GANGABAI Vs. SONABAI

JUDGEMENT

(1.) The plaintiff in this suit seeks specific performance of an agreement to sell a certain property in Sheikh Memon Street, alleged to have been entered into on the 18th of January 1914, between the said plaintiff and the defendant, Sonabai, administratrix of the estate of her deceased father. The plaintiff also asks for the rectification of the agreement, if necessary, by the insertion of words not therein to be found at present, making it clear that the contract was entered into by Sonabai as administratrix. Before the case was opened, the learned counsel for the plaintiff asked leave to raise an additional issue which implies, as I understand it, the abandonment of this supplementary prayer for rectification. No evidence has been led in the course of this trial to prove any mutual mistake in the actual wording of the agreement, Ex. E; but in its final form the plaintiff s case amounts to this, that inasmuch as Sonabai was the administratrix and purported to convey the whole of the properly in suit without any qualification or words of limitation, she must be presumed in law to have agreed to convey the highest estate she was capable of conveying, and that too without the need of any designatory words such as administratrix. I have been referred to certain cases upon this subject, and notably the case of Bijraj Nopani v. Pura Sundary Dassee (1914) 16 Bom. L.R. 796 and the very informing case of In re Venn & Furze s Contract [1894] 2 Ch. 101. Ever since the trial commenced I have bestowed my best attention upon this interesting point, and although it was only in counsel s concluding arguments that the case of In re Venn & Furze s Contract was brought to my notice, I had independently arrived at the principle to which, I think, Stirling J. s judgment in that case gives very clear expression. It appears to me, as a general principle that where a person has two estates, one larger and the other smaller, and purports to convey the entire property without any words of limitation, he must always be taken to be conveying the highest estate he has; that is to say, if an executor having a one-third personal beneficial interest in the estate purports to convey the whole of it without qualification or limitation, he must be taken to be conveying, in his character as executor and not in that of one having a beneficial interest only in a fraction of the whole estate purported to be conveyed. Upon this general principle, which I believe to be universally valid and applicable, exceptions may be grafted with reference to the particular facts of particular cases. Thus, where, upon the facts found, the Court is satisfied that both the parties must have been aware that the intention of the vendor was to restrict what was being sold to his personal lesser interest and where the Court also finds that that was the intention of the vendor, then, no doubt, the conveyance would only be effectual to that extent. But that is really no exception at all to the general rule I have stated. It appears to me to make not the slightest difference whether in such circumstances, the vendor is expressly designated as executor or administrator if, in fact, and to the knowledge of the purchaser, he be an executor or administrator and purports to convey without limitation the whole estate. Nor do I think any distinction can be maintained in principle between actual conveyances and agreements to convey for the purposes of applying this general rule. If I am right so far, it is obvious that there is no case for rectification here because there is no need for it. If the agreement of the 18th of January 1914 was really the agreement of the administratrix, then, in my opinion, it would be as much an act of Sonabai in that capacity whether or not she be described on the paper as administratrix. So far upon the question of pure law.

(2.) Next arises the question whether the facts proved in this case would bring it within the class of exceptions I have indicated, that is to say, whether there is anything in the form of the document or the relations of the parties or their conduct in this agreement, which would warrant the Court in holding that it was the intention of Sonabai to agree to convey no more than any beneficial interest she herself might have in the property agreed to be conveyed, and that that intention was known to and accepted by the plaintiff, Gangabai. Except for the constant association of Cooverbai, the defendant Sonabai s sister, with Sonabai in all the stages of this transaction, I fail to discover any such facts. The agreement itself purports to be drawn as between Sonabai alone of the one part, and the plaintiff Gangabai of the other; and Sonabai, who was admittedly well-known to Gangabai to be the administratrix of her late father s estate, agrees to sell not her own interest, whatever that might be in the suit property, but the entire property. Bearing in mind that Cooverbai was herself present when the agreement was entered into and signed by the plaintiff and the defendant, and that no attempt was made on either side to obtain her signature or have the agreement drawn in the joint names of herself and Sonabai, it appears to me beyond reason to contend that in this matter Sonabai was not putting herself forward as competent to deal with the property, not as one having merely a limited interest therein but with all the powers of an administratrix. I think too that Cooverbai must have been present with the object of confirming the act of Sonabai as administratrix, while keeping an eye, perhaps, on her own interest. But I can hardly believe that if it had really been the intention of Sonabai merely to sell her own right, title and interest in the property, or to sell that along with the right, title and interest of Cooverbai, the attorney, under whose control the whole proceeding was conducted, would have allowed the agreement to be executed in its present form. Still less do I think that if that had been the intention and the plaintiff had been aware of it she would have consented to the agreement binding her to pay so high a price as Rs. 33,750 for an unascertained share of a property which, at the highest, would hardly be worth more than Rs. 43,000.

(3.) It remains, then, to be considered whether, approaching the case in this light, the agreement of the 18th of January 1914 is one which ought to be specifically enforced. The defendant s contention is that she was duped into signing the agreement by the treachery probably of Mathuradas, and that had she been aware of the figure he intended to fix, she would never have consented to sell the property. In effect, this amounts to such a plea as might very properly be entertained under Section 22 of the Specific Relief Act, and it then would be merely a question of fact whether or not the defendant has satisfied the Court that she had not entered into the agreement with the full knowledge of the facts or under a mistaken impression, or had in any other way through misrepresentation been induced to part with the property on terms which, with fuller knowledge, she would not have accepted. In such cases it is not necessary that the facts should go the length of establishing actual fraud. What the Court is to look to is, whether in the exercise of its discretion the agreement is on? which ought to be specifically enforced particularly having regard to this, whether enforcing it would not inflict more injury upon the defendant than confer benefit on the plaintiff. In every suit for specific performance, Courts of Equity have a free discretion limited only by those general principles which require all Courts of Justice to act in accordance with sound judicial principles and not upon mere caprice and sentiment.