PUNDLIK DARYAJI Vs. JAINARAYAN MALIRAM SHOP

JUDGEMENT

(1.) THE defendant, who is the respondent before me named, Jainarayan Maliram shop of Shegaon in Berar, purchased certain fields which were sold by auction for arrears of land revenue. The sale took place on 10th June 1941 and on 24th June 1941, the defendant passed a chitti in favour of the plaintiff agreeing to sell these fields to him for Rs. 135 after the sale had been confirmed. Rupees 51 was advanced as earnest money and the remaining Rs. 84 was to be paid at the date of the execution of the sale-deed. It was stipulated that in the event of the sale being set aside, the contract to sell between the parties would not operate and that in such an event the earnest money was not to be refunded. Only the sale of one field was confirmed on 12th July 1941. On an appeal to the Deputy Commissioner the sale of the remaining two fields was ordered to be confirmed and the sale was confirmed by the Sub-Divisional Officer on 14th October 1941.

(2.) THE defendant refused to execute the sale-deed and the plaintiff brought a suit for specific performance. There the defendant's contentions that the transaction was unenforceable as what was to be sold was nothing more than a spes succession is and also the event envisaged in the agreement which would negative it, namely, that the sale of two of the fields had been set aside originally had occurred, were negatived and a decree for specific performance was passed. In appeal by the defendant the grounds taken by him in the trial Court and which were negatived were expressly given up and the only point urged was that on the doctrine of mutuality the lower Court should have held that the plaintiff was not entitled to specific enforcement of the contract. The lower appellate Court allowed this plea to be urged as it was entirely a question of law and decided the case in the defendant appellant's favour and dismissed the suit. The plaintiff has now preferred a second appeal.

(3.) IN my opinion, the learned Judge has not correctly understood the decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 39 Cal. 232. There it was held that a contract could not be specifically enforced because the contract itself could not bind a minor and that it was not within the competence of the manager of the minor's estate or the minor's guardian to bind the minor or his estate for the purchase of immovable property and that consequently the minor when he became a major could not obtain specific performance of a contract entered into at a time when he was incapable of enforcing it because of lack of mutuality. When owing to such circumstances as personal incapacity of one of the parties or the nature of the contract itself it is incapable at law of being enforced against one, the other party has no right to enforce it, In the present case the contract in itself is a perfectly good contract, as was held by Bose J. in similar circumstances in Kisanlal v. Namdeo A.I.R. (30) 1943 Nag. 299. Further, the doctrine of mutuality can have no application when the Specific Relief Act, as it does in this case, lays down the rights and disabilities in respect of doubts as to (title both in respect of the vendor and of the vendee. Those relating to the vendor are to be found in Section 25 and those relating to the vendee in Section 18. The two sections are complementary to each other and the rights of a vendee who brings a suit are not to be deduced by an attempted application of the doctrine of mutuality to the conditions laid down in Section 25 but are to be determined by the conditions in Section 18 which defines the rights of the purchaser.