Frederick William Gentle, C.J.
1. This is the plaintiff's appeal; it arises out of a suit for specific performance of a contract for the sale of land.
2. The first defendant is the elder brother of the second defendant, both are stepbrothers of a man named Ramalingayya, now deceased ; all of them are sons of one Padmanabhudu, who died on 12th June, 1935 ; at that date the second defendant was a minor, he attained majority in 1937. Prior to the father's death, all of them formed an undivided Hindu family owning property and land, approximating to an area of 190 acres, in Manepalli village in the district of East Godavari. In May, 1935, shortly before the father's death, there was a partition in the family, by which about 25 acres of land were allotted to the father, who, by his will dated May, 6,, 1935, left a part of the land allotted to him to his wife for life and after his death to his three sons and the remainder to his daughters. The plaintiff alleges that at the partition in May 1935, the only disruption effected in the family related solely to the father and the only division in the family property was the portion of land allotted to him. It is beyond doubt, however, that at or about the same time there was a partition by which Ramalingayya became separate and took his share in the family property, probably 55 acres, and the remaining no acres were available to the first and second defendants. The defendants' contention is that the whole family was disrupted at the time of the allocation of land to the father and thereafter all of them were disunited; but the second defendant who, at that time, was 16 years of age continued to live with his uterine brother, the first defendant, and their shares in the family property were not divided by metes and bounds since the first defendant looked after both his own and his younger brother's shares, but they have, ever since, May, 1935, remained separate in status. The plaintiff does not concede there was ever a partition between the defendants, but as an alternative to his contention that no disruption in status took place between them, the plaintiff contends further that, even if there was a partition, it was followed by a re-union of the first and second defendants by the year 1937, after which time they were a joint Hindu family of which the karta was the first defendant.
3. On September, 23, 1935, a deed of mortgage was executed by the first defendant by the second defendant through his elder brother and guardian the first defendant, and by their brother-in-law, one Satyanarayanamurthi, as mortgagors. By the deed, certain of the lands which formed part of the defendants' 110 acres, together with other lands belonging to Satyanarayanamurthi situated in Manepalli, of an area of 34 acres 90 cents were mortgaged in favour of a mortgagee (whose name is immaterial) for a sum of Rs. 15,000, comprising Rs. 11,800 debts due to the mortgagee, Rs. 3,000 to be paid by the mortgagee to some named person and Rs. 200 paid by the mortgagee for the expenses of the mortgage deed.
4. By deed dated April 16, 1941, Satyanarayanamurti conveyed to the defendants 16 acres 80 cents out of the lands forming part of his 34 acres 90 cents included in the mortgage deed abovementioned for Rs. 10,000 in consideration of the defendants' paying that entire sum on behalf of Satyanarayanamurti towards the amount due under the mortgage.
5. The above 16 acres 80 cents are the lands in suit. By agreement in writing dated August 18, 1942, the first defendant agreed to sell to the plaintiff for Rs. 9576 the lands in suit and to get a deed of sale executed by himself and by the second defendant on November 18, 1942. The agreement recites that the sale was for necessity ; namely, for the purpose of making payments towards the debt due under the deed of mortgage ; it acknowledges receipt of Rs. 376 as an advance, and provides that the balance of the price namely, Rs. 9,200 should be paid on execution of the deed of sale.
6. The deed of sale was not executed, and, in the suit, the plaintiff claimed against the defendants (1) specific performance for sale directing the defendants to execute the deed, (2) alternatively, damages to the extent of the price of Rs. 9,576 or such sum as the Court might determine.
7. The plaintiff's case is that the agreement for sale was made by the first defendant as karta of the joint Hindu family, comprising himself and the second defendant, of land which was their joint property. The defendants' case is that the two-defendants are not joint but are separate and, even if joint, the sale of the land was not for necessity or to meet any pressing debts ; in either event, the first defendant had no authority to sell the second defendant's interest or share in the lands in suit..
8. The learned Subordinate Judge of Amalapuram, in his judgment, held that the defendants were not joint but had separated at a partition in 1935, and there; had been no re-union ; they purchased the land in suit as tenants-in-common, not as members of a joint family, and each had a separate interest in it; the first defendant had no right to sell the land without consulting the second defendant; there was no necessity justifying the sale and the agreement to sell was not beneficial or necessary; the plaintiff could not rely upon and call in aid Sections 14 to 17 of the Specific Relief Act, 1877 5 the plaintiff was not entitled to specific performance but could recover the advance of Rs. 376 and damages, which the learned Judge assessed at the sum of Rs. 100 from the first defendant. The suit as against the second defendant was dismissed.
9. This is the plaintiff's appeal against the learned Judge's refusal to order specific performance or to grant relief under the Specific Relief Act and against the amount of damages awarded. The first defendant has filed a memorandum of cross-objections against the decree passed against him in respect of the order for costs which he was directed to pay to the plaintiff.
10. The first matter to be considered is the partition between the members of the defendants' family comprising themselves, their step-brother, Ramalingayya, and the father, Padmanabhudu.
[After reviewing the evidence His Lordship continues :]
11. In my view, the evidence, both oral and documentary, conclusively establishes that the family was partitioned in status about May, 1935, when 25 acres out of about 190 acres were allotted to the father, and the remainder of the lands were Formally divided after the father's death about June 1935. Whilst the second defendant, on account of his youth, continued to live with the first defendant, his elder brother, who looked after the property belonging to both, that property was not joint property but one half belonged separately to each of them. I am satisfied also that there was never any re-union and the defendants have remained separate in status from the time of the partition up to the present moment.
12. It follows from the above that the agreement for sale, which was made by the first defendant, could not in any way be binding upon or affect the second defendant who was not a party to it. The first defendant did not enter into the contract as karta of a joint family, and it is not even suggested that he had authority from the second defendant to make the agreement as his agent. Therefore, the second defendant is in no way affected by the agreement, and it cannot be specifically enforced against him. The first defendant alone is responsible for the obligations contained in it, including the conveyance to the plaintiff of 16 acres 80 cents of land, which is purported to be sold by it.
13. In light of the above conclusion, it is not requisite to go into the question of whether there was necessity for the lands to be sold. That question arises only for consideration when property is being sold which is owned by a joint Hindu family.
14. The next matter to consider is whether Section 15 of the Specific Relief Act, 1877, can be availed by the plaintiff. In the Court below, reliance was sought to be placed upon the provisions of Sections 14 to 17 of that Act; but learned counsel for the plaintiff stated that now he relies solely upon Section 15. It provides as follows:
Where a party to a contract unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.
In the latter part of the section, the words 'relinquishes all claim to further performance' clearly mean further performance of the contract, in respect of which belief under Section 15 is sought to be obtained.
15. By the contract in suit, the first defendant is under obligation to convey to the plaintiff 16 acres 80 cents of land. He cannot do this since he is the owner of only half of that area, the other half belonging to the second defendant. So far as his own half is concerned, the first defendant is in a position to convey it to the plaintiff and he could be ordered to do so. The section enables such order to be made upon the express conditions, by way of a proviso, which are specified in the section. Those are, firstly, that the plaintiff is willing to pay the full purchase price reserved by the contract. In the present instance, the plaintiff is prepared to do that. Secondly, the plaintiff must relinquish all claim to further performance of the contract and to all rights to compensation either for deficiency or for the loss or damage sustained by him through the default of the first defendant.
16. In the Court below, the learned Subordinate Judge refused to exercise the provisions of Section 15 and gave as his reason that the section can be invoked only when there is an unconditional request by the plaintiff that he is prepared to take the first defendant's share for the whole consideration without claiming any damages or compensation or any other relief; and, since the plaintiff wished to file an appeal against the suit, he could not invoke Section 15.
17. The position, which this appellate Court has to consider, is whether the learned Judge was wrong in refusing to accord relief to the plaintiff under the section. There is no corresponding provision in English law and the relief given by the section is dependent entirely upon the provision in the statute. It emerged, during the course of argument, that the plaintiff, having failed to obtain any relief against the second defendant or in respect of his one-half share in the land in suit, desired to obtain a decree against the first defendant, pursuant to Section 15, and thus to obtain the first defendant's one-half of the property, for which he was prepared to pay the whole of the purchase price ; and then to proceed, by way of appeal, to obtain either from the second defendant, direct or through the first defendant, the second defendant's other half of the property. In other words, he was not relinquishing all claim to further performance of the contract and rights to compensation, loss and damage. The plaintiff's rights whatever they may be in respect of the property, are dependant solely upon the contract made by the first defendant. In the absence of the contract, the plaintiff has no rights whatever with respect to the land in suit as regards either the first or the second defendant; any relief which he might wish to seek must be by enforcement of the contract. The wording of the section is unambiguous and clear. It is a condition precedent to an injured party obtaining the benefit given by the section that he must relinquish all claim to further performance of the contract and all rights to compensation and to loss or damage which he has sustained. There would be violation of the section if the plaintiff obtained a decree against the first defendant, pursuant to the section, and thereafter proceeded further by way of appeal to enforce the contract in respect of the remaining portion of the land which belongs to the second defendant. As mentioned previously, the benefit given by Section 15 is statutory, and its terms; must be fully complied with by the person seeking to invoke it. When, as in the present instance, a person sues for specific performance of an agreement, and it is held that he cannot obtain an order in respect of the whole but only part of the property, the subject of the agreement sought to be enforced, it is at that stage that he must make up his mind what he will do if he considers that the decision of the trial Court, which has held that he is not entitled to specific performance of the whole, is incorrect. He cannot call in aid Section 15, and at the same time,, proceed in addition to obtain the remainder of the property or damages ; that is not relinquishment of all claims. But, if, however, he is content to take what the section gives him, he must abandon all further claim and all further rights and indeed it would seem, a right of appeal, which ordinarily would be open to him when the trial Court has held, as it did in this case, that the agreement in suit could not be ordered to be specifically performed but that the contracting party was able to perform a part of it; the injured party must then and there make up his mind whether he will ask the Court to pass a decree giving him relief provided by Section 15, and, as a condition precedent to the Court granting a decree, forego all further claims and rights to enforce performance of the contract or to compensation for loss or damage.
18. The plaintiff was not content to do this but wished to obtain what relief he could against the first defendant under Section 15 and at the same time, reserve to himself a right to proceed further to try to obtain something more. By adopting that course, in my view, he failed to carry out the conditions prescribed in section15 and the learned Subordinate Judge was correct in refusing to allow the section to be invoked.
19. In this connection, there is one further matter. The plaintiff claimed damages, as an alternative to an order for specific performance ; that is to say, compensation for the loss of his bargain. The learned Subordinate Judge awarded him Rs. 376, the amount of the advance which he paid and, in addition, a sum of Rs. 100 as damages against the first defendant for his failure to carry out the contract which he had made ; in other words, the plaintiff was awarded, and a decree was passed in his favour for compensation for the loss he sustained through the default of that defendant. Although, it may be, the amount of damages was inadequate, and with which I will presently deal, nevertheless that sum was awarded in respect of the loss of the second defendant's portion of the property as well as of the first defendant's portion. In this appeal, the plaintiff seeks to have those damages increased on the ground that they are inadequate. Clearly, he is still continuing to enforce the contract.
20. In the memorandum of appeal, ground No. 20, the plaintiff alleges that the lower Court failed to see that so long as he (the plaintiff) restricted his remedy against the first defendant to the performance of the contract of sale with respect to his share, the plaintiff was perfectly within his rights in proceeding in appeal against the second defendant with respect to the other questions arising in the case. This ground of appeal makes it manifest that, whilst he wished to invoke Section 15 in the Court below, nevertheless he intended to continue enforcement of performance of the contract or to obtain compensation with respect to its non-performance. This ground of appeal, in itself, is sufficient to make it clear that the plaintiff is not entitled to the benefits of the section. The application of Section 15 of the Specific Relief Act was considered by their Lordships of the Privy Council in Pramathanath Mitra v. Gosthabihari Sen . There, a piece of land was owned by two lots of proprietors, the Mitras owned a twelve anna share and the Basus a four anna share. The Mitras, in a document, purported to agree to grant a lease of the whole land at specified rent, and on payment of a Selami, to the plaintiff who prepared and registered a kabuliyat. The Basus, owners of the four anna share, had not authorised the transaction and refused to accept the kabuliyat. The Judicial Committee directed the dismissal of the suit but the Board expressed an opinion regarding the application of Section 15. At page 1033 of the report, it was observed in the judgment as follows:
The proviso to the section, however, has been overlooked. The plaintiff has not relinquished all claim to further performance and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendants. On the contrary, he claimed in his plaint Rs. 600 as loss of profit already suffered and he has obtained a decree for the return of that share of the selami which enured to the four anna share. The learned Judges who allowed the appeal, on the ground that an important question of law was involved, stated this is as one of the questions which they thought might properly be submitted to this Board, and their Lordships have thought it right, although in the view that they take of the case it is not necessary for their decision, that their opinion should be recorded.
21. The opinion of the Board supports the view, which has been previously expressed regarding the application of Section 15 in the present instance.
22. The next matter relates to damages. As mentioned above, the learned Subordinate Judge awarded the plaintiff Rs. 100 for the failure by the first defendant to implement his obligations under the agreement. I am unable to follow how he arrived at that sum. The plaintiff is entitled to a sum, as damages, which represents 'the difference between the contract price of Rs. 9,576 and the market value of the land on the date of breach, namely, three months after the contract was made.
23. One of the witnesses called by the plaintiff spoke to the value of the land. He said that the price rose 15 or 20 times after the date of the agreement and the price at the time he gave evidence was about Rs. 2,000 per acre. This witness was the writer of the agreement for sale but he had no qualification to speak to land values. The other witness who spoke to value was a gentleman called on behalf of the defendants. He gave evidence as D, W. 3. He said that the price of the land increased within three months by Rs. 200 or Rs. 300 an acre, the three months referred to being the period between the date of the contract and the date when it should have been performed. In light of that evidence, given by the defendants' witness, I cannot see how the learned Subordinate Judge arrived at the figure of Rs. 100, the defendants' own case being that the land had increased in value by the amount stated by their witness. The approximate area of the land sold by the first defendant to the plaintiff was 17 acres. I think this Court should take the mean between the figures given by the defendants' witness, that is Rs. 250 as the difference between the contract and the market prices on the date of breach. Allowing for the small deficiency below 17 acres, in my view, the amount which should have been awarded was Rs. 4000, in addition to the sum of Rs. 376, the amount of advance which, quite rightly, the learned Subordinate Judge decreed in the plaintiff's favour.
24. By the memorandum of cross-objections, the first defendant challenges the correctness of the learned Subordinate Judge's decision regarding costs. Having decreed a total sum of Rs. 476, he granted full costs of the suit in plaintiff's favour as against the first defendant. It was contended by Mr. Satyanarayana Rao, for the first defendant, that the learned Judge should have directed the plaintiff to pay to the first defendant the costs on the issues which had been decided in that party's favour. The question of costs is always a matter of discretion and before interference can take place with an order for costs, it must be shown that the judgment as to costs offends against some principle. But, in the present instance, it is not necessary to discuss that matter. In my opinion, the plaintiff should have been awarded a total sum of Rs. 4,376. Whilst, in the suit, he claimed more than double that amount as damages, nevertheless he was obliged to bring his action to recover anything at all. I see no reason to allow any relief to the first defendant upon the memorandum of his cross-objections.
25. The decree of the lower Court will be varied, and in place of the sum awarded there will be substituted the amount of Rs. 4,376 carrying interest at 6 per cent per annum from the date of suit. The plaintiff, as against the first defendant, is entitled to his costs in the Court below and also the costs of this appeal together with costs of the memorandum of cross-objections. The appeal is dismissed with costs against the plaintiff, so far as the second defendant is concerned.
26. I entirely agree with my Lord that the first and second defendants became divided in status during the lifetime of their father and that the evidence of the plaintiff is altogether insufficient to prove that there was subsequently any re-union. Almost all the evidence on which the plaintiff relies is consistent with a divided status if one remembers that the second defendant was a minor until 1937 and that his elder brother, the first defendant, would in the ordinary course manage his property on his behalf.
27. The other important question argued in appeal is whether in view of the fact that the plaintiff has failed to prove that the contract, Ex. P-1, is binding on the second defendant, the lower Court ought to have applied Section 15 of the Specific , Relief Act, notwithstanding the circumstances that the appellant was not prepared to forego his right of appeal to this Court on the question whether Ex. P-1 was binding on the second defendant and that he insisted on arguing the question of damages if the Court was not prepared to grant the equitable relief referred to in that section.
28. Section 15 states:
Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes, all claim to further performance, and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant.
This section can only come into application where a party to a contract is unable to perform the whole of his part of it; and so it is necessary for a Court to determine, before considering whether it should apply Section 15, whether the party to the contract is able to perform the whole of his part of the contract or not. It is only on the Court's finding that he cannot perform the whole of his part of the contract, that any question with regard to the application of this section arises. It is not often that a plaintiff desiring specific performance of a contract is in a position to know, when he comes to Court, whether or not the whole of the contract can be performed by the other party to the contract; and so the Court has to decide that question. If the Court finds, as it found in this case, that the party (the first defendant) is unable to perform his part of the contract, then the question arises whether the Court, in its discretion, should enforce that part of the contract which the first defendant could perform. It can exercise that discretion only if the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. The plaintiff contends that he gave such an undertaking, despite the fact that he was unwilling to promise that he would not appeal or, in the event of the Court's declining to exercise its discretion under this section, that he would not press for damages for breach of contract. In saying that he intended to appeal he was not refusing to give the undertaking required by the proviso of Section 15, in the event of its being held in appeal that that section applied ; he was merely saying that he intended inviting the appellate Court to find that Section 15 had no applicability at all. Incidentally since the whole matter has been re-opened in appeal, this Court has the same duty as the trial Court of determining whether,, the first defendant was able to perform the whole of his contract or not ; and if, as we have found, he was not, then of deciding whether this Court should direct the first defendant to perform so much of the contract as it lies in his power to do.. The undertaking to relinquish all claims to compensation for loss or damage sustained by the default of the defendant is the condition precedent to the exercise of the Court's discretion in the plaintiff's favour ; but if the Court refuses to apply this section, then it seems to me that the plaintiff is again free to ask for such relief, by way of damages or otherwise, as he can obtain under other provisions of the law. It would be grossly unjust if the plaintiff, having foregone all claim to damages and compensation in the expectation that he would be granted relief under Section 15, were to be deprived of all remedy upon the Court's refusing to exercise its discretion under this section. It is difficult to believe that the Legislature intended to introduce such an inequitable provision ; and I do not think that the words used in that section require that interpretation.
29. In no case cited before us has any appellate Court refused to grant the equitable relief permissible under Section 15 where the plaintiff has given a declaration such as he has in this case. In Poraka Subbhrami Reddi v. Vadlamudi Seshachalam Chetty (1909) 20 M.L.J. 328 : I.L.R. Mad. 359 the appellant sought to enforce a contract against the whole family property. The trial Court held that the agreement was not binding on the junior members of, the family, and refused to apply Section 15 to the shares of the first defendant and fourth defendant; who had entered into the contract for sale. In appeal, the plaintiff again argued, as the plaintiff has here, that the contract was enforceable against the entire family property. The learned Judges said:
If the contract is indivisible under Section 17 of the Act (Specific Relief Act), what then is the relief to which the plaintiff is entitled We are asked by the appellant to give him a decree for the whole against the first and fourth defendants on the authority of Srinivasa Reddi v. Sivarama Riddi I.L.R.(1908) Mad. 320. This we are unable to do ...It is enough for us to say that the present case is different, because the contract is one entered into on behalf of minors as well and the suit is therefore, properly brought for enforcement of the contract against them also. We cannot, therefore, treat the finding that the contract is not binding on defendants Nos. 2 and 3 as uncalled for.... It follows that no decree can be passed compelling conveyance of the interests of the second and third defendants as well by the first and fourth defendants. The appellant however expresses his willingness to take a conveyance by the first and fourth defendants of all their interests in the suit properties for the purchase money agreed upon without abatement or compensation. We think he is entitled to this decree.
30. Three months were thereupon allowed by the appellate Court for the plaintiff to deposit the balance of the purchase money. A similar question arose in Baluswami Aiyar v. Lakshmana Aiyar : (1921)41MLJ129 , which came before a Full Bench of this High Court, which discussed whether a decree for specific performance could be given against all the members of the family. The learned Judges agreed with Subbarami Reddi v. Vadlamudi Seshachalam Chetty (1909) 20 M.L.J. 328 : I.L.R. Mad.359 and seemed to dissent from the observations found in Srinivasa Reddi v. Sivarama Reddi I.L.R.(1908) Mad. 320 and Kosuri Ramaraju v. Ivabury Ramalingam : (1902)12MLJ400 Kumaraswami Sastri, J., said:
The fact that Section 15 would be a bar to the abatement in the price ordered does not affect the granting of the relief as to the share if the purchaser is willing to take it without claiming any abatement in the price.
31. The learned Judge then went on to discuss various cases in which an equitable relief under Section 15 had been either granted or refused and concluded by saying:
My answer to the question is that Section 15 of the Specific Relief Act applies to cases covered by the Order of Reference, and that specific performance cannot be granted of the contract so as to direct execution of a conveyance of the entire property, but that it is open to the purchaser to get specific performance so far as the share of the vendor is concerned on payment of the consideration agreed upon without any abatement.
The other learned Judges agreed. In that case, the plaintiff gave the kind of undertaking that he has given here. In Waryam Singh v. Gobi Chand I.L.R.(1929) Lah. 69 the Court was asked to apply the equitable provisions of Section 15 of the Specific Relief Act; but it was objected by the other side that no undertaking such as is required by the proviso of Section 15 had been given in the trial Court. Tek Chand, J., in his judgment, with which Agha Haidar, J., agreed, said:
I cannot find anything in Section 15 of the Specific Relief Act, or any other provision of the law, limiting action under Section 15 to any particular stage of the proceedings. It seems to me that it is open to the plaintiff to relinquish his claim to any part of the property in suit on the conditions specified in Section 15, at any time before the suit is finally decided by the Court of Appeal.
In Dinanath Sarma v. Gour Nath Sarma : AIR1925Cal434 , the plaintiff was given a decree in the trial Court for all that he prayed for in his plaint; but in appeal it was held that the contract could not be enforced against certain members of the family ; and the question arose whether Section 15 should be applied. Although there was no such prayer in the plaint, the learned Judges were prepared to treat the plaint as amended, and the plaintiff was given time to deposit the full consideration. In Panchanada v. Rajani Kanta : AIR1931Cal463 , there was apparently no offer under Section 15 either in the trial Court or in the appellate Court; but the plaintiff was given 14 days to consider whether he would be willing to comply with the proviso in Section 15. If he was, the Court was prepared to grant him a decree for specific performance against the share of the defendant upon whom the agreement was found to have been binding.
32. The only case cited by the defendants as an authority for the position adopted by the lower Court is Pramathanath Mitra v. Goshbihari Sen a decision of the Privy Council. The lower Courts were there dealing with a matter that arose out of a suit for specific performance of a contract for sale, in which the owners of a 12 anna share only had given their consent. The District Judge found that the contract was not binding on the owners of the 4 anna share and so passed a decree for a declaration that the contract was binding on the owners of the 12 anna share and that the plaintiff was a lessee of the 12 anna share. He directed the owners of that share to return one-fourth of the selami and awarded mesne profits on the 12 anna share This decree, though clearly not one permissible under Section 15, was affirmed by a Bench of the High Court in second appeal. In appeal to the Privy Council, their Lordships came to the conclusion that the contract had not been completed but they went on to consider the question whether even if the contract had been completed, the provisions of Sections 14 to 17 of the Specific Relief Act would have any application; They agreed with the High Court that Sections 14 16 and 17 would not. They then went on to say, disagreeing with the High Court, that Section 15 also would not apply They pointed out that the High Court had overlooked the important proviso in Section 15 and said:
The plaintiff has not relinquished all claim to further performances and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendants. On the contrary, he claimed in his plaint Rs. 600 as loss of profit already suffered and he has obtained a decree for the return of that share of the selami which enured to the 4 anna share.
It seems to me that this decision can have no bearing on the present case ; because there was there no offer by the plaintiff at any time-even before their Lordships of the Privy Council-to forego their right to compensation or damage.
33. I am therefore of opinion that the learned Subordinate Judge could have applied Section 15, in view of the undertaking given by the plaintiff in the lower Court, and that it was also open to this Court, if it were so minded, to grant that relief to the plaintiff here. The plaintiff cannot, however, claim that relief as of right; and since this is a matter for the discretion of the Court, I am not prepared to say that the lower Court should have granted the relief under Section 15 that the plaintiff prayed for, or that this Court in appeal should interfere, especially as the plaintiff did not ask for such an alternative relief in his plaint.
34. I am in entire agreement with my Lord that the compensation awarded by the lower Court was arbitrary and totally inadequate and that the sum of Rs. 4,000 is a suitable compensation to the plaintiff for the default of the first defendant. I agree also with the order as to costs.