Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 462 OF 2018
(arising out of SLP(C) No.25771 of 2013)
URMILA DEVI AND OTHERS ... APPELLANTS
VERSUS
THE DEITY, MANDIR SHREE CHAMUNDA DEVI,
THROUGH TEMPLE COMMISSIONER AND
OTHERS ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. This appeal has been filed by the plaintiff
through legal heirs questioning the judgment of the
High Court of Himachal Pradesh in Regular Second Appeal
No.117 of 2002 which appeal was filed by respondent
No.1 (defendant No.6 in the suit). The High Court by
the impugned judgment has modified the decree of
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2018.01.17
17:29:48 IST
Reason:
specific performance of contract granted by two courts
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below into a decree ordering respondent Nos.2 to 6 to
pay a sum of Rs.90,000/ with interest @ 9% per annum
from the date of filing of the suit.
3. The brief facts of the case which are necessary to
notice for deciding the appeal are:
Respondent Nos.2 to 6 executed an agreement to
sell dated 19.04.1989 in favour of of Krishan Lal, the
predecessorininterest of the appellants for sale of
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their 5/16 share in Khasra Nos.430 and 431 equal to
02257 hectares for consideration of Rs.90,000/.
Respondent Nos.2 to 6 received full consideration of
Rs.90,000/ and handed over possession to the
plaintiff. The plaintiff after getting possession
constructed three shops in the suit land. Respondent
Nos.2 to 6 executed a gift deed in favour of respondent
No.1 of the suit land on 08.07.1991. When in spite of
respondents having received the entire sale
consideration the sale deed was not executed and with
mala fide intention the gift deed was executed in
favour of respondent No.1. Civil Suit No.148 of 1991
was filed by Krishan Lal. Written statements were filed
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by defendant Nos.1 to 5 jointly and separate written
statement was filed by defendant No.6 who is respondent
No.1 in the present appeal. It was admitted to all
defendants that the suit land has been gifted in favour
of defendant No.6 by gift deed dated 08.07.1991. The
execution of agreement to sell was not disputed and the
receipt of total sale consideration was also not
denied. The trial court decreed the suit vide its
judgment and order dated 31.03.1999. The trial court
declared that gift deed executed by defendant Nos.1 to
5 in favour of defendant No.6 is null and void to the
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extent they relate to the doner's 5/16 share in the
suit land that was agreed to be sold by them to the
plaintiff, decree of specific performance was granted
in favour of the plaintiff against defendant Nos.1 to
5. The appeal was filed by defendant No.6 only against
the judgment of the trial court which was also
dismissed by the First Appellate Court vide its
judgment dated 17.12.2001. Defendant No.6 filed
Regular Second Appeal in the High Court being RSA
No.117 of 2002. During pendency of the second appeal in
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the High Court notification under Section 4 of the Land
Acquisition Act dated 22.12.2005 was issued for
acquisition of suit land. An award dated 10.06.2008 was
also given for the land as well as three shops which
were constructed in the suit land. The name of
defendant No.6 being recorded in the Revenue records
compensation was awarded in favour of defendant No.6.
4. Before the High Court a submission was raised on
behalf of defendant No.6 that the land has been
acquired during the pendency of Regular Second Appeal,
the decree of the specific performance cannot be
maintained. The High Court agreeing with the
submission of defendant No.6 modified the decree by
ordering respondent Nos.2 to 6 to pay a sum of
Rs.90,000/ to the plaintiff with interest @ 9% per
annum from the date of filing of the suit. The
plaintiff through legal heirs aggrieved by the said
judgment has come up in this appeal.
5. Learned counsel for the appellants in support of
the appeal contends that the High Court erred in law in
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ordering the refund of Rs.90,000/ in favour of
plaintiff whereas the plaintiff(appellants) was
entitled to receive the amount of compensation of land
which was received by defendant No.6 consequent to the
acquisition of land. Defendant No.6 had no right in the
land in dispute as the gift deed had been declared
null and void. It was the plaintiff (appellants) who
was entitled to receive the compensation. The High
Court having not interfered with the finding of the
courts below that gift deed was void as well as
plaintiff was entitled for decree of specific
performance of the contract, it was plaintiff
(appellants) who was entitled to receive compensation
consequent to the acquisition of the suit land.
6. Learned counsel appearing for respondent Nos.2 to
6 supports the judgment and decree of the High Court
and he, however, does not dispute that judgment and
decree of the Courts below declaring the gift deed
dated 08.07.1991 as void having not been interfered
with, the defendant No.6 has no right in the suit land.
Learned counsel for respondent Nos.2 to 6, however,
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submits that compensation determined consequent to the
land acquisition be appropriated equally between the
plaintiff as well as defendant Nos.1 to 5.
7. No one has appeared on behalf of respondent No.1
(defendant No.6).
8. We have considered the submissions of the parties
and perused the records.
9. From the facts and material on record, it is
undisputed that agreement to sell was executed by
defendant Nos.1 t 5 in favour of the plaintiff and
entire sale consideration of Rs.90,000/ was received
and possession was delivered in the year 1989 itself.
Plaintiff constructed three shops on the suit land.
Plaintiff's case that to defeat the rights of the
plaintiff a gift deed dated 08.07.1991 was executed by
defendant Nos.1 to 5 in favour of defendant No.6 has
been accepted by courts below which have declared the
gift deed as null and void. The decree for specific
performance was granted by the trial court,
it was confirmed by the First Appellate
Court. The suit land was acquired and
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compensation was determined in favour of defendant No.6
whose name was recorded in the Revenue records. No
objection can be taken to the view of the High Court
that consequent of the acquisition of suit land under
the land acquisition proceedings decree of specific
performance granted in favour of plaintiff could not
have been maintained.
10. The limited question which needs to be answered in
the present appeal is as to what relief the
(plaintiff)appellants were entitled in the event the
decree of specific performance was required to be
modified by an alternate decree.
11. Section 21 of the Specific Relief Act empowers the
Court to award compensation in certain cases. Section
21 of the Specific Relief Act is as follows:
“21. Power to award compensation in certain
cases .—
(1) In a suit for specific performance of a
contract, the plaintiff may also claim
compensation for its breach, either in
addition to, or in substitution of, such
performance.
(2) If, in any such suit, the court decides
that specific performance ought not to be
granted, but that there is a contract between
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the parties which has been broken by the
defendant, and that the plaintiff is entitled
to compensation for that breach, it shall
award him such compensation accordingly.
(3) If, in any such suit, the court decides
that specific performance ought to be
granted, but that it is not sufficient to
satisfy the justice of the case, and that
some compensation for breach of the contract
should also be made to the plaintiff, it
shall award him such compensation
accordingly.
(4) In determining the amount of any
compensation awarded under this section, the
court shall be guided by the principles
specified in section 73 of the Indian
Contract Act, 1872 (9 of 1872).
(5) No compensation shall be awarded under
this section unless the plaintiff has claimed
such compensation in his plaint:
Provided that where the plaintiff has not
claimed any such compensation in the plaint,
the court shall, at any stage of the
proceeding, allow him to amend the plaint on
such terms as may be just, for including a
claim for such compensation.
Explanation.—The circumstances that the
contract has become incapable of specific
performance does not preclude the court from
exercising the jurisdiction conferred by this
section.”
12. This Court had occasion to consider Section 21 of
the Specific Relief Act in context of a case which
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arose almost on similar facts in Jagdish Singh vs.
Nathu Singh, 1992 (1) SCC 647. In the above case also
suit was filed for specific performance on the basis of
a contract to sell dated July 3, 1973, the suit was
dismissed by the trial court as well as First Appellate
Court. However, the High Court in second appeal
reversed the finding of the courts below and held that
plaintiff was ready and willing to perform the contract
and was entitled for decree. In the above case also
during the pendency of the second appeal before the
High Court, proceedings for compulsory acquisition of
the land was initiated and the land was acquired.
Question arose as to whether plaintiff was entitled for
the amount of compensation received in the land
acquisition proceedings or was entitled only to the
refund of the earnest money. The High Court in the
above case has modified the decree of the specific
performance of the contract with decree for a
realisation of compensation payable in lieu of
acquisition. In paragraph 13 of the judgment the
directions of the High Court were extracted which is
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to the following effect:
“13. The High Court issued these
consequential directions:
“If the decree for specific
performance of contract in question is
found incapable of being executed due
to acquisition of subject land, the
decree shall stand suitably
substituted by a decree for
realisation of compensation payable in
lieu thereof as may be or have been
determined under the relevant Act and
the plaintiff shall have a right to
recover such compensation together
with solatium and interest due
thereon. The plaintiff shall have a
right to recover it from the defendant
if the defendant has already realised
these amounts and in that event the
defendant shall be further liable to
pay interest at the rate of 12 per
cent from the date of realisation by
him to the date of payment on the
entire amount realised in respect of
the disputed land.”
13. In the above context, this Court proceeded to
examine the ambit and scope of Section 21 of the
Specific Relief Act. This Court came to the opinion
that when the contract has become impossible with no
fault of the plaintiff, Section 21 enables the Court to
award compensation in lieu of the specific performance.
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Paragraphs 24, 29 and 30 are extracted below:
“24. When the plaintiff by his option has
made specific performance impossible,
Section 21 does not entitle him to seek
damages. That position is common to both
Section 2 of Lord Cairn’s Act, 1858 and
Section 21 of the Specific Relief Act,
1963. But in Indian law where the
contract, for no fault of the plaintiff,
becomes impossible of performance Section
21 enables award of compensation in lieu
and substitution of specific performance.
29. In the present case there is no
difficulty in assessing the quantum of the
compensation. That is ascertainable with
reference to the determination of the
market value in the land acquisition
proceedings. The compensation awarded may
safely be taken to be the measure of
damages subject, of course, to the
deduction therefrom of money value of the
services, time and energy expended by the
appellant in pursuing the claims of
compensation and the expenditure incurred
by him in the litigation culminating in
the award.
30. We accordingly confirm the finding of
the High Court that respondent was willing
and ready to perform the contract and that
it was the appellant who was in breach.
However, in substitution of the decree for
specific performance, we make a decree for
compensation, equivalent to the amount of
the land acquisition compensation awarded
for the suit lands together with solatium
and accrued interest, less a sum of Rs
1,50,000 (one lakh fifty thousand only)
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which, by a rough and ready estimate, we
quantify as the amount to be paid to the
appellant in respect of his services, time
and money expended in pursuing the legal
claims for compensation.”
14. This Court in Kanshi Ram vs. Om Prakash Jawal and
others, 1996 (4) SCC 593, has again in context of suit
for specific performance of the contract held that
granting decree for specific performance of contract is
one of the discretion to be exercised on sound
principles. When the court gets into equity
jurisdiction, it would be guided by justice, equity,
good conscience and fairness to both the parties.
15. From materials brought on record, it does appear
compensation was determined in favour of defendant
No.6 to the extent of amount of Rs.10,03,743/. It also
appears that compensation towards shops was also
determined. The name of defendant No.6 being recorded
in the Revenue records, compensation was determined in
its favour. In view of the judgment and decree of
courts below whereby the gift deed dated 08.07.1991 has
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been declared void, defendant No.6 is left with no
right in the suit land and is clearly not entitled to
receive any amount consequent to the acquisition of the
suit land. It has not come on the record as to whether
compensation consequent to the acquisition of the suit
land has been received by defendant No.6(respondent
No.1 to the appeal) or not.
16. Taking into consideration overall facts of the
present case, we are of the view that ends of justice
be served in awarding compensation of Rs.10 lakh in
favour of the plaintiffappellants out of the
compensation received consequent to the acquisition of
the suit land. The rest of the compensation, if any,
received towards land and shops in question has to be
paid to the land owner that is defendant Nos.1 to 5
(respondent Nos.2 to 6 to this appeal) after deducting
an amount of Rs.10 lakh out of the said compensation.
We further direct in event compensation has not yet
been disbursed, the compensation be disbursed to the
appellants (legal heirs of the plaintiff) and
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respondent Nos.2 to 6 in the above manner and in the
event the compensation has been received by defendant
No.6 (respondent No.1), respondent No.1 shall return
the compensation to the extent of Rs.10 lakh to the
appellants and the rest of the amount to defendant
Nos.1 to 5 (respondent Nos.2 to 6). The judgment and
decree of the High Court dated 02.11.2012is modified to
the above extent.
17. The appeal is allowed accordingly.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
JANUARY 10, 2018.