TMI Blog2002 (11) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... second regarding the sale of his 1/8 share in the machinery installed in the ice factory for a consideration of ₹ 16,000/- out of which ₹ 5,000/- was paid as earnest money. Both these agreements are Ex.P1 and Ex.P2 on the record. As per the terms of the agreements, the sale deeds in both the agreements were to be executed on or before 10.8.1982. When the defendant did not execute the sale deeds in both the agreements on 10.8.1982, the plaintiff served a notice upon him on 19.12.1983 and when the defendant did not honour the aforesaid two agreements, the present suit for specific performance was filed by the plaintiff on 17.1.1984. 3. The defendant contested the aforesaid suit on various grounds. He denied the execution of the agreements as well as the receipt of earnest money. He pleaded that the land in question, building raised thereon and the ice factory were Joint Hindu Family property and the same being a coparcenary property, no coparcenery was competent to sell his share, therefore, the agreements in question are riot enforceable. He also averred that no decree for specific performance of the agreement of sale in respect of the machinery can be passed because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the agreement of sale pertaining to 1/8 share in the machinery of the ice factory, it was held that this agreement is not specifically enforceable in law as the remedy available to the plaintiff was to claim the refund of the earnest money with damages, if any. It was held that the share in the machinery in the ice factory is not the immovable property and in view of Section 14(1)(a) of the Specific Relief Act 1963 (hereinafter referred to as 'the Act'), the agreement regarding such property cannot be enforced because non-performance of such contract can be adequately redressed by compensation in terms of money. Regarding the second agreement pertaining to the sale of 1/4 share in the land and building, it has been held that out of the total land measuring 40.2/3 marlas, 11 marlas of land was purchased by father of the plaintiff and the defendant and the remaining land measuring 29.2/3 marlas was purchased in the name of four brothers in equal shares vide four different sale deeds from the income of the property of the father. Therefore, the entire property was held to be the Joint Hindu Family property. It was further held that since the land and the building in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second appeal by the High Court, but where it is found that the findings recorded by the Courts below stand vitiated on wrong test and on the basis of the assumptions and conjectures and resultantly, there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. In this regard, he submitted that vide sale deed Ex.P3 only 11 marlas of land was purchased by the father of the parties to the suit in the year 1954, but the remaining land i.e. 29.2/3 marlas was purchased by the four brothers, including the parties to the suit, in their name vide sale deeds Ex.P4 to Ex.P8 from their income, as all of them were doing the business of ice factory. The observations, made by the Courts below, that the aforesaid land was purchased in the name of he four brothers by their father, from his income is wholly baseless and there is no evidence to this effect that this land was purchased by their father in their name of this land was purchased by them from the income of the Joint Hindu Family property. Learned counsel for the appellant has submitted that father of the parties to the suit was serving in the Railways and he retired in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the defendant have been held to be proved by both the Courts below. It has also been held that the plaintiff was always ready and willing to perform his part of the agreements and that the defendant has committed breach of the agreements, These findings recorded by both the Courts below have not been assailed before me by learned counsel for the defendant. The conduct of the defendant in the present case, particularly when on the other hand, he denied the execution of the agreements and receipt of the earnest money and on the other hand asserted that he was present on 10.8.1982 in the office of Registrar for execution of the sale deeds in view of the aforesaid agreements, is not appreciable. It is established on record that vide sale deed Ex.P3, 11 marlas of land was purchased by father of the parties to the suit in the year 1954 and building was also constructed by him thereon. It is also not disputed that father of the parties to the suit, namely Dula Singh, who was in service of Railways, retired in the year 1962-63 and died in the year 1966. It has been established on record that 29.2/3 marlas of land was purchased by four brothers in their name vide sale deeds Ex.P4 to Ex.P8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden to prove that the ice factory in question and the land purchased by the four brothers in their names was established and purchased from the income of the Joint Hindu Family. The Courts below have proceeded on a wrong inference that 11 marlas of land was purchased by the father and a building was also constructed thereon, therefore, whatsoever has been established and purchased subsequently in the shape of the ice factory and the land measuring 29.2/3 marlas by the four brothers in the individual names was done from the income of the 11 marlas of land and building constructed thereon. There is no evidence on the record led by the defendant that 11 marlas of land and the building was having some income. Merely because four brothers were in possession of this 11 marlas of land and the building on which they have installed an ice factory with the financial assistance of an outsider Gurdit Singh, it cannot be deemed in law as well as facts that factory was installed on the land measuring 29.2/3 marlas was purchased from the income of the said joint property, because there is no evidence that the said property was yielding some income. On the other hand, the four brothers installe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been found that out of the aforesaid property 11 marlas of land, purchased by the father and the building constructed thereon, was the Joint Hindu Family property and the remaining 29.3/3 marlas of land was the self acquired property of the four brothers. Learned counsel for the defendant submitted that even if this 29.2/3 marlas of land is held to be the self acquired property of the four brothers, in which the defendant was having 1/4 share, even then the suit for specific performance qua this land cannot be decreed in view of the provisions contained in Section 12 of the Act, because no specific performance of part of a contract can be directed by the Court. He further contended that the contention of plaintiff regarding part performance of the contract in view of Sub-section (2) of Section 12 of the Act cannot be accepted, as part for which the contract cannot be enforced i.e. 11 marlas of land and the building constructed thereon, is not the small part of the contract, rather it is substantial part of the contract. 14. I have considered the submissions raised by learned counsel for the defendant and an unable to accept the same. In my view, the part of the contact regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n erroneous view: Whether 1/8 share of the machinery installed in the ice factory is considered to be the movable property, if so whether the agreement to sell such property cannot be specifically enforced in view of Section 14 of the Act? In my opinion, there is force in the submission made by learned counsel for the appellant. The learned trial court has wrongly decided this aspect of the matter on the assumption that the machinery installed in the ice factory is not immovable property. Section 2(6) of the Registration Act, 1908 defines the 'immovable property' as under: Immovable property includes land, buildings, here ditary allowances, rights to ways, lights ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass. From the aforesaid definition, it is clear that the machinery of the ice factory, which is attached to the earth or permanently fastened to anything which is attached to he earth amounts to immovable property. But the Courts below have wrongly held the machinery, which is atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money; and (ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases- (a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market; (b) where the property is held by the defendant as the agent or trustee of the plaintiff. 16. The Courts below have not properly considered the effect of this Section. Even if for the arguments sake, the machinery of the ice factory is said to be the movable property, even then the article of machinery cannot be said to be an ordinary article of commerce. The Court below have wrongly held that he article of machinery installed in the ice factory cannot be considered to be a special value of the plaintiff. Thus, the Courts below have committed error of law as well as the facts while holding that the agreement of sale Ex.P2 regarding sale of 1/8 share of the machinery by the defendant cannot be ordered to be specifically enforced. 17. Learned counsel for the appellant also argued that the findings recorded by the Courts below on issue No. 4B to the effect that a par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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