Gopendranath Das, J.
1. This appeal is by the plaintiff. The plaintiff instituted the suit out of which this appeal arises, for specific performance of a contract of sale of the disputed land or, in the alternative, for a refund of the sum paid by the plaintiff to defendant 1.
2. The plaintiff's case, briefly stated, was that defendant 1 entered into a contract to sell the disputed land towards the end of Jaisth 1345 B.S. the agreed price being Rs. 199 which was to be paid by the middle of Sraban 1345. The plaintiff paid Rs. 3 as cost of stamp and a sum of Rs. 55 towards the price on 26-3-1345. Defendant 1 executed a deed of sale on 6th Sraban 1345, the date and the nature of the rayati contracted to be sold being left blank. The title deeds were made over to the plaintiff who paid, at the time, a further sum of Rs. 95; a sum of Rs. 49 remained due. Out of this a sum of Rs. 5 was paid during Durgapuja and Rs. 26 during the X'mas vacation in Pous 1345. The remaining sum of Rs. 18 was paid during the Id holidays in 1345 B.S. when defendant 1 made over two dakhilas Ex. 4, 4a. Though the entire consideration was paid as above, defendant sold the land to defendants 2-3 who had knowledge of the contract to sell with the plaintiff; hence the suit.
3. The case of defendant 1 is that there was a contract of sale but the consideration was Hs. 299 viz., Rs. 199 payable to defendant 1 and Rs. 100 as rent and landlord's fee to be paid to the landlord out of which Rs. 50 only was paid on 29th Asarh 1845, the balance was agreed to be paid within 5th or 6th Sraban 1345; in default the sum of Rs. 50 was to be forfeited. The defendant executed the kobala with the blanks as aforesaid and made over the title deeds on that date, but as the plaintiff did not pay the balance of the agreed price on that date, the Hanks were not filled up and the contract fell through and thereafter defendant 1 sold the disputed land to defendants 2-3.
4. Defendants 2-3 pleaded that they had purchased the disputed land for Rs. 299 bona fide and without knowledge of the plaintiff's contract.
5. The trial Court refused the plaintiff's prayer for specific performance but directed a refund of Rs. 58 to be made by defendant 1 to the plaintiff with proportionate costs.
6. The plaintiff preferred an appeal. The lower appellate Court has found that defendant 1 agreed to sell the land for Rs. 199 and in addition to pay to the landlord the arrears of rent arid landlord's fee; that the plaintiff was entitled to pay the purchase-money within a reasonable time; the defendant's story of forfeiture of Rs. 50 in case the balance was not paid was not true; that the plaintiff paid Rs. 50 plus Rs. 100 sent by insured cover and Rs. 18 in Magh 1345 towards arrears of rent but the plaintiff had not been able to prove the payment of Rs. 5 during Durga Puja and Rs. 26 during X'mas vacation. The lower appellate Court alia held the non-payment of these two sums of Rs. 5 and Rs. 26 and non-payment of rent resulted in non-completion of sale by defendant 1 to the plaintiff and the sale to defendants 2-3. The plaintiff, however, did not incur forfeiture of the money paid to defendant 1. Defendants 2-3 were found to have full knowledge of the plaintiff's contract before their purchase.
7. The lower appellate Court varied the decree of the trial Court so far as defendant 1 was concerned, but dismissed the suit with costs against defendants 2-3.
8. The plaintiff' has preferred this appeal. Mr. Birnala Charan Deb appearing on behalf of the plaintiff argues that a decree for specific performance of the contract should be passed against all the defendants conditional on his paying Rs. 31 which, according to him. is the balance, of the purchase money due. He also urges that the principles underlying Section 53A, T.P. Act, apply; he relies on two affidavits sworn to by Mr. B.K. Ghose, Maulik and N. N Ghosh, his pleaders in the Courts below as showing that the question of delivery of possession in pursuance of the contract of sale was pressed, and submits that the evidence on record will prove that possession was delivered to the plaintiff as alleged.
9. As regards the first point raised. Mr. Deb's argument proceeds on a misapprehension. The finding of the lower appellate Court is that in addition to non-payment of a sum of Rs. 31 out of the cash consideration of Rs. 199 the arrears of rent and landlord's fees also remained unpaid' by the plaintiff. Ordinarily, non-payment of the full purchase money is not a ground for denying the plaintiff's claim for specific performance of; a contract of sale. In Jamshed Khodaram v. Burjorji Dhunjibhai 2 A.I.R. P.C. 87 Viscount Haldane observed at p. 33:
Prima facie equity treats the importance of auch time limits as being subordinate to the main purpose of the parties and it will enjoin specific performance notwithstanding that from the point of view of a Court of law the contract has not been literally performed by the plaintiff as regards the time limit specified.
To the same effect are the observations of Lord Cairns in Tilley v. Thomas (1868) 3 Ch. A. 61:
A Court of Equity will indeed relieve against and enforce specific performance, notwithstanding a failure to keep the dates assigned by the contract, e there for completion or for the steps towards completion, if it can do justice between the parties and if (as Turner L.J. said in Roberts v. Flora (1853) 3 D. M & G. 284 at p 299) there is nothing in the express stipulations betwaen the parties, the nature of the property, or the surrounding circumstances, which would make it inequitable to interfere with and modify the legal right.
Applying the above principles to the agreement as found by the lower appellate Court, it must be held that time was not of the essence of the contract. But there is another insuperable difficulty in the plaintiff's way. As was pointed out by Lord Blanesburgh in Ardeshir v. Flora Sasoon 15 A.I.R. 1928 P.C. 208 the plaintiff in a suit for specific performance had.
to allege and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part.
It was also observed in that case that
although to far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (S. 24 6) is the nearest), it seems invariably to have born recognised and, on principles their Lordships think rightly, that the Indian and the English requirements in this matter are the same.
In the present case, the plaint did not allege willingness to abide by the contract, in fact the terms set out are to some extent different from the contract as proved The plaintiff disputed] the terms of the contract both in the trial Court and in the lower appellate Court The offer made by Mr. Deb is too late in' the day to give the plaintiff the equitable relief of specific performance.
10. Mr. Deb relied on the observation of Denning J at p. 134 in Central Londan Property Trust Ltd. v. High Trees House, Ltd. (1947) 1 K.B. 130 where it is pointed out that 'the law has not been Standing still since Jorden v. Money (1854) 8 H.L.C. 185' and that promise which was going to be acted upon by the person to whom it was made and which was in fact acted on, must be honored. The above observations merely state that promises of the above description are good consideration to support an action based on such a promise They do not support the proposition that a contract of which full consideration has not been paid or offered to be paid at any time up to the hearing, can be specifically enforced.
11. I shall now deal with the second point raised In Probodh Kumar v. dantmara Tea Co. Ltd. 0043/1939 Lord MacMillan observed at p 487:
In their Lordships' opinion the amendment of the law effected by the amendment of Section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Hitter J. in the High Court that 'the right conferred by Section 53A is a right available only to the defendant to protect his possession'... The section is so framed as to impose a statutory bar on the transferor, it confers no active title on the transferee. Indeed, any other reading of it would maka a serious inroad on the whole scheme of the Transfer of Property Act.
12. Mr. Deb relied on the decision of Bennett J. in Mt. Firdos Jahan v. Mahomed in support of the proposition that Section 53A. T.P. Act, was available to a plaintiff. In that case, the plaintiff had filed a petition under Order 21, Rule 100, Civil P.C., in answer to an execution filed by the defendant decree-bolder for possession of the disputed propetty; the petition being disallowed, a suit under Order 21, Rule 103, Civil P.C., was filed and reliance was placed on Section 53A, T.P. Act, in proof of the plaintiff's claim based on a receipt and on taking of possession on the foot thereof. Bennet J. observed that the suit was a continuation of the petition under Order 21, Rule 100, Civil P.C., and could very well be regarded as a defence to the petition for execution which initiated the proceedings and as such the claim made by the plaintiff was a defensive equity put forward by the plaintiff. It cannot be said that the plaintiff in a suit for specific performance was asserting such an equity; the claim is really an active title set tip by the plaintiff. In my opinion, the 'plaintiff cannot avail himself of the provisions of Rs. 53A. T.P. Act.
13. Both the contentions raised fail. But it appears that the order portion of the judgment of the lower appellate Court is vague and requires clarification. In lieu o the decree of the lower appellate Court, the plaintiff's suit be decreed in part, the claim for specific performance of the contract of sale be disallowed against all the defendants; the plaintiff's prayer for refund of a part of the consideration money be decreed against defendant 1 and defendant 1 be directed to pay a sum of Rs. 168 only and half costs of the trial Court and lower appellate Court to the plaintiff. The plaintiff do pay the costs of defendants 2-3 in the trial Court and the lower appellate Court. There will be no order for costs in this Court.