' SALEEM AKHTAR, J.---This judgment will dispose of both the civil appeal and the petition, which arise from the same transaction.
2. One Hasan Muhammad deceased was holding a verified claim in respect of land left by him in India to the extent of 710 units. On 20-4-1964 he executed an agreement for sale of these units in favour of Hakeem Ali Muhammad deceased represented by his legal representatives; who are the appellants. Hakeem Ali Muhammad filed a suit for specific performance of the agreement pleading that subsequently on 28-4-1964 Hasan Muhammad executed another agreement, which was registered wherein he had agreed to sell the land allotted to him against these units. It was also pleaded that on the same date he had executed a general power of attorney in favour of Abdul Latif respondent No,10 and another document described as Amanat Nama in his favour alongwith a receipt acknowledging payment of Rs,5,680 as entire consideration for sale of the suit land.
Thereafter land was allotted against those units from time to time. The first allotment was made in favour of Hassan Muhammad measuring 62 Kanals 15 Marlas on 23-2-1965 and another lot of 119 Kanals 8 Marlas was allotted on 28-8-1966. Hasan Muhammad died on 4-5-1969. It was pleaded that on 9-9-1966 Hasan Muhammad with the consent of Hakeem Ali Muhammad and Noor Muhammad transferred 62 Kanals 15 Marlas of land to Ghulam Abbas out of the land which he had agreed to sell to the appellants. After the death of Hasan Muhammad suit bearing No,24 of 1971 was filed by Hakeem Ali Muhammad against the appellants for specific performance of the agreement dated 20-4-1964 to the extent of 119 Kanals 8 Marlas out of 191 Kanals 7 Marlas.
3. Mst. Aisha Bibi and others, the legal heirs of Hasan Muhammad, who arc petitioners in CPLA No,735-L of 1990, filed Suits Nos.215/1 of 1971 and 216/1 of 1987 against Ghulam Abbas, Abdul Latif, Hakeem Ali Muhammad and his brother Noor Muhammad challenging two sales made in favour of Ghulam Abbas. In Suit No,215/1 of 1971 the sale-deed dated 28-9-1969 in favour of Ghulam Abbas in respect of land measuring 14 Kanals 12 Marlas was challenged while the other one related to sale of 62 Kanals and 15 Marlas. All these three suits were consolidated and heard together by the learned trial Court. Suit No,24 of 1971 filed by the appellants' predecessor was dismissed, but the suits filed by respondents Nos.1 to 6, the legal representatives of Hasan Muhammad, were decreed. Suit No,24 of 1971 filed by the appellants was dismissed on the ground that it was barred by time. Thus, the suit for specific performance was dismissed and the suits against Ghulam Abbas, respondent No,7, were decreed and the two sales made in his favour were set aside. The appellants and Ghulam Abbas filed appeals separately before the learned District Judge, which were consolidated and allowed by a learned Additional District Judge. The cases were remanded for decision afresh on all the issues. After the remand the learned trial Court dismissed the suit filed by the appellants for specific performance of the agreement holding that the agreement executed by Hasan Muhammad for sale of units was against law and public policy and therefore could not be specifically enforced. It was further held that as the land was allotted to Hasan Muhammad after the sale agreement, the sale consideration could net be treated as price of land. The sale effected by Abdul Latif as attorney after the death of Hasan Muhammad was also held to be invalid. The learned trial Court decreed both the suits filed by the appellants against Ghulam Abbas. The appellants filed appeal against the judgment dismissing their suit, while two appeals were filed by Ghulam Abbas. All these three appeals were heard together and the appeal filed by the appellants was dismissed on 24-3-1981. One appeal of Ghulam Abbas regarding sale of land in his favour measuring 62 Kanals 15 Marlas was allowed and the suit filed by the legal representatives of Hasan Muhammad challenging the validity of this sale was dismissed. The other appeal filed by Ghulam Abbas in respect of land measuring 14 Kanals 12 Marlas was dismissed. The appellants, legal representatives of Hasan Muhammad, filed revision application challenging the impugned judgment regarding dismissal of their suit in respect of 62 Kanals 15 Marlas and Ghulam Abbas filed another revision application in respect of suit relating to 14 Kanals 12 Marlas. The appellants also filed a Revision Application No,106 of 1981 against the judgment and decree dismissing their suit for specific performance of contract. The learned Judge of the High Court held that the suit for specific performance of contract filed by the appellants was within time. It was also observed that although the registered document relied upon by the appellants was not proved, the other documents referred to in the plaint, which were executed on 28-4-1964 collectively spelt out an agreement of sale of the land and not the units. In spite of this finding the learned Judge held that the conduct of the appellants in not having filed suit for the entire land under the agreement, namely, 191 Kalans 7 Marlas, but claiming part of it, namely, 119 Kanals shows that the appellants had abandoned part of the contract and sought enforcement of only a part of it. It was also noted that after the death of Hasan Muhammad the appellants attempted to get Mutation No,56 entered for transfer of land measuring 14 Kanals and 12 Marlas at the instance of Abdul Latif and got a sale- deed registered by him regarding this land in favour of Ghulam Abbas on 29-8-1969. In view of these conducts, the Court refused to grant discretionary relief of specific performance in favour of the appellants. However, in the other revision applications filed by the appellants, it was held that sale of land measuring 62 Kanals 15 Marlas in favour of Ghulam Abbas was established. In the revision filed by Ghulam Abbas the sale in his favour was held to be invalid. All the three revision applications were therefore dismissed. The appellants filed petition for leave to appeal against the judgment passed in revision petition relating to the suit for specific performance of the agreement.
In this petition leave was granted to consider whether the High Court could withhold full relief to the appellants. The petition for leave to appeal (C.P. 735-L of 1990) filed by the appellants in respect of dismissal of their suit against Ghulam Abbas was barred by 36 days and the same was kept to be decided with this appeal (CA. 1190 of 1990) filed by the appellants with the leave of the Court. As observed in the leave granting order the validity of documents executed by Hasan Muhammad could not be disputed, but the question for consideration is whether specific performance of agreement could be made in respect of part of the land agreed to be sold. The learned counsel for the respondents has referred to section 17 of the Specific Relief Act, which reads as follows:-- "Section 17. The Court shall not direct the specific performance of a part of a contract, except in cases coming under one or other of the three last preceding sections."
Section 17 provides that as a rule specific performance of a contract should be granted in its entirety and not in parts. The essence of specific performance as laid down by this provision is that the Court will not order specific performance of a part of the agreement. However, the section itself provides three exceptions as contained in sections 14, 15 and 16. The appellants' claim in suit for specific performance is only in respect of part of the land and not for the entire land which Hasan Muhammad had agreed to sell. Therefore, the burden is upon the appellants to establish that their case falls within the ambit of any one of the aforesaid sections. Sections 14 to 17 must be read together as they lay down the rules for granting specific performance of a contract. Section 14 provides that where a party is unable to perform the whole of his part, but the unperformed part is in a small proportion to the whole in value and the party unbale to perform admits of compensation in money, the specific performance of so much of the contract which can be performed be ordered and for the remaining unperformed compensation may be awarded.
Section 15 relates to a situation where the unperformed part is larger than the part performed and for the unperformed part no compensation in money can be paid, then specific performance cannot be granted. However, specific performance can be granted of such small part provided the plaintiff relinquishes his claim to further performance including a claim for compensation for the deficiency or for the loss or damage sustained by him through the default of the defendant. Under section 16 if a part of the contract which can and ought to be specifically performed, stands on a separate and independent footing from another part of the contract which cannot or ought not to be specifically performed, the Court may direct specific performance of such part of the contract which independent of the other part can be performed. The appellants' case is not covered by either of these sections which form exceptions to section 17. The learned counsel for the respondents has referred to Wali and others v. Manak Ali and others (PLD 1965 SC 651). Kaikaus J., referring to section 17 observed as follows:--- "According to section 17 there can be no partial specific performance of a contract except in cases mentioned in sections 14, 15 and 16. It is clear that the law envisages performance of a contract in its entirety unless for some reasons it be not capable of such specific performance at all. Sections 14 to 16 deal with cases where such reasons exist. Apart from those sections a contract must be performed as a whole. The law does not contemplate that with respect to the agreement there should be a decree for specific performance in respect of one promise and a dismissal of suit as regards another."
In Abdul Haq v. Muhammad Yahya Khan and others (AIR 1924 Pat. 81) it was observed that the Court will not as a rule grant specific performance of contract unless it can execute the whole contract. It was further observed that "the rule is firmly established that a contract for sale of property in one lot will generally be considered indivisible for the reason that there is obvious injustice in compelling the purchaser of the entirety to take undivided parts or shares of the estate."
This principle was laid down by our Supreme Court in Wali's case (supra). In this case there was only one contract between the vendees and the vendor and the shares of the vendees were not specified. It was contended that the agreement for sale should be interpreted as consisting of two agreements, one in favour of each vendee. Such contention was repelled holding that even if the shares of each vendee were specified as long as the contract was one, section 17 will operate as a bar. In the present case the contract was one for the entire lot. It seems that the appellants did not object to the sale of land from time to time by Hasan Muhammad and Abdul Latif. Even after the death of Hasan Muhammad the attorney continued to sell, which was within the knowledge of the appellants, but no objection seems to have been raised. In these circumstances, the appellants cannot ask for specific performance of a part of the agreement unless the case falls within the provisions of sections 14 to 16 or that from the very beginning it was within contemplation of the parties and agreed that the contract was divisible.
4. The grant of specific performance is within the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. The discretion, however, has to be exercised judiciously, equitably and on well recognised judicial principles. It should not be exercised arbitrarily, whimsically or unreasonably. This is what section 22 of the Specific Relief Act provides.
The grant of relief of specific performance lies within the discretion of the Court and therefore it has to examine all the surrounding circumstances and facts of the case which may assist in forming a reasonable and judicious judgment for exercising the discretion. In the present case the facts and circumstances can influence a Court in refusing to grant discretionary relief. Shortly stating, the agreement originally was for sale of units, which was not permissible under law. Then it seems that to cover up this illegality subsequent documents were executed including power of attorney in favour of Abdul Latif who sold parts of the land to Ghulam Abbas and even after the death of his principal. This was all within the knowledge of the appellants, but they did not raise any objection.
Furthermore, the agreement was made on 20-4-1964 and in spite of the sale of land to Ghulam Abbas which Hakeem Ali Muhammad had agreed to purchase, he did not file any suit for 7 years nor does it seem that he called upon the respondents to perform their part of the agreement. The delay in filing the suit and initiating the proceedings coupled with the fact that properties were being sold with his connivance, one of which transactions was illegal and further as such sale consideration was appropriated by Abdul Latif who was closely associated with him, do justify exercise of discretion against the appellants. All these acts may also lead to the conclusion that he had abandoned the agreement. We, therefore, dismiss the appeal (CA.1190 of 1990) and maintain the decree passed by the learned Single Judge by which a direction was given to the respondents to refund Rs,5,680. However, we modify this part of the decree to the extent that the respondents shall pay to the appellants Rs,5,680 and profits, which may have accrued on the use of this amount from 20-4-1964 till the payment of the amount at the rate of 10 per cent. Par annum.
5. In view of the above discussion and the fact that the property sold to Ghulam Abbas, which is the subject-matter of C.P.L.A. No,735-I of 1990 was sold during the lifetime of Hasan Muhammad and as no reasonable and cogent ground for condoning the delay in filing the petition has been made out, the same is dismissed with no order as to costs.