M. Natesan, J.
1. These second appeals arise out of a suit for specific performance of an agreement to sell immovable property, and of these, Second Appeal No. 453 of 1965 by the defendants is directed against the decision of the Courts below granting the plaintiff a decree under Section 15 of the Specific Relief Act (I of 1877), the defendants having been directed to execute a sale deed in favour of the plaintiff in respect of a half share in the suit property for the full consideration of Rs. 5,450 covenanted for sale of the entirety of the property. If these second appeals have to be disposed of by reference only to the grounds of second appeal, they may be dismissed straight-away as the substantial grounds of appeal do not raise any question of law. Mr. R. Kesava Ayangar, learned senior Counsel appearing for the appellants, has raised a question of law at the time of arguments, and the excuse for entertaining it at this stage is that to an extent it is rested on the fact of presentation by the plaintiff of Second Appeal No. 1216 of 1965 from the same decree. After the second appeals had become part-heard Counsel appearing for the appellants in Second Appeal No. 1216 of 1965 has applied for leave to withdraw that second appeal and also filed petition Civil Miscellaneous Petition No. 13825 of 1967 with an affidavit in support thereof praying for withdrawal of the second appeal. I shall be adverting to this aspect of the matter later.
2. The property, the subject of these proceedings was owned as joint family property by one Marimuthu Mudali and his son Vinayatha Mudali. Marimuthu Mudali died in 1950 leaving himself surviving his widow, the first defendant in the suit, and his son, the said Vinayatha Mudali. On 6th April, 1960, Vinayatha Mudali entered into the agreement Exhibit A-1 with the plaintiff for the sale to him of the suit property for a consideration of Rs. 5,450 and received in part payment of the consideration a sum of Rs. 2,000. The receipt of Rs. 2,000 is evidenced by a promissory note Exhibit A-2, dated 6th April, 1960. Vinayatha Mudali died on 25th May, 1960, and defendants 2 and 3 are persons who claim to have purchased the entirety of the suit property under a sale deed Exhibit B-2, dated 17th November, 1961 for a consideration of Rs. 9,000 from the first defendant. The suit by the plaintiff for specific performance was filed on nth December, 1961. It is the case of the plaintiff that the first defendant is the only heir of Vinayatha Mudali, and that when required by the plaintiff to receive the balance of purchase price and execute a sale deed, the first defendant was evading the execution of a sale deed and eventually brought out a sham and nominal sale deed in favour of defendants 2 and 3. Notices have been exchanged between the parties. The defendants would deny the truth, genuineness and validity of the agreement for sale relied upon by the plaintiff, and it is their further plea that the deceased Vinayatha Mudali was entitled only to a half share in the property. In the plaint inter alia it was averred that the plea that the deceased Vinayatha Mudali was entitled only to a half share was false, and even if it was so, the plaintiff would be entitled to specific performance in respect of the right, title and share of Vinayatha Mudali. It was specifically stated in the plaint that the plaintiff was always ready and willing to perform her part of the contract, and that she was willing to deposit the balance of purchase price and also the requisite money for the purchase of stamp papers and registration. Of the issues framed for trial, the following issues indicate the scope and extent of the defence.
(a) Whether the suit agreement is true, valid, supported by consideration and enforceable?
(b) Whether the deceased Vinayatha Mudali was a major on the date of the agreement and competent to execute the agreement?
(c) Whether the said Vinayatha Mudali was owner of the entire properties mentioned in the agreement and whether the first defendant and Angammal (mother-in-law of the first defendant) had no hare in the suit properties?
(d) Whether in any event, defendants 2 and 3 are bona fide purchasers for value without notice of the agreement?
The question of minority of Vinayatha Mudali when he executed the agreement was not pressed at the trial, but there was a vehement attack on the truth and genuineness of the agreement Exhibit A-1 and of part payment of the price as per Exhibit A-2. On an exhaustive consideration of the evidence, the trial Court found that the suit agreement was true, valid, supported by consideration and enforceable. It found from the evidence of P.Ws. 1 and 2 and Exhibits A-1, A-2 and A-12 to A-14 that Vinayatha Mudali executed the agreement Exhibit A-1 in favour of the plaintiff and received a sum of Rs. 2,000 on 6th April, 1960. As regards the bona fides of defendants 2 and 3, it was found that the defendants did not act in good faith or make necessary enquiries before they purchased the property. Exhibit B-2, the sale deed in favour of defendants 2 and 3, shows that only a sum of Rs. 1,500 was paid under the agreement as advance. The document relied upon as the anterior agreement for sale (certified copy Exhibit A-19, dated 16th November, 1961) mentions the payment of a sum of Rs. 3,000 as advance, the sale deed to be executed within three months. But the sale deed came to be executed the very next day, 17th November, 1961, While the defendants' case was that a sum of Rs. 3,000 was paid as advance, their evidence shows only a payment of Rs. 1,600. The balance of consideration for the sale was not paid immediately on the date of the sale; but defendants 2 and 3 executed a promissory note Exhibit B-3 for a sum of Rs. 7,500 in favour of the first defendant and her mother-in-law. It was admitted that possession of the property was not delivered on the execution of the sale deed, and that possession was given only after three months on 23rd February, 1962 subsequent to the institution of the suit. The alleged payment of Rs. 7,500 under the sale also, it is seen, is after the suit on 23rd February, 1962. A registered receipt was taken for the payment of consideration before the Registrar on 23rd February, 1962. The trial Court was hesitant to accept even the passing of consideration of Rs. 7,740 as per the receipt Exhibit B-4. The plaintiff had issued notice to the defendants on 27th November, 1961 and defendants 1 to 3 had sent reply notices by 2nd December, 1961. The trial Court noticed that the defendants had filed their written statement before the alleged payment of money under Exhibit B-4, dated 23rd February, 1962. Even assuming that the balance of consideration had been paid to the defendants, the bulk of consideration of Rs. 7,500 had been paid only after the notice of the agreement of sale in favour of the plaintiff, institution of the suit for specific performance and after the filing of the written statement. In the circumstances on a careful analysis of the evidence and probabilities in the case the trial Court holds that defendants 2 and 3 could not be said to be persons who paid consideration in good faith without notice of the agreement for sale in favour of the plaintiff. On the question of title to the properties, the trial Court quite properly holds that the first defendant, the mother of Vinayatha Mudali, became entitled to a half share in the property the other half share only being owned by Vinayatha Mudali. The Court finds that Angammal, the mother-in-law of the first defendant and widow of Marimuthu Mudali's father who died in 1919 had no interest in the properties as pleaded. Examining the question whether the plaintiff was entitled to enforce the agreement for sale of the entire property against defendants 1 to 3, it overruled a plea of the plaintiff that the proposed sale by Vinayatha Mudali was for purposes binding on the family and, therefore, on the first defendant. It was held that the plaintiff was not entitled to enforce the agreement in respect of the entire property, and that the case fell within the scope of Section 15 of the Specific Relief Act. It was observed that it was open to the purchaser to get specific performance so far as the half share of Vinayatha Mudali was concerned on payment of the full consideration agreed upon without any abatement from the hands of the legal representative of Vinayatha Mudali, that is, the first defendant. The plaintiff had paid Rs. 2,000 to Vinayatha Mudali himself and specific performance was decreed for his half share in the suit property on payment of the balance of sale consideration and the plaintiff deposited the balance in the trial Court. However she preferred an appeal, Appeal Suit No. 369 of 1963, to the District Court, Salem, and the defendants also preferred an appeal, Appeal, Suit No. 407 of 1963, against the decree directing specific performance. The case for the plaintiff in the appellate Court as well in the trial Court inter alia was that the first defendant had agreed to Exhibit A-1 and that, therefore, she was entitled to a sale of the entire property. The plaintiff argued that Vinayatha Mudali, the first defendant and her mother-in-law had agreed to the sale, and that as Vinayatha Mudali was the manager of the family the document was taken from him alone. This explanation was not accepted by the appellate Court. The defendants in their appeal pressed their case that Exhibits A-1 and A-2 were not true documents and that in any event the sale Exhibits B-2 should prevail over Exhibit A-1. On his independent review of the evidence, the learned District Judge confirmed all the findings of the trial Court and in the result dismissed, both the appeals before him. He pointed out that the trial Court had done the right thing in decreeing specific performance in respect of a half share in the suit property on the plaintiff paying the balance of the consideration. The learned District Judge while confirming the decree in favour of the plaintiff referred to the fact that the amount of Rs. 3,450 the balance of consideration was in Court deposit.
3. Having regard to the character of the findings on the merits of the case, naturally learned Counsel for the appellants could not require this Court in second appeal to review the evidence and take a different view. The findings are one of fact based on relevant and material evidence. Of course for the appellants certain improbabilities as to the truth of the agreement Exhibit A-1 were mentioned. The failure of the plaintiff to refer to this agreement in another suit which had been instituted by defendants 2 and 3 against the plaintiff and her husband was commented upon as improbabilising the existence of the agreement. This aspect has been considered by the Courts below and the explanation submitted for the plaintiff was accepted. Mr. Kesava Ayyangar, learned Counsel for the appellants rests the appeal on the contention that the Courts below erred in law in granting the plaintiff relief under Section 15 of the Specific Relief Act. It is contended that under Section 15 the plaintiff has to elect to accept conveyance of part of the property on payment of the consideration agreed for the whole relinquishing all claims 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. It is said that an option is given to the plaintiff to accept part of the property as full performance of the contract, and it is argued that in this case on the trial Court passing a decree granting relief under Section 15 of the Act, the plaintiff without accepting it, giving up further prosecution and seeking further enforcement of the agreement, preferred an appeal claiming a decree for conveyance of the entire property. It is said that thereby the plaintiff had declined the option given to her under the section and having elected to stand by her claim for the entirety of the property, she had forfeited all claims to equity for a decree under Section 15. The option under Section 15, not having been availed of, it is said that Section 17 of the Act operated and the Court cannot, therefore, direct specific performance of a part of the contract. Section 17 prohibits a decree for specific performance of a part of contract except in cases coming under Sections 14, 15, and 16. Section 14 and Section 16 are not applicable to the present case. It is argued for the appellant that even now notwithstanding the failure in the lower appellate Court the plaintiff has come up to this Court in second appeal filing Second Appeal No. 1216 of 1965 and asserting claim for conveyance of the entirety of the property. The argument is that specific performance is an equitable remedy and the plaintiff was bound to elect whether she would be satisfied with the performance in part. But here the plaintiff was seeking further performance based on untenable grounds. In the circumstances it is said that she should be deprived of the equitable relief which has been granted to her by the Courts below. As stated at the outset, the plaintiff to avoid this argument in the course of arguments, sought the permission of this Court to withdraw Second Appeal No. 1216 of 1965. In the affidavit in support of a petition for withdrawal the plaintiff stated that she was content with the decree of the Courts below holding that she was entitled to specific performance of a half share in the suit property, and that she reliniquished all her claims to further performance and all right to compensation either for deficiency or for the loss or damage sustained by her. The defendants have filed a counter affidavit urging inter alia that there was no alternative prayer even in the plaint. But it is the right and privilege of an appellant whether or not to prosecute his appeal and all that the respondent in such a case could claim is that he must be given his costs. When the appellant chooses not to press the appeal, it has to be dismissed. The question whether the presentation of the second appeal disentitles the plaintiff to relief under Section 15, is a different matter.
4. There can be no two views about the principle for that is the section itself that specific performance of part of a contract cannot be granted under Section 15 unless the plaintiff expresses his willingness to pay the consideration stipulated for the entire contract for a portion only of the property. But the question is at what stage this willingness to accept part of the property on payment of the originally stipulated price should be expressed giving up all claims that may be made on account of the default. Mr. Kesava Ayyangar would contend that the time for exercising the option and claiming relief under Section 15 is in the trial Court itself. In the present case though the trial Court had given relief to the plaintiff under Section 15, even thereafter she would not rest content but would prosecute claim for further performance and in fact has come up to this Court in second appeal pressing her claim for full performance.
5. Sections 14 to 16 of the Specific Relief Act deal with cases in which specific performance of part of a contract may be decreed and these sections are exceptions to Section 17 which provides that no Court shall direct specific performance of part of a contract. Sections 14 to 17 together constitute, a complete Code within the terms of which relief by way of specific performance of part of a contract may be had. The case on hand does not come under Section 14 and it is not contended that the case comes under Section 16. Relief can only be granted under Section 15. Under Section 15, the part that could not be performed must be considerable and only the purchaser is entitled to enforce this contract specifically. The Court, however, cannot compel the party to accept part performance when the part that could not be performed is considerable. The equitable principle underlying Section 15 is that specific performance of a contract will not be enforced against a purchaser where a material or substantial part of the subject-matter is wanting. The purchaser if he is willing may accept a fraction of the property contracted on payment of the full stipulated price for the whole of the property. If a purchaser is not willing to accept part performance under Section 15, he will be entitled to a refund of the deposit and to sue for damages if entitled. The first part of Section 15 lays down 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, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. The second part of Section 15 with which this case is concerned gives an option to the purchaser to claim specific performance of a part under certain terms. It runs thus:
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.
The second part of Section 15 gives an option to the purchaser in a case where the vendor is unable to perform the whole of his part of contract and that part which must be left unperformed forms a considerable portion of the whole. First it must be a case where the vendor is unable to perform the whole of his part of the contract. There may be dispute on this question. The purchaser may contend that the vendor has title to the entirety of the property, that he could convey, the whole of it, and that he is giving only excuses for non-performance of the whole of the contract. When a dispute arises between the parties as to whether in a case the contract may be performed wholly or only in part, the matter has to be determined by Court. The Court has to decide the extent of the part of contract which the vendor can perform. The section itself does not say at what stage the option or election by the purchaser should be exercised. It is conceivable that in the hierarchy of Courts which we have, the determination may vary from Court to Court. The trial Court may hold that in a particular case the contracting party in law has only a half share. The first appellate Court may take a different view and hold that the promissor is entitled in law to a 3/4 share or the whole of the property. In a given case it may so happen that the second appellate Court for the first time finds that the vendor has title only to a party. When Section 15 contemplates a particular position or set of facts for the applicability of the second, it can only mean that it is the ultimate assessment of the set of facts that is contemplated for the exercise of the option. One can see no reason to limit the exercise of the option at any particular stage of the legal proceedings. Of course, specific performance is a discretionary relief and in a particular case the Court may, if it finds that a purchaser has been cantankerously pursuing a wholly futile claim for the entirety of the share, refuse to grant him the discretionary relief of specific performance. But the exercise of discretion is a matter which has to be decided on a conspectus of all the facts of the case. I can see no reason to limit the exercise of the option to the trial stage, as contended for the appellants. Subject to certain provisions, the first appellate Court in this Country has all the powers as the original Court, and the second appellate Court has powers similar to that of the first appellate Court--See Sections 107 and 108, Civil Procedure Code.
6. Learned Counsel for the appellants, in support of his contention, referred to a passage in the judgment of Gentle, C.J., in Narayanamurthy v. Madhavayya : (1947)2MLJ366 , Gentle, C.J., and Horwill, J., constituting the division Bench in that case. The case arose out of a suit for specific performance of a contract for the sale of a land. The agreement for sale was entered into by the first defendant for the sale of an extent of 16 acres and 80 cents of land, and the case of the plaintiff was that the agreement for sale was made by the first defendant as Kartha of the Hindu joint family of himself and the second defendant for binding family purposes. It was found that the defendants were separated in status, and that the agreement for sale entered into by the first defendant could not in any way bind the second defendant or his share in the 16 acres and 80 cents of land. The plaintiff claimed specific performance against both the defendants and prayed in the alternative for damages. The trial Court refused the specific performance prayed for and also the exercise of the provisions of Section 15. The learned Subordinate Judge gave as reason for declining relief under Section 15 that there must be an unconditional request by the plaintiff that he was prepared to take the first defendant's share for the whole consideration with-out claiming any damages or compensation and the plaintiff in the case wished to file an appeal against the suit. Gentle, C.J., while rejecting the appeal by the plaintiff inter alia observed at page 685:
There would be violation of the section (section 15) if the plaintiff obtained a decree against the first defendant, pursuant to the section, and thereafter proceeded further by way of appeal to enforce the contract in respect of the remaining portion of the land which belongs to the second defendant. As mentioned previously, the benefit given by Section 15 is statutory, and its terms must be fully complied with by the person seeking to invoke it. When, as in the present instance, a person sues for specific performance of an agreement, and it is held that he cannot obtain an order in respect of the whole but only part of the property, the subject of the agreement sought to be enforced, it is at that stage that he must make up his mind what he will do if he considers that the decision of the trial Court, which has held that he is not entitled to specific performance of the whole, is incorrect. He cannot call in aid Section 15, and at the same time, proceed, in addition to obtain the remainder of the property or damages, that is not relinquishment of all claims.
It must here be noted that the learned Judge points out that the stage comes in when it is held that the plaintiff cannot obtain an order in respect of the whole but only part of the property. It is not said that this cannot be done at the appellate stage'. Having regard to the fact that no case-law is discussed and that the other learned Judge Horwill, J., discusses a number of cases, it cannot be assumed that the learned Chief Justice was ignoring the case-law placed before the Court, permitting the grant of the relief even at the appellate stage. When the reference is to a judicial finding, it can only mean the ultimate judicial finding which has finality in law. The scope of the observations of the learned Chief Justice, particularly in the earlier and later part in the passage above quoted becomes clear when the later observations of the learned Chief Justice at page 686 to the effect in the memorandum of appeal ground No. 20 the plaintiff alleges that the lower Court failed to see that so long as the plaintiff restricted his remedy against the first defendant to the performance of the contract of sale with respect to his share, the plaintiff was perfectly within his rights in proceeding in appeal against the second defendant with respect to the other questions arising in the case is noticed. The learned Chief Justice points out that this ground of appeal made it manifest that whilst the plaintiff wished to invoke Section 15 in the Court below, nevertheless he intended to continue enforcement of performance of the contract or to obtain compensation with respect to its non-performance, and that this ground of appeal was sufficient to make it clear that the plaintiff was not entitled to the benefits of the section. It is clear from the ground that so far as the actual contracting party was concerned, the plaintiff is willing to accept part performance but he wanted to proceed for the remainder against the other party. This clearly went against the scope of Section 15. The following observation of the learned Chief Justice in my view, brings out the vitiating feature of the plaintiff's claim in that case which the learned Chief Justice saw;
He cannot call in aid Section 15, and at the same time, proceed, in addition to obtain the remainder of the property or damages. (The emphasis is mine.)
The other learned Judge, Horwill, J., examines this question now under consideration in extenso. The learned Judge considers the question whether the trial Court ought to have applied Section 15, notwithstanding the circumstances that the appellant was not prepared to forego his right of appeal on the question whether the agreement was binding on the second defendant. The learned Judge observes at page 688:
This section (section 15) can only come into application where a party to a contract is unable to perform the whole of his part of it; and so it is necessary for a Court to determine, before considering whether it should apply Section 15,. whether the party to the contract is able to perform the whole of his part of the contract or not. It is only on the Court's finding that he cannot perform the whole of his part of the contract, that any question with regard to the application of this section arises.
Referring to the claim by the plaintiff in that case of his intention to prefer an appeal the learned Judge remarks:
In saying that he intended to appeal, he was not refusing to give the undertaking required by the proviso to Section 15, in the event of its being held in appeal that that section applied; the was merely saying that he intended inviting the appellate Court to find that Section 15 had no applicability at all. Incidentally, since the whole matter has been re-opened in appeal this Court has the same duty as the trial Court of determining whether the first defendant was able to perform the whole of his contract or not; and if, as we have found, he was not, then of deciding whether this Court should direct the first defendant to perform so much of the contract as it lies in his power to do.
The learned Judge then proceeds to consider several decisions on this aspect of the matter and concludes that the Subordinate Judge in that case could apply Section 15 and it was also open to this Court in appeal if so minded to grant the relief to the plaintiff. It is pointed out that the plaintiff cannot, however claim the relief as. of right. Since the question is a matter of discretion, the learned Judge held that he was not prepared to say that the lower Court should have granted relief under Section 15. The learned Judge pointed out that the decision of the Judicial Committee in Pramathanath Mitra v. Gosthabihari Sen 1931 62 M.L.J. 243 : 59 I.A. 47. I.L.R. (1931) Cal. 1025, which was also cited before me by learned Counsel for the appellants, had no bearing on the question because in that case there was no offer by the plaintiff at any time even before their Lordships of the Privy Council to forgo their right to compensation or damages.
7. For the appellants it is said that a recent decision of a division Bench of this Court in Parthasarathy v. Venkata Kondia (1966) 1 M.L.J. 90 : I.L.R. (1965) Mad. 464, has read the decision in Narayanamurthy v. Madhavayya : (1947)2MLJ366 , as holding that there should be an unconditional acceptance by the plaintiff of the relief offered under Section 15 at the trial or at the earliest opportunity. It is contended that an unconditional acceptance postulated giving up of the right of appeal. I am unable to read the judgment in Parthasarathy v. Venkata Kondiah (1966) 1 M.L.J. 90 : I.L.R. (1965) Mad. 464, as laying down any such proposition. Far from it, a perusal of the judgment that the decision contemplates the exercise of an option at any time before the matter is finally decided which may be even in a Court of second appeal. This decision on Letters Patent Appeal confirmed that of Ramakrishnan, J., in Parthasarathi v. V. Kondiah : AIR1963Mad106 , granting in appeal relief to the plaintiff under Section 15.. The agreement for sale of immovable property which was enforced in that case, was executed by the first defendant in that suit; but he had title only to item 1 and had no right to convey item 2 which belonged to his sister. The trial Court thought that it could apply Section 14 of the Specific Relief Act having regard to the relative value of the properties and directed a conveyance of item 1 only for a reduced consideration. On appeal by the defendant, Ramakrishnan, J., took, the view that inability to convey item 2 could not be considered to be a small and immaterial deficiency entitling the plaintiff to get a decree for specific performance subject to payment of compensation. This Court was of the view that Section 16 would not apply and Section 15 was more in point. During the hearing of the appeal, the plaintiff applied in this Court offering to take up conveyance of item 1 for the full contract price giving up his claim for compensation and further performance. The learned Judge granting relief under Section 15, observed at page 108;
It has been pointed out in several decisions of Courts that the giving up of the relief of compensation could be made by the promiser at any stage in the action.
Reference was made therein to the decision of the Supreme Court in Kalyanpur Lime Works. v. State of Bihar : 1SCR958 , and that of the Calcutta High Court in Dwijendra Kumar v. Monmohan : AIR1957Cal209 , The learned Judge distinguished Pramathanath Mitra v. Gosthabihari I.L.R. (1931) Cal. 1085 : 1931 62 M. L.J. 243, observing that the Privy Council did not consider the question about the stage at which the promise could relinquish his claim, and that the question had. been dealt with only in the two decisions above cited. The division Bench in Parthasarathy v. Venkata Kondiah (1966) 1 M.L.J. 90 : I.L.R. (1965) Mad. 464, has affirmed this decision of Ramakrishnan, J., granting relief under Section 15 at the appellate stage, referring to the case-law permitting the grant of relief at any time before a suit is finally decided. True, while referring to Narayanamurthy v. Madhavayya : (1947)2MLJ366 , it is observed at page 540.
In that case in a contract to convey 16 acres 80 cents of land the vendor was not able to convey the entire extent but only half of that area and when a suit was filed the plaintiff did not relinquish all claim to further performance of the contract and to all rights to compensation either for the deficiency or for the loss or damage sustained by him through the default of the first defendant. But in appeal when it was complained to the learned Judges that the learned Subordinate Judge refused to exercise the provisions of Section 15 the learned Judges-rejected this contention and agreed with the reasoning given by the trial Judge that it should be an unconditional request by the plaintiff without claiming any damages or compensation or any other relief. But on the other hand the plaintiff represented to the trial Judge that he would file an appeal, against the suit.
In referring to the aforesaid decision, it cannot be said that this Court in Parthasarathy v. Venkata Kondiah (1966) 1 M.L.J. 90 : I.L.R. (1965) Mad. 464, was approving the view of the Subordinate Judge in the earlier case. Only the facts of that case were being set out. Venkatadri, J., who delivered the Judgment of the division Bench observes at page 470:
In view of the principles laid down in the above decisions, the plaintiff is certainly entitled to relinquish his claim to compensation at the stage of the first appeal.
The decisions relied on certainly include also the decision in Narayanamurthy v. Madhavayya : (1947)2MLJ366 . If the division Bench of this Court had accepted the view of the Subordinate Judge in Narayanamurthy v. Madhavayya : (1947)2MLJ366 , as contended for the appellants there could have been no affirmance of the decision of Ramakrishnan, J.
8. It will be useful to refer to some of the earlier cases cited in the decisions above considered in the context of the present contention. In Poraka Subbarami Reddy v. Vadlamudi Seshachalam Chetty I.L.R. (1909) Mad. 359 : 20 M.L.J. 328, a contract of sale was entered into by a person on his own behalf and on behalf of certain minors. The contract of sale was found not binding on the minors and the Courts below dismissed the plaintiff's suit for specific performance in its entirety. The Courts were of the view that the contract was one and indivisible and no relief could be granted even against the adults who had entered into the contract. In second appeal in this Court the plaintiff pressed for a decree for the entirety of the property against the two adults, defendants 1 and 4. While finding that no decree could be passed compelling conveyance of the interests of the minors as well as of the adult defendants on the appellant expressing in second appeal his willingness to take a conveyance by the two adult defendants of all their interests in the suit properties for the purchase money agreed upon without abatement or compensation, this Court held that plaintiff was entitled to such a decree. In reversal of the decrees of the Courts below, this Court directed that on payment within three months of the balance of the purchase money by the plaintiff, the two adult defendants in the case the first and fourth defendants should execute a conveyance of their interests in the suit properties. Proceeding it was ruled that as the plaintiff did not agree to the course in the Courts below, the plaintiff should pay the costs of the defendants. This is a direct authority of a division Bench of this Court granting relief to a plaintiff for the first time in second appeal and depriving him of his costs as the plaintiff did not agree in the Courts below to the grant of such relief. This decision of the division Bench has been approved by a Full Bench of this Court in Baluswami Ayyar v. Lakshmana Aiyar : (1921)41MLJ129 , Wallis, C.J., in the Full Bench case explains away the conclusions in Paraka Subbarami Reddy v. Vadlamudi Seshachalam Chetty I.L.R. (1909) Mad. 359 : 20 M.L.J. 328, the plaintiff asks for a decree against the shares of the first and fourth defendants at least. This We think he cannot have, as meaning that the plaintiff could not have a decree directing defendants 1 and 4 who were parties to the agreement to convey their own interest at a reduced price. The learned Chief Justice points out that as the plaintiff in that case expressed his willingness to pay the full contract price and waive all claims for compensation the learned Judges, at the close of their judgment gave him a decree as regards the shares of the first and fourth defendants.
9. In Dinanath Sarma v. Gour Nath Sarma : AIR1925Cal434 , plaintiff sued far specific performance on the footing that he was entitled to a 1/4 th share which belonged to the first defendant offering to pay a proportinate part of the consideration. The first Court decreed the suit. The appellate Court reversed the decision, the basis being that inasmuch as Section 15 applied to the case the plaintiff would only be entitled is a decree upon the footing that he accepted the 1/4th share of the first defendant in return for payment of whole of the consideration agreed upon and abandaned his claim to further performance and compensation. In second appeal it was contended for the plaintiff that it was not Section 15 but Section 16 that would apply. This contention was not accepted. It was noticed that the plaintiff, even in the lower Court, finding that the decree in his favour might be reversed, had offered to pay the full consideration in return for a conveyance of the 1/4th share belonging to the first defendant. The lower appellate Court had rejected the offer considering it as a belated one. The High Court in second appeal granted the plaintiff relief under Section 15, observing:
It appears to me that when a Court is able to discover, as in this case, an equitable relief to which the party is entitled it would be well advised to allow the plaintiff, when the defendant had been so obviously in default to take advantage of any such equitable relief to which he is entitled under the law....
In Panchananda v. Rajani Kanta : AIR1931Cal463 , the plaintiff sought to enforce a contract against the first defendant in respect of his 1/3rd share of the land in question and not against the minor brothers of the first defendant. The learned District Munsif came to the conclusion that there was no concluded agreement for enforcement. On appeal the learned Subordinate Judge granted a decree for specific performance of the first defendant's 1/3rd share in return for the payment of 1/3rd purchase price. The question seriously considered in the High Court was as to the nature and extent of the relief the plaintiff was entitled to. After discussing the true scope of Sections 14 to 17 of the Specific Relief Act and following the decision of this Court in Baluswami Aiyar v. Lakshmnana Aiyar : (1921)41MLJ129 , it was held that the case fell under Section 15, and that the Court had no other course but to allow the appeal and set aside so much of the judgment of the learned Subordinate Judge as it directed payment only 1/3rd of the price. The High Court observed that if the plaintiff desired to have the first defendant's 1 /3rd share in the land in question conveyed to him, he must be prepared to pay the whole of the consideration less what had been paid already. It was pointed out that if on the other hand the plaintiff was content to get relief by way of compensation from defendant 1 for the undoubted breach of the contract, he would be entitled to obtain monetary compensation for the loss he had sustained. In the circumstances the Court granted time to the plaintiff to elect, observing:
We propose to give the plaintiff an opportunity to make up his mind with regard to the course which he desires to adopt and for that purpose we defer making a final order and allow the plaintiff 14 days' time in which to decide which of the two courses. I have indicated he would prefer to follow.
In that case the plaintiff later informed the Court that he did not wish to purchase a 1/3rd of the property for the full consideration. A decree was, therefore, granted for return to the plaintiff of the advance he had paid. This illustrates the extent of the indulgence which the Courts have shown even at the second appellate stage to grant equitable relief when there has been deliberate breach of the contract by the defendant.
10. In Waryam Singh v. Gopi Chand I.L.R. (1929) Lah. 69, the plaintiffs who claimed specific performance urged in the trial Court that the defendants who had agreed to sell 200 Kanals of land in certain specified numbers having proved to be owners of 2/3rd of the land, must be directed to make good the deficiency from other land belonging to them in the village. This contention was not pressed in the High Court. But it was claimed in the High Court for the plaintiffs that there was a case for the application of Section 15. For the defendants it was argued that the plaintiffs could not have the benefit of this provision, as they did not make a prayer in that regard in the plaint or during the trial in the Courts below. But in fact the plaintiffs had made an application at the time of arguments in the trial Court. Be that as it may; repelling the arguments of Counsel the Court observed:
I cannot find anything in Section 15 of the Specific Relief Act, or any other provision of the law, limiting action under Section 15 to any particular stage of the proceedings. It seems to me that it is open to the plaintiff to relinquish his claim to any part of the property in suit on the conditions specified in Section 15, at any time before the suit is finally decided by the Court of Appeal.
The Court held that there were no equities in favour of the defendants in that case that would justify the refusal of the equitable relief under Section 15 in favour of the plaintiffs and granted the plaintiffs the relief under Section 15.
11. This decision was approved by the Supreme Court in Kalyanpur Lime Works v. State of Bihar : 1SCR958 . In that case the trial Court had granted specific performance of a contract for lease to commence from 1st of April, 1948. The original contract for lease was for a period of 20 years, the lease to take effect from 1st April, 1934. The State of Bihar which had entered into the contract, was not in a position to grant the lease as originally contracted. The High Court reversed the decree of the lower Court, as in effect the agreement between the parties was reconstructed by the decree. At the time of hearing of the appeal before the High Court, relief under Section 15 was prayed for. But that was not granted in the view that the plaintiffs had not relinquished all further claims and were not ready and willing to perform their part of the contract and were asking for more than they were entitled to. The Supreme Court referring to the application of the plaintiffs in the appellate Court pointed out that there was no doubt whatever that the plaintiffs had offered to relinquish all claims to further performance and compensation and observed:
The plaintiff's learned Counsel has asked for that relief in the course of his arguments and he has made it clear that he insists on no further performance, nor does he claim any compensation for any period prior to the execution of the leases. Relinquishment of the claim to further performance can be make at any stage of the litigation. See Waryam Singh v. Gopi Chand I.L.R. (1929) Lah. 69, We think, therefore, that subject to what we are going to say on the last point, the plaintiff can claim relief under Section 15 of the Specific Relief Act.
After this decision of the Supreme Court categorically laying down that the plaintiff could claim relief under Section 15 at any stage of the litigation, little is left for forensic controversy. Even if the observation of Gentle, C.J. in Narayanamurthy v. Madhavayya : (1947)2MLJ366 , could be considered as laying down that the option must be exercised at the stage of the trial itself, after a declaration of the law by the Supreme Court as above stated, there is no room for further argument. The decided cases referred to above show that the relief had been granted even at the second appellate stage for the first time. The decisions are uniform in this regard. Reference may also be made to the decision in Dwijendra Kumar v. Monmohan : AIR1957Cal209 , In that case the Courts below granted the plaintiff a decree for specific performance of a contract of lease in respect of 3/4th of the suit property at the full stipulated rental without any abatement either in respect of rent or the salami money acting under Section 15. It was argued for the defendant that specific performance ought not to have been decreed at all. In second appeal while holding that the plaintiff would be entitled to a decree for specific performance and that he had accepted the decree granted by the Courts below, it was observed:
Even if the necessary relinquishment be not inferable from the above circumstances the plaintiff respondent is in no worse position, as his learned Counsel has categorically and unequivocally stated before me that his client is prepared to relinquish his claim to further performance and compensation, as required by the provision in Section 15. This is clearly sufficient, as relinquishment for purposes of the said section can be made at any stage of the litigation (vide Kalyanpur Lime Works v. State of Bihar : 1SCR958 , approving Waryam Singh v. Gopi Chand I.L.R. (1929) Lah. 69.
12. In the present case pursuant to the decree of the trial Court the plaintiff had deposited the balance of the consideration. No doubt she has been agitating her right to a conveyance of the entirety of the property. But that does not mean that if she is entitled only to relief under Section 15, she would still persist on further performance of the contract or claim damages or compensation. The option can be exercised at any stage of the litigation before a finality has been reached. Of course the relief is discretionary and the Court may in a given cases refuse the relief at a late stage if the equities of the particular case justify such a course. The Courts below have concurrently held that the plaintiff was entitled to relief under Section 15 and granted her a decree accordingly. No controversy was raised in the lower appellate Court as presented now. The plaintiff cannot be said to have refused acceptance of the decree granted if that is all she would be entitled to in law. I can see nothing in her conduct in regard to the litigation that necessarily results in her forfeiting the discretionary decree already granted. She has chosen to exercise her option, at any rate in this Court, withdrawing the second appeal she filed claiming to be entitled to a conveyance of the entirety of the property. A distinction must be noticed between the case of a plaintiff who notwithstanding a decree under Section 15 claims that the promiser could in fact convey more, and a case of not relinquishing further performance or claim for compensation while accepting partial performance in the view that the promisor could not perform the contract fully. Agitating bona fide in the very suit for specific performance that the contract could be performed in fully by the promisor in default, is quite a different thing from nonwaiver of the claim to further performance and compensation while accepting relief under Section 15 when it is found that only partial performance could be had. Section 15 provides primarily against the contingency of a plaintiff accepting part performance of a contract for the full consideration and starting a fresh litigation for compensation and damages for the deficiency or seeking to enforce performance against others. It compels this to relinquish all further claims if he would have relief under Section 15. The question of a promisee exercising option arises only where the situation gets crystalized finally that he cannot have performance of a contract as a whole. In the present case Counsel for the plaintiff has expressly stated before me that in terms of Section 15 his client waives all claims to further performance and all rights to compensation either for the deficiency of for the loss or damages sustained by her through the default of the defendants,. That apart the plaintiff has in the affidavit in support of her application to withdraw the second appeal specifically relinquished all further performance and offered to abide by the conditions of Section 15 for securing the relief thereunder.
13. Learned Counsel for the appellants submits that the grant of the relief for specific performance is discretionary and that the plaintiff in this Court is not exercising its discretion for the first time. The Courts below have exercised their discretion and it cannot be said that their exercise of discretion is arbitrary or unwarranted in the circumstances of the case. Every conceivable plea has been taken against the plaintiff. The very contract and receipt of consideration in part was denied. There is no unreasonable delay in filing the suit for specific performance. The original contracting party died shortly after the contract and defendants 2 and 3 entered on the scene with full knowledge of the contract in favour of the plaintiff. Their alleged payment of the major part of the consideration is after the institution of the suit. I see no reason whatsoever for disentitling the plaintiff to the relief under Section 15 which was granted by the Court below.
14. In the result Second Appeal No. 453 of 1965 is dismissed with costs. Second Appeal No. 1216 of 1965 which is not pressed and withdrawn is also dismissed with costs. No leave.