1. This is origional defendant's second appeal directed against the decision of the learned Assistant Judge Baroda given on September 26 .1967 . in Regular Civil Appeal No 162 of 1965 . thereby affirming the decision given in decree of specific performance of an immovable property situated in the city of Baroda . which the appeallant defendant has earlier purchased and then agreed to reconvey the same within a period of seven years from the date of the agreement of reconveyanance . Exhibit 27 . The Courts below have rejected the defence of the appeallant -defendant that the decree of specific performance will give the plaintiff - respondant an unfair advantage over the defendant appellant which he did not forsee . The Courts have thus taken the view that the case does not fall under clause (a) or clause (b) of sub - sec (2)n of section 20 of the specific Relief Act . 1963 (Act No 47 of 1963 ) hereinafter reffered to as the Act ) The defence contention does not appear to have been dealt with at length or may not have been urged before the lower appellate Court in details .
2. It appears that the plaintiff respondant Bai Kaiasgauri . widow of Desai Ishwarbhai Ranchhodbhai was the owner of the suit property which is a house having a ground floor and two upper floors . situated in Ghantivada in the City of Bazroda . She also owned another house known as the Haveli in which she was residing . the Ghantiyada house in favour of Dave Ramshanker Jivatram defendant appellant who was a school teacher . The sale was by a registered sale deed dated June 25 1959 for a consideration and also of the material fact that the house was old and in a dilapidated condition and there was no latrine in the house . It states that it was sold and with possession and that under no circumstances the house was to be taken back form the defedant appellant permantly and with possession and that undwer no circumstances the house was to be taken back from the defendant - appeallant this sale deed was got registered on the next day , June 26 1959 It was executed on a stamp paper of Rs 1.50, signed and duly attested . the defendant appellant who had purchased the property has executed the document in the favour if plaintiff No. 1. respondent The document states that although the executant had purchased the property and had become the owner of the property for the same amount of consideration viz Rs 5.999/ - to the plaintiff respondant within a pereiod of seven years . It further states that as the property to be reconveyed to her within a period of seven years the executant was entitled to make necessary repairs and incur expenses upto limit of Rs 751/ - if plaintiff No . 1 required the property to be reconveyed to her within a period of seven years to her within a period of seven years the excutant would hand over the property to the plaintiff on the same consideration plus Rs. 751 as the expenses incurred for repairs etc thus on the incurred for repairs etc thus on the incurred for repairs etc thus on the day following the day on which the defendant purchased the suit property from plaintiff on the same consideration plus 751/ as the expenses incurred for repairs . etc thus on the following the day on which the defendant purchased the suit property from plaintiff No. 1 defendant agreed to redonvey the property to plaintiff no 1 within a period of seven years for the same consideration plus Rs 751 as the amount oif expenses incurred in repairs . etc The plaintiff no 1 who wants the property to be reconveyed has filed the present suit being Regular Civil suit No 415 of 1963 in the Court of the 4th Joint Civil Judge Junior Division Baroda the plaintiff offered to pay the same amount of consideration plus the amount oif expenses as stipulated . The defedant resisted the suit and contended inter alia that the grant of the decree of specific performance would give an unfair advantage to the plaintiff over the defendant and would cause hardship to the defendant . It was contended that the decree for specific performance should not be granted in view of the fact that plaintiff NO . 1 HAD ENTERED INTO AN AGREEMENT OF SALE OF THE SUIT PROPERTY WITH PLAINTIFFS NOS 2 AND 3 and therefore compensation in money was the adequate relief . It was also contended that the agreement of recobveyance . Exhibit 27 was without consideration and it was out of good relation between the parties that it was entered into . It was contended that Exhibit 27 was executed ob a blank paper and the defendant had relied upon the representation made by one Mahendrakumar . Nephue of plaintiff No1 to the effect that the suit house was to be given for personel use of plaintiff No 1 only in case she was required to sell her Haveli building in which she was contended that both documents . Exhibits Nos 17 and 27 were not simultaneously executed and formed part of one and the same transaction and that demand Exihibit 27 required registration and in the absence of the document having been registered it could not affect the property sought to be reconveyed thereby . The court below have rejected all these contentions . However as aforesaid the Courts do not appear to have considered the question of compensation in money being the adequate relief , The learned trial Judge passed a decree of specific performance in favour of plaintiff No 1 on payment by her of Rs of Rs 5.999 plus Rs 751 as costs if repairs etc the costs of execution and registration of the sale deed to be borne by the plaintiff No . 1 should be at liberty to have the sale deed to borne by the plaintiff No 1 should be at liberty to have the sale deed executed through the Court No relief was granted in favour of plaintiff Nos 2 and 3 and it was held that plaintiffs Nos 2,3 had no legal right to specific performance of the agreement In the appeal against this decision the learned Assisstant Judge Baroda has rejected the defence and confirmed the decree of the trial Court . It is found that the agreement was not made as alleged in paragraph 13 of the written statement of the defendant wherein a plea of the document having been executed on a representation being made by one Mahendrakumar was taken . It was found that the suit agreement was not without consideration . It was found that suit agreement was not without consideration . It was found the suit agreement was not without consideration , It was found that the plaintiff was entitled to the reconveyance being made . The trial Court has thus been confirmed . To this application to be joined as parties and did not seek any relief . It is against this decision that the present second appeal is directed and is filed by the origional defendant and to which the origional plaintiff Nos . 2 2293 of 1968 for joining them as parties in this appeal .
3. Mr M.B. Shah . learned advocate appearing on behalf of the appellant had contented before me that the document Exhibit 27 was without consideration was brought about on the representation made by Mahendrakumar and that it was executed and signed on a blank paper . these are question of fact and these contention have been rejected by the two Courts below It would therefore not be opem to me to go into these question .
4. Mr.M.B. Shah then contended that the document Exhibit 27 required registration because it varied the terms of the documents . Exh 17 both of which were parts of one and the same transaction and further because Exhibit 27 prohibited any construction on the open land to the north of the suit house , Now it is clear that document . Exhibit 17 was registered on the same day on which document Exhibit came to be executed namely on June 26 1959 But document exhibit 27 came to be executed after the executions of the documents together it is clear that they are not part of the one and the same transaction thus the Exhibit 27 which is agreement of reconveyance does not require any registration . The question of variation does not arise in this situation if the document which has not been registered is really a part and parcel of the transanction which is only partly evidenced by the registered is really a part and parcel of the transaction then under section 54 of T.P act it vests no interest in the property and need not be registered The documents Exhibit Nos 17 and 27 are distinct transactions the Document Exhhibit 27 therefore does not require registration.
5. It was contended that the document , Ex 27 lacked mutually and therefore the plaintiff could not enforce the agreement as it was not simultaneous As observed by a Division Bench of the Bombay High Court in R.S ghadge v. L.S Ghadge - Air 1960 Bom 1205 an agreement to reconvey land to the vender any time on repayment land to the vendor at any time on repayment of the sale price could not be said to be void on the ground of absebce of mutually and was specifically enforcebally the contentions raised by Mr.
M.B.Shah thus does not survive.
6. Mr.M.B. Shah then contended that the right of specific performance would give an unfair advantage to the plaintiff No 1 over the defendant and that the performance of the contract would involove some hardship pn the defendant which he did not foresee where as non pwerformance would involve no such hardship on the plaintiff No 1 Mr Shah want thus to rely on the clauses (a) (b) of sub section (2) of section 20 of the Act In Mr. Shah's submission the juridiction to decree specific performance is discretionary and the Court is not bound to grant such relief merly because it is lawful to do so . Thus re lying on clauses (a) and (b) of sub section (2) of section 20 of the Act he contends that the decree of specific performance should have been refused on these grounds . Now it is clear that the defendant knew at the time when he enter into the agreement of reconveyance that he would be put to some hardship he had thus taken a calculated risk It us true that he has got the house repair and also true that he has got the first and the second floors of the house vacated and he himself is occupying the same . But these facts would not entitle the defendant to a plea covered under clauses (a) and (b) of sub section (2) of section 20 of Act It is well setteled that the question of hardship must be judged as the time at which it is entered into This is a general rule It also contemplates an exception to the general rule in cases where events in volving hardship in the the instant case . There is no question of any undue advantage either . The contentions of Mr. Shah has thus no merit and is rejected .
7. However the material question which now falls my consideration and which has been seriously contended by Mr. M.B Shah for the defendants is that having regard to the facts of the case this is a contract for the non performance of which compensation in money is an adequate relief and therefore the case is covered by clause (a) of sub section (1) of Section 14 of the Act Now as aforesaid the document of sale exhibit 17 in which is a registered sale deed was entered into between the plaintiff No 1 and the defendant and the plaintiff No 1 thereby sold the suit property to the present defendant in the existing condition The document itself mentions that the suit house is in a dilapioated condition and has been let out to the tenants and it states that the defendant is entitled to make repairs and that the possession of the property is handed over to the defendant permantely and was not to be taken back for any reason whatsoever . The undisputed fact is that at the date of the sale the plaintiff No 1 was residing in another house known as the have The suit property was rented out by plaintiffs No 1 to three different tenant the suit property consisted of a ground floor and two upper floors .
The defendant was residing in a rented premises . He filed a civil suit for eviction against the tenants .He got the first and the second floors vacated for himself for his own use and occupation and has been occupying the two floors ever since . He has given the ground floor to the teneant . The defendant is thus occupying the suit property as an owner and is in actual possession of the two floors which he is using for the resisdence of himself and the members of his family he has repaired the house he has constructed a latrine therein . He has constructed a latrine therein he has thus made substantial changes in the house Plaintiff No 1 does not require the suit house for her own residence and that is the material fact Even before the date of the institution of the suit she had entered into an agreement of sale with origional plaintiffs Nos 2 and 3 and executed a banakhat Exhibit 25 dated February 14,1963 The agreement of sale is consideration of Rs 11.999 and Rs 501 has been given as an earnest money as stated in the document it is stated in the plaintiff No 1 has entered into an agreement of sale of the suit property on 14-2- 1963 with plaintiffs Nos 2 and 3. In favour of plaintiff Nos 2 and 3 or in the alternative in favour of plaintiff no 1 does not require the suit property fir her own use of occupation She only wants to reconvey the property . Having regard to the peculiar facts of the case the document Exhibit 2 7 is a contract for the non - performance of which compensation in money is an adequate relief in such a case the contraxct cannot be specifically enforced as provided in clauses (a) of sub-section (1) of section 14 of the Actr Plaintiff No 1 who is the respondent herein has already entered into n agreement of sale of the suit property She does not require the properly she does not require the property fir her own self She could be adquently compensated in money and in my opinion it would be an adequate relief .
8. Mr S.B.Mazumdar learned advocate appearing on behalf of the respondant - plaintiff relied upon a decision of the Division Breachh of this Court in Abdul Satar v. Manilal - AIR 1970 Guj 12 wherein the Division Bench has taken the view that circumstances prevailing the date of agreement are to be considered and no as to what happened subsequentely . But that is the answer when a plea under subsection (2) of Section 20 of the Act is taken which corresponds to section 22 of the specific Relief Act 1877 , that discretion of theCourt has to be exercised on sound judicial principals and not arbitrarily It is well settled that the second appellate Court is comptent to interfere in the exercise of discretion under section 20 of the Act where the discretion has not been properly exercised this is a case in which the Court has not considered the question of applicability of clause (a) of sub section (1) of section 14 of the Act the discretion has thus not been rightly exercised and it is a case in which I should properly interfere.
9. It was contended by Mr. Mazumdar that the breach of a contract to transfer immovable property cannot be adequately relieved by compensations in money and that is the rule provided in section 10 of the Act that is soBut Mr. Mazumdar misses the Explations to section 10 of the Act which provides that unless and until the contrary is proved the Court shall presume (i) that the breach if a contract to transfer immovable property cannot be adewuately relieved by compensations in money . Thus the presumption which arises in respect of breach of a contract to transfer immovable property namely that it cannot be adqquatly relieved by compensations in money is a rebuttable presumptions . The facts are eloquent and clearly they rebuttable presumptions the fact are eloquent and clearly they and clearly they rebut the presumption the plaintiff No 1 admittedly does not require the suit property for her own self She only wants to sell away the suit property to plaintiff Nos 2 and 3 at a profit she has entered into an agreement of sale Exhibit 25 Banakhat dated 14-2-1963 . The sale is to be for a price of Rs 11.999 thus what she wants is the money value of the property of the property . The defedant has purchased the property for a sum of Rs 5. 999 He is entitled to make repairs and insure other expenses the extent of Rs 751 as provided for in the agreement of sale Exhibit 25 Banakhat dated 14-2-1963 . The sale is to be for a price of Rs 11,999 . Thus what she wants is the money value of the property . The defendant has purchased the property for a sum of Rs . 5,999 . He is entitled to make repairs and incur other expenses , the extent of Rs 751 , as provided for in the agreement of reconveyance . EX . 27 . the deference , therefore , would be only of Rupees 5,249 . The plaintiff No 1 would thus be adequately compensated in money if I decree an award of Rs . 5,249 in her favour , as compensation in money for the admitted breach of the specific performance if the agreement to reconvey evidenced by the document . Exhibit 27. Mr. Shah on behalf of the appeallant declares that his client is ready to pay this amount as compensations ,I need not therefore go into further detail on this point as regards the quantem of damages . Accordingly although I have dismissed the other contentions of Mr. Shah I must accept the last one I hold that having regard to the special facts of the case stated earlier this is not a case in which specific performance of the contract to transfer the immovable property should be granted although there is a breach of such contract In my opinion the breach would be adequately relieved by compensation in money , I accordingly set aside the decree of specific performance passed by the learned 4 the Joint Civil Judge junior Division Baroda in Regular Civil Suit No 415 of 1963 and confirmed by the learned Assistant Judge Baroda in Regular Civil Appeal No 162 of 1965 and instead decree that the defendant appellant do pay to the plaintiff No .1 (respondant herein ) a sum of Rs. 5,249 as compensations in money for the breach of the agreement . Exhibit 27 the defendant pay this amount within ten weeks form today failing which the amount will carry interest at 6 per cent per annum from the date of the expiry of the period of ten weeks the appeal is partly allowed with no order as to costs in the circumstances of the case .
10 . the respondant herein has filed cross - objectuion against the decision of the learned trial Judge holding that plaintiffs Nos 2 and 3 have no legal right to demand specific performance of the agreement Exhibit 27 there is no merit in the cross objection . Crossobjections are therefore dismissed with costs.
11.Civil Applications No.2293 of 1968 is filed by origional plaintiffs Nos .2 and 3 of the origional suit out of which this second appeal arises . By this applications they want to be joined as parties to the appeal . . Now the suit of origional plaintiffs Nos 2 and 3 was dismissed by the trial Court No appeal was filed by them before the District Court Even in the defendant's appeal which was filed in the District Court their application to be joined as parties was rejected because the cause of action against the defendant arose out of the suit agreement to which plaintiffs 2 and 3 were not parties . they have thus no cause of action they have no right to be joined in the appeal . Civil Application No 2293 of 1968 is therefore . dismissed with costs .
12. Mr.Mazumdar submits that plaintiff No . 1 has deposited in the trial Court a sum of Rs 5,999 as the considerations a amount payable to the defendant for specific performance which was decreed and in view of the decree now being passed by which specific performance is refused plaintiff No 1 may be allowed to withdraw the amount . Mr Shah has no objection , The plaintiff No 1 is therefore allowed to withdraw the amount deposited by her in the trial Court.
13. Order accordingly.