SUBIHA PILLAY Vs. VELAPPA NAICKEN

JUDGEMENT

(1.) THE suit is for specific performance of an agreement to sell certain land, entered into between the plaintiff and the first defendant. THE latter subsequently sold the land to the second and fourth defendant?. THE plaintiff asked for a declaration that the sale in favour of defendants Nos. 2 to 4 was void as against him, and for a direction that the first defendant to execute a conveyance of the land in the plaintiff s favour and this is the decree that has been passed by the District Court We accept the finding of the Judge that the plaintiff is entitled to specific performance. THE sale to the defendants Nos. 2 to 4 is good in law subject to the plaintiff s rights. Section 91 of the Trusts Act enacts that in such a case the subsequent purchaser is a trustee of the property in law for the person who has a prior agreement for sale. THE proper course in such a case would be to direct a conveyance to be executed by the subsequent purchaser. We believe that the practice generally in the Mofussil Courts is to declare the subsequent sale void and to direct the vendor to execute a conveyance. We are not prepared, in the face of the existing practice, to accede to the appellants contention that the suit should be dismissed on the ground that there is no prayer in the plaint for the execution of a conveyance by defendants Nos. 2 to 4. We have the power, if necessary, to direct the subsequent purchaser to execute the conveyance: See Order XLI, Rule 33, of the Code of Civil Procedure. We, however, consider it unnecessary to do so in this cane, as there are difficulties arising from the particular facts of the case.

(2.) WE dismiss the second appeal with costs.