1. This is an appeal from a decision of the District Judge of the Assam Valley Districts reversing, a judgment of the Munsif at Gouhati. The facts are as follows: A certain dag No. 219 belonged to the plaintiff, the first and second defendants and one Krishna Nath. They were all brothers and owned the property in equal shares. The first defendant-approached the plaintiff representing to him that he was the owner of i of this dag, and agreed to sell his half share to the plaintiff for a sum of Rs. 800. The 1/2 share purported to comprise the 1/4th share belonging to the first defendant and the 1/4th. share belonging to Krishna Nath which, he alleged, had fallen to him by succession. Before the contract was completed, however, it appears that the plaintiff came to know that Krishna Nath's 1/4 th share had been in fact inherited by Krishna Nath's daughter's son. The plaintiff thereupon sued for specific performance on the footing of being entitled to the 1/4 th share belonging to the first defendant on a proportionate payment of Rs. 400-Rs. 200 having been already paid as earnest money by the plaintiff.
2. The first Court decreed the suit. The lower appellate Court reversing that decision dismissed the suit, the basis of the dismissal being that inasmuch as Section 15 of the Specific Belief Act applied to the circumstances of the case the plaintiff would only be entitled to a decree upon the footing that he should take over the 1/4 th share of the first defendant in return for payment of the whole of the consideration money of Rs. 800 agreed upon, and abandoning his claim to further performance and to compensation.
3. It has been argued before us in appeal first of all that the decision of the Trial Court was correct and that the plaintiff is entitled to a decree for specific performance as regards the 1/4 th share upon payment of Rs. 400 only. It is argued that the case falls not within Section 15 but within Section 16 of the Specific Belief Act. Reference is also made to the case of Krishna Chandra Dey v. W. Graham A.I.R. 1923 Cal. 694. The facts in that case were undoubtedly-very similar to those of the present. But in that case there were two plots of land one belonging to a stranger to the contract, in the present case the property in question was ijmali property unpartitioned belonging to the brothers in equal share. Be that as it may, I am unable to distinguish the facts of the case now before us from the facts which are given in illustration (a) to Section 15 of the Specific Belief Act, and I think the lower Appellate Court was right in holding that, that was the section to be applied in the circumstances of this case.
4. It appears, however, that the plaintiff who succeeded in his suit in the first Court, finding that the lower Appellate Court was likely to reverse that decision made an offer of the full amount of Rs. 800 in return for a conveyance, of the 1/4 th share belonging to the first defendant. The lower Appellate Court dealt with this offer merely by saying that it was made at too late stage and that the suit was brought upon the footing that the plaintiff was entitled to conveyance of half the land on payment of Rs. 400 only.
5. It appears to me that when a Court is able to discover, as in this case, an equitable relief to which the party is entitled it would be well advised to allow the plaintiff, where the defendant had been so obviously in default to take advantage of any such equitable relief to which he is entitled under the law, and if necessary, to treat his pleadings as amended for that purpose. At most it would be a matter where the defendant ought to be compensated in costs, for he could have no grievance except that he might possibly not have come to Court had the offer been made before the commencement of the litigation.
6. I think, therefore, that the appeal ought to be allowed and that an order should be made that upon the plaintiff depositing in the First Court the sum of Rs. 600 within one month after the arrival of the record in the lower Court the defendant will execute a conveyance of his 1/4 th share in the property in question. In the circumstances we think that the justice of the case will be met by making no order as to costs of this appeal or in the Courts below.
7. In the event of the money not being deposited within the time allowed the appeal will stand dismissed with costs.
8. I agree.
9. It is stated that an additional sum of Rs. 300 has been already deposited pending the appeal. This was not brought to our attention at the time of the hearing. That being so, it will only be necessary for the plaintiff to deposit a further sum of Rs. 300 instead of six hundred rupees within one month as directed by the judgment already signed.
10. Let the record be sent down without delay.