1. These two civil miscellaneous second appeals arise out of an order in execution passed by the learned Subordinate Judge of Dindigul confirming the order passed by the learned District Munsiff of Dindigul in E.P. No. 56 of 1944 in O.S. No. 245 of 1942 on the file of that Court. The appellant in C.M.S.A. No. 88 of 1946 filed O.S. No, 245 of 1942 against her step-Son who is the appellant in C.M.S.A. No. 33 of 1946 and her co-widow for several reliefs to which no detailed reference need be made. The suit was referred to the arbitration of certain arbitrators who gave an award and a decree was passed in the suit in terms of that award. The material portions of the decree for the purpose of these second appeals may be shortly referred to. After reciting that the suit was referred to certain arbitrators and that they gave their award, the decree proceeds to state, ' that this Court doth in pursuance of Ex. D-1 (award) order and decree as follows....Clause (1) of the decree provides for the payment by the defendant to the plaintiff of Rs. 420 towards past maintenance till September, 1942. Clauses 2 and 3 provide for the payment of future maintenance at Rs. 15 per mensem from October, 1942. Clauses 4 and 5 deal with costs, while Clause 6 states that ' time for payment of the amount decreed to the plaintiff in Clauses 1 and 2 is one month.' The terms of the award are then set out. It is sufficient to refer to paragraph 5 which inter alia provides that ' From out of the aforesaid arrears of maintenance, the plaintiff should get a reconveyance in her favour in respect of the garden whereof she has executed a sale deed.'
2. In the execution petition out of which these appeals have arisen the plaintiff decree-holder sought to recover the amount of Rs. 420 which was mentioned in the decree as past maintenance till September, 1942, as also the amount of maintenance which accrued subsequently. On behalf of the first defendant judgment-debtor it was contended that she could claim payment of neither amount because she had not first obtained a reconveyance of the garden as provided for in paragraph 5 of the award. The learned District Munsiff held that so far as the payment of maintenance for the period subsequent to September, 1942, is concerned, it is an obligation which is quite independent of the obtaining of a reconveyance in accordance with paragraph 5 of the award. In respect, however, of the claim of the plaintiff-decree-holder for recovery of Rs. 420 the learned District Munsiff held that the decree-holder is under the terms of the award bound to apply the said amount so far as it is necessary for obtaining the reconveyance of the garden, and that she could not ask for the payment of that amount to her without any condition particularly when she did not even make an offer in her execution petition that she was prepared to apply the amount in the manner provided for in the award. The learned Subordinate Judge of Dindigul agreed with the learned District Munsiff on both the aspects.
3. C.M.S.A. No. 33 of 1946 is filed by the first defendant and his contention is that he is not bound to pay the maintenance which accrued subsequent to September, 1942, because admittedly the plaintiff did not obtain the reconveyance of the garden, I do not see how such a reconveyance can be regarded as a condition precedent to the obligation on the part of the first defendant to pay maintenance for the period subsequent to September, 1942. The Courts below were right in construing the obligation as to the payment of maintenance for that period as an independent obligation altogether unconnected with the obtaining of a reconveyance of the garden. C. M. S. A. No. 33 of 1946 is dismissed with costs.
4. C.M.S.A. No. 88 of 1946 is by the plaintiff decree-holder and on her behalf it is contended that the payment of Rs. 420 should have been directed by the Courts below and that if she did not obtain a reconveyance of the garden it is open to the first defendant judgment-debtor to take other proceedings for the recovery of damages or for such other reliefs as he may be entitled to. I have listened to an interesting argument from Mr. Ramamurthi on behalf of the appellant in this appeal; but it is apparent that the question is primarily one of construction of the decree and one of finding out what the intention of the parties really was. A passage cited by Mr. Ramamurthi from Volume X, Halsbury's Laws of England (Hailsham Edition) at page 318 sets out the question which really arises in a case of this kind.
Where an agreement contains covenants on the part of each party towards the other the question arises whether one party can sue on the covenants in his own favour without alleging and providing either that he has performed, or that he has offered to perform, those on his part. In this respect covenants are classified as follows:-(1) Such as are mutual and independent, and here either party may recover damages from the other for the breach of the covenants in his favour, and it is no defence that he has not performed, or even that he has committed a breach of, those on his part ; (2) such as are conditional and dependent, in which the performance of one depends on the prior performance of the other ; consequently until the one which is the condition has been performed no action will lie on the other which is dependent ; (3) such as are mutually conditional-that is, covenants which are to be performed at the same time, and here, if one party was ready and offered to perform his own part, and the other has neglected or refused to perform his, the former may maintain an action against the latter, though it is not certain that either was obliged to perform the first act....
It seems to me that the present case falls under the third category contemplated in the passage just quoted. The intention of the parties is fairly clear. The first defendant is to pay Rs. 420 to the plaintiff for past maintenance till September, 1942. He is not, however, called upon to pay the amount immediately. Payment of the amount cannot be demanded for a period of one month from the date of the decree. This is the real purpose of Clause 6 of the decree. The amount of Rs. 420 however is not to be paid over to the plaintiff without any restriction of limitation. That amount or such part of it as may be necessary must be applied by her for obtaining a reconveyance of the garden which she is to enjoy for her lifetime and which would, after her death, devolve on her step-son, the first defendant. The provision therefore in paragraph, 5 of the award is a provision intended for the benefit of the first defendant judgment-debtor. Mr. Ramamurthi is no doubt right in saying that the first defendant cannot insist that the plaintiff should first obtain the reconveyance because it is obviously the intention of the parties that she is not to find the money otherwise, but that she should, on payment of the amount of Rs. 420 to her or on deposit of that amount into Court, utilise it or such part of it as may be necessary for the purpose specified.
5. Here are therefore two obligations which have to be rendered by the respective parties at the same time and if there are concurrent obligations which they purport to be it would necessarily follow that the plaintiff cannot demand payment of this amount without at least offering in her execution petition to apply the amount, if paid, in the manner laid down in the award. It is admitted that there is no such offer in the execution petition.
6. Rule 5 of the rules appended to the leading case in Pordage v. Cole (1607) 1 Wms. S. 319 : 85 E.R. 449 is also very apposite and may usefully be set out:
Where two acts are to be done at the same time, as where A covenants to convey an estate to B on such ,a day, and in consideration thereof B covenants to pay A a sum of money on the same day, neither can maintain an action without shewing performance of, or an offer to perform, his part, though it is not certain which of them is obliged to do the first act....
7. A large number of cases are quoted in support of the above proposition. But as pithily put by Lord Kenyon, C.J., in Campbell v. Jones (1796) 6 Term. Rep. 570 : 101 E.R. 708
Whether those kinds of covenants be or be not independent of each other, must certainly depend on the good sense of case.
The test is always the intention of the parties and I substantially agree with the Courts below that it is quite apparent on a fair reading of the decree along with the terms of the award which are incorporated in it that it is not open to the plaintiff to ask for the unconditional payment of Rs. 420 and that she is on the other hand bound to offer to apply that amount for the purpose set out in paragraph 5 of the award.
8. In the result, this Civil Miscellaneous Second Appeal also fails and is dismissed with costs. Leave refused in both.