JUDGMENT

Adarsh Kumar Goel, J.

1. This appeal has been preferred against decree for specific performance of part of the contract relating to share of the appellant in the suit property.

2. The respondent filed suit for specific performance of agreement to sell dated 25.5.192 whereby the appellant agreed to sell land measuring 16 kanals for Rs. 2,30,000/- out of which advance of Rs. 25000/- was received at the time of agreement and sale deed was agreed to be executed on or before 22.12.1992 on receiving the remaining amount.

3. Case of the plaintiff is that he offered the remaining amount and also went to the office of the Sub Registrar on 22.12.1992 but the defendant-appellant failed to execute the sale deed without any valid reason.

4. The defendant-appellant contested the suit stating that by virtue of subsequent oral agreement, the suit property was sold by sale deed dated 10.6.1992 in favour of plaintiffs mother Dalip Kumar and, thus, the agreement dated 25.5.1992 ceased to operate. Paramjit Singh, proforma respondent (son of the defendant-appellant) was also added as a party and in his written statement, he stated that his father had no authority to enter into agreement with regard to share of land belonging to him.

5. The trial court dismissed the suit holding that since agreement to sell related to 16 kanals of land and since Paramjit Singh, proforma respondent was a minor and no permission was taken -from the court for selling his share, the agreement in absence of mention of specific share of Balkar Singh, was void for vagueness and could not be specifically enforced.

6. On appeal, the lower appellate court partly decreed the suit, to the extent of share of the appellant, on payment of proportionate sale consideration after deducting the advance. It was held that share of minor was 6 kanals 17 marlas which will be excluded out of land agreed to be sold. The lower appellate court relied upon decision of the Apex Court in Kartar Kaur v. Harjinder Singh and Ors. A.I.R. 1990 S.C. 854. Hence this appeal.

7. Learned counsel for the appellant submitted that decree for performance of a part of the agreement could not be passed when plaintiff had knowledge that defendant had no authority to agree to sell the entire land. He relied on decision of a Single Bench of the Andhra Pradesh High Court in Polepalle Subramanyam v. Gundamreddy Peddakka. He further submitted that even if suit was to be decreed to the extent of the part of the land, consideration required to be paid could not be reduced proportionately. Reliance was placed on judgment of the Apex Court in Rachakonda Narayana v. Ponthala Parvathamma, A.I.R. 2001 S.C. 3352.

8. Learned counsel for the plaintiff-respondent supported the findings of the appellate court particularly finding in para No. 14 of the impugned judgment.

9. After hearing learned counsel for the parties, I do not find any merit in his appeal.

10. Section 12 of the Specific Relief Act, 1963 (for short, the Act), deals with the subject of specific performance of part of contract. It provides for situations when court will not direct specific performance and when court will direct specific performance. Under Section 12(4) when a part of the contract which can be specifically performed, stands on a separate and independent footing than that part which cannot be performed, the court may direct specific performance of the former part.

In Kartar Kaur's case (supra), the Apex Court held as under:-

"When the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the joint owners owns a moiety of the property...."

"In the circumstances when the absentee vendor, for some reason or the other, refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share."

With the above observations, the Apex Court granted specific performance on payment of proportionate consideration.

11. In the present case, the lower appellate court has granted decree for specific performance against the appellate to the extent of his share on payment of proportionate consideration. There is no error in the view taken by the lower appellate Court. Judgments relied on by the counsel for the appellant are distinguishable.

In Polepalle's case (supra), specific performance was refused in the facts of that particular case by observing that when both parties were aware that the defendant could not convey title in respect of whole of the property, plaintiff could not seek specific performance of that part of the contract which the defendant was in a position to perform. Judgment of the Apex Court in Kartar Kaur's case (supra) was neither cited nor considered. In view of the judgment of the Apex Court in Kartar Kaur's case, it cannot be held that the plaintiff can be denied specific performance on the ground that he was aware of incapacity of the defendant to transfer the whole of the property when the defendant entered into agreement in respect of his own share and share of his minor son.

Observations in Rachakonda's case (supra) are that a person seeking specific performance must pay whole of the agreed amount even if he seeks performance of part of contract and should also relinquish his claim in respect of other part which defaulting party is not able to perform. Again, the said judgment does not deviate from the principle that when for any reason, the Court is unable to grant specific performance of the entire contract the court can "direct the party in default to perform specifically so much part of the contract as he can perform" if the other party pays or has paid the agreed consideration for the "whole of the contract reduced by the consideration for the part which must be left unperformed." If the said judgment is read in the manner suggested by the learned counsel of the appellant, provisions of Section 12(3)(b)(i) will be rendered otiose. Moreover, in view of statutory provisions as well as the judgment in Kartar Kaur's case, court can reduce consideration to be paid proportionately and there is, thus, no illegality in the view taken by the lower appellate court. No substantial question of law arises.

The appeal is dismissed.