URMILA DEVI AND OTHERS versus THE DEITY, MANDIR SHREE CHAMUNDA DEVI, THROUGH TEMPLE COMMISSIONER AND OTHERS on 10 January 2018

[2018] 1 S.C.R. 797

URMILA DEVI AND OTHERS

v.

THE DEITY, MANDIR SHREE CHAMUNDA DEVI, THROUGHTEMPLE COMMISSIONER AND OTHERS

(Civil Appeal No. 462 of 2018)

JANUARY 10, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Specific Relief Act, 1963: s.21 – Compensation in certaincases – Respondent no.2 to 6 (defendant no 1 to 5) agreed to sellland to predecessor-in-interest of appellants who paid fullconsideration and took possession of land and constructed threeshops on the suit land – Respondent no.2 to 6 gifted same land todefendant no.6-respondent no.1 – Aggrieved with the non-executionof sale deed and with gift deed in favour of respondent no.1,predecessor-in-interest of appellants filed suit for specificperformance – Trial court declared gift deed in respect of suit landas null and void and decreed the suit – First appellate court upheldthe judgment of trial court – During pendency of appeal beforeHigh Court, notification under s.4 Land Acquisition Act was issuedand award passed for the suit land and three shops constructedthereon in favour of defendant no.6 – High Court accepted theplea of defendant no.6 that the land was acquired during thependency of appeal and, therefore, decree for specific performancewas not maintainable and modified the decree by orderingrespondent no.2 to 6 to pay full consideration amount to appellantwith interest – On appeal, held: s.21 empowers the Court to awardcompensation in certain cases – The name of defendant No.6 beingrecorded in the Revenue records, compensation was determined inits favour to the extent of amount of Rs.10,03,743/- – In view of thejudgment of courts below whereby the gift deed was declared void,defendant No.6 had no right in the suit land and was clearly notentitled to receive any amount consequent to the acquisition of thesuit land – Therefore, in the ends of justice, compensation of Rs.10lakh is awarded in favour of the appellants out of the compensationreceived consequent to the acquisition of the suit land – The restof the compensation, if any, received towards land and shops to bepaid to the land owner that is respondent Nos.2 to 6).

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APartly allowing the appeal, the Court

HELD: 1.1 The suit land was acquired and compensationwas determined in favour of defendant No.6 whose name wasrecorded in the Revenue records. No objection can be taken tothe view of the High Court that consequent of the acquisition ofBsuit land under the land acquisition proceedings decree of specificperformance granted in favour of plaintiff could not have beenmaintained. The limited question is as to what relief the (plaintiff)appellants were entitled in the event the decree of specificperformance was required to be modified by an alternate decree.[Paras 9, 10] [801-E-G]

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2. Section 21 of the Specific Relief Act empowers the Courtto award compensation in certain cases. The name of defendantNo.6 being recorded in the Revenue records, compensation wasdetermined in its favour. The compensation was determined tothe extent of amount of Rs.10,03,743/-. In view of the judgmentDand decree of courts below whereby the gift deed was declaredvoid, defendant No.6 is left with no right in the suit land and isclearly not entitled to receive any amount consequent to theacquisition of the suit land. In view of overall facts of the presentcase, ends of justice is served in awarding compensation of Rs.10Elakh in favour of the plaintiff-appellants out of the compensationreceived consequent to the acquisition of the suit land. The restof the compensation, if any, received towards land and shops inquestion has to be paid to the land owner that is defendant Nos.1to 5 (respondent Nos.2 to 6 to this appeal) after deducting anamount of Rs.10 lakh out of the said compensation. In eventFcompensation has not yet been disbursed, the compensation bedisbursed in the above manner. [Paras 11, 15, 16] [801-G; 804-F-G; 805-A-D]

Jagdish Singh v. Nathu Singh (1992) 1 SCC 647 : [1991]2 Suppl. SCR 567 ; Kanshi Ram v. Om Prakash JawalGand others (1996) 4 SCC 593 : [1996] 1 Suppl. SCR330 – relied on Case LawReference URMILA DEVI v. THE DEITY, MANDIR SHREE CHAMUNDADEVI, THR. TEMPLE COMMISSIONER

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 462 of2018.

From the Judgment and Order dated 02.11.2012 in R. S. A. No.117 of 2002 and Final Order Dated 20.05.2013 in Review Petition No.02/2013 in R. S. A. No. 117 of 2002 of the High Court of HimachalPradesh at Shimla.

Rajesh Gupta, Harpreet Singh, Puneet Taneja, Advs. for theAppellant.

Devvrat, Sanjay Sarin, Gagan Deep Kaur, Rohin Oza, Ms. SiyaMinocha, Dinkar Kalra, Advs. for the Respondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

2. This appeal has been filed by the plaintiff through legal heirsquestioning the judgment of the High Court of Himachal Pradesh inRegular Second Appeal No.117 of 2002 which appeal was filed byrespondent No.1 (defendant No.6 in the suit). The High Court by theimpugned judgment has modified the decree of specific performance ofcontract granted by two courts below into a decree ordering respondentNos.2 to 6 to pay a sum of Rs.90,000/- with interest @ 9% per annumfrom the date of filing of the suit.

3. The brief facts of the case which are necessary to notice fordeciding the appeal are:

Respondent Nos.2 to 6 executed an agreement to sell dated19.04.1989 in favour of of Krishan Lal, the predecessor-in-interest ofthe appellants for sale of their 5/16[th] share in Khasra Nos.430 and 431equal to 0-22-57 hectares for consideration of Rs.90,000/-. RespondentNos.2 to 6 received full consideration of Rs.90,000/- and handed overpossession to the plaintiff. The plaintiff after getting possessionconstructed three shops in the suit land. Respondent Nos.2 to 6 executeda gift deed in favour of respondent No.1 of the suit land on 08.07.1991.When in spite of respondents having received the entire sale considerationthe sale deed was not executed and with mala fide intention the giftdeed was executed in favour of respondent No.1. Civil Suit No.148 of1991 was filed by Krishan Lal. Written statements were filed by defendantNos.1 to 5 jointly and separate written statement was filed by defendantNo.6 who is respondent No.1 in the present appeal. It was admitted to A

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Aall defendants that the suit land has been gifted in favour of defendantNo.6 by gift deed dated 08.07.1991. The execution of agreement to sellwas not disputed and the receipt of total sale consideration was also notdenied. The trial court decreed the suit vide its judgment and order dated31.03.1999. The trial court declared that gift deed executed by defendantNos.1 to 5 in favour of defendant No.6 is null and void to the extent theyBrelate to the doner’s 5/16[th] share in the suit land that was agreed to besold by them to the plaintiff, decree of specific performance was grantedin favour of the plaintiff against defendant Nos.1 to 5. The appeal wasfiled by defendant No.6 only against the judgment of the trial court whichwas also dismissed by the First Appellate Court vide its judgment datedC17.12.2001. Defendant No.6 filed Regular Second Appeal in the HighCourt being RSA No.117 of 2002. During pendency of the second appealin the High Court notification under Section 4 of the Land AcquisitionAct dated 22.12.2005 was issued for acquisition of suit land. An awarddated 10.06.2008 was also given for the land as well as three shops which were constructed in the suit land. The name of defendant No.6Dbeing recorded in the Revenue records compensation was awarded infavour of defendant No.6.

4. Before the High Court a submission was raised on behalf ofdefendant No.6 that the land has been acquired during the pendency ofRegular Second Appeal, the decree of the specific performance cannotEbe maintained. The High Court agreeing with the submission of defendantNo.6 modified the decree by ordering respondent Nos.2 to 6 to pay asum of Rs.90,000/- to the plaintiff with interest @ 9% per annum fromthe date of filing of the suit. The plaintiff through legal heirs aggrievedby the said judgment has come up in this appeal.F

5. Learned counsel for the appellants in support of the appealcontends that the High Court erred in law in ordering the refund ofRs.90,000/- in favour of plaintiff whereas the plaintiff(appellants) wasentitled to receive the amount of compensation of land which was receivedby defendant No.6 consequent to the acquisition of land. DefendantGNo.6 had no right in the land in dispute as the gift deed had been declarednull and void. It was the plaintiff (appellants) who was entitled to receivethe compensation. The High Court having not interfered with the findingof the courts below that gift deed was void as well as plaintiff wasentitled for decree of specific performance of the contract, it was plaintiff(appellants) who was entitled to receive compensation consequent toHthe acquisition of the suit land.

6. Learned counsel appearing for respondent Nos.2 to 6 supportsthe judgment and decree of the High Court and he, however, does notdispute that judgment and decree of the Courts below declaring the giftdeed dated 08.07.1991 as void having not been interfered with, thedefendant No.6 has no right in the suit land. Learned counsel forrespondent Nos.2 to 6, however, submits that compensation determinedconsequent to the land acquisition be appropriated equally between theplaintiff as well as defendant Nos.1 to 5.

7. No one has appeared on behalf of respondent No.1 (defendantNo.6).

8. We have considered the submissions of the parties and perusedthe records.

9. From the facts and material on record, it is undisputed thatagreement to sell was executed by defendant Nos.1 t 5 in favour of theplaintiff and entire sale consideration of Rs.90,000/- was received andpossession was delivered in the year 1989 itself. Plaintiff constructedthree shops on the suit land. Plaintiff’s case that to defeat the rights ofthe plaintiff a gift deed dated 08.07.1991 was executed by defendantNos.1 to 5 in favour of defendant No.6 has been accepted by courtsbelow which have declared the gift deed as null and void. The decreefor specific performance was granted by the trial court, it was confirmedby the First Appellate Court. The suit land was acquired andcompensation was determined in favour of defendant No.6 whose namewas recorded in the Revenue records. No objection can be taken to theview of the High Court that consequent of the acquisition of suit landunder the land acquisition proceedings decree of specific performancegranted in favour of plaintiff could not have been maintained.

10. The limited question which needs to be answered in the presentappeal is as to what relief the (plaintiff)appellants were entitled in theevent the decree of specific performance was required to be modifiedby an alternate decree.

11. Section 21 of the Specific Relief Act empowers the Court toaward compensation in certain cases. Section 21 of the Specific ReliefAct is as follows:

“21. Power to award compensation in certain cases.—

(1) In a suit for specific performance of a contract, the AB

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plaintiff may also claim compensation for its breach, eitherin addition to, or in substitution of, such performance.

(2) If, in any such suit, the court decides that specificperformance ought not to be granted, but that there is acontract between the parties which has been broken by theBdefendant, and that the plaintiff is entitled to compensationfor that breach, it shall award him such compensationaccordingly.

(3) If, in any such suit, the court decides that specificperformance ought to be granted, but that it is not sufficientto satisfy the justice of the case, and that some compensationCfor breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awardedunder this section, the court shall be guided by the principlesspecified in section 73 of the Indian Contract Act, 1872 (9Dof 1872).

(5) No compensation shall be awarded under this sectionunless the plaintiff has claimed such compensation in hisplaint:

Provided that where the plaintiff has not claimed anyEsuch compensation in the plaint, the court shall, at any stageof the proceeding, allow him to amend the plaint on suchterms as may be just, for including a claim for suchcompensation.

Explanation.—The circumstances that the contract hasFbecome incapable of specific performance does not precludethe court from exercising the jurisdiction conferred by thissection.”

12. This Court had occasion to consider Section 21 of the SpecificRelief Act in context of a case which arose almost on similar facts inJagdish Singh vs. Nathu Singh, 1992 (1) SCC 647. In the aboveGcase also suit was filed for specific performance on the basis of a contractto sell dated July 3, 1973, the suit was dismissed by the trial court as wellas First Appellate Court. However, the High Court in second appealreversed the finding of the courts below and held that plaintiff was readyand willing to perform the contract and was entitled for decree. In theHabove case also during the pendency of the second appeal before the High Court, proceedings for compulsory acquisition of the land wasinitiated and the land was acquired. Question arose as to whether plaintiffwas entitled for the amount of compensation received in the landacquisition proceedings or was entitled only to the refund of the earnestmoney. The High Court in the above case has modified the decree ofthe specific performance of the contract with decree for a realisation ofcompensation payable in lieu of acquisition. In paragraph 13 of thejudgment the directions of the High Court were extracted which is tothe following effect:

“13. The High Court issued these consequential directions:

“If the decree for specific performance of contract inquestion is found incapable of being executed due toacquisition of subject land, the decree shall stand suitablysubstituted by a decree for realisation of compensationpayable in lieu thereof as may be or have been determinedunder the relevant Act and the plaintiff shall have a right torecover such compensation together with solatium andinterest due thereon. The plaintiff shall have a right to recoverit from the defendant if the defendant has already realisedthese amounts and in that event the defendant shall be furtherliable to pay interest at the rate of 12 per cent from the dateof realisation by him to the date of payment on the entireamount realised in respect of the disputed land.”

13. In the above context, this Court proceeded to examine theambit and scope of Section 21 of the Specific Relief Act. This Courtcame to the opinion that when the contract has become impossible withno fault of the plaintiff, Section 21 enables the Court to awardcompensation in lieu of the specific performance. Paragraphs 24, 29and 30 are extracted below:

“24. When the plaintiff by his option has made specificperformance impossible, Section 21 does not entitle him toseek damages. That position is common to both Section 2 ofLord Cairn’s Act, 1858 and Section 21 of the Specific ReliefAct, 1963. But in Indian law where the contract, for no faultof the plaintiff, becomes impossible of performance Section21 enables award of compensation in lieu and substitutionof specific performance.

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29. In the present case there is no difficulty in assessing thequantum of the compensation. That is ascertainable withreference to the determination of the market value in theland acquisition proceedings. The compensation awardedmay safely be taken to be the measure of damages subject,of course, to the deduction therefrom of money value of theservices, time and energy expended by the appellant inpursuing the claims of compensation and the expenditureincurred by him in the litigation culminating in the award.

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30. We accordingly confirm the finding of the High Courtthat respondent was willing and ready to perform theCcontract and that it was the appellant who was in breach.However, in substitution of the decree for specificperformance, we make a decree for compensation,equivalent to the amount of the land acquisitioncompensation awarded for the suit lands together withDsolatium and accrued interest, less a sum of Rs 1,50,000(one lakh fifty thousand only) which, by a rough and readyestimate, we quantify as the amount to be paid to the appellantin respect of his services, time and money expended inpursuing the legal claims for compensation.”

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E14.This Court in Kanshi Ram vs. Om Prakash Jawal andothers, 1996 (4) SCC 593, has again in context of suit for specificperformance of the contract held that granting decree for specificperformance of contract is one of the discretion to be exercised on soundprinciples. When the court gets into equity jurisdiction, it would be guidedby justice, equity, good conscience and fairness to both the parties.F

15. From materials brought on record, it does appear compensationwas determined in favour of defendant No.6 to the extent of amount ofRs.10,03,743/-. It also appears that compensation towards shops wasalso determined. The name of defendant No.6 being recorded in theRevenue records, compensation was determined in its favour. In viewGof the judgment and decree of courts below whereby the gift deed dated08.07.1991 has been declared void, defendant No.6 is left with no rightin the suit land and is clearly not entitled to receive any amount consequentto the acquisition of the suit land. It has not come on the record as towhether compensation consequent to the acquisition of the suit land hasHbeen received by defendant No.6(respondent No.1 to the appeal) or not.

16. Taking into consideration overall facts of the present case,we are of the view that ends of justice be served in awardingcompensation of Rs.10 lakh in favour of the plaintiff-appellants out ofthe compensation received consequent to the acquisition of the suit land.The rest of the compensation, if any, received towards land and shops inquestion has to be paid to the land owner that is defendant Nos.1 to 5(respondent Nos.2 to 6 to this appeal) after deducting an amount ofRs.10 lakh out of the said compensation. We further direct in eventcompensation has not yet been disbursed, the compensation be disbursedto the appellants (legal heirs of the plaintiff) and respondent Nos.2 to 6in the above manner and in the event the compensation has been receivedby defendant No.6 (respondent No.1), respondent No.1 shall return thecompensation to the extent of Rs.10 lakh to the appellants and the restof the amount to defendant Nos.1 to 5 (respondent Nos.2 to 6). Thejudgment and decree of the High Court dated 02.11.2012is modified tothe above extent.

17. The appeal is allowed accordingly.

Devika Gujral Appeal partly allowed.

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