KARSANDAS KALIDAS GHIA Vs. CHHOTALAL MOTICHAND

JUDGEMENT

(1.) The facts in this case are sufficiently detailed in the judgment of the Court below and that of my learned brother. I proceed to consider the contentions urged before us in this appeal.

(2.) I first take up the contention of the respondent's counsel, Mr. Lalji, that in any case the contract could not be enforced for want of mutuality. This is based on the ground that two of the defendant's brothers were minors at the time of the contract and on the ruling of the Privy Council in Mir Sarwarjan V/s. Fakhrud-din Mahomed Chowdhur(1911) L.R. 39 I.A.1 : 14 Bom. L.R. 5 In my opinion this plea must be rejected. First of all the objection of want of mutuality has never before been raised by the plaintiff and no issue was framed upon that point. In fact it amounts to an inconsistent plea which would require an amendment of plaint (Order VI, Rule 7, Civil Procedure Code). No such amendment has been asked for. Secondly, the plaintiff has by his conduct precluded him-self from raising this point, especially in view of his consent to the application to the Court to sanction the sale on behalf of the minors: see Asbury, Vol. XXVII, Art. 11(2), p. 12; and Fry on Specific Performance, Art. 468, p. 224. The case, in my opinion, falls under Section 115 of the Indian Evidence Act. Thirdly, the case of Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri was quite different from the present case. In that case the contract for sale was by, or on behalf of, the minor alone, whereas in the present case it is by a person, who is the manager of a joint Hindu family which included minor brothers. The difficulty about the minors in such a case is in Bombay got over by an appointment of a guardian and sanction to the proposed alienation in accordance with the ruling in In re Manilal Hurgovanw. The authority given by the Court in such a case is accepted by conveyances in Bombay as sufficient and no question was raised by the plaintiff's attorneys as to the Court's authority to pass the proposed order, and apparently there was so contest regarding the matter at the trial: cf. the finding of the lower Court on issue No. 10. Mr. Lalji also cited Baluswami Aiyar V/s. Lakshmana Aiyar (1921) I.L.R. 44 Mad. 605, F.b. but the applicability of that ruling depends on facts which have not been proved to exist in this case. The remark in the lower Court's judgment in the last line of p. 54, part I, of the Paper Book, shows that the defendant's power to convey alone was not even discussed before it. And supposing he had no such power, the contract could still have been performed in the manner by which defend ant put himself in a position to fulfil it in March 192 L.

(3.) The two main issues raised by the appellant's counsel, Mr. Munshi, are (1) whether the defendant committed breach of the contract, and (2) whether the plaintiff kept the contract alive, so that he was bound by the defendant's offer to perform it on April 1, 1921. His main contention is that time was not of the essence of the contract under the original contract, and that though the plaintiff subsequently made time of the essence of the contract by his letter of June 28, 1920, this was waived by his conduct in continuing the negotiations; that the contract being kept open, the other side could take advantage of this to offer to perform it; that the filing of the suit for specific per-romance implied that the contract was still subsisting at the date of the suit; that the plaintiff by dropping his claim for specific performance refused to perform the contract though defendant was ready and willing to perform his part of the contract; that the result was that he could not maintain his claim to damages and there was also a repudiation of the contract, entitling the defendant to forfeit the deposit: and that accordingly the plaintiff's suit should have been dismissed with costs. He relied mainly upon two cases, namely, Frost V/s. Knight (1872) L.R. 7 Ex. 111 and Hipgrave V/s. Case (1885) 28 Ch. D. 356. But before considering these cases and the other contention put forward, it is desirable to note exactly what it was that the learned Judge decided. He holds (1) there was a breach of the contract on the part of the defendant (pp. 57, 59 and 60 of the Paper Book) ; (2) the plaintiff did not keep the contract alive, as contended by the defiance (pp. 57, 60, 61); (3) the plaintiff is entitled to the alternative relief of damages (pp. 57, 58, 59); and (4) in any case the Court, in the exercise of its discretion, would not decree specific performance (p. 59).