GHAUDHRI MARHA SINGH Vs. MOHAMMAD UMAR

JUDGEMENT

(1.) THIS appeal cannot be supported. The plaintiffs suit was to obtain possession of a share of certain property which was comprised in a deed of sale, dated the 12 of July 1908, and alleged to have been executed by the defendant No. 1, Muhammad Umar, The consideration mentioned in this document is a sum of Rs. 12,500, which, according to its terms, was to be applied to the satisfaction of a number of in cumbrances. The parties to the document are Muhammad Umar and his brothers and sisters. Only Muhammad Umar is said to have signed the document. The learned Additional Judge dismissed the suit on the ground that the document was not executed by Muhammad Umar on the 12 of July 1908, the day of its date, but that it was executed after that date subsequently, however, to a sale-deed in favour of the defendants Nos. 2-8. Assuming that the document was executed by Muhammad Umar on the 12 of July 1908, it appears to us to be a fatal objection to the maintenance of the suit. Section 17 of the Specific Relief Act provides that the Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three sections immediately proceeding. THIS case clearly does not come within the purview of any of the sections so referred to. The intention of the parties to be gathered from the instrument itself is that the contract should be completed in it is entirety, and not piece-meal, and that it was to take effect only on the execution of it by the remaining parties to it. As an illustration of the rule governing a question of the kind, we may refer to the case of Sivasami Chitti V/s. Sevngan Chitti 25 M. 389 : 12. M.L.J. 17. As was held in that case, so we hold here that the document constituted merely a proposed agreement which had never been perfected, the plaintiffs having contracted and Muhammad Umar having executed it (if he did execute it) upon the understanding that his brothers and sisters (named in the document) would join in its execution. We dismiss the appeal with costs including fees in this Court on the higher scale.