Norman Macleod, Kt., C.J.
1. The plaintiff sued to obtain specific performance of a contract of sale of the suit properties consisting of two agricultural lands and a house.
2. It is admitted that there were dealings between the plaintiff and the defendant of which- an account was taken in 1916 when it was found that over Rs. 7,000 were due by the defendant to the plaintiff, and it is alleged by the plaintiff that in satisfaction of that claim the defendant agreed to transfer to him two lands Survey Nos. 160 and 74 and a house, called the Sonarwala house. The plaintiff also alleges that he was put into possession of the two pieces of land and that afterwards it was agreed that instead of the Sonarwala house the defendant should convey to the plaintiff what was called the Dukanwala house, and as a matter of fact the defendant executed a sale-deed of the Dukanwala house to the plaintiff on the 14th of July 1916, but unfortunately that deed has not been registered. It is also in evidence that a promissory note for Rs. 2,000 signed by the defendant in favour of the plaintiff was cancelled by the defendant with the consent of the plaintiff and in the cancellation it is mentioned that a written document had been executed. The plaintiff's difficulty was that he could not produce the contract on which he sued. He said he had given the document to one Davlat. Davlat denied that any document had ever been given to him. The defendant denied that any written document had been signed by him; in face of the endorsement on the promissory note that denial must be false. But further plaintiff had to admit that the missing written document was unstamped and, in Raja, of Bobbili v. Inuganti China Sitaramasami Garu I.L.R (1900) Mad. 49, p. c. it was held by the Privy Council that secondary evidence cannot be given of a document which has not been properly stamped, as under the provisions of the Indian Stamp Act such a document is only admissible in evidence when the Collector has assessed and charged the penalty on that production of the original writ and when he has written an endorsement upon the writ submitted to him. Therefore it would not be open for the plaintiff in this case to adduce secondary evidence of the written agreement even upon payment of the penalty. But the plaintiff contends that the agreement has been partly performed as he is in possession of the lands Survey Nos. 160 and 74 and that would be a sufficient ground to enable a Court of Equity to order further execution of the agreement by directing the defendant to execute the sale deed. In Mahomed Musa v. Aghore Kumar Ganguli (1914) L.R. 42 IndAp 1 17: Bom. L.R. 420 there had been a compromise in a suit whereby it was agreed that a certain mortgaged property should be released from two mortgages, and that the mortgagor .should execute deeds of absolute sale or transfer of the proportions allotted to the respective, mortgagees. A decree was made in pursuance of the compromise, but the compromise was not registered, nor were the transfers executed. The parties, however, had acted as if the transfer;? had been made and had afterwards acted as if the agreement was in full force, and it was held that ' whatever defects of form there might be in relation to the compromise agreement as a transfer of the equity of redemption were cured by the conduct of the parties in continuously acting upon it, and that the right to redeem the mortgages was exiingmsht'd,' Now with regard to these properties, Survey Nos. 160 and 74, they had been conveyed to the plaintiff by the defendant by two sale-deeds of 1910 and 1912. The defendant, however, contended that these sale-deeds were in the nature of mortgages and before this suit was filed he had filed suits against the plaintiff to have that established. Clearly on the authority of the ease I have just cited the defendant's suit to redeem tin mortgages would stand a very good chance of being dismissed on the ground that both the plaintiff and the defendant hid anted upon the agreement of 1916 by which the plaintiff had got possession of these two lands and had been given a sale-deed although it was unregistered, of the Dukanwala house. The question is whether in the suit now brought by the plaintiff for specific performance the same principles could be applied so that justice might be done between the the parties.
3. The learned Judge in the Court below, although he was entirely in sympathy with the plaintiff, came to the conclusion that the law helped the dishonest defendant and the Court could not give the plaintiff relief. He thought that if the contract in suit had been proved, then the evidence of this part performance would have influenced him in regarding this case as one in which the Court should exorcise discretion in enforcing specific performance. Undoubtedly, if the contract in suit had been proved, it would not have been necessary to prove part performance in order to enable the Court to enforce it, and the learned Judge dons not appear to have noticed that fallacy in his reasoning. But if the Court can give relief on the ground of part performance, then the Court is giving relief upon the equities resulting from an act done in execution of a contract and not upon the contract itself. In Maddison v. Alderson (1883) 8 App. Cas. 467 the question was very fully discussed by the, House of Lords in what circumstances a Court of Equity would give relief where the contract had been partly performed and where the contract itself could not be proved under the Statute of Frauds, and the conclusions which were arrived at are referred to in Mahomed Musa v. Aghore Kumar Ganguly (1914) L.R. 42 IndAp 83; 17 Bom. L.R. 420. Their Lordships say :
Many authorities are cited in support of these propositions from English and Scotch Law, and no countenance is given to the proposition that equity will fail to support a transaction clothed imperfectly in those legal forms to which finality attaches after the bargain has been acted upon. From these authorities one dictum quoted by Lord Selborne from Sir John Strange I (Potter v. Potter (1750) 1 Ves. Sen, 437, 441.) may he here repeated : ' if confessed, or in part carried into execution, it will be binding on the parties, and carried into further execution as such, in equity.' Their Lordships do not think Unit the low of India is inconsistent with these principles.
4. Now, on the 30th of May 1916, the defendant executed what is called a Kararpatra from which it appears that the defendant was in occupation of the lands, Survey Nos. 160 and 74, by reason of a written document of the 7th of July 1915. The document, after reciting that agreement, states that the property is returned and given into the plaintiff's possession that day, the defendant having no right or interest whatever pertaining to the said lands. I think it may be taken, therefore, that considering that the document was signed on the 30th of May 1916 it was a part of the general settlement which was arrived at on that day and that the plaintiff got into possession of those lands as part performance of the settlement. It also appears that the defendant recognized his obligations f o convey under the settlement the Sonarwala house and that he agreed to substitute the Dukanwala house for the Sonarwala house and finally executed the sale deed in respect of the Dukanwala house. It cannot, therefore, be said that the settlement has not been confessed or in part carried into execution. Therefore, ' the matter,' to quote the words of the Lord Chancellor, in Maddison v. Alderson (1883) 8 App. Cas. 467. ' has advance beyond the stage of contract and the equities which arise out of the stage' which it has reached cannot be administered unless the contract is regarded.'
5. I think, therefore, this is a case in which the Court is enabled to relieve the plaintiff from the difficulties which have arisen owing to his not having been able to produce the written agreement. It certainly would be a very extraordinary thing, if the Court on the facts of this case could not grant relief to the plaintiff, considering that it is admitted that the defendant has got released from a debt of Rs. 7,000, and that the plaintiff has not succeeded in getting himself firmly established with regard to the consideration which lie was to receive from the defendant in place of giving up his claim to that sum.
6. I think, therefore, the appeal must be allowed and that the defendant must be directed at his own cost to execute conveyances to the plaintiff of the suit lands, Survey Nos. 160 and 74, and also a sale-deed of the Dukanwala house. We decree accordingly and also order possession of the Dukanwalla house to be given to the plaintiff.
7. The plaintiff is entitled to his costs throughout.
8. I concur.