1. This second appeal arises out of Suit No. 637 of 1947 filed by the plaintiff against the defendants for specific performance of a contract for sale of the suit house and for possession. One Tukaram Nathoji-father of the first defendant was originally the owner of Municipal Nos. 7456 and 5750 in Ward No. 12 in the town of Ahmednagar.
The first defendant was entitled to a 5/6th share in that house, and the remaining 1/6th share was owned by the second defendant. On 17-8-1948 the first defendant entered into an agreement to sell the whole house to the plaintiff for Rs. 3,500/-and to execute a sale deed after taking Letters of Administration of the property which was bequeathed to her under the wills of her father Tuka-ram and her mother Vithabai.
The first defendant thereafter failed to obtain letters of Administration and she did not execute a conveyance in favour of the plaintiff. The plaintiff then filed Suit No. 637 of 1947 for specific performance of the agreement to sell the property and joined the second defendant as party to the suit who had the remaining 1/6th interest in the suit house. Two other persons who were tenants of the house were also joined as defendants.
2. The suit was resisted by the first and the second defendants. The first defendant contended that the agreement was obtained by misrepresentation and undue influence, and that the plaintiff was not entitled in any event to a decree for specific performance of the agreement. The second defendant contended that the first defendant was entitled to only a half share in the property and she also supported the case of the first defendant.
The learned trial Judge on a consideration of the evidence came to the conclusion that the agreement was produced by fraud, misrepresentation and undue influence as alleged in paras 1 to 8 of the written statement of the first defendant. The learned trial Judge accordingly dismissed the plaintiffs' suit.
3. An appeal was preferred to the District Court at Ahmednagar against the decree passed by the trial Court. In appeal the learned Extra Assistant Judge held that the agreement was not produced by fraud, misrepresentation or undue influence. He further held that for specific perform once of agreement In respect of 5/6th share of the suit property the agreement cannot be enforced under Section 14, Specific Relief Act against the first defendant.
The learned Appellate Judge however was of the view that even though it was a case in which specific performance of the agreement apart from Section 14, Specific Relief Act could be granted because the plaintiff did not rely upon Section 15, Specific Relief Act in support of his claim he was not Justified in awarding a decree for specific performance in favour of the plaintiff even on the plaintiff showing willingness to take 5/6th share in the property on payment of the full consideration. The learned Judge accordingly confirmed the decree passed by the trial Court and dismissed the appeal. The plaintiff has come to this Court in second appeal.
4. The learned appellate Judge held the agreement proved and further held that the agreement was not vitiated by fraud, misrepresentation or undue influence. That finding of the lower appellate Court is binding upon this Court in second appeal, 'it is true that a 1/6th share in the property cannot be regarded as small or insignificant; and if the plaintiff is seeking to obtain specific performance in respect of 5/6th share of the property on paying 5/6th share of the consideration agreed to be paid, the Court would not assist him. But the plaintiff is claiming specific performance of the agreement agreeing to pay the full consideration of Rs. 3,500/- and he is willing to accept 5/6th share in the suit property.
5. Section 15, Specific Relief Act in so far as it is material provides that
'where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform provided that the plaintiff relinquishes all claim to further performance and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant'.
6. Mr. Tarkunde who appears on behalf of the plaintiff says that the plaintiff is and has always been willing to take a conveyance of the 5/6th share owned by the first defendant and to relinquish all claim to further performance and to undertake not to assert any' right to compensation either for the loss, deficiency or for the loss or damages sustained by him because the first defendant is unable to convey more than the 5/6th share in the suit house. Such a claim was made even in the trial court by the plaintiff. It is difficult to accept the view of the learned Appellate Judge that the plaintiff had not claimed specific performance of the agreement, under Section 15, Specific Relief Act.
Even assuming that the plaintiff had not expressly made such a claim the learned Judge should in the circumstances have given an option to the plaintiff to obtain a conveyance of 5/6th share in the property on payment of the full consideration stipulated to be paid by the plaintiff. As the plaintiff is willing to accept the share of the defendant alone for the consideration stipulated to be paid by him in my view the first defendant cannot resist his claim.
7. On the view taken by me the appeal will be allowed, the decree of the District Court will be set aside, and there will be a decree in favour of the plaintiff for specific performance of the agreement. The first defendant will convey a 5/6th share in the suit property to the plaintiff. The plaintiff will pay within one month from this date the amount of Rs. 3,500/- and the first defendant will convey to the plaintiff 5/6th share in the suit house.
If the first defendant, fails to convey a 5/6th share as ordered the trial Court will appoint a Commissioner or an officer of the Trial Court to execute a conveyance for and on behalf of the first defendant. The plaintiff wilt be entitled to be put into possession of the 5/6th share of the suit property by the first defendant after execution of the conveyance is ordered.
8. The plaintiff will be entitled to his costs in all the three courts from the first defendant. The plaintiff will pay the costs of the second plaintiff in the trial Court.
9. If the plaintiff fails to pay the amount hereby ordered, the suit filed by him will stand dismissed with costs throughout.
10. Order accordingly.