SANGALI SOLAGAN Vs. NAGAMUTHU MALAVADI

JUDGEMENT

(1.) In this case the 3 defendant is the appellant before me. The plaintiff brought a suit for specific performance of a contract entered into with him by the 1 defendant Ex. A in the case, for a sale of the suit property to him. The terms of the contract are embodied in the document. The property which was arranged to be sold belonged to the 1 defendant and his brother, the 2nd defendant. The 3 defendant is a subsequent purchaser from defendants Nos. 1 and 2 of the property. Specific performance has been decreed by both the lower Courts bath effect a sale of the property. In these circumstances it seems to me that it must be held that the agreement Ex. A entered into by the elder brother with the plaintiff on behalf of both brothers for the sale of the property is binding upon they younger brother and that it was not open to the younger brother who came two days thereafter, to vary or alter its terms unless the plaintiff agreed to it. It is found that the plaintiff did not give up his rights under Ex. A or agree to any variation of the terms of it. That being so, Ex. A, is binding upon the 2nd defendant as it stands.

(2.) The lower Appellate Court has found that the 3 defendant had notice of the agreement, Ex. A, and, therefore, he could not claim the rights of a bona fide purchaser without notice. Finally it was argued that, as Ex. A. provided for a special kind of remedy in case the 2nd defendant failed to join and execute the sale-deed, the Court could not grant a decree for specific performance at all, but the answer to this is contained in Section 20 of the Specific Relief Act, and as the suit relates to the sale of land and as damages are seldom considered a proper remedy for breach of an agreement to sell lands, I am inclined to think that specific performance was properly ordered in this case by the lower Courts in spite of the covenant in the document Ex. A for re-payment of the advance and for payment of damages for such breach.

(3.) These are the only points argued in this appeal and as they have failed, the second appeal fails and must be dismissed with costs.