1. The plaintiff is the appellant. He filed O.S. No. 35 of 1946 on the file of the Court of the Subordinate Judge of Mathurai for specific performance of a agreement to sell certain immovable properties by defendants 1 to 3. Defendants 1 and 2 are brothers and members of a joint family and the 1st defendant is its manager. The 3rd defendant is the mother of defendants 1 and 2. The properties which are the subject-matter of the agreement are two go downs in Mathurai. Under Ex. P. 3 dated 30-6-1937 the defendants had executed a usufructuary mortgage over those properties in favour of one Somasundara Nadar for Rs. 8000/- and a period of ten years was fixed for redemption. On 20-3-1943 the defendants entered into agreement with the plaintiff, Ex. P. 4, which is the subject-matter of the present suit. Under Ex. P. 4 they agreed to sell the two godowns to the plaintiff for a consideration of Rs. 13500/-. A sum of Rs. 750/- was paid as advance. Deducting Rs. 8000/- which had to be paid for the redemption of the usufructuary mortgage, Ex. P. 3, the balance of Rs. 4750/- was to be paid at the time of the registration of the document and the transaction completed within one month. The second defendant was a minor at the date of -the transaction and the 3rd defendant signed the agreement as his guardian and also on her own behalf. The case of the plaintiff is that about a week later a draft sale-deed was prepared in consultation with the defendants, that it was approved by the 1st defendant and D.W. 3 and that a fair deed was actually engrossed on stamp paper on 16-4-1943. Ex. P. 5 is the fair deed. It is stated by the plaintiff that this document was presented to the defendants for execution but they were putting it off. On 18-4-1943 the plaintiff sent a wire, Ex. P. 6 and on 19-4-1943 this was followed by a notice, Ex. P.
7. Therein the plaintiff called upon the defendants to execute the sale-deed, register it and receive the balance of consideration. The defendants replied by wire Ex. P. 8 and notice, Ex. P. 10, both dated 19-4-1943. They stated that the plaintiff had also agreed to execute a deed of indemnity in respect of any claim that might be made against them personally by the mortgagee under Ex. P. 3 and that they were willing to execute the sale-deed if the plaintiff would execute the indemnity bond. The plaintiff denied that there was any agreement to execute an indemnity bond and by reason of this dispute the sale-deed remained unexecuted. On 21-1-1946 the plaintiff sent a lawyer's notice to the defendants again calling upon them to execute the sale-deed within two days; Ex. P. 11. The defendants replied by Exs. P. 12, P. 12(a) and P. 12(b) and therein it was alleged that the agreement, Ex. P. 4 was not binding on the 2nd defendant because there was no necessity for the sale and that accordingly the transaction was unenforceable in its entirety; that the consideration mentioned in Ex. P. 4 was inadequate and that the defendants had been duped into entering into the transaction by the plaintiff. The plaintiff replied by filling the suit on 20-2-1946 for specific performance of the agreement Ex. P. 4 or in the alternative for damages.
(2) The suit was resisted by the defendants on the following grounds:
1. It was pleaded that the plaintiff had agreed on 20-3-1943 that he would execute an indemnity bond in respect of any possible claims by the mortgagee under Ex. P. 3 and that as the plaintiff denied the agreement he was in default and the contract had been broken by him.
2. The agreement was not binding upon the 2nd defendant who was a minor, because there was no necessity for sale and that, therefore, the agreement could not be enforced even against the 1st defendant.
3. The plaintiff was guilty of inordinate delay and laches and that therefore the Court should in its discretion refuse him relief by way of specific performance.
4 And lastly the damages claimed were excessive. The Subordinate Judge held that there was no agreement on 20-3-1943 that the plaintiff should execute an indemnity bond and that, therefore, the contract was broken not by the plaintiff but by the defendants; that there was no necessity to sell the joint family properties and therefore the agreement was not binding on the 2nd defendant and under Section 15 of the Specific Relief Act the plaintiff was not entitled to relief even as against the 1st defendant; that there was great delay leading to an inference that the plaintiff had waived or abandoned his rights under Ex. P. 4 and that as the value of the house property had vastly increased by the date of suit it would work great hardship on the defendants if specific performance were to be decreed and accordingly relief by way of specific performance was refused. The Subordinate Judge proceeded to deal with the claim for damages and assessed the same at Rs. 100/- and passed a decree against the 1st defendant for payment of Rs. 952-8-0 made up of advance of Rs. 750/-, stamp charges and the damages awarded. The plaintiff was also directed to pay costs of the 2nd defendant. Against this decree the plaintiff has preferred this appeal.
3. The first question that arises for determination in this appeal is as to whether the agreement, Ex. P. 4, is binding on the 2nd defendant. As he was a minor on that date, it will be binding only if there was necessity for the sale. '
(After discussing the evidence in the case his Lordship proceeded):
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4. We are accordingly of opinion that there was necessity for the sale of the joint family properties and that the agreement, Ex. P. 4 is valid and binding on the 2nd defendant and enforceable against all the defendants.
5. We shall now consider the question as to whether the plaintiff is disentitled to relief on the ground of laches and delay. It is not pleaded in the written statement that the plaintiff did anything to induce a belief in the defendants that the contract had been abandoned or would not be enforced and that the defendants changed their position by reason of such belief. No third parties have acquired any rights in the property. The defence 'simpliciter' is that the plaintiff is not entitled to relief by reason of delay in the institution of the suit. A number of authorities has been cited before us bearing on this question, but as the position is well settled we do not consider it necessary, to deal with them at any great length. In a recent decision of this Court in 'Arjun Mudaliar v. Lakshmi Ammal', 1948-2 Mad L J 271, to which one of us was a party, the result is thus stated:
"It is now well established that mere delay does not by itself preclude the plaintiff from obtaining specific performance if his suit is otherwise in time. The delay must be such that it may be properly inferred that the plaintiff has abandoned his right or on account of delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant."
Reference is then made to the well known observations of Sir Barnes Peacock in 'Lindsay Petroleum Co. v. Hurd', (1873) L R 5 PC 221:
Where it would be practically unjust to give a remedy either because the party has by his conduct done that which might fairly be regarded as equivalent to waiving of it or where by his conduct and neglect he has though perhaps not waiving that remedy yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material."
As already mentioned there is no plea that the conduct of the plaintiff has in any way brought about a change in the situation of the defendants. The only question, therefore, that arises for consideration is whether on the facts of this case it can be said that the plaintiff has waived and abandoned his rights under the contract. The learned Subordinate Judge has held that he has. He observes, "what other inference is to be drawn for such delay if not waiver or abandonment." We are unable to agree with this conclusion. In this case no circumstance has been brought to our notice which will justify this inference. It is well settled that waiver is not to be inferred merely from delay in the institution of the suit. In 'Arjuna Mudaliar v. Lakshmi Ammal', 1948-2 Mad L J 271 at p. 271 the learned Judge observes: "With great respect to the learned Judge we must say that we have not been referred to any authority in which it has been held that from long delay alone without anything further, an abandonment of rights could be inferred."
It is said that the defendants repudiated the contract on 19-4-1943 and that, therefore, any action of the plaintiff thereafter must lead to an inference that he has abandoned the contract. The decision in 'Nawab Begam v. A.H. Creet', 27 All 678, is relied on in support of this position. But that case has been considered in 'Suryaprakasarayadu v. Lakshminarasimha', 26 Mad L J 518, which on the facts appears to be indistinguishable from the present case. In that case there was an agreement to sell on 4-11-1904. Time for performance was fixed till 4-12-1904. Disputes arose in January 1905 as to the order in which reciprocal obligations should be performed. Thereafter nothing was done and the suit was instituted on 2-12-1907. The Subordinate Judge following the decision in 'Nawab Begam v. A.H. Creet', 27 All 678, refused to grant a decree for specific performance on the ground that as the plaintiff had delayed the action after repudiation by the defendant, the contract must be taken to have been abandoned. On appeal this Court reversed that judgment. It was held that abandonment could not be inferred from the delay because the parties were disputing the terms of the agreement. Sadasiva Aiyar J. observed at page 521: "Further having regard to the case in 'Athikarath Nanu Menon v. Kommu Nahyar', 21 Mad 42 and 'Kissen Gopal v. Kally Prosonno Sett', 33 Cal
633. I am satisfied that the decision in 'Nawab Begam v. A.H. Greet', 27 All 678, has been expressed in rather too wide and general language." and adds:
"Then as regards the finding of the Subordinate Judge that the laches itself amounts to a waiver or abandonment, I think it is an error of law to hold that mere delay amounts to a waiver or abandonment apart from other facts or circumstances or conduct of the plaintiff indicating that the delay was due to waiver or abandonment of the contract of the plaintiff's part. In this case there are no such circumstances proved."
In this case it may be mentioned that defendants sent a notice on 19-4-1943 expressing their willingness to execute the sale deed if an indemnity bond was executed by the plaintiff. It was only in 1946 in their reply notices, Exs. P. 12, 12(a) and 12(b) dated 1-2-1946, 7-2-1946 and 29-l-1946 that they repudiated the contract as not binding on them. Applying the principle of the decision in 'SURYAPRAKASARAYUDU v. LAKSHMINARASIMHA', 26 Mad L J 518 we are of opinion that there has been repudiation only in 1946 and that as the suit was instituted on 20-2-1946 there is no waiver or abandonment. On the other hand there is one circumstance which appears to us to go strongly against the theory of waiver. It will be remembered that on 20-3-1943 the plaintiff paid an advance of Rs. 750 at the time of the agreement. That amount has all along been with the defendants. The plaintiff did not ask for its return. Nor did he abandon his claim to it. Now to hold that the plaintiff waived his rights under the contract would involve the conclusion that he gave up his rights to the advance amount as well for that would be the consequence if he abandoned the contract; he could not then claim return of the advance. But the Subordinate Judge has granted a decree for the return of the advance and even damages for breach of contract. This cannot be reconciled with the notion that the contract had been waived. A contract which has been abandoned has no legal existence for any purpose and it cannot be the foundation for any relief whether it be specific performance or damages. The effect of waiving a contract is not merely to bar any particular remedy under that contract but to extinguish it altogether and the right to any relief thereunder. The grant of relief to the plaintiff for return of the advance and for damages is inconsistent with the theory that the contract bad been waived or abandoned. We are satisfied that in this case the plaintiff has not waived or abandoned his rights and that he is not disentitled to relief by reason of any laches or delay.
6. A further ground was taken in the lower Court for non-suiting the plaintiff. During the period 1943 to 1946 there was a considerable rise in the value of house property in Mathurai as in other cities. The price of the suit property at the time of the action would be Rs. 20,000 according to the plaintiff and Rs. 30,000 according to the defendants. On this the lower Court has held that the sale price of Rs. 13500 would be grossly inadequate as on the date of the suit and that, it would, therefore, be inequitable to grant specific performance of the agreement.
7. It may be noted that no such plea was taken by the defendants. They pleaded that the price fixed in the agreement was inadequate, as at the time of the agreement, that the plaintiff had imposed upon the 1st defendant and duped him into entering into a contract on fraudulent representations and therefore, it was unenforceable. The defendants gave evidence in support of these allegations but the lower Court disbelieved them. This is what the learned Subordinate Judge observes: "I am not, therefore, satisfied that the price agreed to was inadequate or that the defendants were duped into entering into the agree merit on any misrepresentation made by the plaintiff."
This finding has not been challenged before us. The position therefore is this: Here is a transaction which was for proper consideration when it was entered into. At the time of the suit the value of the properties had considerably risen. Could specific performance be refused on this ground? The validity of a transaction should, on principle, be judged as on the date of the transaction. This is well established with reference to alienations by managers of a joint Hindu family is there any reason why a different rule should prevail as regards contracts entered into by them None that we can see. The learned advocate for the respondents relied on certain observations in 'Jamsetji N. Tata v. Kashinath', 26 Bom 326 as supporting this distinction. That was a suit for specific performance of a contract entered into by a mother and her son to sell certain properties to the plaintiff. The minor son of the vendor was also impleaded as a party to the suit and declaration sought that the sale was binding on him as well. Russell J. came to the conclusion or, the evidence that the sale would not be binding on the minor son and therefore refused the declaration asked for by the plaintiff. On appeal this judgment was confirmed. There is, therefore, nothing in the decision of the case which helps the respondent. What is relied on is the following observation by Starling J. at page 338:
"To justify the Court in making such a declaration I am of opinion that there should be evidence that there were and still are at the date of the suit certain debts to be paid off and that it was and is the intention of the vendor to apply the purchase money in paying such debts." From this it is argued that the validity of the transacion should be established both on the date of the contract and on the date of the action. There, the learned Judge was dealing with a case in which the transaction was valid at the date of the agreement. The finding was that it was not valid even at the date of the transaction and therefore, the observations do not amount to a direct decision on this point. The passage above quoted came in for considerable criticism in a decision reported in 'Venkateswara Iyer v. Raman Nambudiri', 19 Mad L T 329 wherein Seshagiri Aiyar J. observed at page 334: "1 can find no justification in reason or in authority for the proposition that the liability of a Hindu coparcener as regards executory contracts is different from his liability to executed contracts. In either case the same considerations regarding necessity or justifiable purposes would govern the decision. The learned vakil raised the contention that whereas in executed contracts the question would be whether there was necessity at the time of the contract, in executory contracts the binding nature has to be determined with reference to the time at which the contract is to be completed. I see no force in this contention either. One can spell out from the observations of Starling J. In 'Jamesetji Tata v. Kashinath', 26 Bom 326 some support for this contention, All that the learned Judge seems to have laid down is, that before a Court is asked to decree specific performance against a minor it ought to satisfy itself that it is for the benefit of the minor that the decree should be passed. I do not think it was intended to declare that this benefit has to be ascertained not as on the date of the contract, but as on the date that the decree is to be passed. If this is the correct view, there can be no question that the enforceability of a contract must be traced back to the date of the agreement. There is nothing in the Hindu law to warrant a departure from this rule." .
8. We agree with these observations and hold that the validity of the contract should be judged as on the date when it was entered| into and, so judged, Ex. P. 4 is binding on the 2nd defendant.
9. It was also urged that as the 2nd defendant was a minor at the date of the contract and at the time of the suit the Court must be satisfied about its validity at the time when the contract is sought to be enforced but we are not concerned here with a contract entered into on behalf of the minor. We are concerned with a contract by a manager of joint Hindu family which 'proprio vigore' is binding on all the members of the family, majors and minors. The association of the 2nd defendant in the contract, Ex. P 4, is by way of abundant caution and it is more a matter of form than of substance. By such association the rights of the manager to sell the joint family properties for proper purposes do not, on the one hand, get enhanced nor do they, on the other, suffer diminution. Vide 'Ghari Bullah v. Khalak Singm,' 25 All 407.
10. It remains to consider whether the respondents could claim to be relieved from their obligation to perform the contract under Section 22 (2), Specific Relief Act. It is argued that as the price of the properties had risen to Rs. 20,000 according to the plaintiff and Rs. 30,000/- according to the defendants, it would work a great hardship on the defendants such as they could not have foreseen and that therefore, the Court had a discretion to refuse specific performance. With reference to Section 22 (2) it is well settled that the question of hardship must be judged as on the date of the transaction and not in the light of subsequent events and that further the hardship should be one collateral to the contract and not in relation to a term of the contract such as the quantum of consideration. Fry in his work on "Specific Performance" states the Jaw in the following terms (page 199, Section 418):
"The question of the hardship of a contract is generally to be judged of at the time at which it is entered into; if it be then fair and just and not productive of hardship, it will be immaterial that it may, by the force of subsequent circumstances or change of events, have become less beneficial to one party, except where these subsequent events have been in some way due to the party who seeks the performance of the contract..... It has been determined that the reasonableness of a contract is to be judged of at the time it is entered into, and not by the light of subsequent events and we have already seen that the same principle applies in considering the fairness of a contract" and again "the question of the inadequacy of the consideration must, of course, be decided at the time of the contract and not by the light of subsequent events" (Section 448, P. 214).
In 'shaib Lal v. Collector of Bareilly,' 16 All 423 it was held on the strength of the passages quoted above that the validity of the agreement should be judged on the circumstances as they stood on the date of the agreement and not in the light of subsequent events. In that ease the defendant agreed to grant some village in consideration of the plaintiff withdrawing the claim which he made against the estate. Before the suit for specific performance was filed it had been held in a connected litigation that the plaintiff had no title. It was accordingly argued that the agreement was not supported by substantial consideration as proved by events, and that therefore specific performance should be refused under Section 22 (2) of the Specific Relief Act. This argument was repelled and it was held that as the agreement was valid and proper at the time it was entered into, the plaintiff had a right to specific performance without reference to subsequent events. In 'pichai Mohideen v. Chathur Buja Das Kushaldas And Sons,' 65 Mad L J 491 at p. 502, Ramesam and Cornish JJ. made the following observations with references to the scope of Section 22(2) of the Specific Relief Act: "Respondents relied on Section 22, Clause 2 of the Specific Relief Act but obviously the term 'hardship on the defendant' in this section is used in the sense of some collateral hardship and not merely the diminution of the purchase money. The illustrations which are all based on English law clearly show this and the term "hardship" is used in the same sense as it is used in English law (Vide Fry on the Specific Performance Chapter VI)".
11. On the principle of the above decisions, It must follow that we must have regard to circumstances only as they stood on 20-3-1943 and If that is done the subsequent rise in prices will not be a relevant ground for refusing the plaintiff specific performance. We shall now consider the authorities cited by the advocate for the respondent for the position that such subsequent rise in prices can be taken into account.
12. In 'Govinda Naicken v. Apathsahaya Iyer,' 37 Mad 403 the facts were that the defendants agreed to sell a property in which he had only a half share, the other share belonging to his divided brother. He resisted the suit for specific performance on the ground that a sale deed in respect of the whole property would lead to litigation and cast a cloud on the title of the co-owner. On this ground specific performance was refused. Then with reference to the granting of relief under Section 15 of the Specific Relief Act the learned Judges Sundara Aiyar and Spencer JJ. observe at page 405:
"Even in cases where the conditions of Section 15 are fulfilled, the use of the word 'may' indicates that the granting of a decree for part performance is discretionary with the Court and we should hold that when there has been great delay in attempting to enforce a contract and circumstances have greatly changed either from a rise of prices or other causes in the interval, the Courts would be justified in refusing to give legal effect to an inequitable arrangement".
13. It is obvious that the learned Judges considered the original arrangement as inequitable on the facts already mentioned. They were not considering the position under Section 22 (2) of the Specific Relief Act. We cannot take this passage out of its context and read into it a general principle that even when the contract was entered into for proper consideration, the Court had discretion to refuse specific performance by reason only of the rise in price at the time of the suit.
14. Another case relied on by the respondents is the one reported in 'Maharaj Bahadur v. Suresh', 34 Cal L J 364. There it was found that the plaintiff had at one stage abandoned the contract; that the tenants of the defendant agreed to pay higher rent in the belief that the plaintiff had abandoned his contract and thus there was an increase brought about in the value of the property by the conduct of the plaintiff himself. It was held that he was not entitled to specific performance. This would be within the principle enunciated by Fry in Section 418, where an exception is made to the general rule where the subsequent events have been in someway due to the party who seeks the performance of the contract. The learned advocate for the respondents next relied on a case in 'Narooshanker Pranshaknar v. Rajumal Bhagavandas', AIR (8) 1921 Sind 197, which does lend some support to his position but for the reasons already mentioned, we are unable to agree with that decision. The advocate for the appellant relied upon the following observations occurring in 'Allah Ditta v. Jamna Das', AIR (16) 1929 Lah 67,9 at p 680:
"The respective positions of the parties now before us have remained as they were though there has been a material rise in the price of the land which, may explain the conduct of the plaintiffs but does not in any way affect their rights. The plaintiffs are not debarred by mere lapse of the time from enforcing their remedy."
Though there is no discussion, the decision is in accord with the views which we have expressed. The learned advocate for the respondents also sought to support the decree by contending that the plaintiff' had agreed on 20-3-1943 to execute a deed of indemnity and was in default in declining to do so. Ex. P. 4 contains no such terra. The 1st defendant as D.W. 1 admitted that at the time of Ex. P. 4 there was no talk or agreement concerning the 'othi'. That is also the evidence of P.Ws. 1 and 2. It is only D.W. 3 who deposes to such an agreement and the lower Court was right in rejecting that evidence and finding this issue in favour of the plaintiff, We accept this finding.
15. It was finally urged that as the relief is one by way of discretion we should not interfere in appeal with the decree passed by the lower Court. Section 22 provides that the discretion is one to be exercised on "judicial principles and capable of correction by a Court of appeal". When once it is found that the contract sought to be enforced is a valid one it is for the defendants, to establish legal grounds for refusing relief by way of specific performance. We have already held that none such has been made out by the defendants and we are of opinion, therefore, that there should be a decree for specific performance in favour of the plaintiff. In this view it is unnecessary to consider the question of damages. Two months time will be granted for performance. The plaintiff will be entitled to his costs both here and in the Court below.