MANZOOR AHMED MARGRAY ETC. versus GULAM HASSAN ARAM AND ORS.

Citation: [1999] SUPP. 3 S.C.R. 380 · Decided: 05-10-1999 · Supreme Court of India · Bench: D.P. WADHWA · Disposal: Disposed off

Judgment (excerpt)

A 
MANZOOR AHMED MARGRA Y ETC. 
v 
GULAM HASSAN ARAM AND ORS. 
OCTOBER 5, 1999 
B 
[D.P. WADHWA AND M.B. SHAH, JJ.] 
Specific Relief Act, 1977 ( 1920 A.D.) of Jammu & Kashmir:· 
S.2oi--Suit for specific pe1f onnance of contract-Grant of-Agreement 
C to sell land-Non-fulfilmeni ofcontract:-Default clause in contract providing 
damages for non-fulfilment of contract-Effect of-Held, specific perfonnance 
of contract can be enforced despite existence of default clause in con-
tract-High Court justified in granting decree for specific perf onnance of 
contract. 
D 
E 
S.l~Agreement to sell-Part performance of contracf-Scope 
of-Held, where a party is unable to perf onn whole of the contract, Court may 
direct the party to pe1fonn specially so much of his pa1t of the contract-Thus, 
High Court justified in granting decree for specific perfom1a11ce of I/3rd or 
2/3rd shares owned by contracting pwties. 
J & K Agrarian Refonns Act, 1972/ J & K Agrarian Refom1s Act, 
1976-S.2(4)-Prohibition on transfer or alienation of lwui-Applicability 
of-Agreeme1it to sell 'orchard' land-Default in performance of con-
tract-Suit for specific perfonnance of contract-Grant of-Held, land which 
is an 'orchard' is specifically excluded from the definition of 'land' under the 
F Act-171us, prohibition not applicable to suit property. 
J & K Prohibition on Conservation of Land and Alienation of Orchards 
Act, 1975-,-S.3-f'rohibition on alienation or tra11sfer of land-'Orchard 
iand-Agreement to sell-Default in perf onnance of contract-Suit for specific 
G perfonnance--Grant of-Held, prohibition on transfer of 'Orchard' is not 
absolute and pennission for alienation can be obtained after decree is 
passed-Thus, no bar on the maintainability of suit for specific peif onnance. 
Words and Phrases .: 
H 
'Land' and 'Orchard'-Meaning of in the context of J & K Agrarian 
380 
MANZOOR AHMED MARG RA Y,Erc, v. GULAM HASSAN ARAM 
381 
Refonns Act, 1972/J & K tfgrarian Refonns Act, 1977-S.2(4) and (5)12(9) 
and (10). 
Appellant-defendant No. 1 entered into an agreement for sale of 
'orchard' land in favour of respondent-plaintiff. The said land was pur-
chased by defendant No. 1, and his younger.brother viz. defendant No. 2 
and minor son viz. defendant No. 3 were co-owners. Defendant No. 1 
refused to perform his part of the contract due to escalation in land 
prices. Consequently, plaintiff issued a notice for specific performance of 
contract and also filed a suit for injunction to prevent the defendants 
from alienating the suit land. Thereafter, a suit was filed in the High 
Court for execution of sale deed. Single Judge of High Court partly 
decreed the suit of plaintiff against defendant No. 1 but dismissed the 
suit against defendant Nos. 2 and 3. On appeals, Division Bench of High 
Court, while dismissing the. appeals filed by defendant No. 1, partly .al-
lowed the appeal filed by plaintiff by passing a decree for specific perfor-
mance against defendant No. 3. Hence the present appeal. 
A 
B 
c 
D 
On behalf of appellant-defendants it was contended tbat the agree-
ment itself provides a default clause to the effect that in case of non-ful-
filment of the agreement, defaulting party shall pay to the other, an 
amount as damages and shall be bound to pay the. same. Therefore, in 
view of S. 23 of Specific Relief Act, 1977 of Jammu & Kashmir, decree E 
for specific performance was not required to be granted; plaintiff was not 
ready and willing to perform his part :if the contract and there was delay 
in filing the suit; the contract is indivisible and, therefore, there was no 
question of granting specific performance of the contract of 1/3rd share 
or 2/3rd share; suit land cannot be alienated· or transferred in view of the 
Jammu & Kashmir Agrarian Reforms Act, 1972 and the Jammu & Kash-
mir Prohibition on Conservation ofLand and Alienation of Orchards Act, 
1975. 
Disposing of the appeal, the Court 
HELD : 1.1. Decree for specific performance of contraet can be 
granted despite default clause in contract providing payment of damages · 
for breach. of contract. [386-C-G] 
F 
G 
1.2. S. 20 and iHustration therein of Specific Relief Act, 1977 (1920 
A.D.) of Jammu & Kashmir makes it clear that though a sum be named H 
382 
Sl!PREMF COURT REPORTS (1999] SUPP. 3 SC R 
A 
in the contract as lht amount to be paid in c_:i;;c ol it> t.ci:ach, imd tl1t 
party in default is willing to pay the same, such contract may sii!I be 
enforced. Further, the penalty

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