B.B. Ghose, J.
1. This is an appeal by the defendant against the judgment and decree of the Additional Subordinate Judge of Jessore, dated 7th June 1927. The suit was brought for enforcing specific performance of a contract embodied in a Solenama dated 6th May 1920 by which two civil suits namely. Suit No. 295 of 1929 brought by the plaintiffs against the defendant and Money Suit No. 279 of 1919 brought by the defendant against the plaintiffs were compromised. The plaintiffs in the present suit are related to the defendant as brothers of her deceased husband. The defendant's husband was separate from the plaintiffs. He died on 6th May 1927 when defendant was probably a minor or had just attained majority having completed eighteen years of age. On 7th August 1917 she applied for succession certificate for about Rs. 9,000 which, she claimed, was due to her husband from third parties. The plaintiffs put in an objection that she could not have the power of disposal of the money. It appears from the subsequent conduct of the parties that there was not much love lost between them: the defendant sued the plaintiffs for collections made by them and for some moveable properties in her suit in 1919 and the plaintiffs sued the defendant for taking the properties inherited by her from her husband out of her hands on the ground of waste and mal-administration. In their suit the plaintiffs alleged that the defendant was a person of tender age and inexperienced in the conduct of business. The defendant had brought another suit against the plaintiffs, as appears from the Solenama itself for accounts and for a certain sum of money, which suit was not proceeded with, because she did not pay the proper Court-fees after the compromise of the suits already referred to. After the petition of compromise was filed in those two suits they were dismissed according to the terms of the compromise.
2. Subsequently on 14th June 1920, the defendant executed three documents in favour of the plaintiffs in terms of the provisions contained in Clause 2 of the petition of compromise. Difference arose between the parties with regard to the terms of Clause 3. There was some correspondence between the pleader for the defendant 1 and the pleader for the plaintiffs. Ultimately, the plaintiffs wanted to enforce the terms by way of execution which was rejected on final appeal to this Court, which was of opinion that the terms of the Solenama could not be enforced in execution. The plaintiffs stated in their plaint that on that account they have brought this suit for specific performance of the contract. The defendant took various pleas against the claim of the plaintiffs, and, as usual, a large number of issues was framed by the Court below. The Subordinate Judge has decided all the important issues against the defendant and he finally directed specific performance of the contract and it was decreed that the defendant do execute within two months from the date of the judgment an Arpannama in favour of the plaintiffs in terms of the draft duly approved by the Court and within the said time she do further execute and register a kobala in respect of the rents in arrear in terms of the draft submitted by the plaintiffs.
3. The defendant appeals from that decree and the points taken on her behalf are:
(1) That there was no intelligent execution of the solenama by the defendant.
(2) That the terms of the contract are so unfair and so one-sided that specific performance should not be granted in the exorcise of the discretion of the Court;
(3) That the solenama requires registration and as it is an unregistered document, it cannot be put in evidence;
(4) That the agreement was only with regard to a dead of management and no specific performance can be enforced of such an agreement.
(5) No specific performance should be allowed for executing a kabala for arrears of rent; and
(6) That the agreement for certain properties which the defendant is alleged to have undertaken to make Debutter cannot be enforced by the plaintiffs but it can only be enforced by the idol. (His Lordship after discussing evidence with regard to first point proceeded). With regard to the second point, it is urged that the terms are unfair in that the lady gives up her interest in certain dwelling houses belonging to her husband and undertakes to grant a lease of certain properties to the plaintiffs and so forth and the main point is also that she undertook not to adopt a son to her husband although she insisted upon the fact of having due authority from him to make an adoption. She has actually executed the document of relinquishment with regard to those properties and has executed a lease as was agreed under the solenama. Nothing, therefore, remains to be done in the circumstances as to those terms and in this case we need not consider the question as to the validity of her agreement not to adopt a son to her husband although she maintained that she had a proper authority from him. These are questions which may be dealt with hereafter. Having regard to the view we are disposed to take in this case, it is not necessary to go into any elaborate discussion on the points urged before us. We heard elaborate arguments on all the points but after the arguments were heard the ground was cleared with regard to the actual point for decision in this case and which appears to me to be a short one.
4. The question is whether the agreement contained in Clause 3 of the solenama is one which can be specifically enforced. If refers to the Debutter properties. The provision runs thus:
Sm. Jyotirupa Devi hands over the charge of realization of the income of Debutter properties in her share to Kumar Satish Kanta Roy and Jyotish Kanta Roy. They shall realize the rents of the said Debutter properties from the tenants, as empowered by the said Rani as well as the produce, etc., of the khamar lands. And if necessary the shall be entitled to exercise all the rights of a proprietor or Shebait for recovery of possession in case they are dispossessed from any portion of the said property. That is to say they will hold possession of the said property and they shall perform the Debsheba from the income of the same as trustees and agents of the said Rani (the translation of this portion of the Bengali document in the paperbook is somewhat inaccurate).
5. Pausing here for a moment, we have to consider what is the agreement contained in these words which can be specifically enforced. If the lady desired to transfer her right in the property as Shebait of the idol, then questions might have arisen as to the validity of such an agreement under the Hindu Law, which is a question of some debate. But it seems to me upon a proper reading of the language used that she did not desire to give up her interest as shebait in favour of the plaintiffs. What she wanted to do is to clothe the plaintiffs with the right to realize rents, manage the property and perform the Sheba on her behalf as her trustees and agents. No right to any property was agreed to be conveyed but only the right of management as agent and, therefore, according to the provisions of Section 21, Specific Relief Act, it is not a contract which can be specifically enforced. The rest of the clause in the Solenama referred to states that the income of the debutter property is not adequate for the expenses of the Debsheba and hence she will make over to two Kumars the properties described in Schedule 3 below for meeting the said expenses This does not mean that she will convoy all her rights in the property in favour of the said Kumars. Therefore, reading the document in its proper sense, it seems that it does not amount to a contract which can be specifically enforced. And what was the deed that the Rani undertook to execute? It is said that the Rani shall execute in favour of the Kumars a Trust Deed or any other document, required in respect of the above-mentioned debutter and additional property. A deed for what purpose? Not giving an absolute right to the property or to the Debsheba of her share. I, therefore, think that this suit for specific performance of the alleged contract must fail, even assuming that the lady did execute the solenama with full knowledge of its contents.
6. With reference to the kobala in respect of the rents in arrears, the learned advocate appearing for the respondent has stated that it would be useless to make a decree with regard to that claim, because, the rents in arrears, even if the plaintiffs succeed in getting a kobala for those arrears, are long barred by limitation and the kobala for such arrears would be a useless document in their hands. It is contended by the learned advocate for the appellant that this also is a contract which cannot be specifically enforced, because it is an agreement for money. That argument is also of substance as a breach of the contract may be compensated by damages.
7. On the grounds stated above, this appeal must be allowed and the plaintiffs' suit dismissed with costs in both the Courts. Hearing-fee Rs. 350.
8. The cross-objections are not urged and are dismissed without costs.
9. I agree.