1. The facts are as follow: - The plaintiff agreed to sell the property in suit on the 16th December 1895 to the 10th defendant and in pursuance of the agreement placed him in possession of the property, and the purchase money was paid by the 10th defendant to a creditor of the plaintiff as agreed between them.
2. On the 16th December a conveyance was executed by the plaintiff, but in consequence of certain mis-statements therein it was not registered and thereupon the plaintiff promised to execute and register a proper conveyance but has not as yet done so. No time for the execution of this conveyance was fixed and there is no averment that specific performance was refused, unless such refusal is to be inferred from the plaintiff dispossessing defendants Nos. 1 to 3 in whose favour the 10th defendant had executed a registered sale deed in respect of the property. 'Such dispossession was in August 1898 and as the suit was brought on the 23rd November 1899, the claim for specific performance against the plaintiff for execution of a sale deed was prima facie not barred at the institution of the suit nor at the time the defendants filed their written statements, nor at the date of the decree of the Court of 'First Instance. It is urged on behalf of the appellants, defendants Nos. 1 to 3 and No. 10, that the agreement to sell, coupled with delivery of possession of the land and the payment of the purchase money in pursuance of the agreement, furnishes a complete answer to the plaintiff's claim to eject, and the contention is supported by several decisions of this Court, e.g. Ukku v. Kutti I.L.R.(1892) M. 401, Pangutchan v. Parameswara Pattar (1895) 6 M.L.J. 33, Ittappan v. Parangodan Nayar I.L.R(1898). M. 291. A different view was, however, first taken in Papireddi v. Narasareddi I.L.R. (1892) M. 464 and that has been affirmed in Ramasami Pattar v. Chinnan Asari I.L.R.(1901) 24 M. 449 and Achutan Nambudri v. Koman Nair (1902) 13 M.L.J. 217. The observations in Papireddi v. Narsaraddi I.L.R.(1892) M. 464 were dissented from in Begam v. Muhammed Yakub I.L.R.(1894) A. 344 and doubted in Ittappan v. Parangodan Nair I.L.R.(1898) M.291. In Immudipattam Thirugnana Kondama Naik v. Peria Dorasami I.L.R.(1900) M. 377, the observations of the Judicial Committee in more than one place point to the view that if there is in favour of the defendant a valid contract specifically enforceable, that would give him a right to continue in possession, even though he has not obtained a registered instrument as required by law, e.g. the Transfer of Property Act, and that such a contract would be a good defence to a suit for possession by the party liable to perform the contract. The equitable considerations warranting such a conclusion would be found stated by Lord Selborne in Maddison v. Alderson L.R. 8 A.C. 475 which is cited for another purpose in Achutan Nambudri v. Koman Nair (1902) 13 M.L.J. 217. Where there is more than a mere agreement and possession has passed and purchase money been paid, it is rightly pointed out in Karalai Nanubhai v. Mansukhram I.L.R.(1900) B. 400 that equities necessarily arise notwithstanding that it is stated in Section 54 of the Transfer of Property Act that a mere contract for the sale of immoveable property does not of itself create any interest in or charge on such property.
3. Zimbler v. Abrahams L.R. (1903) I.K. 577 may also be referred to as a very recent instance of the length to which Courts in England go in enforcing equities similar to that under consideration.
4. In this state of the authorities we refer for the decision of the Full Bench the question;
Whether, assuming that the defendants' right to obtain 'specific performance by way of execution of a sale deed by the 'plaintiff was not, at the date of the suit, barred by limitation, 'the plaintiff is entitled to maintain this suit for the recovery of 'possession of the land agreed to be sold.