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KafiladdIn and ors. Vs. SamiraddIn and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1931Cal67,129Ind.Cas.869
AppellantKafiladdIn and ors.
RespondentSamiraddIn and ors.
Cases ReferredIn Gangaram v. Laxman
Excerpt:
- .....raised by them before us.2. the question that we wish to consider in this case is whether the decree passed by the trial court is correctly worded. the decree is in these words:the plaintiff's right to the specific performance of the contract claimed be declared and he do get khas possession of the lands in suit. the plaintiff do pay the sum of rs. 1,226 within a fortnight from the date of the signature of the decree and defendants 1 to 7 within a month thereafter do execute a kobala in favour of the plaintiff in respect to the disputed lands as claimed.3. at the time of hearing of this appeal it struck us that this decree is not according to law. we therefore considered this matter with the help of the learned advocates of the parties. the decree as passed directs defendants 1 to 7.....
Judgment:

1. This appeal arises out of a suit for specific performance of a contract entered into with the plaintiff by-defendants 1 to 3 on their own behalf and on behalf of defendants 4 to 7. The appeal is by defendants 8 to 10 who are subsequent purchasers of the property agreed to be conveyed to the plaintiff. Both the Courts below have found that the appellants got the kobala from defendants 1 to 3 with knowledge of the agreement between them and the plaintiff. They have accordingly decreed the plaintiff's suit. But it has been argued before us on behalf of the appellants that defendants 4 to 7 were no parties to the contract and that defendant 7 was a minor; therefore the contract on their behalf could not be legally enforced. It appears that defendants 1 to 3 purported to enter into an agreement with the plaintiff for the sale of the property on behalf of themselves and defendants 4 to 7. They subsequently sold the property to the appellants in the same way acting on their own behalf and on behalf of defendants 4 to 7. Defendants 4 to 7 were made parties to the suit and a decree was passed against them by the trial Court. They however did not appear in the suit nor did they prefer any appeal to the lower appellate Court or to this Court. The plaintiff prayed in the suit that the contract with him and defendants 1 to 3 on behalf of themselves and defendants 4 to 7 ought to prevail over the contract entered into by them with defendants 8 to 10. The appellants contend that the plaintiff has not derived any title from defendants 4 to 7 and if therefore they are not bound by the contract the decree of the Court below must be set aside. We do not think that the appellants are entitled in this appeal to object to the specific performance of the contract on the ground that some of the defendants with whom the agreement was made were no parties to the contract in question. This disposes of the appellant's appeal with regard to the question raised by them before us.

2. The question that we wish to consider in this case is whether the decree passed by the trial Court is correctly worded. The decree is in these words:

The plaintiff's right to the specific performance of the contract claimed be declared and he do get khas possession of the lands in suit. The plaintiff do pay the sum of Rs. 1,226 within a fortnight from the date of the signature of the decree and defendants 1 to 7 within a month thereafter do execute a kobala in favour of the plaintiff in respect to the disputed lands as claimed.

3. At the time of hearing of this appeal it struck us that this decree is not according to law. We therefore considered this matter with the help of the learned advocates of the parties. The decree as passed directs defendants 1 to 7 who. were the contracting parties with the plaintiff to execute a kobala in his favour. But it may be said that defendants 1 to 7 had already parted with their interest in the property in favour of the appellants and therefore a document executed by them may not convey the entire interest in the property to the plaintiff.

4. It has thus become necessary for us to go carefully into this matter as to the form in which the decree should be drawn. I have been personally interested in this matter, because in some unreported cases I have indicated that a decree should be passed not against the contracting party but against the subsequent purchasers directing them to convey the property to the plaintiff. That view I expressed relying upon a decision of the Madras High Court in Subbiah Pillay v. Vellappa Naicker [1912] 13 I.C. 176. In that case the view expressed was that a subsequent purchaser was a trustee of the property in law for the person who had the prior agreement for the same. The proper course in such cases would be to direct a reconveyance to be executed by the subsequent purchaser in favour of the holder of the prior contract. On further considering this matter I think the view taken there must be modified. Apart from the peculiar facts of this case to which I shall refer later, it seems to me that the law as indicated by Section 27, Specific Relief Act is quite clear. That section says that specific performance of a contract may be enforced against; (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who had paid his money in good faith and without notice of the original contract. I need not quote the remaining clauses of the section as they relate to persons who may in special circumstances be bound by a decree for specific performance. Now Section 27 does not direct that specific performance of a. contract may be enforced against the party to the contract or against any other person claiming under him. The section, as it stands can only mean that the specific performance may be enforced against all the persons named land enumerated in that section, The illustrations to that section emphasise the law as laid by Cl (b), namely:

any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract.

that is to say, specific performance may be enforced against persons (not the only persons) who subsequently acquired title to the property with the knowledge of the contract with the plaintiff or with the knowledge of circumstances leading to the discovery of such a contract. The English law on this point is quite clear and has never been doubted. In Dart on Vendors and Purchasers, Edn. 8, Vol. 2, at p. 883, the law is thus stated:

Equity will enforce specific performance off the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchaser for valuable consideration who have paid their money and taken a conveyance without notice of the original contract.

5. This statement of the law is exactly what is meant by the first two clauses of Section 27, Specific Belief Act. It is net necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. It is enough to mention some of them : Daniels v. Davison [1809] 16 Ves. 249 Potter v. Sanders [1846] 6 Hare 1 Lightfoot v. Heron 3 Y & Coll. 586. The question did not pertinently arise in any reported case in India; but decrees in cases of specific performance of contract have been passed in several cases in different forms. In Chunder Kanta Roy v. Krishna Sundar Roy [1884] 10 Cal. 710 the decree passed against the contracting party only was upheld. So it was in Kannan v. Krishan [1890] 13 Mad. 324. In Himmatlal Motilal v. Basudeb [1912] 36 Bom. 446 the decree passed against the contracting defendant and the subsequent purchaser was approved. In Faki Ibrahim v. Faki Gulam A.I.R. 1921 Bom. 459 the decree passed against the subsequent purchaser only was adopted. In Gangaram v. Laxman [1916] 40 Bom. 498 the suit was by the subsequent purchaser and the decree was that he should' convey the property to the person holding the prior agreement to sale. It would appear that the procedure adopted in passing decrees in such cases is not uniform. But it is proper that the English procedure supported by the Specific Belief Act should be adopted. The apparent reasoning is that unless both the contracting party and the subsequent purchaser join in the conveyance it is possible that subsequently difficulties may arise with regard to the plaintiff's title. Suppose in a case in which the contracting party did not appear and the decree passed directed the subsequent purchaser only to convey the property to the plaintiff. The original vendor may subsequently raise the objection that his title had not passed for want of consideration or otherwise to the subsequent purchaser and therefore the conveyance executed by the subsequent purchaser in favour of the plaintiff did not pass good title. In order to avoid all controversies of this sort that may be available to any of the defendants it is proper that the conveyance should be executed in favour of the plaintiff in a suit for specific performance of a contract for sale by the contracting party as well as by the subsequent transferee of his interest.

6. In the present case there are peculiar circumstances which make it necessary that the conveyance should be executed by both defendants 1 to 7 and 8 to 10 who are the appellants before us. The 'trial Court found that the appellants' kobala was bad for want of consideration and was not bona fide. The lower appellate Court did not reverse that finding, but on the other hand made observations showing that it had doubts with regard to the passing of the consideration money under the appellants' conveyance. With these findings the title to the property did not pass from the defendants first party to the appellants. But as the decree of the lower Court did not rest on this ground it is proper that the appellants should join in the conveyance.

7. The decree passed by the trial Court, therefore will be modified in the following way:

The plaintiff's right to the specific performance of the contract claimed be declared and he do get khas possession of the lands in suit. Within a fortnight from the arrival of the record in the Court below defendants 1 to 7 and' defendants 8 to 10 do execute a kobala in favour of the plaintiff in respect of the disputed land as claimed.

8. We are told that the plaintiff has already put in the sum of Rs. 1,226 as mentioned in the decree of the trial Court. 'The sum thus deposited in the Court will he distributed or made over to such party or parties whom the trial Court finds entitled to it. The plaintiff-respondent is entitled to be paid the costs of this litigation out of the money so deposited.

9. We have been asked by the learned advocate for the appellant to reserve the consideration of the question of pre-emption raised by his clients in this case. The lower appellate Court dismissed this claim on the ground of pre-emption by observing that the plaintiff was as much entitled to it as the defendant. It is submitted on behalf of the appellants that as a matter of fact the time for exercise of the right of pre-emption has not yet arrived. As the time has not yet arrived we refrain from expressing any opinion at this stage. , The result is that this appeal is dismissed with costs with the modification in the decree passed by the trial Court as suggested above.


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