Norman Macleod, Kt., C.J.
1. The plaintiff instituted this suit for obtaining specific performance of an agreement to sell the property in suit passed by Janu, the original defendant No. 1, on the 31st of August 1916. Janu died pending the suit. His daughter was substituted in his place as his heir. She admitted the plaintiff's claim, but the 2nd defendant, daughter of Janu's son, contended that at the time of the agreement Janu had become too senile and imbecile to understand the nature of the agreement and that he had bequeathed all his property to her by his will dated the 25th of June 1911. The trial Court decided that the 1st defendant as the heir of Janu must give the plaintiff a proper conveyance within one month, that the 2nd defendant had no interest in the plaint property and that the consideration to be paid by the plaintiff should go to the 1st defendant. In appeal this decision was confirmed.
2. It is not now contended that the agreement to sell should be set aside on the ground that Janu was unable to understand the nature of the agreement. The real question is, what was the effect on the property brought about by the agreement to sell and what is the proper construction of the document executed by Janu on the 25th of June 1911. As regards that document I think it must be taken as devising specifically to Gangu certain properties including the property in suit and as the document does not contain any residuary bequest, if Janu had disposed of any of the properties mentioned in that document during his life-time, the sale proceeds, if they had not been deposited in the house No. 11, would have belonged to the residuary estate and would go to his heir. We have in this case an agreement by a testator to sell a house specifically devised by his will, and the testator dying before the agreement to sell had been executed. Section 54 of the Transfer of Property Act says that a contract for the sale of immoveable property does not create any interest or charge on such property, but it gives a right to the purchaser to get a conveyance for payment of the purchase money. Under Section 27 of the Specific Relief Act such a contract may be enforced by a purchaser against a person entitled to the estate of the deceased The only question then would be whether the purchaser in this case should claim a conveyance from the heir or from the specific devisee. But for the contract of sale this house would have gone to Gangu absolutely. It appears to me that it goes to her with the obligation to fulfil the contract of the testator and to pass a conveyance of the house to the purchaser on receipt of the purchase money. The case of Farrar v. The Earl of Winterton (1842) 5 Beav. 1 has been cited, but there the decision turned on an important difference between the English and Indian law, viz., that the testatrix, having entered into a contract to sell, parted with her beneficial interest in the land so contracted to be sold. That decision therefore cannot apply in this case, as the contract to sell created no interest in the purchaser of the property and the beneficial interest remained with Janu. It might be argued that the contract to sell the property specifically devised amounted to a revocation of the specific devise. But that would only result if the contract had been carried into execution. The entry into the contract may have shown an intention to revoke the legacy, but it would amount to nothing more.
3. Therefore, in my opinion, the plaintiff is entitled to succeed. The decree of the trial Court must be amended by stating that the 2nd defendant must give the plaintiff a proper conveyance within one month from the date the papers are returned to the lower Court. The consideration will be paid by the plaintiff to the 2nd defendant.
4. Plaintiff will deduct all his costs throughout from the purchase money, and the other parties will bear their own costs.
5. It has been ruled by the Privy Council in Maung Shwe Goh v. Maung Inn (1916) I.L.R Cal. 542 that Section 54 of the Transfer of Property Act prevents the purchaser under an inchoate contract, which remains unperformed, being treated in India as the owner in equity of the estate as he would be treated in England, and therefore the case of Farrar v. The Earl of Winterton, relied on by respondent No 2's counsel, cannot apply to this case.
6. I would add also that the principle of redemption of legacies, which is reproduced in Section 139 of the Indian Succession Act, would not apply to this case, because that depends upon the property, specifically bequeathed having been converted into property of a different kind, and it has been ruled-if authority is necessary on such a point-that a direction to sell not carried out till after the testator's death will not affect a redemption Harrisson v. Asher (1848) 2 G. & S. 436.
7. I concur, therefore, in the order proposed by the learned Chief Justice.