1. This appeal arises out of a suit for the specific performance of a contract to sell certain land and buildings for Rs. 2,500. The contract was executed on the 19th February 1905, by the 1st and 2nd defendants. The 1st defendant is the widow of one Madhab Ghose and the 2nd defendant was nampd as executor in a Will said to have been made by Madhab Ghose, of which at the time of the contract the 2nd defendant had obtained Probate. The Probate, however, was subsequently revoked. It is said that on the 1st April the plaintiff paid Rs. 12 to have the document registered and Rs. 20 to a Pleader to identify the 1st defendant. The Sum of Rs. 20, however, was returned and it was said that the document could not be registered on the 1st April hi want of time; and before it could be registered, the 1st defendant on the 3rd April executed a registered conveyance of the property in favour of the 4th defendant, who is the servant and is said to be the benamidar of the 3rd defendant. The Subordinate Judge has accepted the plaintiff's evidence of payment of Rs. 1,551 and has given a decree directing that the 1st defend-ant shall execute a conveyance in his favour on his depositing Rs. 949, the balance of the purchase-money. The defendant No. 4 appeals. It is perfectly clear, however, that the 3rd defendant is really the contesting defendant and appellant in this case and that the 4th defendant is a mere name. The learned Vakil for the appellant also informs us that he does not urge that he had no notice of the plaintiff's contract. The only point, therefore, that has to be decided is whether the nature of the contract is such that it ought to be specifically enforced.
2. The first point taken is that as this contract was executed by both defendants, and was executed by the 1st defendant as exercising the power given to her by the Will to assent to a conveyance by the executor, it cannot be enforced against her as the widow of a Hindu intestate. But it seems to us perfectly clear that this contention cannot prevail and that if the contract ought to be specifically performed, it can be enforced against her to ' the extent of her interest. There is no case exactly in point, but that of Horrocks v. Rigby 9 Ch. D. 180 : 47 L.J. Ch. 800 : 38 L.T. 782 : 26 W.R. 714 quoted in Fry on Specific Performance, certainly lends support to this view, and reference may also be made to Section 15 of the Specific Relief Act, 1877.
3. Next, it is argued that the plaintiff is disentitled to specific performance by reason of his delay. But it is quite evident that there has been nothing in his conduct that could possibly be regarded as evidence of waiver, abandonment or acquiescence and that the defendant's position has been in no way altered by the delay. That being so, we think that the delay is immaterial, following: Kissen Gopal Sadaney v. Kali Frosonno Sett 33 C.633 cited by earned Counsel for the respondent. The decision in Mokund Lal v. Chotay Lal 10 C.1061 on which reliance is placed for the appellant, is not, in our opinion, inconsistent with this view.
4. Next, it is urged that a certain alteration in the agreement was fraudulently interpolated and is fatal to the agreement. The alteration consists of the words 'or severally' in the covenant that the executants will jointly or severally execute a conveyance. The words have been added between the lines and do not appear in the draft of the agreement. The witness, Naresh Chander Mitra, a Pleader of the Alipur District Court, however, swears that these words were inserted before the execution of the document, and the learned Subordinate Judge evidently regards him as quite a trustworthy witness. This being so, we are not prepared to differ from the learned Subordinate Judge's view of the matter.
5. But with regard to the payment of the sum of Rs. 1,500 out of the consideration, we are not prepared to agree with the learned Subordinate Judge. This payment is not supported by the evidence of Naresh Mitra and it appears to us quite irreconcilable with the plaintiff's deposition in the criminal case, which followed after the execution of the defendant's kobala. It is not likely that the plaintiff would be willing to advance so large a sum before the execution of the conveyance and on the whole evidence, we feel no doubt that this money was never paid.
5. The only point that remains is whether the contract should be specifically enforced under the circumstances of the case. It was suggested at the close of the argument that the first defendant, being a pardanashin woman, was entitled to special protection. In my opinion, this point ought not to be allowed now.
6. It was never suggested in the pleadings, the issues or the grounds of appeal, nor was any argument upon it addressed to us in the course of the opening speech of the learned Vakil for the appellant. The first defendant has net appealed and the appellant's defence in the former suit was that she had plenty of well-wishers and advisers. Moreover, in the former suit the 1st defendant was financed and supported by the plaintiff. No doubt, this assistance was not disinterested, hut when the 1st defendant accepted his assistance in her suit knowing that that assistance was given on the ground of her contract with him, she is hardly entitled now to plead that that contract was not explained to her. Nor, indeed, is there any reason to suppose that she desires to raise any such plea. That being so, it seems to me unjust to allow the appellant to raise it at the eleventh hour for his own benefit.
7. At the same time, I am inclined, though with some hesitation, to agree with the view which is strongly held by my learned brother that the contract ought not to be specifically enforced. There can be no doubt that the 1st defendant was in the greatest straits when she made it and although the evidence of the value of the land seems to me too indefinite to justify a decided conclusion that the consideration was inadequate, yet it is difficult to believe that the sum of Rs. 2,500 is a fair price for 35 bighas of land with two houses in Howrah. And the false plea of the plaintiff that he had paid Rs. 1,500 disentitles him to any consideration. I agree, therefore, that the appeal should succeed and accordingly it will be decreed and the suit dismissed, the parties bearing their own costs throughout.
8. In so far as the first four points taken in this appeal are concerned, it is unnecessary for me to add anything to the judgment delivered by my learned brother.
9. On the remaining question whether, in the circumstances of the case, the contract should be specifically enforced, it is to be observed that the plaintiff admits and indeed comes into Court with the assertion that the defendant No. 1 is a pardanashin lady. That being so, even in the absence of any specific issue, on the general issue now under consideration, it was, in my opinion, incumbent upon the plaintiff to give strict proof of good faith and to show that in the transaction he seeks to enforce, the widow had competent and independent advice, and that the terms of the bargain are fair and equitable. Now the husband of defendant No. 1 had died in May 1904 and on the 19th of February 1905 when the agreement on which the plaintiff relies was executed, all the properties left by the husband were under attachment in two suits brought against the widow. The claims in these two suit's a. amounted to some Rs. 8,000. One, it appears, having been originally, disposed of ex parte has been revived and is still pending. The other was found to be false and vexatious and has been finally dismissed.
10. The agreement recites the difficulties in which the widow was placed, states that by reason of the suits no one can be found to purchase the properties or any portion thereof at a fair price, and that being thus helpless, she, in order to defray the expenses of the litigation and for the benefit of her husband's estate, agrees to sell the whole of it to the plaintiff for the sum of Rs. 2,500.
11. In such circumstances, it was, in my opinion, essential that any one dealing with this widow should satisfy himself and show that she had taken competent advice both as to the manner in which she should meet the suits and also as to the provident character of the arrangement she proposed to enter into. But the evidence shows that while the plaintiff had the advice and the assistance of a learned Pleader of the Alipur Bar, this illiterate or semi-illiterate pardanashin widow, then under the influence of defendant No. 2, was left to rely upon the advice of this layman who, it has been shown, was not a faithful or loyal guardian of her interests.
12. When we next proceed to inquire into the prudence of the arrangement she was making, we 2nd that, while professedly seeking to save the estate of her husband, she sells the whole of it, and even the burden of defending the pending suits is not undertaken by the purchaser but is thrown upon the widow.
13. The estate proposed to be sold consists of some 35 bighas mainly garden or orchard land situate in Sulkea, a suburb of Howrah, On two of the plots stand pucca buildings and some 20 bighas constitute lakheraj or rent-free holdings. Defendant No. 4 swears that the land is worth Rs. 10,000 and that a portion has been sold for Rs. 3,000. There is no rebutting evidence and it is significant that plaintiff whose own garden adjoins one of the plots finds himself compelled to say that he knows nothing of the value of land in Sulkea or of this land in particular. He made, he says, no inquiries about the price obtainable for these properties in the open market and has not even now ascertained their true value. This evidence coupled with the recitals in the agreement leaves no doubt that the consideration offered by the plaintiff is grossly inadequate.
14. I am thus satisfied that in the transaction which he seeks to enforce the plaintiff-respondent was not acting in good faith and took improper and undue advantage of the difficulties of the 1st defendant.
15. Moreover, he has come into Court with the false allegation that he has paid the bulk of the purchase-money.
16. For these reasons, I am of opinion that the contract set up by the plaintiff is not one which should be specifically enforced in his favour and further that he is not entitled to the refund of the Rs. 51 actually paid and I, therefore, agree in the order proposed by my learned brother.