Norman Macleod, Kt., C.J.
1. One Narsingbhau was the owner of the suit property. On the 8th of January 1904, he entered into an agreement with the defendant in this suit to sell the property at the rate Rs. 175 an acre and received Rs. 1.00 as earnest money and agreed to pass a regular sale deed. Thereafter he was attacked by plague and died before the sale deed could be executed. On the 30th of September his widow executed a sale deed in favour of the defendant putting him in possession of the property. The consideration for the suit property at the rate of Rs. 175 an acre was Rs. 1,367. Rs. 100 having been paid, the balance left was Rs. 1,267. The consideration paid by the defendant is said to have been made up as follows. He took over the mortgage due by the deceased in favour of one Anandibai for Rs. 1,000 and the interest then due amounting to Rs. 215 and a debt of Rs. 75 due to Government on account of tagavi making altogether Rs. 1,290, rather more than the actual balance due. The widow at that time was a minor and therefore under Section 7 of the Transfer of Property Act not being competent to contract to sell the property, she was not competent to transfer title. Thereafter she adopted the present plaintiff who brought this suit in 1915 against the defendant to recover possession with subsequent mesne profits of the suit land and for other relief.
2. The learned Judge held that the plaintiff's adoption was proved, that Nandubai was a minor when the sale deed, Exhibit 26, was passed, that the agreement to sell the land in suit by Narsingbhau to the defendant was proved and that the sale deed was passed by Nandubai, his widow, in pursuance of the said agreement. But he found that the sale deed was obtained by the defendant by misrepresentation as stated by the plaintiff in the 2nd paragraph of the plaint, and lie finally came to the conclusion that the plaintiff could contend that the sale was invalid on account of the minority of Nandubai and on account of the misrepresentation as alleged by the plaintiff. He passed a decree in favour of the plaintiff for possession if he paid within six months Rs. 1,600 to the defendant as compensation for the cancellation of the sale deed.
3. Now when the agreement to sell was passed by Narsingbhau, the defendant acquired a right to a sale deed on payment of the balance of the purchase money, and if Narsingbhau had pat the defendant into possession of the property without giving him a sale deed, then under the Full Bench decision of Bapu Apaji v. Kashinath Sadoba (1916) 41 Bom. 438 if at the time when the agreement was still capable of specific enforcement the vendor sued to recover possession it would be a valid defence that the vendee had been placed in possession of the property and was willing to perform his part of the agreement. The learned Judges considered that where a vendor, who has contracted to sell immoveable property and' has under the contract put the prospective vendee in possession, repudiates the fiduciary obligation with regard to possession, he could not sue the latter in ejectment if the vendee was willing to complete the purchase. The learned Judges also stated as follows at page 112: 'We are of opinion that a suit for specific performance is not the purchaser's only remedy, and that he may under the circumstances stated in the question, if there are no other facts operating to his prejudice, successfully plead his contract of sale and the possession acquired under it.' I presume that means the vendee in possession under a contract of sale is not obliged to sue for specific performance and can resist any attempt by the vendor to eject him unless there are other facts such as fraud or misrepresentation which may operate to his prejudice. Then is the defendant's position in this case inferior to that of the defendant in the case I have cited, merely because he was put into possession by the widow of the vendor and not by the vendor himself. No doubt the sale deed cannot be considered as effecting a transfer of the property in the legal sense of the word. But there could be no objection to the widow putting the purchaser in possession and receiving the purchase price and so Ear carrying out the contract which had been entered into by her husband, and I cannot say that the widow herself could have successfully sued the present defendant for possession supposing she had not adopted. It must follow then that the present plaintiff, her adopted son, is in no better position than the adoptive mother, nor is he in any better position than Narsingbbau would have been if he had given possession to the purchaser in his life time. That appears to me to be the true answer to the question arising in this case and there is therefore no need to consider any of the points which have been dealt with by the learned trial Judge. In any case it cannot be said that there are any equities' in favour of the plaintiff. We are dealing with a transaction which, apart from the validity of the sale deed, was completed in 1904. Although after his adoption the plaintiff was still of tender years, he must have known long before the suit was filed about this transaction, and it was only in 1915 when, as the learned Judge points out, the value of this property had increased to a considerable extent that he sought to take advantage of the fact that his adoptive mother passed a sale deed before she attained majority, in order to defeat the defendant's rights.
4. In my opinion the decree of the learned Judge must be reversed and the suit dismissed with costs through out.
5. The cross-objections are dismissed with costs.
6. I think the main question in this appeal is whether the present case falls under the Full Bench ruling in Bapu Apaji v. Kashinath Sadoba (1916) 41 Bom. 438, or whether it has been rightly distinguished from that case by the lower Court. To satisfy the conditions of the principle laid down in that case it is first of all a requisite that the agreement to sell the property to the defendant shall still be capable of specific enforcement. On this point I think the contention that such a suit by the defendant would not be time-barred is correct. The case is of course governed by Article 113 of the Indian Limitation Act under which the prescribed period of three years begins to run from the date fixed for performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. In this case the written contract, Exhibit 26, fixed no date for the performance, and the oral evidence as to that important term of the contract is conflicting and must, I think, be excluded under Section 92 of the Indian Evidence Act. Then the only question is, when was it that the defendant had notice that performance of this contract was refused? He had in fact a conveyance executed by the widow and he cannot, in my opinion, be said to have had any notice that performance was refused within the meaning of this Article 113 until the plea was raised that his conveyance was void as having been executed by a minor. There is no evidence that the defendant knew that the widow actually was a minor, and it would be giving a very inequitable meaning to the words if it were held, because the conveyance to sell was void, that, when the conveyance was executed, there was a refusal to perform the contract to sell. To that extent, therefore, I think the case must be held to fall within the Full Bench ruling.
7. The next question that arises is, whether the basis on which that ruling rests applies to the present case.
8. It is held in the judgment of the Full Bench that 'where...a vendor, who has contracted to sell immoveable property and has under the contract put the prospective vendee in possession, sues the latter in ejectment, he repudiates, if the vendee is willing to complete the purchase, the fiduciary obligation arising out of the contract and annexed to the ownership of the property, and seeks to treat the vendee as a trespasser. Once it is recognized that the plaintiff is violating his fiduciary obligation, it is clear that the Court cannot grant him the relief which he seeks, for it will not aid him in committing a breach of trust and his suit must fail; the defendant is no trespasser, but is in possession under the contract which the plaintiff has bound himself to carry out'. This fiduciary obligation is there specifically described as arising out of the contract and annexed to the ownership of the property, and if that is a correct description, 'that fiduciary obligation attaches also to any legal representative of the vendor who has contracted to sell. Also on principles of equity it seems to me that the legal representative should be under the same obligation and not escape it merely because the original vendor has died. Consequently I do not think that the lower Court was right in holding that this Pull Bench ruling is distinguishable, because it was not the seller, but the seller's widow that put the defendant in possession. It is not, I think, right to say that delivery of possession by the widow was non-existent in the eye of the law. It was an actual delivery of possession and it was a delivery of possession under a fiduciary obligation annexed to the ownership of the property.
9. Therefore, I think the case falls under the Full Bench ruling and I agree in allowing the appeal.