SURINDER SINGH versus KAPOOR SINGH (D) THROUGH LRS. AND ORS.

Citation: [2005] 3 S.C.R. 1084 · Decided: 03-05-2005 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Dismissed
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Judgment (excerpt)

A 
SURINDER SINGH 
v. 
KAPOOR SINGH (D) THROUGH LRS. AND ORS. 
MAY 3, 2005 
B [N. SANTOSH HEGDE, D.M. DHARMADHIKARI AND S.B. SINHA,JJ.] 
Specific Relief Act, 1963-Section 12(3)-Specific performance of part 
I-
of. contract-Property owned by Appellant and his sister in equal share-
c 
Appellant entered into contract for sale of the entire property with Respondents 
representing that he had the requisite authority to enter into the contract on 
behalf of his sister too, which was found to be incorrect-Held: Equity lay in 
favour of grant of decree for specific performance of the contract in respect 
of the share of the Appellant rather than refasing the same-'-Section 12(3) is 
clearly applicable. 
D 
The suit land was owned by Appellant and his sister in equal share. 
Appellant entered into an agreement for sale with the respondents in 
relation to the suit land~ on his own behalf as also on behalf of his sister. 
As Appellant allegedly failed and/or neglected to perform his part of 
contract, a suit for specific performance of the said agreement was filed. 
E Trial Court dismissed the suit holding that the Appellant was not 
authorized to enter into the agreement for sale on behalf of his sister. High 
Court however held that a decree for specific performance could be 
granted in favour of the Respondents in respect of the share of the 
Appellant subject to his right to apply for partition of the property for 
F 
getting his share demarcated. As regard apportionment of the sale 
consideration, it was directed that the same would be reduced by 50°/e as 
the Appellant would only be entitled thereto. Hence the present appeal 
Dismissing the appeal, the Court 
HELD : I. Sub-section (3) of Section 12 of the Specific Relief Act, 
G 1963 postulates that where a defendant is unable to perform a· part of the 
contract, and the part left unperformed forms a considerable portion of 
the whole but admits of compensation in money, the party not in default 
--
is entitled to specific performance on payment on the whole consideration, 
reduced by the consideration for the part left unperformed. 
H 
1084 
11089-E; 1090-C, DI 
' 
1 
SURINDER SINGH v. KAPOOR SINGH (D) THROUGH LRS. 
1085 
2.1. Section 12(3) of the Act is a beneficial provision so far as the A 
purchasers are concerned. The relinquishment of claim as contemplated 
under Section t 2(3)(ii) of the Act as regard performance of the re~aining 
part of the contract and all rights to compensation need not specifically 
be pleaded and can be made' at any stage of the litigation. Such a plea can 
also be raised at the appellate stage. Delay by itself, it is trite, may not B 
stand in the way of the plaintiff from claiming the relief unless the 
defendant establishes prejudice. (1090-D, E, Fl 
2.2. Sub-section (3) of Section 12 does not lay down any limitation 
for filing an application for amendment of plaint. Such an application can 
be filed at any stage of the proceedings and in that view of the matter an C 
application even before this Court would be maintainable. It may be true 
that in the application for amendment of the plaint filed by the respondents 
in this Court, there is no specific averment as contained in clause (ii) of 
sub-section (3) of Section 12 of the Act but the entire application has to 
be read as a whole. By necessary implication, the relief for obtaining 
compensation must be held to have been given up. In any event, such a D 
statement was made at the bar and the same is acceptable. 
(1092-F, G; 1093-E, Fl 
Kalyanpur Lime Works Ltd v. State of Bihar and Anr., AIR (1954) SC 
165, Rachakonda Narayana v. Ponthala Parvathamma and Anr., (2001) 8 
SCC 173 and Surjit Kaur v. Naurata Singh and Anr., (2000) 7 SCC 379, E 
relied on. 
Girdhar Das Anandji and Anr. v. Jivaraj Madhavji Patel and Ors., 
(1971) PL.JR 66, approved. 
3. Appellant had entered into the aforementioned agreement for sale F 
on the premise that he had the requisite authority to do so on behalf of 
his sister as also on his own behalf. The sister of the Appellant denied or 
disputed such authority and in that view of the matter, it is beyond any 
pale of doubt that the agreement for sale was entered into in respect of 
the entire suit land and having regard to the fact that the sister of the G 
Appellant did not authorize him to enter into the said agreement, sulJ.: 
section (3) of Section 12 of the Act would be clear!y be attracted. The 
decree for specific performance of contract in respect
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