Specific performance of an undivided share in a specific floor of a building is unenforceable without partition.

The Appellant (plaintiff) filed a suit for specific performance based on an agreement for sale dated October 04, 2005, regarding the first floor and adjoining land of a property owned by the Respondents

The Appellant claimed to have paid the full consideration of Rs. 11,00,000/-

Respondent No. 1 (the mother) executed the agreement on her own behalf and allegedly as a Power of Attorney (PoA) holder for her children (Respondents No. 2 and 3)

Both the Trial Court and the First Appellate Court dismissed the suit, holding that the agreement was unenforceable because Respondent No. 1 lacked the capacity to sell her children’s shares, the PoA was not proved, the mortgage on the property was not shown to be released, and the property was unpartitioned

The Appellant sought a Second Appeal, arguing for at least partial performance of Respondent No. 1’s 1/3rd share

1. Whether there was a valid Power of Attorney executed by Respondent Nos. 2 and 3 in favour of Respondent No. 1?

2. Whether the Courts below ought to have directed partial performance of the agreement regarding the 1/3rd share of Respondent No. 1?

3. Whether the suit property required partition as a prerequisite for transferring Respondent No. 1’s share?

4. Whether the agreement was a concluded and enforceable contract despite the bank mortgage?

The Court applied Section 65(a) and Section 66 (proviso) of the Indian Evidence Act, 1872, regarding the admissibility of secondary evidence when a document is in the possession of the adverse party

It relied on Section 17 and Section 49 of the Registration Act, 1908, noting that while agreements for sale generally require registration, they are admissible as evidence in suits for specific performance even if unregistered

The Court applied Section 12(3) of the Specific Relief Act, 1963, which allows partial performance of a contract if the party in default cannot perform the whole

It further considered the precedent A. Abdul Rashid Khan v. P.A.K.A Shahul Hamid, which established that a co-sharer may be directed to execute a sale deed to the extent of their own share even if they lacked authority to sell the entire joint property

Regarding the PoA, the Court found that although Respondent No. 1 likely knew she would need to produce it, the Appellant failed to produce even a photocopy or attempt to admit secondary evidence during trial, thus failing to prove Respondent No. 1's authority over the shares of Respondents 2 and 3

On the issue of partial performance, the Court distinguished this case from A. Abdul Rashid Khan. In the cited precedent, the contract covered an entire building; here, the contract was specifically for the "first floor"

Since the property was unpartitioned, Respondent No. 1’s 1/3rd share extended to the entire building, not specifically or exclusively to the first floor

Directing transfer of her share in the first floor only was legally impossible, while directing transfer of her share in the whole building would rewrite the contract beyond the parties' intent

Regarding the mortgage, the Court noted Respondent No. 1 admitted the loan was liquidated, meaning the lower courts erred in calling the contract "contingent" or "unenforceable" on that ground

However, the physical impossibility of segregating a 1/3rd share in only the first floor remained a fatal barrier to specific performance

The High Court affirmed the lower courts' dismissal of the suit. The second appeal (SA/8/2026) was dismissed on contest