SULTAN KANI ROWTHAN Vs. MAHOMED MEERA ROWTHAN

JUDGEMENT

(1.) This appeal raises a question of some importance regarding the purchasers lien under Section 55(6), (b) of the Transfer of Property Act. The plaintiff agreed to purchase certain immoveable properties from the first three defendants. At that time, the properties belonged jointly to six persons, namely, defendants 1 to 6. The price settled was Rs. 500 and a part payment of Rs. 200 was made. The three persons who were parties to the agreement (defendants 1 to 3) undertook to get a conveyance executed by themselves as well as the other three part owners. A sum of Rs. 200 was provided as liquidated damages in the event of default on either side. It was further stipulated that the agreement was to be carried out within five months from its date (Ex. A, dated 9 April, 1920). The promisors did not carry out their part and on the 6 September, 1920, the plaintiff sent a notice (Ex. I) to one of the executants in which it was stated: If you fail at the sight of this notice to execute the sale-deed jointly with the persons mentioned in the agreement, I hereby inform you that a suit will be filed for the recovery of Rs. 400 due to me (Rs. 200 part of price, plus Rs. 200 damages).

(2.) In spite of this notice, defendants 4 to 6 conveyed their interest in the property on the 10 September for Rs. 400 to the 7 defendant (Ex. IV) and a week later, that is on the 17th September, the first three defendants similarly conveyed their share to the same persons for Rs. 200 (Ex. III). The plaintiff then brought his present suit for specific performance impleading the 7 defendant on the ground that he was purchaser with notice.

(3.) Section 15 of the Specific Relief Act enacts that, in a case like the present, the vendor cannot claim specific performance, but the purchaser may claim it, at his option under a certain named condition : the section says that if the buyer is willing to pay the full price but takes only a fraction of the property, waiving all right to compensation or loss, in that case, he is entitled to specific performance. Now what happened at the trial is this : the 7 defendant offered to give up the interest which he purchased from defendants 1 to 3, provided the plaintiff paid the full price, namely, Rs. 500; and, as might be expected, this offer was declined. The Lower Court thereupon passed a decree for Rs. 400 against defendants 1 to 3 personally, and it also passed a decree against the 7 defendant making that sum, a charge over the share of the vendors in the property he purchased. The Lower Court recorded a finding that the 7 defendant is a purchaser with notice and in second appeal that finding cannot be disturbed.