RANCHHOD BHAWAN Vs. MANMOHANDAS RAMJI

JUDGEMENT

(1.) One Ichalal Pranjivandas died on the 1 April 1869 having executed a will dated the 20th January 1869 (Ex. C) by which he appointed Vasudeo Krishnaji and Purbhudas Pranjivandas executors. Vasudeo renounced and Purbhudas died in 1890. In 1897, Suit No. 652 of 1897 was filed by Bai Jadav, the widow and Bai Devkore, the daughter, of the testator for inter alia the construction of the will. Under a decree of the Appeal Court in that suit, dated the 13th day of October 1899 (Ex. V), the Court declared that two trustees should be appointed to carry out the trust, under the will of the testator and it was referred to the Commissioner to enquire as to who were fit and proper persons to be appointed such trustees, By an order of the 17 April 1901 (Ex. V) made in the said suit, Manmohandas Ramji and Kalliandas Keshavdas, the 1 and 2nd defendants in the present suit, were appointed trustees under the said will with power to sell in one or more lots the properties of the testator mentioned in the said will. Acting under the said power to sell, the trustees contracted to sell certain portion of the testator's property in 1902 and the plaintiffs, in Suit 652 of 1897, took out a notice of the 19 February 1902 to restrain them from selling. The application was refused with costs on the 25 February 1902 (Ex. 1). Again in 1903 the trustees contracted to sell certain other portions of the testator's property and Bai Jadav filed Suit No. 191 of 1903 against the trustees and others to prevent the sale being completed. By an order dated the 6 August 1903 (Ex. T) made in that suit the trustees were ordered to complete the sales. The suit abated owing to the death of Bai Jadav. By an agreement dated the 21 September 1904 (Ex. A), the trustees contracted to sell a certain portion of the testator's property to the plaintiff in this suit, but by another agreement dated the 24 September 1904 (Ex. B) the trustees contracted to sell another portion to the plaintiff and it was understood that this agreement was to be in substitution of the agreement of the 2l September, 1904 and the earnest money of Rs. 500 paid under that agreement was to be taken as having been paid under this agreement. The important words in Ex. B are these : "As to whatever objections and disputes there may be in connection with the land the same shall be cleared at your cost." Correspondence followed between Messrs. Motilal and Co. on behalf of the vendor and Mess rs Ardeshir Hormusji and Dinshaw for the trustees regarding the completion of the contract. But on the 1 December 1904 Mr. Hiralal Dayabhai, solicitor for Bai Devkore, wroto to Messrs. Motilal and Co. (Ex. F) objecting to the sale on various grounds and giving notice that she was about to file a suit against the trustees. On the 3 December 1904. Messrs. Motilal and Co. wrote to Messrs. Ardeshir Hormusji and Dinshaw calling o a them to clear the objection. On the 22 December, 1904, Bai Devkore filed the threatened Suit No. 882 of 1904. The plaint is Ex. H. On the 7 February 1905, Messrs. Ardeshir Hormusji and Dinshaw wrote to Messrs. Motilal and Co. as follows : "We are taking steps to obtain an order from the Court to complete the sale herein and have already given notice of same to Bai Devkore." I may mention here that the whole of the correspondence annexed to the plaint has been put in as Ex. E. The notice of motion (Ex. J) was actually dated the 6 February 1905. On the 17 April 1905, the motion was brought on and was adjourned to the hearing of the suit, Bai Devkore undertaking to indemnify the trustees against any damages they might have to pay owing to the delay in hearing the motion and to pay within four days Rs. 500 as security for such damages. The order is Ex. V. On the 26 August 1905, the suit came on for hearing but meanwhile negotiations had been going on for a settlement and a consent decree was taken (Ex. L), the effect of which as far as the trustees were concerned was that they were relieved of their trusteeship on being fully indemnified by Bai Davkore inter alia against any claims that might be made against them by the present plaintiff. The notice of motion of the 6 February 1905 was by intention not referred to in the consent decree but was brought on on the 28 August and of course discharged by an order of that date (Ex. Q). Correspondence followed between the plaintiff's and the trustees solicitors to Avhich it is not necessary to refer in detail and eventually the earnest money was returned on the 15 June, 1906. The plaintiff then filed this suit, on the 19 July, 1906, against the trustees praying for interest on the earnest money, all costs charges and expenses which he had been put to and for damages for the loss of his bargain. On the 24 September 1906, the defendants is3ued a third party notice (Ex. R) against Bai Devkore. By an order of the 16 October 1906 (Ex. S) Bai Devkore was given leave to defend the suit but this order was amended by a further order of the 27 June, 1907, by which Bai Devkore was given liberty to conduct the defence of the suit in the name of the defendants and her written statement was struck off.

(2.) The defence, therefore, has been conducted by Bai Devkore but she is only entitled to raise such defences as could have been raised by the trustee defendants. On the facts as above stated I shall now deal with the issues raised by Mr. Strangman for the defendants. On the first and second issues whether the defendants were not bound to consent to the decree of the 26 August and whether the plaintiff has any right against the defendants in view of the said decree I am clearly of opinion they were not bound to consent so as to prejudice the rights of parties with whom they had contracted. They were entitled to ask the Court to sanction the sale to which Bai Devkore objected and the plaintiff's right against them could in no wise be affected by the consent decree. On the third issue, whether the plaintiff was entitled to impose upon the defendants the condition contained in his letter of the 28th January 1905, the defendants by taking steps to clear the objection have debarred themselves from raising this question. However, apart from that it is quite clear that under the circumstanoes mentioned above the plaintiff was entitled under the agreement of the 24th September 190i to impose the condition. The threat to treat the agreement as cancelled if an order was not obtained within ten days was never acted upon by either side and cannot be considered seriously. Issues 5, 6 and 7 raise the moat important questions in the suit. Mr. Strangman has argued that the defendants did everything in their power to clear the title, that they did not disable themselves from carrying out the contract, that as the condition imposed by the plaintiff had become impossible through no wilful default on their part they were absolved from liability under the agreement and that in any event the rule in Flureau v. Thornhill (1776) 2 W.Bl. 1078 applied.

(3.) Now the situation, as far as the defendants were concerned, on the 17 April 1905 when the notice of motion was adjourn-ed to the hearing and on the 26 August 1905 when the consent decree was passed, is to my mind quite clear from the evidence of the first defendant and Mr. Framroze the defendants solicitor. The trustees were naturally anxious to be free of the burden of their trusteeship which had proved to be unexpectedly onerous owing to the attitude taken up by Bai Jadav and Bai Devkore and they were quite willing to be freed from that burden provided they were fully indemnified. They must have known that the result of their action would be that the objection to the sale to the plaintiff could not be cleared and that they would be unable to perform their part of the agreement.