Summary
Under a 1993 agreement to sell about 76 cents of land, the vendor was also to agree with his brother's wife to buy part of her land as a pathway, since the suit land had no access. No such agreement was made. The purchaser sued in 2007. The trial court decreed specific performance, the first appellate court reversed it, and the High Court in second appeal restored it. The Supreme Court allowed the vendor's heirs' appeal. The High Court had framed a question of fact as a substantial question of law and decided limitation under Article 54 without framing a question on it. In any event, performance depended on a third party who could not be compelled. Part performance was barred by Section 12(1) of the Specific Relief Act, and Section 13(1)(b) did not apply. A refund of Rs. 1,44,400 with 9% interest was decreed instead.
Issues
- Whether the High Court in second appeal could restore a decree for specific performance on a question of fact and decide limitation without framing a substantial question of law
- Whether specific performance can be decreed where performance depends on the vendor first acquiring a pathway from a third party not party to the agreement
Provisions considered
- Section 100, Code of Civil Procedure, 1908The question framed, whether certain endorsements were proved, was one of fact. The High Court also went beyond it to reverse the finding on limitation without framing any substantial question of law. (¶¶ 8, 9, 10, 11, 15)
- Article 54 of the Schedule and Section 18(1), Limitation Act, 1963Limitation for specific performance runs from the date fixed for performance or from notice of refusal. The High Court decided it without any ground or question on Article 54 in the second appeal. (¶¶ 13, 14, 15)
- Sections 12(1) and 13(1)(b), Specific Relief Act, 1963The court cannot compel the vendor to contract with, or obtain performance from, a third party. Ordering only the conveyance would be specific performance of part of the contract, barred by Section 12(1), and Section 13(1)(b) did not apply because the vendor had no right to compel the third party. (¶¶ 16, 17, 18, 19, 20)
Held
- A finding on whether endorsements on the agreement were proved is a finding of fact, not an answer to a substantial question of law. The High Court also reversed the first appellate court on limitation without framing a substantial question of law and without referring to Article 54, which no ground in the second appeal had raised. (¶¶ 10, 11, 14, 15)
- Performance comprised two parts: the vendor contracting with his brother's wife for a pathway, and then conveying the suit land. The first could not be compelled, because it depended on the will of a third party who was not a party to the agreement. (¶¶ 16, 17, 18)
- Decreeing only the conveyance would be specific performance of part of the contract, barred by Section 12(1). Since the land had no access without the pathway, none of the exceptions in Section 12(2) to (4) applied. Section 13(1)(b) was unavailable because the vendor had no legal right to compel the third party to convey. (¶¶ 18, 19, 20)
Result
Appeal allowed. The decree for specific performance was set aside, and a decree for refund of Rs. 1,44,400 with 9% interest from the date of suit was granted instead; parties to bear their own costs.