P.C. VARGHESE versus DEVAKI AMMA BALAMBIKA DEVI AND ORS.

Citation: [2005] SUPP. 4 S.C.R. 267 · Decided: 07-10-2005 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

P.C. VARGHESE 
A 
V. 
DEY AKI AMMA BALAMBIKA DEVI AND ORS. 
OCTOBER 07, 2005 
[S.B. SINHA AND R.V. RA VEENDRAN, JJ.] 
B 
Specific Relief Act, 1963-Section 12(3)-Suitfor specific performance 
of sale of immovable property-Minor's share subject to court permission-
During pendency of suit court permission rejected in respect of minor's share- C 
Prayer of plaintiff amended to exclude minor's share-Held, relief of specific 
performance can be granted in respect of that portion which can be performed-
Further held, the contract was not subject to court permission. 
Section 22(J)(a)-Plaintiff in a specific pe1formance suit seeking partition 
and separate possession a major portion of property excluding minor's share- D 
No objection to the prayer raised by defendants-Minor share also made 
party through guardian-Held, in order to avoid multiplicity of proceeding 
such a relief can be prayed for. 
Appellant filed the suit against the Respondent Nos. 1 to 5 for a 
decree of specific performance of contract under agreement of sale in 
respect of 19 cents. He also made an alternative prayer, praying that if 
specific performance could not be granted in regard to entire extent, he 
may be allowed to take a sale deed in respect of the share of Defendants 
1 to 3 except the minor's share and may be allowed to recover possession 
of that much property form defendants through court. 
During the pendency of the suit, the application by Respondent filed 
for obtaining permission for sale of minor's share was dismissed. The 
Appellant thereafter filed an application for amendment of plaint praying 
for substitution of prayer. The application for amendment was allowed 
E 
F 
and prayer 'C' amended to include a prayer for property excluding G 
minor's share and for a decree of partition and separate possession. 
Respondents raised a contention that the Civil Court having refused 
to grant permission to sell the minor's share, performance on their part 
became impossible, that the purpose for agreeing to sell the property was 
267 
H 
l 
268 
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R. 
A lfor meeting the marriage expenses of the Third Respondent but as 
Respondent Nos. I and 5 were able to meet the expenses therefor without 
selling the property, the very purpose thereof became futile. 
The suit filed by the Appellant herein was decreed by the Trial Judge 
Original Defendant Nos. 4 and 5 did not prefer any appeal against the 
B said judgment and decree. Respondent Nos. 1 to 3 herein only preferred 
an appeal. Appellant-Plaintiff filed a cross appeal. High Court allowed the 
appeal preferred by Respondent Nos. I to 3 herein holding that the 
contract being an integrated one, the conditions mentioned therein as 
regard obtaining the necessary permission from the Civil Court relating 
C to minor's share was an essential term for execution of the contract and 
since such permission had not been granted, the entire contract failed. 
On a11peal before this Court, Appellant contended that having regard 
to the facts and circumstances of the case, the High Court committed a 
manifest error in misreading and misinterpreting the agreement of.sale; 
D that Section.J 2 of the Specific Relief Act enables the court to grant a dtcree 
in respect of a part of contract in a case where party to a contract is u~able 
to perform the whole of hi~ part of it; that the High Court, therefore, 
wrongly reversed the judgment and decree of the Trial Court holding that 
the condition as regard obtaining permission from the Civil Court was a 
condition precedent and that the findings of the High Court cannot be 
E sustained in view of the fact that out of 19 cents only 3. 75 cents came to 
the share of the minor and, thus, the provision of Section 12(3) of the 
Specific Relief Act was clearly attracted. 
Respondent Nos. I to 3, contended that the contract in question is a 
F contingent one and in view of the fact that application for obtaining 
permission to sell the share of the minor was sought for and refused, the 
entire agreement became unenforceable in law, the discretionary relief 
under Section 20 of the Specific Relief Act should not granted in favour 
of the Appellant. Respondents 4 and 5 contended that they have 
unnecessarily been added in the instant case. 
G 
Allowing the appeal, the Court 
HELD: I. The agreement nowhere states that in the event the 
permission to sell the minor's share is not obtained within the period 
specified therein, the same s

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