RAMALINGAM PILLAI Vs. JAGADAMBAL

JUDGEMENT

(1.) The plaintiff is the appellant. The facts are not in dispute. The defendant agreed to sell her land to the plaintiff on or before 10-11-1943 for Rs. 1,750/-under a contract dated 11-10-1943. Default having been made by the defendant, the plaintiff filed a suit on 24-11-1943 for specific performance of the contract which was decreed by the trial court on 14-12-1945 but dismissed on appeal and again decreed on second Appeal by the High Court on 23-2-1950. On 14-8-1950 the court executed a sale deed in favour of -the plaintiff and he obtained possession on 20-10-1950. The present suit was filed on 8-12-1950 for the profits of the land from 11-10-1943 till 20-10-1950.

(2.) The courts below have dismissed the suit as barred by limitation. Viewed as a claim for mesne profits, the plaintiff's suit must fail. The plaintiff was not entitled to the possession of the property or the profits there of on the execution of the contract of sale and it was only on the execution of the sale deed that the title to the property and the right to possession vested in him. In view of Sec. 54 of the Transfer of Property Act there is no room for the contention that the purchaser became in equity the owner of the estate under the contract of sale and the vendor held the property in trust for him. The duty of the vendor under the contract of sale is to take such care of the property in his possession as an owner of ordinary prudence would take till possession is delivered to the purchaser. The buyer is entitled to the rents and profits of the property on the passing of the ownership to him by the execution of a sale deed by the vendor. (Sec. 55 (1) (d) (e) and (6) (a) of the Transfer of Property Act.) It cannot be said that the possession of the vendor was wrongful or that he was bound to account to the purchaser for profits till the sale deed was executed in favour of the plaintiff.

(3.) It was next argued that the plaintiff's claim might be regarded as one for compensation or damages. The plaintiff would be entitled to sue for compensation for breach of the contract to convey in addition to suing for the execution of a conveyance. The measure of such compensation would ordnarily be the amount of profits which thf plaintiff would have received from the property between the date of the breach of contract and the date when the conveyance was actually executed. See Sashibhushan v. Raichand ; Subroyar v. Kotayya. The claim for compensation could and should have been put forward in the previous suit which the plaintiff filed for specific performance. Sec. 19 of the Specific Relief Act and the second illustration to that section would apply to the case. The right to compensation arose coincidentally with the right to specific performance and out of the breach or non-performance of the contract of sale. Viewed as a suit for compensation in addition to specific performance for which a decree has already been obtained by the plaintiff, the suit would be barred under Or. 2 R. 2 C. P. Code. It would also be barred by limitation under Art. 115 of the Limitation Act since the defendant failed to perform her part of the contract in November 1943 and the present suit was filed seven years later.