(1.) THIS appeal is by plaintiff whose claim for specific performance of contract of sale of abadi site has been decreed in the Courts below. Rightly enough the plaintiff is not satisfied with this decree and wants in lieu thereof a decree granting the alternative relief of the refund of consideration in view of the finding of the lower appellate Court that under the terms of the agreement of sale it was the plaintiff's own obligation and not of the defendant to secure the consent of the landlord to the sale. No doubt, the plaintiff has put forward the alternative claim for refund of consideration, but that is expressly made contingent upon the Court's refusing to decree specific performance of contract of sale, or holding the contract as unproved. One of these contingencies has really happened. The Court has decreed the specific performance by holding the contract of sale proved. Since, however, it is the plaintiff's contention that the proof of contract of sale comprised within its scope proof of the special term about the defendant's obligation to secure the landlord's permission to transfer, certainly, there is a failure to prove the contract as set forth in the plaint. The plaintiff did not want a decree for specific performance in spite of his own failure to prove that it was the defendant's obligation to secure the consent of the landlord, for the obvious reason that the subject-matter of the sale, before westing in him in absolute right would subject him to the obligation to procure the landlord's consent, a circumstance which must necessarily lessen its value to the plaintiff. The contract as found by the Courts below would be difficult of performance since its completion would depend upon the volition and concurrence of a third person who could not be compelled to give his assent thereto however willing the parties to the contract may be to perform their respective parts thereof.
(2.) THE observations of the District Judge as regards the argument that if the plaintiff failed to obtain the consent of the malguzar he may lose the land and money as well, " that this may be so but he must first try " is to direct the plaintiff to do an act which he considers an impossibility, especially as the malguzar is under no legal obligation to give his assent to the proposed transfer, and, that too, at the request of the plaintiff. I, therefore, think that the fulfilment of the contract being, from its very nature, contingent upon the securing of consent of the landlord, whether by one party or the other, the plaintiff was entitled to ask the Court to direct the defendant to refund the consideration as the result of its finding that the consent of the landlord was under the terms of the contract to be procured by the plaintiff. The decree for specific performance cannot, therefore, stand and must be set aside.
(3.) THE appeal is allowed and the case is remanded to the lower appellate Court for disposal with advertence to the above remarks. The costs of this appeal will be paid by the respondent. The appellant will get refund of Court-fee on the memorandum of second appeal. Costs in the lower Court will abide the result.