Skip to content


Heramba Chandra Maitra Vs. Jyotish Chandra Sinha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal579
AppellantHeramba Chandra Maitra
RespondentJyotish Chandra Sinha and ors.
Cases ReferredArdeshir Mama v. Flora Sassoon A.I.R.
Excerpt:
- .....to the decree passed against him, ha would still be debarred from dealing in any way with the suit property.13. that it has always been regarded as a maxim in equity, that a decree for specific performance operates in favour of both parties, may be seen not only from the text-books but from a reference to the judgment of a most learned judge. 'we have been referred to a passage in the judgment of parker, j., as he then was, in halkett v. earl of dudley [1907] 1 ch. 590 at p. 601, where the learned judge observed in passing, as though it was a matter of common knowledge, that: ' a decree for specific performance enures for the benefit of both parties.'14. the theory of the matter has been very fully expounded by the judgment delivered by lord blanesburgh in the case of ardeshir mama.....
Judgment:

Rankin, C.J.

1. The property in question in this suit was originally owned by one Bolai Chand Sinha who had two sons Sarat and Purna. The plaintiffs in this suit are in effect the Brahmo Somaj Education Society, a Society incorporated under Act 21 of 1860. The defendants are the sons and administrators of the estate of Sarat and certain mortgagees from them. By a deed dated 27th May 1914 the representatives of the estate of Sarat leased to certain persons on behalf of the City College institution, a society registered under Act 21 of 1860, a certain portion of property which belonged to Bolai. It appears that the two branches of Bolai's family had come to a partition and that the portion of the property now in question which belongs to Sarat's branch is the southern portion of which the present description is 102/2 Amherst Street,

2. The deed by its operative portion granted a perpetual lease at a certain monthly rent of the property belonging to Sarat's branch. There was a covenant that the lessees should within five years from the date of the deed at the cost and charges of the Society erect in a substantial and workmanlike manner on the demised land and on the adjoining land belonging to Puma's branch one or more good and substantial building or buildings suitable for the carrying on therein of the educational work of the said Society and would expend on that behalf a sum not loss than Rs. 1,00,000. The deed further provided that the lessees should be entitled at any time after obtaining a certificate of the completion of the buildings covenanted to be erected by the lessees to give the lessors notice in writing that they would purchase the demised land at the price of Rs. 83,653-5-4 and the lessors covenanted that thereupon, and on payment to them of the said price but not otherwise and simultaneously on payment to the said Purna Chandra, Sinha of the sum of Rs. 1,03,346-10-8 as the price of the adjoining land they would convey and transfer to the lessees the said demised land with the buildings and fixtures thereon and the lessee's reversion thereof or thereon expectant upon the demise including all rights, moneys or minerals free from encumbrances to hold the same unto the lessees in fee simple for ever subject to certain restrictive covenants. Now, it appears from the evidence of the plaintiffs themselves that in February 1923 they exercised their option to purchase the property comprised in this deed and they also exercised similar option under the deed which had been entered into between themselves and Purna. It appears further that in the same month they caused draft conveyances to be prepared and sent to the two lessors. Thereupon it is equally clear that neither Sarat's branch nor Purna were willing to convey the properties in terms of their covenants and the present suit was instituted to enforce specific performance of the agreement to convey the property. The present Suit is No. 1324 of 1930. and a similar suit, being Suit No. 1322 of 1930, was brought by the same plaintiffs against Purna.

3. As regards what has happened in the suit against Purna, there is a great paucity of information in the documents, but no decree has been obtained so far in that suit.

4. The decree in the present suit against Sarat's branch was however obtained on 19th August 1930. It was obtained in the absence of the defendants who did not appear either in person or by advocate. The form of the decree is as follows:

It is declared that the agreement for sale incorporated in the lease dated 27th May 1914 in the plaint in this suit mentioned ought to be specifically performed and carried into execution and the same is ordered and decreed accordingly.

5. It went on to provide that

the defendants do upon payment to them of the sum of Rs. 72,283-5-4 execute and register a proper conveyance in respect of the premises referred to in the dead sued upon, such conveyance to be executed and caused to be registered by the Registrar of this Court on behalf of the defendants or defendant failing or neglecting to do so on the same being tendered to them or him.

6. It will be seen therefore that in this decree there is, first of all, the declaration that the agreement is to be specifically performed and there is no question raised by the plaintiffs as to title. There was no occasion for any reference to Chambers to investigate any question of that kind and there was no need to anticipate any difficulty as to the form of the conveyance. Accordingly, having directed that the agreement ought to be specifically performed, the decree goes on to direct the defendants to execute the conveyance upon payment to them of the purchase price. Now, the plaintiffs having obtained this decree for specific; performance took no step to have the decree carried out; and in the end, in March 1931, the defendants took out process in execution upon a tabular statement asking that the sum of Rs. 72,283-5-4 mentioned in the decree be realised by attachment and sale of the properties of the plaintiffs stating that they were willing to execute the conveyance pursuant to the decree when presented to them for execution. Thereupon the plaintiffs by their affidavit said that the other suit against Purna was still pending for disposal and that, until a decree was obtained in that suit, they were unable to take any steps for the enforcement of the decree against the present defendants. They also contested the right of the defendants to have execution under the decree. When the matter came before the learned Judge, it does not appear that anything had been proved before him to explain the attitude taken up by the plaintiffs. The learned Judge in his judgment says:

It now appears that the value of the property has diminished and the plaintiffs do not propose to execute that decree. The defendants on the other hand are naturally desirous that the terms of the decree should be carried out and they have made this application.

7. I may say at once that I did net understand Mr. H. D. Bose, learned Counsel for the plaintiffs, to represent before us that the plaintiffs were now prosecuting the suit against Purna and expected to recover a decree for specific performance in that suit; nor did I understand him to say that, if a short delay were given in the present proceedings, the plaintiffs were intending to complete under both agreements. The position before us, to ray mind, very obviously is that the plaintiffs are not proposing at all to complete the purchase in respect of which they have got a decree for specific performance in the present suit and they contest in that position that the defendants have any right to have the decree specifically performed by compelling them to pay the purchase price against the conveyance. The defendants on the other hand contend that they as much as the plaintiffs are entitled to the benefit of the decree for specific performance and they say that they are entitled to take out execution against the plaintiffs and to have the property in question which belongs to the plaintiffs under the decree sold to realize the purchase price.

8. It is contended before us that, if one looks to the precedents to be found in the precedent books, for example, Seton Vol. 3, p. 2216, or to the cases referred to in the text-books such as the well-known text-book 'Fry on Specific Performance' or Halsbury's Laws of England, Vol. 27, p. 96, Note 0, it will be found that there is no case in which a decree for specific performance has been enforced at the instance of the defendant against the plaintiff. Now, it is not a very usual thing for any person to be so foolish as to bring a suit for specific performance, prosecute it to a decree and then change his mind, and it is not a very remarkable thing that the text books do not contain precedents applicable to so extraordinary a position. In my judgment, the principle that the defendant is as much entitled to enforce the decree for specific performance as the plaintiff is not in doubt. Some discussion took place at the hearing as to whether or not the old practice of Equity Draftsmen was for the plaintiff in his bill for specific performance to offer to perform his portion of the agreement and to submit to being ordered so to do. Mr. H. D. Bose agreed that an offer of this sort was usual in cases of suits for accounts. He demurred to the suggestion that this used to be part of the old bill for specific performance. I find upon looking into the matter that a bill for specific performance used at one time to contain a definite prayer incorporating an offer on the part of the plaintiff to perform his part of the agreement. In a text-book which is available to me, the Equity Draftsman by Van Heythuysen dated 1828, I find numerous precedents of bills for specific performance all of which contain such an offer or submission. The form is as follows of the final prayer of the bill:

And that the said articles of agreement may be specifically performed and carried into execution by the said J. M. your orator hereby offering to perform the same on his part and that the same J. M, may pay unto your orator the said sum your orator offering thereon to convey the said messuages tenements lands and hereditaments unto the said J. M.

9. I have no doubt that a time came when as a matter of pleading it was regarded as unnecessary for a bill for specific performance to contain such an offer. In a case which is reported in 13 Vesey and the date of which is 1807 Fife v. Clayton [1807]13 Ves. 546 the bill prayed specific performance of an agreement for the sale of an estate to the plaintiff by auction. The defendant admitted the agreement but there was a difference between the plaintiff and the defendant as to whether there was a term in the agreement to the effect that the plaintiff should not be entitled to a right of common. It was held that the defendant's version was right and that this exception was contained in the agreement. The plaintiff on that did not want specific performance and submitted that the bill should be dismissed. It was contended for the defendant that the defendant in such a case was entitled to a decree for the performance of the agreement as proved without a cross-bill and the Lord Chancellor acceded to that argument saying:

I am willing to follow a precedent, that will save that expense, and is right upon principle: the plaintiff, by his bill, offering to perform the specific agreement; which he represents.

10. Now I do not say for one moment that at the present time it would not be open to the plaintiff at any time before the decree in the absence of a counterclaim to submit to have his suit dismissed. But that is a clear authority that a bill for specific performance used to contain expressly and every claim for specific performance must be deemed to contain implicitly an offer by the plaintiff to perform his part of the contract by way of submission to an order of the Court compelling him just as much as the defendant to do so. The matter is exactly the same in the case of a bill for an account. It will be found in the case of Columbian Government v. Rothschild [1826] 1 Simon's Rep. 94. There a suit for account was brought by the Government and it was contended that the party--made plaintiff--was not properly constituted and it was particularly objected that there was no express offer in the bill to pay the balance if it turned out to be a balance against the plaintiff. The Vice-Chancellor put aside the objection altogether and said that:

the Court had originally required that a bill for an account should contain an offer on the part of the plaintiff to pay the balance if found against him but that was not now considered necessary.

11. I have no doubt therefore that on principle the decree that the agreement ought to be specifically performed is a decree against the plaintiff as well as against the defendant and in favour of the defendant as well as in favour of the plaintiff. This matter came before an Indian Court in the case of Karim Mohomed Jamal v. Rajooma Noorbai [1887] 12 Bom. 174. There the form of the decree had not followed the ordinary form. The decree was to this effect that the agreement should be carried out by the defendant; and afterwards an application was made to the Court to compel the plaintiff to carry out his part of the agreement. Sargent, C. J., said as follows:

The declaration which the decree contains that the plaintiffs are entitled to have the agreement of 27th September 1871 specifically performed implies that he is himself specifically to perform it as well as the defendant. As however the absence of mandatory words as against the plaintiffs has given rise to difficulties, we have now to consider whether the decree can now be rectified so as to allow the necessary orders to be made. Can we now insert the mandatory words? * * * * We are merely asked to put the decree into the ordinary and usual form of decrees in cases of this nature. I can see no difficulty in doing this. The plaintiffs asked for a decree for specific performance of an agreement and they got it. How can they object to the decree being in the form in which such decrees are ordinarily framed The decree, as it stands at present, declares that the plaintiffs are entitled to specific performance of the agreement. The usual form is to declare that the agreement ought to be specifically performed and the Court doth order and decree that the same be specifically performed accordingly. I think the decree may be amended so as to put it into the usual form.

12. In a more recent case Baikarima Bibi v. Abderahman A.I.R. 1923 Bom. 26 the Bombay High Court held that:

the decree for specific performance was capable of being executed by the defendant as well as by the plaintiff. If this were not so, it would follow that, if a plaintiff who has obtained a decree for specific performance refuses to take the sale deed and pay the consideration money, the defendant is left with no remedy whatever while, owing to the decree passed against him, ha would still be debarred from dealing in any way with the suit property.

13. That it has always been regarded as a maxim in equity, that a decree for specific performance operates in favour of both parties, may be seen not only from the text-books but from a reference to the judgment of a most learned Judge. 'We have been referred to a passage in the judgment of Parker, J., as he then was, in Halkett v. Earl of Dudley [1907] 1 Ch. 590 at p. 601, where the learned Judge observed in passing, as though it was a matter of common knowledge, that: ' a decree for specific performance enures for the benefit of both parties.'

14. The theory of the matter has been very fully expounded by the judgment delivered by Lord Blanesburgh in the case of Ardeshir Mama v. Flora Sassoon A.I.R. 1928 P.C. 208. It is pointed out in that case that in a suit for specific performance the plaintiff has to treat the contract as subsisting; he has to allege and it is necessary for him to prove his continuous readiness and willingness from the date of the contract to the time of the hearing to perform the contract on his part and that failure to make good that averment brings with it the inevitable dismissal of his suit. And in dealing with the question whether in a suit for specific performance the Court ought to allow an amendment asking for damages -- an amendment inconsistent with the willingness of the plaintiff to have the contract performed, their Lordships of the Privy Council pointing out how serious the effect of such amendment is had occasion to observe as follows: They point out first that, in that particular case, the plaintiff held the defendant to the contract for four years and thus:

without any undertaking in damages on his part hold an effective injunction against the defendant's dealing with that property in derogation of his claim thereto as purchaser.

15. They go on to say:

An amendment which deprived the Court of the power to compel him to accept a decree on pain of having his action dismissed if he did not was not one lightly to be granted.

16. The position therefore of the plaintiff in a specific performance suit is that at (the time of the decree he submits to having an order made against him that he should perform the contract and that unless he is willing to make that submission, prima facie his suit will be dismissed with costs. It seems to me impossible to assent to the argument that the defendant is bound by that decree and is not able to enforce it. In the case of a suit for specific performance whereultimately the purchaser being the plaintiff it is found that the vendor had no good title there is on the authorities great difficulty in giving the remedy of damages as well as the remedy of cancellation. In my judgment, there is no reason in this case why the plaintiffs who came before the Court holding the defendants to the contract and asking the Court to require both parties to perform it should be allowed to resile from that position. I am not at all satisfied that the plaintiffs have any excuse for the attitude they have now adopted. The coincidence that the plaintiffs are unwilling to complete the purchase and the defendants are anxious to have it completed leaves little room for doubt that the learned Judge is right in thinking that the diminished value of the property is the secret of the inconsistent conduct of the plaintiffs.

17. It has been pointed out that in ease the plaintiffs were taking leases from two people, they were covenanting to put up a building costing a large sum of money on two pieces of land taken together and the defendants were not in either case obliged to convey the properties to the plaintiffs unless the plaintiffs at the same time exercised their option and completed with the other lessors. We have no materials before us as to the nature of the building upon the site --as to where the line of division between the two properties runs so far as the building is concerned; nor have we any other materials which in the Court of equity would induce us to stay our hands and to refuse to give to the defendants the ordinary relief. It may be that the lessors in either case were not obliged to convey the property unless the plaintiffs completed with the other lessors. The defendants took no such point, The plaintiffs would have been well advised to make up their mind whether they wanted this property before bringing the suit for specific performance and they would have been well advised if they had brought one suit; but they chose to bring separate suits and they chose to take a decree against these defendants. In these circumstances, I see no answer to the defendants' application.

18. It has been suggested that the defendants may have the right they claim but technically they cannot pursue that right in execution, So far as I can see, the definition of the word 'decree-holder' in Section 2, Civil P.C., is quite applicable to the case of the defendant in a suit for specific performance because the decree is just as much in favour of the defendant as in favour of the plaintiff. But whether to bring an execution proceeding or to proceed by summons in the same suit is the more correct is a matter of no importance in this case because the Court before which the matter would be brought is the same and it would be quite open to the learned Judge to treat the tabular statement as a summons in the suit, if he so chose.

19. Having regard to the particular character of the decree in question and to the relief that has been asked for and given I see no reason to doubt that the proceedings in execution were competent and appropriate. In my judgment, the appeal fails and should be dismissed with costs. Instead of 25th May 1931, as ordered by the learned Judge, time will be extended to 31st July 1931, to tender the purchase money.

20. I am a little in difficulty whether we should make an order against the mortgagees who are parties to the proceedings but who have not appeared before us. The mortgagees will be restrained in the meantime from putting the property up to sale. Liberty is given to the mortgagees on 48 hours' notice to apply for the discharge of this latter order,

Pearson, J.

21. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //