http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: SMT. MAYAWANTI

       Vs.

RESPONDENT: SMT. KAUSHALYA DEVI

DATE OF JUDGMENT06/04/1990

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) RANGNATHAN, S.

CITATION:  1990 SCR  (2) 350        1990 SCC  (3)   1  JT 1990 (3)   205        1990 SCALE  (1)724

ACT:     Specific  Relief  Act: Section  9---Suit  .for  specific performance of contract--Considerations to be taken note  of by the Court in directing specific performance.     Contract Act: Whether there was a valid and  enforceable contract-Nature and obligation arising therefrom.     Indian  Evidence  Act: Whether the document  Exhibit  PW 11/A was admissible in evidence?

HEADNOTE:     A  civil suit was flied by the appellant herein  against the respondent herein in the year 1973 praying for a  decree for specific performance of the contract, in the alternative for  a  decree for a total sum of Rs. 16,000  including  the earnest  money of Rs.5,000 on averments inter alia that  she had  entered  into an agreement dated 16.9.71 with  the  Re- spondent for the purchase of a property with 2 Kohlus of  20 H.P.  electric  Motor etc., installed  therein  and  jointly owned  by  the Respondent with her step  mother-in-law  Smt. Lajwanti,  for  a consideration of Rs.50,000; that  in  case Smt.  Lajwanti  did not join in the execution  of  the  sale deed,  the  Respondent  would sell her  half  share  of  the property  for  half the sale price; that  pursuant  to  this agreement the Respondent handed over to the Plaintiff-appel- lant  possession of her share of the property but  later  as arbitration proceedings were going on between the Respondent and  her co-sharer Smt. Lajwanti, the Respondent  took  back the said agreement (styled as receipt) and thereafter  ille- gally took possession of the property from the appellant and declined to execute the sale deed in terms of the agreement.     The Respondent contested the suit on the pleas that  she never  intended to sell the suit property to the  Plaintiff; that the agreement was a mere paper transaction brought into being for putting pressure on her co-sharer; that the agree- ment  being not scribed on a proper stamped paper was  inad- missible in evidence; that the agreement related only to the moveable property; that no advance money was paid as alleged and  lastly  that  pursuant to the  compromise  between  the parties dated 9.1.72 350 the agreement dated 16.9.71 stood destroyed.     The  trial Court disallowed the agreement  Exhibit  PW-I

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

I/A  which constituted the foundation of the claim as  inad- missible in evidence and dismissed the suit.     The  High Court on revision, allowed the revision  peti- tion of the appellant with the direction to the trial  court to  impound  the document in accordance with  law  and  then proceed  with  the case. Respondent’s Petition  for  special leave against that order was dismissed by this Court.     Consequent to these orders of the Supreme Court and  the High Court the Trial Court tried the suit afresh and  passed a decree for specific performance which was affirmed by  the Additional  District  Judge  on appeal.  However  on  second appeal  the  High  Court held that there was  no  valid  and enforceable  contract as evidenced by Exhibit PW.  II/A  and thus instead of the decree for specific performance  granted a  decree for Rs.5,000 only by way of refund of the  earnest money. Hence this appeal by special leave by the Plaintiff.     Dismissing  the appeal and upholding the finding of  the High Court, this Court,     HELD:  The  specific performance of a  contract  is  the actual  execution of the contract according to its  stipula- tions and terms, and the courts direct the party in  default to do the very thing which he contracted to do. The stipula- tions  and  terms  of the contract have,  therefore,  to  be certain  and the parties must have been consensus  ad  idem. The  burden  of showing the stipulations and  terms  of  the contract  and that the minds were ad idem is, of Course,  on the  plaintiff. If the stipulations and terms are  uncertain and  the  parties are not ad idem there can be  no  specific performance, for there was no contract at all. [362D-E]     Where there are negotiations, the Court has to determine at  what point, if at all, the parties have  reached  agree- ment. Negotiations thereafter would also be material if  the agreement  is rescinded. In the instant case the defence  of there  having not been a contract for lack of  consensus  ad idem was available to the defendant. [363F; 364B]     The jurisdiction of the Court in specific performance is discretionary. When a promise is made in an alternative form and one 351 alternative  is impossible to perform, the question  whether the promiser’ is bound to perform the other or is altogether excused depends on the intention of the parties to he ascer- tained  from  the nature and terms of the contract  and  the circumstances of the particular case. [362F]     The  expression  ’otherwise  pay back  the  advance  and compensation in the same amount’ is capable of being  inter- preted  as payment of the amount as alternative to  perform- ance. Of course the amount advanced and the compensation was stipulated  to he the same amount. That, however, would  not effect the real character of the promise. [361G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4145 of 1984.     From  the  Judgment  and Order dated  14.2.1984  of  the Punjab  and Haryana High Court in Regular Second Appeal  No. 1498 of 1982.     Ravi Parkash Gupta, Arvind Varma, Bahar Burqui and Gopal Subramaniam for the Appellant.     R.F.  Nariman, Ms. Madhvi Gupta and Ashok K.  Gupta  for the Respondent. The Judgment of the Court was delivered by     K.N. SAIKIA, J. This plaintiff’s appeal by special leave

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

is  from the judgment and order dated 14.2.1984 of the  High Court  of  Punjab and Haryana in Regular Second  Appeal  No. 1498 of 1982, modifying those of the courts below and  pass- ing  a decree for Rs.5,000 only by way of refund of  earnest money instead of decree for specific performance.     The appellant herein as plaintiff filed Civil Suit  Nos. 195/196 of 1973, averring, inter alia, that she had  entered into  an  agreement  dated 16.9. 1971  with  the  respondent (defendant)  for purchase of property No. B-VII-7 (old)  and B-VIII-9 (new) containing 2 Kohlus of 20 H.P. electric motor etc.  for a consideration of Rs.50,000 and also had paid  to the defendant an earnest money of Rs.5,000; that the proper- ty was jointly owned by the defendant with her step  mother- in-law  Smt. Lajwanti who would also join the  execution  of the  sale  deed; that if Smt. Lajwanti failed to do  so  the respondent  (defendant)  would sell her half  share  of  the property for half of the sale price; that the 352 defendant-respondent  pursuant  to the  agreement  delivered possession  of her share of the property to  the  plaintiff- appellant,  whereafter the plaintiff repaired  the  property spending  Rs.4,200; that thereafter the partition  was  also effected between the defendant-respondent and Smt. Lajwanti; that  the defendant thereafter illegally took possession  of the  property  from the plaintiff-appellant and  refused  to execute  the  sale  deed in terms  of  the  agreement  dated 16.9.1971  on  or before September 26, 1971  as  stipulated; that  as arbitration proceedings between defendant  and  her co-sharer Smt. Lajwanti was going on the defendant took back the  said agreement (styled as receipt) and  thereafter  re- fused to execute the stipulated sale deed and in response to the plaintiff’s lawyer’s notice dated 23.7.1971 the  defend- ant  took the false plea that the agreement did not  pertain to  the building but only to the machinery  fitted  therein. The  relief prayed was a decree for specific performance  of the contract, in the alternative a decree for a total sum of Rs. 16,000 including the earnest money of Rs. 5,000.     The defendant-respondent contested the suit on the inter alia pleas that the agreement being not scribed on a  proper stamped  paper was not permissible in evidence; that it  was only  a  paper transaction executed to  pressurise  her  co- sharer  Smt. Lajwanti; that no earnest money was paid;  that in  any  case  the document related  only  to  the  moveable property;  and that pursuant to the compromise  between  the parties dated 9.1.1972, the agreement was destroyed.     In  the trial court the plaintiff relied mainly on  Ext. PW-11/A  being the entry of the transaction in the  Petition Writer’s  Register. When this Exhibit was disallowed by  the trial court vide its order dated 27.10.1976 as the entry was a  duplicate  of its original document which  had  not  been produced in the court and therefore inadmissible, the plain- tiff’s  revision  petition therefrom to the High  Court  was allowed with a direction to impound the document in  accord- ance with law and then proceed with the case. The High Court in  its order dated 18.7.1977 characterised Ext. PW-11/A  as the  entry  in the Petition Writer’s Register  and  observed that  it  contained  all the details of  a  transaction  but appeared to be neither a copy nor an extract though a  prima facie  duplicate  of the original document.  The  defendant- respondent’s special leave petition therefrom was  dismissed by this Court with the following observation: "The  entry in the writer’s register which has been  allowed to  be admitted by the High Court subject to impounding  and consequential processes will in our view be eligible for 353

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

admission as evidence. This means that we will not interfere with  the order of the High Court. However we make it  clear that the trial court which considers this entry will  evalu- ate it properly and not read more than what it says or treat it as equivalent to something which it does not. Full effect will be given to the entry, no more, no less." In  light of the aforesaid orders of the High Court as  well as  of this Court, the trial court having decreed  the  suit and  the  defendant respondent having been  unsuccessful  in appeal to the Additional District Judge, she filed a Regular Second  Appeal  which was allowed by the High Court  by  the impugned judgment and order to the extent already indicated.     Before the High Court the defendant-respondent contended that  if  the entry PW-11/A was to be  treated  as  original document or its counterpart the same did not bear the signa- tures  of one of the parties, that is, the  respondent.  The signatures  of the husband of the respondent would be of  no avail as there was no evidence on record to show that he had the  authority to execute a document on her behalf  and  the document  signed  unilaterally  by one party  could  not  be treated as an agreement between two persons. Secondly as was admitted  by  the  witness, the entry was more  or  less  an extract  of the original document and such an extract  drawn and  maintained by a deed writer according to his own  light could  not  form basis of an agreement between  the  parties which  could be given effect to by way of specific  perform- ance. Both the contentions were sustained by the High  Court holding that no contract could be inferred from the document PW-1  I/A. Accordingly the High Court set aside  the  decree for  specific performance, allowed the appeal and  passed  a decree to the extent of Rs.5,000 being the earnest money  to be returned by the defendant to the plaintiff.     Mr.  Gopal  Subramaniam,  the learned  counsel  for  the appellant  assails  the impugned judgment  on  the  grounds, inter  alia,  that the High Court  overlooked  the  relevant provisions  of the Evidence Act as also this  Court’s  order relating to Ext. PW-11/A inasmuch as all the findings of the courts  below  were in favour of the  appellant  holding  on issue No. 14 that there was an oral agreement which was also admitted with its contents and the theory of destruction was found to be false; that the High Court should not have  gone behind  the Supreme Court’s order and should not  have  gone into  the  admissibility of Ext. PW- 1 1/A in face  of  this Court’s  order;  that the High Court has not  given  even  a single  reason  as  to why the decree  of’the  lower  courts should have been 354 set aside; and that Ext. PW-II/A was nightly admitted by the courts  below in accordance with the Supreme  Court’s  order but  the  High Court going behind that  order  rejected  it. Counsel  puts  the  appellant’s case on PW-  11/A  and  also dehors that document.     Mr. R.F. Nariman, the learned counsel for the respondent submits  that  the High Court rightly set aside  the  decree because the trial court as well as the lower appellate court were  concerned only with the question as to  whether  there was  an  agreement or not, but not with the question  as  to whether  specific  performance ought to be decreed  or  not. Counsel  submits that the High Court’s holding Ext.  PW-11/A to  be inadmissible meant only its evaluation as the  agree- ment;  and that the grounds given by the High Court  on  the merit of the case are correct. Accordingly to counsel,  even assuming  that Ext. PW-11/A was a copy of the agreement,  it would  by no means justify specific performance due to  var- ious patent and latent defects in it, and it did not  create

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

any  fight in favour of the plaintiff. In view of this  sub- mission we proceed to examine first the contract itself.     In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to  order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract  is based  on the ideal of freedom of contract and  it  provides the limiting principles within which the parties are free to make  their  own contracts. Where a  valid  and  enforceable contract  has not been made, the court will not make a  con- tract for them. Specific performance will not be ordered  if the contract itself suffers from some defect which makes the contract  invalid  or unenforceable. The discretion  of  the court  will be there even though the contract  is  otherwise valid  and enforceable and it can pass a decree of  specific performance  even  before there has been any breach  of  the contract.  It is, therefore, necessary first to see  whether there has been a valid and enforceable contract and then  to see  the nature and obligation arising out of it.  The  con- tract  being the foundation of the obligation the  order  of specific performance is to enforce that obligation.     Mr. Subramaniam argues that there was an oral agreement. The issue No. 1 was "whether there was a valid agreement  of sale  dated 16.9.1971 between the parties, if so  what  were its terms". Issue No. 14 was "whether there was an agreement of  sale on 12.9.1971 between the parties, if so  what  were its  terms"?  The  trial court adjudicated issue  No.  1  in favour of the plaintiff. Before the First Appellate Court it was contended by the defendant that the alleged agreement to sell 355 dated  16.9.1971  was  not admissible in  evidence  for  the reason  of it having not been scribed on the stamp paper  of the  requisite  value nor could any  secondary  evidence  be adduced  by the plaintiff-respondent to prove and  establish the  contents of the said agreement. The  defendant  averred that  she  never intended to sell the suit property  to  the plaintiff nor was it intended to be purchased by the  plain- tiff,  and  that the agreement dated 16.9.1971 was  a  paper transaction which was brought into being for exerting  pres- sure  on  Lajwanti, the other co-sharer of the  property  as suggested  by  plaintiff’s husband Master Kasturi  Lal.  The plaintiff  before the First Appellate Court relied  on  Ext. PW- 11/A, and the Court observed: "The learned counsel for the defendant-appellant very  fair- ly/frankly  submitted and conceded at the bar that the  fate of  this  case hinges in its entirety on  the  all-important document Ext. PW-11/A which is claimed by the plaintiff  re- spondent  to  be  an agreement to sell  dated  16.9.71,  the specific performance of which was sought and enforced in the suit by her."     While  Mr. Subramaniam asserts that  the  correspondence between  the parties amply showed admission of the  contract on  the  part  of the  defendant-respondent,  Mr.  Nariman’s demurrer  is  that there was no such admission, but  on  the other  hand statements on the part of the  defendant  showed that  she put an end to what was claimed to be  a  contract. Though  predominantly  a question of fact, in  view  of  the assertions  of  counsel, we have ourselves looked  into  the correspondence  on record. The earliest letter on record  is from  S.K. Singhal, Advocate for the plaintiff Mayawanti  to defendant  Kaushalya  Devi and Lajwanti stating  inter  alia that  on  16.9. 1971 the latter agree to sell  one  karkhana building  with two wheat grinding machines, two  kohlus  for expelling  oil,  one  electric motor of  20  H.P.,  electric

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

connection  and other necessary goods and accessories  owned by them and Kaushalya Devi executed an agreement to sell the building  and machinery for Rs.50,000 and received a sum  of Rs.5,000  in  advance at the time of execution of  the  said agreement;  that in case of default his client was  entitled to  get the sale deed executed through the  intervention  of the court and further that in case Lajwanti did not sign the sale deed Kaushalya Devi would execute it with regard to one half  share belonging to her; that the sale deed was  to  be executed upto 26.9.1971.; and that his client was ready  and willing to perform her part of the contract. KaushalVa  Devi was  therefore called upon to execute and register the  sale deed in favour of Mayawanti to the extent of one half each 356 of the karkhana as his client had always been and still  was ready  and willing to perform her part of the contract.  The defendant  replied to the said letter through  her  Advocate Hat Kishan Lal Soni by letter dated December 29, 1971  stat- ing  that Mayawanti agreed to buy a factory consisting of  a flour  mill, two kohlus, a 20 H.P. electric  connection  in- stalled  in property Unit No. B-VII-7 (old), B-VIII-9  (new) and she called upon the plaintiff to arrange to pay the  sum of Rs.50,000 and get the sale transaction registered  within 10  days  failing which the sender should be at  liberty  to sell it to any other party at the risk of the plaintiff  for compensation by way of damages suffered from the resale.  It is  to be noted that there is no mention of any building  in this letter. In their letter dated 4.1.1972 from Mr. Soni to Mr. Singhal, Advocate for the plaintiff, it was stated  that the  agreement was to transfer two kohlus and 20 H.P.  elec- tric  connection installed in the property Unit No.  B-VII-7 (01d)/B-VIII-9 (new) situated on Gokal Road, Ludhiana  lying on  the road side nearby excluding the buildings and the  20 H.P.  electric motor on receipt of full price  of  Rs.50,000 and that the latter’s client seemed to be labouring unneces- sarily to include the building and 20 H.P. electric motor in the bargain. In his letter dated 18.1.1972 to the plaintiff, Sham Lal Katyal, Advocate of Lajwanti intimated that Kausha- lya Devi had no fight to sell the share of Lajwanti. In  his letter  dated  13.7.1973 Sukhpat Rai Wadehra,  Advocate  for Mayawanti  stated that the defendant entered into an  agree- ment  to  sell  the  property Unit  No.  B-VII-7  (old)  and B-VIII-9 (new) with a flour mill, two kohlus, 20 H.P. facto- ry  connection and a wooden cabin standing on  the  roadside and  that due to the partition with her "sister Lajwanti"  a sale deed was to be executed on or before 26.9.1972 and  she having  failed to do so Mayawanti was entitled  to  specific performance  of the agreement to sell and therefore she  was called upon to execute the sale deed of property No. B-VII-7 (old) and B-VIII-9 (new.). In his letter dated 23.7.1973 Mr. Soni  wrote to Mr. Wadehra, that the agreement  was  without the  building and the motor and that the original  agreement was suspected to have been interpolated and so not  produced by the plaintiff as required by the defendant. In the letter dated  August 3, 1973 from Mr. Wadehra to Mr. Soni,  it  was asserted  that  the agreement was for the building  and  the machinery therein and that the agreement was never cancelled orally.  In the next letter dated 6.9.1973 from Mr.  Ahluwa- lia,  the defendant’s lawyer reiterated that  the  agreement dated 16.9.1971 was for karkhana only and not for the build- ing  and  that  the plaintiff could not  arrange  money  for payment.  In this letter it was stated that the time was  of essence  of the contract and had Mayawanti paid any  earnest money after the expiry date 26.9.1971, the defendant was 357

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

entitled  to  forfeit the same. Thus, even though  the  sale deed  was to be executed on 26.9.1971 the instant  suit  was filed long thereafter on 31.7.1973.     If  the above correspondence were true, it would  appear that the contract was in the alternative of either whole  or half  of the property and that the offer and acceptance  did not  correspond. It is settled law that if a contract is  to be  made, the intention of the offeree to accept  the  offer must  be expressed without leaving room for doubt as to  the fact  of  acceptance or to the coincidence of the  terms  of acceptance  with  those of the offer. The rule is  that  the acceptance  must be absolute, and must correspond  with  the terms  of  the offer. If the two minds were not ad  idem  in respect of the property to be sold, there cannot be said  to have  been a contract for specific performance. If the  par- ties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance. If the  plaintiff  understood the terms to  have  included  the building  but the defendant understood it to  have  excluded the  building and the so called memorandum Ext. PW-11/A  did not  mention the building, there is no contract  before  the court for specific performance. While Mr. Subramaniam  would argue  that the land was also included, Mr. Nariman  rightly points out that land was nowhere mentioned in PW-11/A. It is true  that  Issue Nos. 2 and 3 were  whether  the  defendant delivered possession of the property to the plaintiff pursu- ant to the agreement and whether the possession was illegal- ly  taken  by the defendant, and the Trial  Court  found  no independent evidence and Kasturilal admitted that there  was no document to prove the delivery of possession. However, on basis  of a suggestion to Kasturilal that it was  "incorrect to  suggest that any goods, i.e. gunny bags, oil, khal,  was in possession having been taken out from the factory  build- ing at the time of repairs", the trial court concluded  that delivery of possession was there. The first appellate  court also  took  it to be a "vital and material  suggestion"  and upheld  the finding. Admittedly the possession was with  the defendant at the time of the suit and there was no  proceed- ing to recover the possession by the plaintiff. This  infer- ential  finding, therefore, can not have any bearing on  the subject  matter of the contract contrary to what was  stated in  Ext. PW-11/A which was heavily relied on by  the  plain- tiff.     Mr.  Subramaniam  then submits that  the  plaintiff  was entitled  to specific performance by virtue of Ext.  PW-11/A which was rightly admitted and that even if it was  excluded from  consideration then also on the notices, pleadings  and evidence the plaintiff was entitled to a 358 decree and the High Court ought not to have gone behind  the order of the Supreme Court to hold that Exhibit to be  inad- missible  and  it  never adverted to the  admission  of  the agreement  of 16.9. 1971. Before us Mr.  Subramaniam  argued that Ext. PW-11/A was either a primary evidence or a second- ary evidence of the original and its impounding implies  its intrinsic value for the purpose of the case. The  signatures were  not denied. The trial court rightly treated it as  the agreement  and in the written statement, the  defendant  ob- jected  to  its admissibility and not to its  contents.  Mr. Nariman would like us to proceed on the basis that Ext.  PW- 11/A was not disputed by the defendant.     Ext.  PW-11/A  is  Sl. No. 871 dated  16.9.1971  in  the columns of the register of Atma Ram Gupta, petition  writer, Ludhiana  for the year 1971 and contains the following  par- ticulars:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

   It is styled as "receipt" for Rs.5,000 in column 4,  and in  column 3 the name and address of the writer is given  as Smt.  Koshalya  Devi W/o Dharam Dev, Ludhiana,  Gokal  Road, Mohalla Kothi Megh Singh. It bore 10 n.p. stamp. In writer’s signatures  column No. 8 it contains writer’s  signature  in English  and the R.T.I. of Kaushalya Devi and the  signature in English of Kasturi Lal. It contains the signatures of its writer  Atma  Ram  Gupta, petition  writer,  Ludhiana  dated 21.11.1971.  Under  the column particulars  of  writing  and address for the witnesses, it contains the following: "Smt.  Mayawanti W/o Master Kasturi Lal, Ludhiana  owns  and has a factory, flour mill, Two ’kohlus’ for expelling oil. I and Smt. Lajwanti widow of Baru Ram, Ludhiana have an  elec- tric  motor  of 20 H.P. connection in working  condition  at Gokal  Road. To the East Amar Singh, to the West Mansa  Ram, Ramji Das, to the north there is a road, to the South  there is  a Gali. All these are settled to be sold  for  Rs.50,000 and Rs.5,000 is taken as advance. The balance will be  taken at  the time of registration. The registration will be  done at  the expense of the buyer. It will be in the name of  the buyer  or in any other name he indicates by 26.9.  1971.  If any  other  person  has a right or encumbrance  on  it,  the advance and compensation will be paid back. If Lajwanti does not sign these sale deeds, then I will execute the sale deed of my one of the two shares, otherwise pay pack the  advance and compensation in the same amount. The buyer may take  the advance. 359 WITNESSES: Dharam Dev, husband of one who gives the receipt, R/o  Ludhiana,  Kothi Megh Singh, Gokal Road.  Tarsem  Kumar Gupta,  Stamp Vendor, Khanna Zila, Distt. Ludhiana,  Mohalla Hakim Rehamatullah, Kucha Kaka Ram House No. 27 13 (9)." Admittedly  witnesses  were examined and  cross-examined  on this  Exhibit  and  the appellant argued before  us  on  its basis.     The  defects  pointed  out by Mr. Nariman  are  that  it refers to Smt. Mayawanti W/o Master Kasturi Lal as the owner of the factory, flour mill and two kohlus for expelling oil. Mayawanti,  the plaintiff appellant, was the intending  pur- chaser  and not owner of the property. The owner and  vendor was  the  defendant/respondent Kaushalya  Devi.  It  nowhere mentions the land and the building; and it gives the proper- ty  number  only. Of course the boundaries of  the  factory, flour mill are given. Mr. Subramaniam submits that land  was implied in the description. Mr. Nariman would not agree.  It says: "if Lajwanti does not sign this sale deed, then I will execute the sale deed of my one of the two shares, otherwise pay  back the advance and compensation in the same  amounts. The buyer may take the advance." What is the legal effect of this statement on the agreement? Even assuming that  recita- tion of Mayawanti as the owner was a mistake and the factory also  implied the land whereupon it stood, the  question  is whether it amounts to an alternative promise. In  Halsbury’s Laws  of  England 4th Edn. Vol. 9, Para 446  on  alternative promises we read: "When  a  promise  is made in an alternative  form  and  one alternative  is impossible to perform, the question  whether the promisor is bound to perform the other or is  altogether excused depends on the intention of the parties to be ascer- tained  from  the nature and terms of the contract  and  the circumstances  of the particular case. The usual  result  in such  a  case  will be that the promisor  must  perform  the alternative  which remains possible; but it may be  that  on the  proper  construction of the contract there is  not  one obligation  to  be  performed in alternative  ways  but  one

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

obligation  to be performed in one way unless  the  promisor chooses  to substitute another way, in which case, the  pri- mary obligation being impeded, the promisor is not bound  to exercise the option for the benefit of the other party." Applying  the principle to the instant case, on proper  con- struc- 360 tion of Ext. PW-11/A can it be construed that there was  not one  obligation to be performed in alternative ways but  one obligation  to be performed in one way unless  the  promisor choose  to substitute another way? In other words, the  pri- mary  obligation being impossible was the promisor bound  to exercise  the option for the benefit of the other party?  It would  be reasonable to construe that if Lajwanti failed  to sign  the sale deed then the promisor would  either  execute the  sale deed in respect of her share, or in  the  alterna- tive,  pay  back the advance and compensation  in  the  same amount,  and the buyer would have to take the advance.  Laj- wanti  having refused to sell her share, the first  alterna- tive  became impossible. The question then was  whether  the second alternative would automatically follow or option  was reserved  by the vendor either to sell her own share  or  to pay  back  the  advance and the  compensation  in  the  same amount.  The  first  alternative failing,  if  the  promisor decided in favour of the other alternative, it could not  be said  that there was any breach of any obligation under  the agreement, and if that was so, there could arise no question of specific performance of the contract.     Looking  at PW-1 i/A from another angle the payment  was an  alternative to performance. In paragraph 4 17 of  volume 44 of Halsbury’s Laws of England dealing with payment as  an alternative to performance we find: "There are cases where the court holds, on the  construction of  the contract, that the intention of the parties is  that the act may be done by the contracting party or that payment may  be  made by him of the stipulated amount, so  that  the contracting  party has in effect the option either of  doing the  act which he has contracted to do or paying the  speci- fied  sum, the contract being alternative, either to  do  or abstain from doing on payment of the sum in money. The court may  treat  covenants to perform or to  pay  as  alternative where   specific   performance   would   work   unreasonable results." The expression ’otherwise pay back the advance and compensa- tion in the same amount’ is capable of being interpreted  as payment  of  the amount as alternative  to  performance.  Of course  the amount advanced and the compensation was  stipu- lated to be the same amount. That however, would not  affect the real character of the promise. We may also refer to another element of uncertainty or ambi- 361 guity  in the contract in the event that has  happened  viz. Lajwanti’s  refusal to part with her share in the  property. Ex. PW-1 1/A says that, in that event, Kaushalya Devi should execute  the  sale deed of "my one of the two  shares".  The share is undefined and the consideration for the sale  price for  the half share is also unspecified. This is  of  impor- tance  because  portions  of the property  are  not  equally valuable due to the situation of the kohlus, flour mill etc. on  a part thereof. It is true that, eventually there was  a partition between Kaushalya Devi and Lajwanti and the vendee may  have had no difficulty in working out the portion  that should come to her towards the half share agreed to be  sold by  Kaushalya Devi. But the question is whether words  could be read into Ext. PW- 11/A to spell out an agreement, on the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

date  of  that exhibit, that, in case Lajwanti  backed  out, Kaushalya  Devi would sell her half share to  the  appellant for one half of the total consideration. It seems  difficult to say that the answer should necessarily be in the affirma- tive.  There  are too many is to be dotted and  it’s  to  be crossed  before  a clear and unambiguous  contract,  on  the terms  sought  to  be enforced, could be spelt  out  of  the language of Ext. PW- 1 1/A.     The  specific  performance of a contract is  the  actual execution of the contract according to its stipulations  and terms, and the courts direct the party in default to do  the very  thing which he contracted to do. The stipulations  and terms of the contract have, therefore, to be certain and the parties  must  have been consensus ad idem.  The  burden  of showing the stipulations and terms of the contract and  that the  minds were ad idem is, of course, on the plaintiff.  If the  stipulations and terms are uncertain, and  the  parties are  not ad idem, there can be no specific performance,  for there was no contract at all. Where there are  negotiations, the  court  has to determine at what point, if at  all,  the parties  have  reached  agreement.  Negotiations  thereafter would also be material if the agreement is rescinded.     The jurisdiction of the court in specific performance is discretionary. Fry in his Specific Performance, 6th Edn.  P. 19, said: "There  is  an  observation often made with  regard  to  the jurisdiction  in  specific performance which remains  to  be noticed.  It is said to be in the discretion of  the  Court. The  meaning of this proposition is not that the  Court  may arbitrarily or capriciously perform one contract and  refuse to  perform  another, but that the Court has regard  to  the conduct  of the plaintiff and to circumstances  outside  the contract itself, and that the mere fact of the existence  of a 362 valid contract is not conclusive in the plaintiff’s  favour. ’If  the defendant’, said Plumer V.C., can show any  circum- stances dehors, independent of the writing, making it  ineq- uitable to interpose for the purpose of a specific  perform- ance,  a  Court of Equity, having  satisfactory  information upon that subject, will not interpose." The author goes on to say that of ’the circumstances calling for  the exercise of this discretion, "the Court  judges  by settled and fixed rules; hence the discretion is said to  be not  arbitrary or capricious but judicial; hence,  also,  if the contract has been entered into by a competent party, and is unobjectionable in its nature and circumstances, specific performance is as much a matter of course, and therefore  of right, as are damages. The mere hardship of the results will not affect the discretion of the court." Regarding the extent of the jurisdiction Fry wrote: "If  a contract be made and one party to it make default  in performance,  there appears to result to the other  party  a right  at his election either to insist on the  actual  per- formance of the contract, or to obtain satisfaction for  the non-performance of it. It may be suggested that from this it follows  that  a perfect system of  jurisprudence  ought  to enforce  the actual performance of contracts of  every  kind and  class, except only when there are  circumstances  which render such enforcement unnecessary or inexpedient, and that it  ought to be assumed that every contract is  specifically enforceable  until  the contrary be shown. But  so  broad  a proposition has never, it is believed, been asserted by  any of the Judges of the Court of Chancery, or their  successors in  the High Court of Justice, though, if prophecy were  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

function  of a law writer, it might be suggested  that  they will more and more approximate to such a rule."     As  Chitty observes, the "prophecy has not  been  wholly fulfilled,  for the scope of the remedy remains  subject  to many  limitations." But the author observes a  welcome  move towards the more liberal view as to the extent of  jurisdic- tion  which was favoured by Lord Justice Fry. But  where  no contract has been entered into at all, there is no room  for any liberal view. Section  9  of the Specific Relief Act says that  except  as otherwise 363 provided  in  that  Act where any relief  is  claimed  under Chapter  I1 of the Act in respect of a contract, the  person against  whom  the  relief is claimed may plead  by  way  of defence  any ground which is available to him under any  law relating  to contracts. In the instant case the  defence  of there  having not been a contract for lack of  consensus  ad idem was available to the defendant.     In  view of the above conclusion, the appeal has  to  be dismissed.  We should, however, like before  concluding,  to refer to certain other aspects debated before us: (1)  At a late stage of the arguments, it was  contended  on behalf  of the appellant that the translation of Ext. PW-  1 1/A  acted upon by the High Court, is not accurate and  that it  does not refer to Mayawanti as the owner of  the  Kohlus etc.  We directed the original records to be called for  and also gave leave to the appellant to file a translation. This has  been done but the respondent does not accept  this.  It was  also  mentioned  on behalf of the  appellant  that  the translator  in the Supreme Court had found the original  too illegible  to  be  translated and it was  requested  that  a translation may be allowed to be got done by an Advocate  of this  Court knowing the language. We cannot permit  this  at this  stage. The unofficial translation filed tries  to  im- prove upon the recorded translation of Ext. PW- 1 1/A in two respects. First, the reference to Mayawanti as the owner  is sought to be substituted by a reference to her as the  vend- ee.  So  far as this is concerned, as already  pointed  out, even if we take the reference to Mayawanti in the exhibit as due to oversight, there are various other aspects of  uncer- tainty  which render the terms of Ext. PW-11/A  specifically unenforceable.  The second improvement is the addition of  a sentence at the end: "The purchaser either may take  earnest money along with penalty or get the registry done  forcibly. I  will  have no objection." This is a totally  new  version which we cannot permit at this stage when it is objected  to by the other side. After all, the entry PW- 11/A in the Deed Writer’s  Register  could  not be  treated  as  preappointed evidence.  It  was  not a piece of  evidence  prescribed  in advance by statute as requisite for proof of the transaction of sale, as distinguished from casual evidence. But it could not be allowed at the same time to grow out of the surround- ing circumstances. (2)  A  reference was made in the argument before us  to  an oral agreement preceding Ext. PW-11/A. But the terms of such oral 364 agreement are nowhere in evidence and the same uncertainties surround  it  as hover around Ext. PW-11/A. The  High  Court cannot, therefore, be faulted for not confirming the  decree of specific performance on the basis of an oral agreement. (3) A good deal of argument was also addressed before us  as to whether PW-11/A was admissible as secondary evidence.  We have not touched upon this and have proceeded on the assump-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

tion  that the entries in the  document--writer’s  register, signed by the parties, can itself be treated as an agreement between  them  the  specific performance  of  which  can  be sought. (4) Shri Gopal Subramaniam contended that the High Court has erred  in holding, contrary to the earlier  observations  of this Court, that Ext. PW-11/A was inadmissible. There is  no doubt  a certain degree of ambiguity in the observations  of the High Court in this regard. But, reading the High Court’s judgment  as a whole, we are inclined to accept the  submis- sion  of Mr. Nariman that the High Court has only  evaluated the exhibit in the light of the direction of this Court that "full  effect will be given to the entry; no more, no  less" and not rejected it as inadmissible, as contended for by the appellant.  We have referred to these aspects  only  because counsel  had  placed considerable emphasis on  them  in  the course  of  arguments but in the view we have taken  of  the scope  and  effect  of Ext. PW-11/A, it  is  unnecessary  to elaborate on them or to deal with certain other  contentions urged before_us.     For  the foregoing reasons we uphold the finding of  the High Court that there was no valid and enforceable  contract between the parties as evidenced by Ext. PW-11/A. The result is  that this appeal fails and is dismissed, but  under  the peculiar  facts  and circumstances of the case  without  any order as to costs. Interim orders, if any, stand vacated. R.N.J.                                          Appeal  dis- missed. 365