterated in various other judgments as in Hamsa P.A. v. District Registrar General, Kozhikode (2011 (3) KHC 6). It has been held in paragraph 14 thereof, that the vendee cannot be divested of his title by the unilateral act of cancellation of the sale deed by the vendor. Even on cancellation of the sale deed, the vendor would not get title to the property and only the vendee can confer title to the vendor. It has also been held by the Division Bench of this Court in the common final order dated 14.3.2018 in IA. No. 227/2018 in Mat. Appeal. No. 778/2012 & IA. No. 2336/2015 in Mat. Appeal. No. 16/2013 that such unilateral cancellation of deeds is ultra vires in provisions of the Registration Act and Rules framed thereunder and is null and void etc.

7. In the instant case it is also relevant of bear in mind that Annexure 1 settlement deed was executed by Kunjamma in favour of James on 28.6.2002. The said James died on 3.10.2003. It is after the death of James that his mother Kunjamma has executed and got registered Annexures 2 & 3 cancellation deeds on 5.8.2005 & 7.2.2011. Therefore when the abovesaid Kunjamma had executed cancellation deeds Annexures 2 & 3, James was no longer alive and there was no question of any bilateral execution and registration of cancellation deeds with his consent etc. Annexures 2 & 3 cancellation deeds have not been executed with the consent of the petitioner and her daughter, who are the LRs of late James. Therefore it is only to be held that Annexures 2 & 3 are null and void and ultravires and at any rate it cannot bind James or his legal heirs like petitioner and her daughter Juliet James etc. There is no question of divestment of the title of James conferred on him as per Annexure-1 merely on account of Annexures 2 & 3 and therefore the same has no legal effect on the rights of the parties based on Annexure 1 settlement deed. of course if such bilateral cancellation of the deed is not possible due to difference of opinion between the parties, then certainly the remedy of the aggrieved person is to institute a civil suit before the competent court with civil jurisdiction seeking cancellation of the deed, in the manner known to law.

8. Accordingly it is ordered that the stand taken by the respondents in Ext.P-3 that the settlement deed proposed to be exeucted and registered by the petitioner in favour of her daughter in respect of the properties covered by Annexure 1 settlement deed, cannot be registered in view of the cancellation deeds as per Annexures 2 & 3 are illegal and ultra vires.

In the High Court of Kerala at Ernakulam

(Before Alexander Thomas, J.)

Lali Yohannan  v. State of Kerala, 

W.P. (C) No. 37908 of 2018

Decided on November 29, 2018

Citation: 2018 SCC OnLine Ker 8056

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Whether registered sale deed can be discarded on ground that it does not bear signature of vendor where his name is written?

 An interesting question arises in this appeal is, as to whether a registered sale deed which does not bear signature of the vendor at the place where his name is written as the vendor, but bears his signatures in places where corrections are made in the text of the sale deed and it also bears signature on the reverse of the last page along with his thumb impression, acknowledging receipt of balance consideration, before the Registrar, can be said to be a valid sale deed or it has to be discarded only because signature of the vendor is absent at the place where his name is written as the vendor.

 In the light of the aforesaid position of law, it becomes clear that mere absence of signature of respondent No. 1 at one place in the aforesaid registered sale deed dated 25.01.1999, cannot become the basis for the respondent No. 1 to claim that such sale deed was never executed. The aforesaid question of fact regarding execution of the registered sale deed has to be ascertained on the basis of evidence on record. In the present case, the evidence on record is in the form of both attesting witnesses and the scribe appearing before the Court and deposing in favour of execution of the aforesaid registered sale deed by the respondent No. 1 in favour of the appellant. There is record of the Registrar's Office and facts have come on record showing that the respondent No. 1 is a well educated person and not an illiterate person who was taken for a ride by the appellant and misled into execution of a document which the respondent No. 1 never intended to execute. The appellate Court has erred in proceeding on the basis that the appellant ought to have proved that the signatures and thumb impression on the aforesaid registered sale deed were that of the respondent No. 1, when it was the respondent No. 1 who was denying his signatures and thumb impression on the registered document. Being the plaintiff, the burden was on respondent No. 1 to prove that the signature and thumb impression on the sale deed were not his, particularly because it was a registered document. It is also a fact that the respondent No. 1 never filed any police complaint in respect of his signatures having been allegedly forged on the registered sale deed dated 25.01.1999, which is also a relevant factor in the present case. The appellant examined both the attesting witnesses and scribe to prove that the respondent No. 1 indeed executed the registered sale deed on 25.01.1999 in the Registrar's Office. The appellate Court has held that emphasis placed by the trial Court on admission of respondent No. 1 about oral agreement to sale, was misplaced. But, this conclusion of the Appellate Court is also erroneous because the admission of oral agreement on the part of the respondent No. 1 did indicate that the parties were in the process of executing the aforesaid registered sale deed pertaining to the suit property. Even if the appellate Court found that the agreement dated 23.01.1998 was a suspicious document, admission of respondent No. 1 that there was an oral agreement did assume significance in the facts and circumstances of the present case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 55 of 2016

Decided On: 10.04.2018

 Ramesh Vs.  Ratnakar and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018( 5) MHLJ 132

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Whether sale deed not signed by purchaser is valid?

This is obviously because the said document is executed by the vendor in their favour. In this context, the question that arises for consideration is, as to whether it is mandatory that purchasers need to sign on sale deeds that are executed in their favour by the vendor. In the context of agreement of sale, the Hon'ble Supreme Court in its judgment in the case of Aloka Bose (supra) has held as follows:-

"16. On the other hand, the observation in S.M. Gopal Chetty, MANU/TN/0069/1997 : AIR 1998 Madras 169 that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it."

In the context of execution of sale deed, the Andhra Pradesh High Court in the case of Fazal Ullah Khan vs. State of Andhra Pradesh and others (supra) has held as follows:-

"11. A party to a transfer can certainly cancel it in case necessary ingredients as provided for under law, are established. Such transaction can be sale or for that matter any conveyance including gift, mortgage, exchange and the like. Though transactions such as sale and gift are brought into existence with unilateral acts of execution of the documents, the legal effect thereof is that the title in respect of the property stands transferred in favour of the transferred name therein, notwithstanding the fact that the transferee may not have subscribed his signature in the documents. From this point of view, the sale deed on the one hand and the gift deed on the other, stand on the same footing."

14. It appears that in transactions like the sale deed at Exh. 31 in the present case, in the context of sale and purchase of immovable property, it is the signature of the vendor being a person who executes the document that is crucial and absence of signature of purchasers does not render the document defective in any manner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 324 of 2002

Decided On: 23.03.2018

Hemant  Vs. Naresh and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5) MHLJ 246

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How to ascertain whether a transaction is sale transaction or mortgage transaction?

The recitals "your amount shall carry no interest and my fields will not carry any rent" indicate that the consideration received by the transferor was to be treated as a debt. The interest was payable in the shape of appropriation by the transferee of the rent which he would otherwise be liable to pay to the transferor. That there has been an express mention of interest militates against any assumption that the transaction was intended to operate as an absolute sale. The stipulation that the transferee was to pay land revenue appears to be of no significance beyond the fact that the person who was to enjoy the profits was to bear the burden. Then the recital "I cease to have any right, etc., for five years" followed by the expression "I shall pay and shall redeem my fields" clearly goes to prove the existence of the relation of debtor and creditor between the parties. The vernacular words equivalent to the word "redeem" are "sodun ghein"  which mean 'release or redeem.' These are significant inasmuch as if there had been an intention to purchase back the fields, the words used would have been 'vikat ghein' .

10. In the premises, the impugned judgment and order of the lower Appellate Court does not disclose any error of law in the matter of construction of the document. The construction of a document is a mixed question of law and fact. As I have noted above, it is essentially to be decided by considering the words employed by the parties, though it is permissible to take into account surrounding circumstances in case the words used are not sufficiently clear to designate their effect. The words used in the present case are sufficiently clear and their effect is to create a mortgage by conditional sale with a right of redemption preserved unto the debtor. The relationship conveyed by the document is of debtor and creditor and not of vendor and buyer.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 369 of 2013 and Civil Application No. 1011 of 2013 in Second Appeal No. 369 of 2013

Decided On: 07.03.2017

Mangal Popatrao Sodmise Vs.  Abdagiri Vishvanath Narale

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2017(6) MHLJ 152

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Whether dealer, manufacturer or distributor can be prosecuted alongwith vendor in case of prevention of food adulteration Act?

The other ground namely that the dealer, manufacturer or distributor cannot be prosecuted alongwith the vendor by impleading all of them initially as the accused in a prosecution under the Act is unsustainable in view of the decision of this Court in Bhagwan Dass Jagdish Chander v. Delhi Administration MANU/SC/0092/1975 : [1975] Supp. S.C.R. 30. In that case after considering the effect of Section 19(2), Section 20 and Section 20-A of the Act, Court observed at pages 36-37 thus:

We are also unable to accept as correct a line of reasoning found in V.N. Chokra v. The State MANU/PH/0283/1965 and Food Inspector, Palghat Municipality v. Setharam Rice and Oil Mills MANU/KE/0114/1974 : (1974) F.A.C.P 534 and P.B. Kurup v. Food Inspector, Malappuram Panchayat (1969) K L T 845 that in every case under the Act, there has to be initially a prosecution of a particular seller only, but those who may have passed on or sold the adulterated article of food the vendor, who is being prosecuted, could only be brought in subsequently after a warranty set up under Section 19(2) has been pleaded and shown to be substantiated. Support was sought for such a view by referring to the special provisions of Section 20A and Section 19(2) and Section 20 of the Act. A reason for Section 20A seems to be that the prosecution of a person impleaded as an accused under Section 20A in the course of a trial does not require a separate sanction. Section 20A itself lays down that, where the Court trying the offence is itself satisfied that a "manufacturer, distributor or dealer is also concerned with an offence", for which an accused is being tried, the necessary sanction to prosecute will be deemed to have been given. Another reason seems to be that such a power enables speedy trial of the really guilty parties. We are in agreement with the view of the Delhi High Court that these special provisions do not take away or derogate from the effect of the ordinary provisions of the law which enable separate as well as joint trials of accused persons in accordance with the provisions of the old. Sections 233 to 239 of Criminal Procedure Code. On the other hand, there seems no logically sound reason why, if a distributor or a manufacturer can be subsequently impleaded under Section 20A of the Act, he cannot be joined as a co-accused initially in a joint trial if the allegations made justify such a course.

(emphasis added)

Equivalent Citation: 1983(7)ACR337(SC), AIR1983SC545, 1983 AWC 668 SC, 1983CriLJ980, 1983KLJ301, (1983)85PLR496, 1983(1)SCALE365, (1983)2SCC384, [1983]2SCR714

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 286-292 of 1981

Decided On: 07.04.1983

Appellants: State of Punjab
Vs.
Respondent: Devinder Kumar and Ors.

Hon'ble Judges/Coram:
A.N. Sen and E.S. Venkataramiah, JJ.

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Whether vendee can claim compensation from vendor on ground that decree was passed in respect of purchased property?

Moreover the learned Judge relied upon English law for holding that the passing of the decree would constitute a cause of action for compensation for breach of the covenant of title. Under the law of contract in India compensation can only be claimed under S. 73, Contract Act, when loss or damage has been caused, and it is doubtful whether it could be held that the mere passing of the decree actually causes any loss or damage before the decree has been executed. For the respondents reliance has been placed not only upon 52 All 604 Muhammad Siddiq v. Muhammad Nuh, 1930 All 771=124 I C 185=52 All 601=1930 A L J 653, but also on a Full Bench decision in 1932 Nag 5 Kasi Rao v. Zabu, 1932 Nag 5=136 I C 225= 28 N L R 31 (F B). It appears to us that, apart from the terms of the sale-deed itself, the plaintiffs had not got any cause of action for the suit as they had not been dispossessed. If we turn to the terms of the sale-deed, it is clear that the plaintiffs are not yet entitled to claim compensation. It was definitely provided in the sale-deed that in case of any disturbance or dispute the buyer could claim his money with interest from the seller from the date of dispossession. Evidently it was not the intention of the parties that the buyer could claim compensation unless and until he is dispossessed, and that contingency has not yet arisen. We agree with the Courts below and dismiss the appeal with costs.

IN THE HIGH COURT OF OUDH

Second Appeal No. 101 of 1934

Decided On: 06.12.1935

Appellants: Bhagwati Prasad and others
Vs.
Respondent: Badri Prasad and others

Hon'ble Judges/Coram:
King, C.J. and Nanavutty, J.

Citation: AIR1936Oudh141

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Whether court should award damages in case of wilful default by vendor in case of agreement of sale?

The defendant knew that the immoveable property, which he agreed to sell, was his ancestral property; and it is difficult to accept the suggestion made before us under the circumstances of this case that he could not realise the limitations upon his power to alienate this property which was part of the ancestral property and in which his minor sons had a vested interest according to Hindu Law. The limitations upon his power to alienate ancestral immoveable property are by no means obscure; and I do not believe that the defendant was not aware of them at the date of the agreement. When he was called upon to make good the title, he did not, and it is now conceded that he could not ask for the sanction of the Court for the sale on behalf of the minors on the ground of necessity or any other ground which would entitle him to convey the full title to the property so as to bind his minor sons. I do not see how he could be heard now to say that when he entered into this agreement he did not realise the limitations upon his power to sell this property. In the case of, a vendor who agrees to sell property which he knows he is not competent to sell except under certain circumstances he cannot take advantage of a Clause in the contract such as we have in the present case; nor can he urge with justice that he is not liable to pay damages on the footing of wilful default. On the facts it seems to me that this is clearly a case in which with full knowledge of the limitations on his power the defendant contracted to sell this property. It is right, therefore, that the damages should be assessed on the lines directed by the Trial Court.

Bombay High Court

Vallabhdas Tulsidas vs Nagardas Juthabhai on 23 September, 1921

Equivalent citations: 92 Ind Cas 143

Bench: N Macleod, Shah

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Whether vendor of property can plead that he has not received sale consideration contrary to recital of sale deed?

In the sale deed it was expressly recited that Rs. 101/- were paid at the time of the agreement of sale. That recital was supported by the recital in Ext. E in the agreement of sale. It was also recited in the sale deed, Ext. C, that Rs. 899/- were received before the date of the sale, and Rs. 500/- were received before the Sub-Registrar. Payment of Rs. 500/- is supported by the endorsement on the sale deed itself. It is true that apart from the recital about the payment of Rs. 899/- there is no other documentary evidence to prove that payment. The burden of proving that the consideration was not received by the vendor, however, lay upon the plaintiffs and no serious attempt was made to discharge that burden. The plaintiffs set up the case that Rs. 500/were taken back from Sarala after she left the Sub- Registrar's office. The High Court disbelieved this part of the case about repayment of the amount of Rs. 500/- by Sarala received by her before the Sub-Registrar. The High Court observed that about the payment of the balance of the consideration, namely Rs. 899/-, "there was no evidence at all on the side of the defendants that the same was paid". In our judgment, the High Court misconceived the nature of the onus which lay upon the plaintiffs to prove that the consideration which it was recited in the deed was received by Sarala was not in fact received by her and a false recital was made. The recitals in the deed are supported by the testimony of Sailendra Nath Nandi who said that the entire consideration was received by Sarala. We are unable to accept the view of the High Court that the sale deed was not supported by full consideration.

Supreme Court of India

Rani & Anr vs Santa Bala Debnath & Ors on 14 October, 1970

Equivalent citations: 1971 AIR 1028, 1971 SCR (2) 603

Bench: Shah, J.C.

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Whether Sale deed signed by only vendor is valid?

Indian Evidence Act, 1872 – Sections 91 and 92 – It is not open to a party to a document to prove by oral evidence a variation in the terms of the document or as to the amount of consideration shown in the document. 

Indian Evidence Act, 1872 – Sections 91 and 92 – Parole evidence given for the purpose of proving variation in the amount of consideration shown in the document would be inadmissible under S.92 of the Evidence Act. 

Indian Evidence Act, 1872 – Sections 91 and 92 – The bar under S.91 and S.92 of the Evidence Act will not apply for proving want of consideration or failure of consideration. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - Sale deeds only contain the signature of the vendors thereunder and not the respective vendees - That will not render those sale deeds invalid as contracts for want of mutuality on the ground that they are only unilateral instruments. All that is necessary is to ensure that the essential parts of a modern conveyance namely, the “parties, the recitals, testatum, operative words, parcels, habendum and testimonium” are present in the instrument. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - There is no scope any more for anybody to contend that an agreement for sale or a sale deed (deed of conveyance) executed by the prospective vendor or the vendor, as the case may be, is a unilateral document or instrument and is not a contract which can be enforced in law. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - An agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.

IN THE HIGH COURT OF KERALA

A.F.A. No. 59 of 1994

Decided On: 13.01.2012

 Vasu @ Bhaskaran Vs.  Parukutty Amma & Anr.

Hon'ble Judges/Coram:
V. Ramkumar and K. Harilal, JJ.

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