LexSMT. MAYAWANTI versus SMT. KAUSHALYA DEVI
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A B SMT. MAYAWANTI v. SMT. KAUSHALYA DEVI APRIL 6, 1990 [S. RANGANATHAN AND K.N. SAIKIA, JJ.] • Specific Relief Act: Section 9-Suit for specific performance of contract-Considerations to be taken note of by the Court in directing specific performance. Contract Act: Whether there was a valid and enforceable con- e tract-Nature and obligation arising therefrom. D E F G H Indian Evidence Act: Whether the document Exhibit PW 11/A was admissible in evidence? A civil suit was filed by the appellant herein against the respon- dent herein in the year 1973 praying for a decree for specific perfor- mance of the contract, in the alternative for a decree for a total sum of Rs.16,000 including the earnest money of Rs.5,000 on averments inter alia that she had entered into an agreement dated 16.9. 71 with the Respondent for the purchase of a property with 2 Koblus of 20 H.P. electric Motor etc., installed therein and jointly owned by the Respon- dent with her step mother-in-law Smt. Lajwanti, for a consideration of Rs.50,000; that in case Smt. Lajwanti did not join in the execution of the sale deed, the Respondent would sell her half share of the property for half the sale price; that pursuant to this agreement the Respondent handed over to the PlaintilT-appellant possession of her share of the property but later as arbitration proceedings were going on between the Respondent and her co-sharer Smt. Lajwanti, the Respondent took hack the said agreement (styled as receipt) and thereafter illegally took possession of the property from the appellant and declined to execute the sale deed in terms of the agreement. The Respondent contested the suit on the pleas that she never intended to sell the suit property to the Plaintiff; that the agreement was a mere paper transaction brought into being for putting pressure on her co-sharer; that the agreement being· not scribed on a proper stamped paper was inadmissible in evidence; that the agreement related only to the moveable property; that no advance money was paid as alleged and lastly that pursuant to the compromise between the parties dated 9.1. 72 350 .... MAYAWANTI v. KAUSHALYA DEVI 351 the agreement dated 16.9.71 stood destroyed. A ~ The trial Court disallowed the agreement Exhibit PW-11/A which ' J.. constituted the foundation of the claim as inadmissible in evidence and dismissed the suit. The High Court on revision, allowed the revision petition of the appellant with the direction to the trial court to impound the document in accordance with law and then proceed with the case. Respondent's Petition for special leave against that order was dismissed by this Court. Consequent to these orders of the Supreme Court and the High Court the Trial Court tried the suit afresh and passed a decree for specific performance which was a!Tmned by the Additional District Judge on appeal. However on second appeal the High Court held that there was no valid and enforceable contract as evidenced by Exhibit PW· 11/ A and thus instead of the decree for specific performance granted a decree for Rs.5,000 only by way of refund of the earnest money. Hence this appeal by special leave by the Plaintiff. Dismissing the appeal and upholding the finding of the High Court, this Court, HELD: The specific performance of a contract is the actual execu- tion of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he con· tracted to do. The stipulations and terms of the contract have, therefore, B c D E 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 F 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. [362D-E] Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agreement. Negotiations there- G after would also be material if the agreement is rescinded. In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant. [363F; 364B] The jurisdiction of the Court in specific performance is discre- tionary. When a promise is made in an alternative form and one H A B c 352 SUPREME COURT REPORTS [ 1990] 2 S
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