A VENKATASAMI NAIDU Vs. ANNAMALAI GOUNDAR

JUDGEMENT

(1.) THE defendant who has been unsuccessful in the Courts below is the appellant before me. The matter arises out of a suit filed by the respondent (plaintiff) for specific performance of an agreement dated 24-5-1948 (Ex. A. r ). The subject-matter of this agreement was 1. 75 acres of punja land in Perimuthoor village, krishnagiri taluk. This land which had been purchased by the appellant for Rs. 500 in 1947 was in the possession of the respondent as lessee. While so, the appellant and the respondent entered into the agreement in question to sell the land to the respondent for a sum of Rs. 800 within a period of seven years from 24-5-1948. On 23-5-1955, the respondent tendered Rs. 800 together with the expenses for executing and registering the sale deed. That was refused by the appellant. He then sent the amount by telegraphic money order on 24.-5-1955. This was also refused by the appellant. The suit out of which this appeal arises was therefore filed by the respondent on 26-5-1958.

(2.) THE contention of the appellant ranged from a denial of the agreement to its unenforceability even if it was found to be true and valid. The appellant also raised the question of limitation On the ground that the suit ought to have been filed prior to 24-5-1955. AH these contentions were negatived by the learned District munsif and he decreed the suit with costs giving 15 days' time to deposit the sale amount and directing execution of the sale deed at the respondent's costs within 15 days thereafter. This decree has been confirmed in appeal by the Additional district Judge.

(3.) THE question is essentially one of fact whether there was an enforceable agreement between the parties which justified the respondent's claim for specific performance. As this has been found in favour of the respondent by both the courts below, there is little scope for interference in second appeal. Grounds have however been raised by the appellant that the suit ought to have been filed on 255-1955 when the appellant refused the respondent's demand for specific performance, that a subsequent refusal would not give rise to a fresh cause of action and a fresh period of limitation, and that the agreement in the case being a gratuitous one was not enforceable as a binding contract. But, the point urged before me is that, since the consideration for the sale as specified in the document had not been tendered within the stipulated time and the sale effected, the agreement itself had become unenforceable, the language used being (words in tamil ). The argument is that the agreement will remain and has to be treated as non est when the condition has not been fulfilled as undertaken by the respondent. Reliance was placed in this connection on the Privy Council ruling in mir Sarwarjan v. Fakhruddin Md. Chowdhuri, ILR 39 Cal 232 (PC), and also on halsbury's Laws of England, Simonds Edn. Vol. 36, Section 367, ct page 269, dealing with contracts lacking mutuality. The rule laid down by the Judicial committee in the above case is that it was not within the competence, of either of the Manager of a 'minor's estate or of the guardian of the minor to bind the minor or his estate by a contract for the purchaser of immovable property and that as the minor was not bound by the contract there was no mutuality. Again as pointed out in Section 367 aforesaid, if a contract cannot be enforced against one party by reason of circumstances existing at the date of the contract, such as personal incapacity or the nature of the contract, that party will not. be enabled to enforce the contract against the other party. But 11'm: are exceptions to such contracts and want of mutuality must be judged as at the date of the contract, and the fact that a defendant by his own neglect or default has, since the date of the contract, lost the right to enforce it will not prevent its being enforced against him.