IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: THE HON’BLE JUSTICE SABYASACHI BHATTACHARYYA SA/8/2026 SHRI N.B. RAVINDRAN ... APPELLANT Versus SMT. GANGA RANI AND OTHERS … RESPONDENTS For the appellant : Mr. K.M.B. Jayapal For the respondents : Mr. V. D. Sivabalan, Ms. Dipaniwta Halder Heard on : April 16, 2026 Judgment on : April 21, 2026 SABYASACHI BHATTACHARYYA, J. 1. The present second appeal arises out of a judgment of affirmation whereby both the Trial Court and the First Appellate Court dismissed the plaintiff/appellant’s suit for specific performance of an agreement for sale dated October 04, 2005. 2. While admitting the second appeal, a Division Bench of this Court, vide order dated February 01, 2024, formulated the following substantial questions of law on which the appeal is to be heard:- 2 “(a) Whether the First Appellate Court had the jurisdiction to decide the appeal (Other Appeal No.01 of 2020) out of which the impugned judgment and decree stem in view of the judgment/order dated 19.10.2023 passed in FAT No.03 of 2023 ( Shri Robin Bagchi vs. Dr.M.Roy and others) under which it has been clearly held that all First Appeal in connection with the valuation of the landed immovable property exceeding Rs.1,50,000/- shall be laid before the Hon’ble High Court and not before the Ld.District Judge. (b) Whether the First Appellate court erred in law in affirming the judgment and decree of the Ld.Trial Court in failing to appreciate that even without immovable property being partitioned, the interest, right and title thereto are alienable? (c) Whether the First Appellate Court is justified in affirming the judgment and decree of the Ld.Trial Court by holding that the agreement for sale (Exhibit-1) is not a concluded and unenforceable contract owing to the fact that it is mortgaged under the bank? (d) Whether the First Appellate Court is justified in affirming the judgment and decree of the Ld.Trial Court in failing to apply the ratio of settled proposition of law as laid down in the case of Ashok Dulichand vs. Madahav Lal Dube and another in the judgment reported in (1975) 4 Supreme Court Cases 664 to the Admissibility of Photostat copy of deed of power of attorney executed by defendant no.2 and 3 in favour of their mother being the defendant no.1 to execute the sale agreement dated 04.10.2005 agreeing to convey the suit schedule land in favour of appellant herein for the value received to the tune of Rs.11,00,000/-?” 3. Learned counsel appearing for the plaintiff/appellant argues that the first substantial question of law has been rendered academic in view of a Larger Bench judgment of this Court dated March 09, 2026, passed in FAT 3 of 2022 (Robin Bagchi vs. Dr. M. Joy and Others) and FAT 4 of 2025 (Andaman Plantations and Development Corporation Pvt. Ltd. vs. Union of India and others), whereby it was decided that the District Court at Andaman and Nicobar Islands has the pecuniary jurisdiction to take up the appeals. Accordingly, the learned counsel does not press the said issue. 3 4. Learned counsel submits that both the Courts came to a concurrent finding that an agreement for sale was executed by the defendant/respondent no. 1, who is the mother of the defendant/respondent nos. 2 and 3, in favour of the plaintiff/appellant. The said agreement was also marked as Exhibit -1 in the suit. 5. However, the learned Courts below erred in law in disbelieving the Power of Attorney executed by respondent nos. 2 and 3 in favour of respondent no. 1, authorising the latter to sell the suit property to the appellant. 6. Learned counsel argues that Section 65(a) of the Indian Evidence Act, 1872 provides that secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it. It is contended that in the present case, under normal circumstances, the custody of the Power of Attorney ought to have been with the defendant/respondent no.1, making her legally bound to produce it. Moreover, the plaintiff/appellant pleaded in his plaint that he was given to understand that a Power of Attorney was executed by the respondent nos. 2 and 3 in favour of the respondent no. 1. In his examination in chief as PW-1, the plaintiff/appellant stated that the respondent no. 1 claimed herself to be the Power of Attorney holder of the other two respondents. In such circumstances, it is argued, 4 the respondent no. 1 must have known that she would be required to produce the Power of Attorney. 7. Clause (2) of the proviso to Section 66 of the Evidence Act carves out an exception to a notice which is required to be given under Section 65(a) of the said Act, when, from the nature of the case, the adverse party must know that he will be required to produce the document-in- question. It is submitted that in view of the pleadings and evidence of the plaintiff/appellant, as indicated above, the respondent no. 1 had knowledge that she would be required to produce the Power of Attorney. Thus, a photocopy of the Power of Attorney ought to have been permitted to be adduced as secondary evidence. 8. In support of his contention, learned counsel for the appellant places reliance on Ashok Dulichand vs. Madahavlal Dube and another, reported at (1975) 4 SCC 664. 9. Learned counsel for the appellant further argues, by placing reliance on Section 12 (3) of the Specific Relief Act, 1963, that where a party to a contract is unable to perform the whole of his part of it, the Court may direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party pays or has paid the agreed consideration for the whole of the contract, reduced by the consideration for the part which must be left unperformed. In the present case, the plaintiff/appellant paid Rs. 11,00,000/- (rupees eleven lakhs), as evident from the receipts which were exhibited in the suit, comprising the entire consideration amount. Thus, Courts below 5 ought to have directed at least the respondent no. 1 to execute a transfer deed in respect of her 1/3rd share in the suit property. 10. In support of the above contention, learned counsel appearing for the appellant cites A. Abdul Rashid Khan (dead) and others vs. P.A.K.A Shahul Hamid and others, reported at (2000) 10 SCC 636, as well as a Division Bench judgment of this Court in the matter F.A. No. 18 of 2004 (Smt. Shyamali Chandra & another vs. Smt. Reba Adak and others). 11. On the strength of the said decisions, it is further argued by the appellant that the title of the respondent no. 1, who was one of the contracting parties, ought to have been directed to be transferred in favour of the appellant even without any partition being effected in respect of the suit property. 12. Learned counsel for the appellant next argues that both the Courts below erred in law in holding that there was no concluded contract between the parties on the erroneous premise that the agreement contained a clause whereby the transfer would be effected within six months from the release of the subject property from mortgage liability. In answer to question no.30 put in her cross- examination, the respondent no. 1, as DW-1, admitted that the loan in respect of property had already been liquidated. Thus, there was no bar in the transfer being effected in terms of the agreement. 13. In view of the above, learned counsel argues that the judgments and decrees of both the Courts below be set aside, if not in their entirety, 6 at least by directing the respondent no. 1 to transfer her share in the suit property in favour of the appellant. 14. Learned counsel appearing for the respondents, in reply, argues that in terms of the agreement in question, a specific portion of the suit property, that is, the entire first floor was agreed to be transferred. In the absence of any partition between the co-owners/respondents, such specific portion or the share of respondent no.1 therein cannot be transferred. Thus, it is argued that, in the facts of the case, it was impossible for the respondent no.1 to perform even her part of the contract, in the absence of any partition and demarcation of the first floor between the co-owners. 15. It is next contended that the very existence of the Power of Attorney having been denied by the respondents, there was question of production of the said document by them. Even otherwise, it is submitted that not even any photocopy of the purported Power of Attorney was produced by the appellant in either of the Courts below, thereby precluding the possibility of admitting such document as secondary evidence. 16. It is next argued by the respondents that PW-4, in cross- examination, stated that all the documents, including the money receipts, were signed on a single date whereas from Exhibit nos. 2 to 4, that is, the said money receipts, it is seen that they were executed on different dates, thus belying the evidence of PW-4. In view of such 7 patent contradiction in the evidence adduced by the plaintiff/appellant, the existence of the agreement is rendered suspect. 17. Learned counsel for the respondents further contends that there was no material produced before the Trial Court to indicate that the mortgage in respect of the suit property had been released. Thus, both the Courts below were justified in coming to the conclusion that the agreement between parties was contingent in nature and in the absence of any proof of release of mortgage, there was no concluded contract between the parties. Thus, learned counsel prays for dismissal of the second appeal. 18. Before entering into the merits of the matter, the salient findings of the Courts below are required to be considered. 19. Insofar as the agreement for sale (Exhibit-1) is concerned, although the defendants/respondents raised a question as to the same not being acceptable in evidence due to non-registration, both the Courts below turned down such plea on the ground that the said document came within the ambit of Section 17(2)(v) of the Registration Act, 1908 and as such was not mandatorily registrable. 20. However, such ratio is, per se, not tenable in the eye of law in view of Section 17(1)(b) mandating the registration of non-testamentary instruments which purport or operate to create right, title or interest in immovable property of the value of Rs.100 and upwards, even in future. Thus, an agreement for sale of a property in future is mandatory registrable. 8 21. However, the conclusion of the Courts below in respect of registration of the agreement not being mandatorily required is justifiable on a different ground. The proviso to Section 49 of the Registration Act exempts registration of contracts for the purpose of acceptance of the same as evidence in a suit for specific performance. Going by such provision, the registration of the agreement in question was not required for the purpose of acceptance of the same as evidence of the contract between the parties. Hence, such conclusion of the Courts below is hereby affirmed, although on a different ground than that assigned by the Courts below. 22. Although the existence of the agreement (Exhibit-1) was believed by both the Courts below, they came to the conclusion that the same was void in view of the respondent no.1 lacking the capacity to sell the subject property on behalf of her son and daughter, being defendants/respondent nos. 2 and 3 respectively. The Courts further observed that the Power of Attorney was neither registered nor proved and, therefore, disbelieved the existence of the same. 23. The Courts below also came to the conclusion that there was no concluded contract between the parties in view of the clause in the agreement requiring the sale to be effected within six months from the date of release of the property from mortgage liability but as there was no proof of such release. The first Appellate Court further observed that such clause rendered the agreement a contingent contract, which contingency was never proved to have been satisfied. 9 24. Both the Courts below also came to the conclusion that although a co-sharer can sell only his share, but no specific portion of the property, in view of there being no concluded contract, no such relief could be granted to the appellant. 25. In the above backdrop, the following moot questions fall for consideration in the present appeal in the light of the substantial questions of law formulated at the time of admission of the appeal: (i) Whether there was a valid Power of Attorney executed by the respondent nos. 2 and 3 in favour of the respondent no.1; (ii) Whether the Courts below ought to have directed partial performance of the agreement insofar as the share of respondent no.1 is concerned; (iii) Whether the suit property was required to be partitioned for the purpose of directing the share of the respondent no.1 to be transferred; and, (iv) Whether the agreement in question (Exhibit-1) is not a concluded and enforceable contract owing to the fact that the subject property is mortgaged under the Bank; 26. The above issues are decided as follows: (i) Whether there was a valid Power of Attorney executed by the respondent nos. 2 and 3 in favour of the respondent no.1 27. As per the fourth substantial question law formulated at the time of admission of the present second appeal, the issue of admissibility of a photostat copy of the deed of Power of Attorney allegedly executed by 10 respondent nos.2 and 3 in favour of respondent no.1 has been tied up with Ashok Dulichand (supra)1. The appellant relies on paragraph no.7 of the said judgment in particular. However, the said decision does not come to the aid of the appellant in any manner, since the Hon’ble Supreme Court was considering the adduction of secondary evidence under Section 65(a) of the Indian Evidence Act in the context of an application having actually been filed by the appellant therein, praying for a direction on the respondent no.1 in the said case to produce the original document, of which the appellant had filed a photostat copy, thus bringing the case within the purview of the second limb of Section 65(a). In order to come within the ambit of Section 65(a), the second limb thereof, which requires a notice under Section 66 of the said Act to be given to the person supposed to be in custody of the document, is required to be complied. Only upon the document not being produced despite such notice does the eligibility of the person relying on the document to produce a photocopy of the same as secondary evidence arise. In the present case, no such notice was given at all. Hence, the ratio of Ashok Dulichand (supra)2 is not applicable. 28. However, implicit in the fourth substantial question of law formulated by the Division Bench is the more fundamental question as to whether the appellant ought to have been permitted to produce a photostat copy of the Power of Attorney as secondary evidence, irrespective of Ashok Dulichand (supra)3. 1 (1975) 4 SCC 664 2 (1975) 4 SCC 664 3 (1975) 4 SCC 664 11 29. In such context, Clause (2) of the proviso to Section 66 of the Evidence Act acquires relevance. As per the said provision, no notice under Section 66, as required under Section 65(a) of the Evidence Act, would be necessary to render secondary evidence admissible if, from the nature of the case, the adverse party much know that he will be required to produce it. In the instant case, there were sufficient prima facie materials to indicate that from the nature of the case, the defendant/respondent no.1 ought to have known that she would be required to produce the Power of Attorney. 30. The plaintiff/appellant, in paragraph no.13 of the plaint, categorically averred that he was given to understand at the time of execution of the agreement for sale that the defendant nos.2 and 3 have executed a Power of Attorney in favour of their mother, the defendant no.1, and that the Power of Attorney was shown and produced before the learned Advocate who prepared the agreement and on that basis the defendant no.1 executed the agreement on receipt of the balance of money of Rs.4 lakh from the plaintiff. 31. Again, in paragraph no.12 of his examination-in-chief as PW-1, the plaintiff/appellant reiterated that the defendant no.1 put her signature in the agreement on her behalf and also on behalf of the defendant nos. 2 and 3 “claiming herself to be the Power of Attorney holder of Defendant Nos. 2 and 3”. Hence, there was ample reason for the respondent no.1 to be aware that she would be required to produce the Power of Attorney, thus, in principle, bringing the matter within the purview of Clause (2) of the proviso to Section 66, which mitigates the 12 requirement of a prior notice under Section 66 to be given in order to render secondary evidence to be admissible under Section 65(a). 32. However, the above discussion regarding such entitlement of the plaintiff/appellant becomes academic so far as the present case is concerned, for the simple reason that the plaintiff/appellant never produced even any photocopy of the alleged Power of Attorney or tendered such photocopy, let alone the original of such Power of Attorney, to any of the defendants’ witnesses. From the trial court records, it is not even found that any photocopy of the purported Power of Attorney was brought on record by the plaintiff/appellant and/or marked for identification. 33. Thus, in the absence of any such secondary evidence of the purported Power of Attorney being attempted to be brought on record by the plaintiff/appellant, both the Courts below were justified in disbelieving the existence of the Power of Attorney, which was the foundational premise of the authority of the respondent no.1 to enter into agreement for sale of the subject property on behalf of her children, the respondent nos.2 and 3. 34. However, the finding of the Courts below to the effect that the entire agreement was void due to the respondent no.1 lacking capacity to sell the subject property on behalf of respondent nos.2 and 3 or that the agreement was vitiated in its entirety for lack of consent by the respondent no.2 and 3 is not tenable in the eye of law. This takes us to the next issue. 13 (ii) Whether the Courts below ought to have directed partial performance of the agreement insofar as the share of respondent no.1 is concerned 35. In A. Abdul Rashid Khan (dead) and others (supra)4, the Hon’ble Supreme Court considered whether an agreement could be directed to be partially performed in the absence of authority on the part of the co- owner/contracting party to enter into the agreement on behalf of the other co-owners. In such context, it was held that even where any property is held jointly, once any party to the contract has agreed to sell such joint property by agreement, even if the other co-sharer has not joined, the person entering into such contract is bound to execute the sale deed at least to the extent of his share. 36. The same principle was reiterated by the Division Bench of this Court in the unreported judgment of Smti Shyamali Chandra (supra)5. 37. Hence, in principle, there is no bar to the Court passing a decree for specific performance in respect of only the share of the co- owner/contracting party even if it is found that such party lacked the authority to execute the agreement on behalf of the other co-owners. 38. Thus, the Courts below erred in law in holding that the agreement is void merely because of the lack of authority of the respondent no.1 to execute the same on behalf of the other respondents/co-owners. 39. The next logical question which crops up is dealt with in the third issue. 4 (2000) 10 SCC 636 5 F.A.No.18 of 2004 14 (iii) Whether the suit property was required to be partitioned for the purpose of directing the share of the respondent no.1 to be transferred 40. In terms of the judgment of the Hon’ble Supreme Court in A. Abdul Rashid Khan (supra)6, in the absence of the other co-sharers as a party to the agreement, there could not be any decree of any specified part of the property to be partitioned and possession to be given. The Hon’ble Supreme Court, in the facts of the said case, accordingly held that the decree could only be to the extent of transferring the share of the appellants therein in the suit property to the other contracting party and upheld the decision of the High Court to such extent, setting aside the other portion of the High Court’s decree directing partition of the specified share. 41. Thus, the necessity of prior partition was discarded by the Hon’ble Supreme Court as a prerequisite for directing the share of the contracting party to be transferred to the other party even in the absence of co-sharers or authority on the part of the contracting party to transfer the property on behalf of the co-sharers. 42. However, there is a major distinction between the facts of the said case and the present one, which goes to the root of the matter. In A. Abdul Rashid Khan (supra)7, as narrated in paragraph no. 2 thereof, the suit property was “a tiled house”. The contracting parties agreed to transfer the entire tiled house. In such backdrop, the Hon’ble Supreme Court ultimately held that even if the contracting defendants did not 6 (2000) 10 SCC 636 7 (2000) 10 SCC 636 15 have the authority to sell the property on behalf of the other co-owners, their share could be directed to be transferred to the plaintiff. In the Division Bench judgment of Smti Shyamali Chandra (supra) 8 , the nature/character of the suit property is not disclosed throughout the report. However, in principle, the said judgment followed the ratio of A. Abdul Rashid Khan (supra)9 and as such was rendered in such specific context. 43. In contradistinction with the above, in the present case, the subject property of the agreement dated October 04, 2005 (Exhibit-1) was only the “entire first floor, along with RCC structures standing thereon”, with a portion of adjoining land. The said fact is evident from the Schedule of the agreement itself. The same description has been reproduced in the Schedule of the plaint as well. 44. However, in the absence of any partition between the co-owners, the respondent no. 1 did not have any share exclusively in the first floor of the building in question. The effect of directing the defendant/respondent no. 1 to transfer her share in the first floor only would be that the plaintiff/appellant would become a co-owner to the extent of 1/3rd share exclusively in the first floor, which is impossible, since there is no such exclusive share of the respondent no.1 only in the first floor. The 1/3rd share of the respondent no.1 extends, in the absence of any partition by metes and bounds, to the entire building, including all floors therein, and cannot be ear-marked, segregated or constricted only to the first floor. 8 F.A.No.18 of 2004 9 (2000) 10 SCC 636 16 45. On the other hand, if the defendant/respondent no.1 is directed to transfer her 1/3rd share in the entire suit building, the same would be beyond the pale of the agreement itself, which would be impermissible, being beyond the scope of the suit, since the Court cannot rewrite the agreement between the parties and confer on a party better right than given in the contract. 46. Hence, it is not possible to direct the transfer of 1/3rd share of the respondent no.1 exclusively in the entire first floor of the building in the absence of any partition between the co-owners. 47. In the facts of Abdul Rashid Khan (supra)10, the entire building was agreed to be transferred and it was possible for the share of the contracting parties in the same to be directed to be transferred. In the present case, however, in view of the discussions above, it would be transgressing beyond the scope of the agreement itself to direct transfer of 1/3rd share of the respondent no.1 in the entire property while, on the other hand, the respondent no.1 does not have any exclusive 1/3rd share restricted to the first floor, thus making it impossible for the agreement to be performed even to the extent of her share. 48. Section 12(2) of the Specific Relief Act stipulates that where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so 10 (2000) 10 SCC 636 17 much of the contract as can be performed and award compensation in money for the deficiency. 49. On the other hand, sub-section (3) of Section 13 envisages a situation where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable part of the whole, though admitting of compensation in money, in which case he is not entitled to obtain a decree for specific performance. However, it is further provided in sub-section (3) that the court may direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party pays or has paid the agreed consideration for the whole of the contract, reduced by the consideration for the part left unperformed. 50. The expression “as he can perform” qualifies the entire exercise under Section 12(3). As per the above findings, it is not possible for the respondent no.1 to perform her part of the agreement by transferring 1/3rd share exclusively in the first floor of the building, thus obviating the applicability of Section 12(3) of the Specific Relief Act, 1963. 51. Hence, in the peculiar circumstance of the instant case, the ratio laid down in A. Abdul Rashid Khan (supra)11 as well as Smti Shyamali Chandra (supra) 12 is not applicable at all, since in the absence of partition between the co-owners, even the share of the respondent no. 1 could not be directed to be performed by her. 52. Thus, this issue is held against the appellant and in favour of the respondents. 11 (2000) 10 SCC 636 12 F.A.No.18 of 2004 18 (iv) Whether the agreement in question (Exhibit-1) is not a concluded and enforceable contract owing to the fact that the subject property is mortgaged under the Bank 53. The defendant no. 1, as DW-1, admitted in her cross-examination dated October 15, 2019 that the loan in respect of the suit property had been liquidated. Question no. 30 of such cross-examination was “Is the said loan pending?”, in answer to which she replied that it was already liquidated. Hence, the defendant/respondent no. 1 was estopped from raising the objection to the performance of the agreement on the ground that the same was not capable of performance in view of the loan having not been liquidated. 54. In the agreement in question, it was stipulated that as soon as the property is released by the Andaman and Nicobar State Cooperative Bank Limited from the mortgage, within six months from the release, the seller would execute and register the deed of sale in respect of 70 Sq.mtr out of total area of 200 Sq.mtr in the subject plot. Thus, such clause was restricted only to the adjacent land and not to the first floor of the building. Moreover, in view of the admission of DW-1 in her cross-examination to the effect that the loan had been liquidated, both the Courts below proceeded in a perverse manner to hold that there was no concluded contract or that the agreement was a contingent one. Even otherwise, the bar regarding sale would come into operation at the time of transfer and not at the time entering into the agreement for sale. By the agreement for sale, the respondent no.1 merely agreed to enter into the sale transaction after the mortgage was released. Thus, the 19 finding of the Courts below to the effect that the contract was a contingent one and/or unenforceable was bad in law. 55. However, in view of the findings arrived at on the other issues, the favourable finding on the above issue does not come to the aid of the plaintiff/appellant. Conclusion 56. In view of the above findings, the conclusion of both the Courts below that the suit for specific performance could not be decreed in favour of the plaintiff/appellant was justified. Thus, this Court does not find any illegality in the impugned judgements and decrees. 57. Accordingly, SA/8/2026 is dismissed on contest, thereby affirming the impugned judgment and decree dated December 12, 2023 passed by the Learned District Judge, Andaman and Nicobar Islands in Other Appeal No. 01 of 2020, as well as the judgment and decree dated December 26, 2019 passed by the learned Joint Civil Judge (Senior Division) at Port Blair in Other Suit No. 59 of 2015. 58. There will be no order as to costs. 59. A formal decree be drawn up accordingly. 60. The trial court records be sent down immediately. 61. Interim order, if any, stands vacated. ( SABYASACHI BHATTACHARYYA, J.)