KEDAR NATH SAMANTA Vs. MANU BIBI

JUDGEMENT

(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.