The plaintiff wanted the defendants to fulfill a part of the sale agreement for a specific portion of the property they purchased. The courts ruled against the plaintiff, stating the agreement was not separable and couldn't be enforced. The defendants argued the property was sold as a whole to multiple parties and fell under the bar of Section 17 of the Specific Relief Act, 1877, due to common ownership. This led to the dismissal of the suit.
The plaintiff wanted the defendants to fulfill a part of the sale agreement for a specific portion of the property they purchased. The courts ruled against the plaintiff, stating the agreement was not separable and couldn't be enforced. The defendants argued the property was sold as a whole to multiple parties and fell under the bar of Section 17 of the Specific Relief Act, 1877, due to common ownership. This led to the dismissal of the suit.
Suit for specific performance of agreement to sell , severability of --- Part performance --- Specific enforceability --- Scope - Bar contained under S. 17 of the Specific Relief Act , 1877 ( ' Act , 1877 ' ) --- Right of specific execution of contract --- Discretion of the Court --- Scope --- Claim of the plaintiff was that he and two defendants / vendees entered into agreement with the defendants ( four in number ) being the owners - in - possession of property out of which almost fifth of the suit - property was purchased by him ( plaintiff ) , thus he sought the defendants / owners to perform the sale agreement to the extent of part / portion of suit - property for which he entered into the agreement --- Suit was dismissed by the Civil Court , which judgment and decree was maintained by the Appellate Court --- Contention of the petitioner / plaintiff was that the Courts below fell into error while reaching to the conclusion that the agreement between the parties was not severable and the same could not be specifically enforced -- Plea of the respondents ( defendants / owners ) was that they had sold the suit property to the petitioner as well as two others ( defendants / respondents ) as single unit and the same could not be enforced by the petitioner alone as the suit - property , being inherited , fell in common the sale agreement did not contain any Khatas / Khasras while stipulation , thus the case clearly attracted the bar under S. 17 of the Act , 1877 --- Validity --- Pivotal question was as to whether or not the sale agreement could have been partially enforced against respondents ( defendants / owners ) and in favour of the petitioner / plaintiff --- Section 17 of the Act , 1877 , prohibited decree of performance of part of the contract , unless the case fell under Ss . 14 to 16 of Act 1877 --- Splitting up of the contract was not permissible and the contracts were to be performed in their entirety --- Admittedly , Ss . 14 & 15 of the Act , 1877 had hardly any relevance with the present case --- Petitioner had primarily relled upon S. 16 of the Act , 1877 to bring his case in the exception to S. 17 of the Act , 1877 , however , the same provided that to direct performance of part of the contract , the said part had to " stand on a separate and independent footing from another part " --- Though the respective shares of the purchasers were specified from whole lot ( as 5058/6230 and 1172/6230 ) but there was no mention in the sale agreement as to which share out of the joint property inherited by the respondents / owners was to be transferred to any specific purchaser ... No part of the sale agreement was " standing on separate and independent footing " or stood in isolation from the other part --- There was no stipulation in the sale agreement as to khasra or Khata number ( s ) from which about one - fifth share ( 58 - Kanals and 12 - Marlas ) out of the joint shares and / or the whole property were to be given to the petitioner , if such situation arose --- Even the petitioner while appearing as a witness admitted of not having any bargain or mutual understanding between the parties regarding transfer of property from any specific Khata or extent or piece of land to which the two set of purchasers were entitled to transfer in case of independent / separate performance --- Similarly , one of the defendants / owners being witness ( lady ) , during cross - examination stood by her pleadings and statements given in the examination - in - chief , and no deal or arrangement to sell the suit property in the parts , could come out during her cross examination --- Perusal of the sale agreement in the light of evidence further revealed that there was no intention of the parties at the time of execution of the sale agreement as to the separate sale or passing on the title of the property in parts --- Only severable / separable element in the contract was that when the entire suit property transferred , the same would be passed on to the petitioner to the extent were to be of his share in the suit - property and respondents ( defendants / other vendees ) would have been entitled to their share in the joint whole , upon complete payment of the entire sale consideration --- Record ( documents duly exhibited by the defendants / owners ) also revealed that one respondent / vendee ( out of other set of purchasers ) filed first suit and then again filed suit after about five years ; and in response to each suit , respondents lowners offered said respondent / vendee to pay the entire amount against the transfer of suit property but he failed to accept the offer ( s ) and both the suits were dismissed --- Said fate of previous suits lead to two clear inferences ; ( i ) respondents / owners remained willing to perform their part of obligation and they were not defaulters of the sale agreement and , ( ii ) both set of purchasers were not in the position to purchase the whole property , therefore , they decided to contribute to purchase the whole property in terms of respective shares , hence , there was no understanding on either side to purchase the property in piecemeal or independent of each other --- Both the Courts below had used their discretion in a judicious manner and as per the established principle of law and equity --- Right of specific execution of contract was not absolute and its enforcement rested on the discretion of the Court
Revision No.369 of 2021
Mian ABDUL GHAFFAR versus Mst . KISHWAR IQBAL and 5 others
2024 CLC 301
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