Seshagiri Aiyar, J.
1. My learned brother has stated the facts. It is only necessary to refer to the exact finding arrived at by the District Judge. He finds that the settlement come to at the time of withdrawing the first suit was to substitute a different piece of land for the one which was originally agreed to be conveyed. The consideration was to be the same, and there was to be no change in the parties to the contract.
2. Mr. Devadoss contends that Section 62 of the Contract Act does not apply to such a case. On the finding as stated by me, there has been no breach of the contract, but only a variation with the consent of the parties in one of the essential terms. The suit, which complained of default in the performance, ended in this adjustment. There is no finding that the contract was really broken. If Mr. Devadoss' premises are correct, namely, that there was a breach of the first contract, I would have agreed with him that Section 62 will not help the defendant. The case of Manohur Koyal v. Thakur Das Naskar 15 C.P 319 will then be directly in point. Mr. Muthukrishna Aiyar has not convinced me that this decision is wrong. Section 62 contemplates that the original contract subsists and that the parties have agreed to re-place it by a new contract. The language suggests that the contract is to be put an end to with the consent of both the parties when the substitution, rescission or alteration takes place. Section 63, on the other hand, deals with cases where there has been a breach of the contract. No doubt, as pointed out by Mr. Justice Subramanania Aiyar in the case of Davis v. Cundasami Mudali 19 M.P 398 : 6 M.L.J. 220 this section refers to unilateral acts, whereas under Section 62 the concurrence of both the parties is required. That is not the only distinction between the two sections. It is pointed out that both the sections find place under the heading 'Contracts which need not be performed.' I do not think this can afford any assistance in the construction of the sections. The English authorities which recognise the distinction between promises made before breach and those after breach, must have been present to the minds of the framers of the Contract Act. As at present advised, I am not prepared to dissent from the view taken in the case of Manohur Koyal v. Thakur Das Naskar 15 C.P 319. But it is not necessary to discuss this subject any further.
3. I think the judgment of the District Judge can be supported on another ground. To the claim for specific performance made by the plaintiff, defendants' reply is that there has been a subsequent agreement to vary one of the terms of the contract by substituting another piece of land for the one already agreed upon. This defence is covered by Section 26 (e) of the Specific Belief Act. That clause does not permit of a plea which sets up the abandonment of the first contract. It can be availed of only in cases of variation and, as I said before, the pleadings and the finding of the District Judge show that this is a contract of that description. I am unable to agree with the contention of the learned Counsel for the appellant that Section 26 (e) will not apply, if one of the parties to the contract has been complained against for default. There is no warrant for such a contention. It is open to argument that even if there has been a breach, Section 26 (e) of the Specific Relief Act would apply, although Section 62 of the Contract Act may not.
4. The decree of the District Judge is right and this second appeal is dismissed with costs.
Kumaraswami Sastri, J.
5. The plaintiffs, who are the appellants, sue for specific performance of a contract by the defendants to sell the land described in the plaint and for damages. The plea of the defendants was that by an agreement between the parties certain other land was substituted for the land they originally agreed to sell, and both the lower Courts found that the plea was proved and dismissed the plaintiffs' suit, on the ground that the plaintiffs were not entitled to a conveyance of the land claimed.
6. It is argued for the appellants that, inasmuch as the variation set up was after the breach of the contract, the plaintiffs are entitled to sue on the original contract without any reference to the variation agreed to by them, and reliance has been placed on Manohur Koyal v. Thakur Das Naskar 15 C.P 319. There can be little doubt from the evidence that, after the plaintiffs filed a suit to recover the advance paid and damages alleging breach of contract by defendants, there was a mediation, as a result of which it was agreed between the plaintiffs and the defendants that land bearing Survey No. 153 (6) was to be sold instead of the land originally agreed upon. This appeal was argued on both sides on the footing that the variation was after the breach of contract.
7. I am of opinion that the present case falls within Section 26, Clause (e), of the Specific Relief Act and that the plaintiffs are not entitled to enforce the contract sued upon without the variation set up by the defendants. The section is clear and enacts that where a plaintiff seeks to enforce specific performance of a contract writing to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought except with the variation so set up where the parties have, subsequently to the execution of the contract, contracted to vary it. I see nothing in the section or illustrations to limit its operation to variations prior to the breach of the contract. It is, no doubt, true that under the English Common Law, there should be some independent benefit, actual or contingent, which is the consideration for varying a contract not under seal and that after breach, the only plea that would be valid defence would be accord and satisfaction where a party seeks to set up a variation of the terms of the contract. With all deference to the learned Judges who decided Manohur Koyal v. Thakur Das Naskar 15 C.P 319 I am unable to see any grounds for introducing the same rule in construing either Section 26, Clause (e), of the Specific Belief Act or Sections 62 and 63 of the Contract Act, which are general in their terms. The observation of the learned Editors of Smith's Leading Cases on Cumber v. Wane 1. Str. 426 : 1 Sm. L.C. 838 : 93 E.K. 613 and the view of Lord Blackburn on Foakes v. Beer 9 A.C. 602 : 54 L.J.Q.B. 130 : 51 L.T. 833 : 33 W.R. 233 show that the rules of English Law as to consideration for variation are not founded on any sound principle. The Legislature has not adopted the principles laid down in Foakes v. Beer 9 A.C. 602 : 54 L.J.Q.B. 130 : 51 L.T. 833 : 33 W.R. 233 when it enacted Section 63 of the Code and so far as the Madras High Court is concerned, it has been held that no consideration is necessary for a contract to extend the time for performance of a contract: Davis v. Cundasami Mudali 19 M.P 398 : 6 M.L.J. 220. There seems to me to be no reason why after breach the parties should not agree to vary the terms or why a plaintiff who consents to such variation should not be held bound by the terms of his agreement. As a matter of practice, it is very common in this country for mediators to interfere after quarrels have arisen between the parties and effect a compromise between them, and I see nothing inequitable in holding the parties to the variation agreed to, irrespective of whether the variation was before or after breach. I do not think that Courts should engraft on the plain meaning of the provisions of Madras enactments limitations founded on technical rules of English law and pleading, especially in cases where such limitations are not suited to the conditions prevailing in this country. The observations of Sir Frederick Pollock (in his Genius of the Common Law, page 92) as to the undesirability of the blind following of English precedents, which have been referred to with approval by Justice Mookerjee in Manjuri Bibi v. Akkel Mahmud 19 Ind. Cas. 793 : 17 C.L.J. 316 : 17 C.W.N. 889 may well be borne in mind in considering this question.
8. I am of opinion that the decrees of the Courts below are right and dismiss the second appeal with costs.