KISANLAL RUDMAL AGARWAL Vs. NAMDEO KRUSHNAJI DHANGAR

JUDGEMENT

(1.) THIS appeal arises out of a vendor's suit for specific performance of an agreement dated 15th May 1938 (Exs. P-4 and P-12) to purchase a field in Berar. The plaintiff-vendor is the appellant. An alternative prayer is also made for damages. The lower Courts have declined to enforce specific performance because of Section 25(a), Specific Relief Act. They have also refused to give damages because the agreement is according to them, menforceable. The field originally belonged to one Ketkar. He could not pay the rent due to Government and so on 29th July 1937 he applied to the revenue authorities to auetion the field and realise the rent. The field was accordingly auctioned on 3rd May 1938 and was purchased by the plaintiff for Rs. 530. The defendant, who was also a bidder at the sale, thereupon entered into the agreement of 15th May 1938 now in suit and agreed to purchase the field from the plaintiff for Rs. 750. The sale was not confirmed till 21st July 1938 and thereafter, sometime in 1939, the defendant repudiated the contract and declined to purchase. Hence the suit.

(2.) THE lower Courts hold that the plaintiff had no title at the date of the agreement and therefore specific performance cannot be decreed because of Section 25(a), Specific Relief Act. The first question, therefore, is, whether the plaintiff had title on 15th May 1938. The auction sale was on 3rd May 1938, but it was not confirmed till 21st July 1938 and, in my opinion, the plaintiff's title did not accrue till the date of confirmation. Until then he had only a hope, and to a certain extent a right, to have the sale confirmed. It is argued that when a sale is confirmed the rights of the parties and the title date back to the date of the sale. That is so when the sale is in pursuance of an auction held under the provisions of the Code of Civil Procedure. Section 65 of that Code expressly says so, but the language used there is "the property shall be deemed to have vested in the purchaser from the time when the property is, sold." The word "deemed" places beyond doubt that but for this provision the property would not vest until the date of confirmation and that therefore it was necessary for the Legislature to step in and by a fiction relate the title back to the date of the sale. The sale before me, however, was not held under the Civil Procedure Code but under the provisions of the Berar Land Revenue Code and there there is nothing corresponding to Section 65, Civil P.C. The consequence, in my opinion, is that the title does not relate back, in the case of such a sale and that consequently it does not accrue until the date of confirmation. This view receives support from Section 161, Berar Land Revenue Code. The certificate which is granted to the purchaser on confirmation says nothing about the date of the sale but specifies the date of confirmation, and also sets out the property sold and the name of the purchaser. In my opinion, therefore, the lower Courts are right in holding that the plaintiff had no title on the date of the agreement. Section 25(a), Specific Relief Act, provides that: A contract for the sale...of property...cannot be specifically enforced in favour of a vendor...(a) who knowing himself not to have any title to the property has contracted to sell...the same.

(3.) A distinction is therefore drawn between a person who knows that he has no title at the time of the agreement and one who though he has no good title believes that he has. The section, in my opinion, quite clearly states that, in the first case specific performance cannot be decreed at all at the vendor's instance but, in the second case it can, if, by agreement of the parties or by order of the Court, a time is fixed allowing the vendor to perfect his title. It appears from Lahiri's Specific Belief Act, Edn. 4, pp. 325 and 826, that there is some difference of opinion in England on this point. It appears that it is not quite settled there whether a person, who has an imperfect title or no title at all, at the date of the agreement can claim specific performance if he is able to show a good title at the date of suit if the other side has not repudiated the contract in the meanwhile. There appear to be two views on the matter, but so far as India is concerned, I agree with Lahiri and with Dr. Stokes, whom he quotes, that Section 25(a) resolves the doubt against the purchaser without title. In any event, whatever the English law may be, I am bound to give effect to the Indian statute if the language of the Act is plain and unambiguous as I hold it to be.