GOPI RAM Vs. DURJAN

JUDGEMENT

(1.) Plaintiff-respondent brought the suit out of which this appeal has arisen for recovery of possession of the land in dispute on the allegation that by a deed of exchange, dated 7 January 1924, defendant 1 transferred it to him in lieu of certain other property and a sum of Rs. 25, and that defendant 1 is wrongfully withholding possession of the same. The claim was resisted by the defendant 1 on the ground that the title of the plaintiff in the property given by him in exchange was defective in so far as defendants 2 and 3 are minor members of a joint Hindu family with the plaintiff and have an interest in the property assigned by the plaintiff, that the suit in its nature is one for specific performance of contract and the specific relief claimed by the plaintiff should be refused under the circumstances of the case, and that in the absence of two formal deeds of transfer, one executed by the plaintiff and the other by defendant 1, title to the property to which the transaction of exchange relates, did not pass. Some of these pleas prevailed with the Court of first instance where the plaintiff's suit was dismissed except as regards the sum of Rs. 25 paid by him to the defendant which was ordered to be refunded. On appeal by the plaintiff the lower appellate Court has decreed the suit. Defendant 1 has preferred this second appeal.

(2.) The learned Counsel for defendant 1 has reiterated his complaint viz., that the title of plaintiff is defective as he cannot be considered to be the sole owner of the property transferred by him to defendant 1. It is not necessary to decide the question whether the plaintiff had authority to transfer the property to defendant 1 either because he is the sole owner, or because the transaction was advantageous to the family, assuming in the latter case, that the property belonged not to the plaintiff exclusively but to the joint family of which he is a member. Defendants 2 and 3, the other members of the family are parties to the case, and the transaction of exchange or the plaintiff's right to transfer the property in which they are said to be interested, has not been challenged by them. I think the lower appellate Court has taken a correct view of the matter in holding that if defendant 1 is hereafter deprived of the property which has been given to him in exchange by the plaintiff, he will then be entitled, under Section 119, T.P. Act, to compensation or to the return of the property in dispute transferred by him to the plaintiff.

(3.) As regards the argument that the present suit is in the nature of a suit for specific performance, I think it is untenable. The suit is for recovery of possession of a property, right to which became vested in the plaintiff on the completion of the transaction of exchange. As was observed in Wolverhampton and Wallsall Ry. Co., v, L. & N.W. Ry. Co. [1873] 16 Eq. 433. There is a class of suits in this Court known as suits for specific performance of executory agreements, which agreements are not intended between the parties to be the final instruments regulating their mutual relations under their contracts. We call those executory contracts as distinct from executed contracts: and we call those contracts executed, in which that has been already done which will finally determine and settle the relative positions of the parties, so that nothing else remains to be done for that particular purpose. The common expression, specific performance as applied to suits known by that name, presupposes an executory as distinct from an executed agreement, something remaining to be done, such as the execution of a deed or conveyance, in order to put the parties in the position relative to each other in which by the preliminary agreement they are intended to, be placed.