EGALA PEDDA PAPA NAIDU Vs. PMUNISAMY AIYAR

JUDGEMENT

(1.) This Second Appeal arises out of a suit for the specific performance of a contract, for the sale of the suit and, executed by the second defendant on 10th October 1913 in favour of plaintiffs. The first defendant, to whom the land was sold by the second defendant, on 14 March 1916, is the contesting defendant. The District Munsif decreed the suit; but on Appeal by the first defendant, the Subordinate Judge held that there was no contract and dismissed the suit. The plaintiffs appeal.

(2.) The alleged contract is evidenced by Exhibit A, the material portion of which, runs as follows. In respect of the lands which you and others had sold to my mother Ammayammal on the 2 October, 1902, yon executed a cultivation muchilika to me on the 10 October 1913 specifying the lands with particulars of numbers. The amount mentioned in the said sale-deed is Rs. 600. And the amount of small loans taken from time to time is Rs. 200. On payment being made of the total amount of Rs. 800 (eight hundred) within the 30 Vygasi of any year whatsoever, I shall execute a sale-deed to you in respect of the lands consisting of acres (10.52) ten and fifty two cents specified in the aforesaid sale-deed. I shall not execute a sale-deed to any other person. Should a sale be so effected to any other person such sale shall not be valid.

(3.) It is clear that, under this document, the promisee has the option of paying the price agreed upon, within the 30 Vygasi of any year but that he was not bound to do so. Assuming that there was consideration for Exhibit A and that there is an agreement binding on the promisor, this agreement may, in popular language, be described as an agreement to sell. But what the second defendant really did was that she bound herself to sell to plaintiffs on certain terms, if they chose to avail themselves of the binding offer and her agreement is, in truth, merely an offer which cannot be withdrawn and certainly does not connote an agreement to buy. It is only in this sense that there can be said to have been an agreement to sell in the present case. (Helby V/s. Mathews [1895] A.C., 471 at page 477 per Lord Herschell, L.C.). In Dickinson V/s. Dodds [1876] 2 Ch. D., 463 Jambs, L.J., said. Unless both parties had agreed there was no concluded agreement; and Mellish, L.J., said. I am clearly of opinion that it was only an offer, although it is in the first part of it, independently of the postscript, worded as an agreement. I apprehend that, until acceptance, so that both parties are bound, even though an instrument is so worded as to express that both parties agree, it is in point of law only an offer and until both parties are bound, neither party is bound.