Decree For Partial Specific Performance Not Permissible When Defendant Retains Undisputed Title Over Entire Property: Kerala High Court

The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar delivered the judgment in an appeal filed against a decree for specific performance granted by the Sub Court, Koyilandy.

The case arose out of an agreement for sale executed in 2007, under which eight defendants agreed to convey 4 acres and 30 cents of land to the plaintiff for ₹16,000 per cent within a period of six months from the date of the agreement. The plaintiffs alleged failure on the part of the defendants to perform the agreement and sought specific performance for the conveyance of the extent over which defendants 1 to 8 had title, in favour of the second defendant.

The defendants contended that the sale agreement was entered into with the first plaintiff alone, and there was no privity of contract with the second plaintiff. The financial capacity of the first plaintiff to proceed with the transaction was also challenged. The trial court had decreed specific performance for a lesser extent of 3 acres and 84.625 cents, finding that the defendants had title only over that portion. The decree directed the execution of the sale deed in favour of the second plaintiff, a partnership firm. The challenge of this decree was considered by the High Court.

The defendants contended that there was no privity of contract with the second plaintiff and the second plaintiff cannot seek enforcement of the sale agreement. The Court noted that the second plaintiff has been impeached only as a nominee of the first plaintiff, in whose favour the sale deed is to be executed.

The Court noted that the readiness and willingness of the first plaintiff to sale agreement in the present case must be examined and observed:

“In a suit for specific performance, the plaintiff has to prove his readiness and willingness from the date of agreement till the date of decree.”

The Court further examined the scope of Section 12(2) of the Specific Reliefs Act and held that Section 12(2) could not be invoked to justify a decree for a lesser extent of land when the defendants remained in possession of the entire property and had visible, undisputed boundaries under their partition deed. The inability contemplated under Section 12(2), the Court clarified, must arise from a defect or a lack of title.

“The lis is not one upon a rival claim of title. As was noticed above, the defendants have in their possession and enjoyment the entire property under Ext.B4 Partition Deed of 1982. The prior title deed, Ext.B3, is of the year 1961. Therein the extent of property is given in “6 feet kole measurement”. It is only probable that there would be slight differences in the actual extent. There is no case that there was any dispute with regard to the title over the property with any of the adjoining owners at any point of time. It could not be concluded that, prima facie there is lack of title with the defendants over the entire extent of property.” the Court observed

Noting that the granting of specific performance under Section 12 (2), is in the discretion of the Court, the court observed that the amended plaint seeks specific performance to only lesser extent based on the Commissioner's Report. The court noted that the plaintiffs were apprehensive of the extent of the property and had only expressed readiness and willingness to a lesser extent.

“ On the facts obtaining in this case, as noticed above, we are clear in our minds that a decree for part performance for the lesser extent, is not to be granted. The plaint, as amended, seeks for specific performance of only the lesser extent, based on the Commissioner's Report. Even going by the averments in the plaint, the plaintiffs were apprehensive of the extent of property. They have expressed their readiness and willingness only to the lesser extent. Therefore, they are not entitled for a decree for specific performance in respect of the entire extent.”

The Court thus set aside the decree of Specific performance and held that the plaintiff had failed to prove continuous readiness and willingness, and that the trial court erred in granting partial performance. However, the Court directed a refund of the advance sale consideration of ₹26 lakh with interest at 12% per annum up to the date of the decree, and 6% thereafter.

Case Title: T K Vasudevan Nair and Ors. v T Vrij Mohan and Ors.

Case No: RFA 129/ 2025

Citation: 2025 LiveLaw (Ker) 718

Counsel for Appellants/ Defendants: T Krishnanunni (Sr.), K C Kiran, Meena A, Vinod Ravindranath

Counsel for Respondents/ Plaintiffs: Biju Abraham