Rajkishor Mohanty and Another vs Banabehari Patnaik and Others

Panigrahi, J.—This appeal arises out of a suit for specific performance of a contract to sell a plot of homestead land bearing plot No. 1051

within Jemmabandi 98 of Cuttack Khasamahal. Four annas share in the suit plot belonged to Raikriahna Mohanty, deft. 2 & the rest belonged to

applt. 1, Rajakishor Mohanty. Deft. 2 also owned in his own right the adjoining plot of land bearing No. 1052 within Jammabandi 9T. Deft. 2

wanted to sell plot No. 1052 applied to the Khasamahal authorities for permission to sell. Among the objectors were deft. 1 (Dr. Banabehari

Patnaik), pltf. 2 (Sachidananda Mohanty) son of pltf. 1 & some other persons. The Khasamahal enquiry was posted to 6-4-1941 when deft. 2

filed Ex. 5, which is a petn. of compromise alleged to have been arrived at between the parties. The main clauses of this compromise are that pltf.

2, Sachidananda should withdraw his objection to the sale of plot No. 1052 & allow deft. 1 to purchase it from deft. 2 and that deft. 2 should sell

to Sachidananda (pltf. 2) his four annas share in plot NO. 1052. It is said that deft. 2 went back upon this compromise & sold plot no 1051 to

deft, l on 27-6-41 for a sum of Rs. 600. The pltfs. sued for specific performance of the agreement for sale made by deft. 2 in favour of pltf. 2.

The learned Munsif who tried the suit decreed the suit in pltfs '' favour & held that the deft, l was not a bona fide purchaser for value. On appaal

to the Ct. of the Dist. J. by deft. 1 the judgment of the learned Munsif was reversed on the ground that there was no completed contrast on 5-4-

1941 which could be specifically enforced & that it was void for uncertainty as there was no stipulation about the price to be paid. Specific

performance of the contract was, therefore, refused.

In second appeal two contentions have been raisad on behalf of the ""pltf. applts. firstly, thai the lower appellate Ct. committed errors of record

which vitiated its judgment which cannot consequently be upheld; & secondly that the price for the sale of the plot had been settled prior to 5-4-

1941 the day on which Ex. 5 was actually drafted & that even otherwise the Ct. can imply a term in the contract to the effect that a reasonable

price should be paid,

The pltfs '' case is that the preliminary negotiations for a compromise were started on the 27th or 28th March 1941 at the house of Sri

Bichitrananda Mohanty, viz., D.W. 3 who is the father-in-law of deft. 2 & that the price was settled at that time Pltf. 2 who was then at Jaipur was

intimated of the agreement & was asked to confirm the same. Pltf. 2 it is said came to Cuttack on the 5th April & confirmed the same. The pltf.

relied upon the evidence of P. W. 5, a clerk of Sri Bichitrananda Mphanty. The appellate Ct. rejected this witness''s evidenca on the ground that

the evidence did not disclose that he was an eye-witness to the discussion said to have taken place on 27th & 28th of March. The witness clearly

stated that the compromise petn. was drafted 7 or 8 days after the compromise talk took place & that he was present when Ex. 6 was drafted,

From this statement made in cross examination the learned Dist. J. inferred that the witness was not present at the compromise talk which took

place 7 or 8 days before the petn. was actually drafted & observed :

He has nowhere stated affirmatively that he was present when the preliminary negotiation for compromise took place.

The witness said in the course of his examination that the consideration was fixed at Rs. 500 or a little more than that & that it was settled at the

house of Bichitranauda Babu & that be was present there at the time. The witness was positive that he was present at the meeting where the

compromise was settled & in cross examination he stated that this talk took place 7 or 8 days before Ex. 5 was drafted. In cross-examination he

was specifically asked about his presence on the day Ex. 5 was drafted & he answered accordingly. It should be remembered that in cross-

examination a witness answers only such questions as are put to him & a logical sequence of events cannot be expected in his narrative. The

learned Dial. J. refused to attach any weight to the evidence of the first pltf. on the ground that ""his past record as a dismissed clerk of the civil Ob,

does not add to his reputation."" There is also the evidence of P. W. 6 who corroborates the pltf''s version that rs. 500 had been settled as the

consideration for the sale for sometime prior to 5-4-41 but his evidence was not accepted by the learned Dist. J. on the ground that he is a typist in

the civil Ct. & that as the pltf. is also a clerk in the civil Ct. his evidence was that of a biased witness The learned Dist. J. also relied wholly on the

evidence of D. W. 3 (father-in-law of deft 2) according to whom there was no talk of any sale price when ex. 5 was drafted. Prom this statement

the lower appellate Ct. drew the inference that there could not have been earlier negotiation or settlement of the price as D. W.-3 was silent on the

point. In accepting the evidence of D. w. 3 in its entirety the lower Ct. was very much influenced by the fact that deft. 2 was a pro forma deft, only

& that he was not interested in deft. 1. This is another error of record which has been pointed out to us. Deft. 2 was examined as d. w. 2 &

admitted in his deposition: ""My brother Gourkrishna is related to Dr. Fatnaik"". It is also clear that deft. 2 chose on the advice of his father-in-law to

remain ex parte in the suit but that surprisingly enough he appeared on the day of trial to be examined on behalf of deft, 1 although he was not

summoned to appear & that he went to Ct. on his own admission ""at the request of ''Dr. Patanaik"". It is obvious from this evidence that throughout

the negotiations & the trial of I the suit he was acting according to the instructions of his father-in-law, D. W. 3. The learned Dist. J''s observation

that D. w. 3 is a disinterested therefore leaves me unconvinced. The learned Munsif who had the opportunity of seeing these witnesses has, in a

minute analysis of their evidence, accepted the evidence of the pltf. as being the more probable & consistent with the proved facts of the case. In

doing so he observed:

In cases like these, where the difference is on a vital point it is safe to see which story fits in with the admitted facts of the cage.

I am in entire agreement with this observation It is, therefore, not open to a Ct. of Appeal to Bet aside the finding of a trial Ct. unless it appears

unmistakably from the evidence that in reaching his conclusions the trial Ct. has not proper advantage of having seen & heard the witnesses or has

failed to appreciate the weight & bearing of the circumstances admitted or proved. The appellate Ct. is free to reverce his conclusions if the

grounds given by him are unsatisfactory by reason of material inconsistencies or inaccurra or if he has misdirected himself in law. The greatest

weight should be attached to his opinion because he saw & heard the witnesses As wa3 observed by Lord Shaw in Clarke v. Edinburgh District

Tramway Co., Ltd 1919 S.C. 35 it is the duty of an appellate Ct. to put himself the question:

Am I-who sit here without those advantages, sometimes broad & sometimes subtle, which are the privileges of the Judge who heard & tried the

casein a position, not having those privileges, to come to a dear conclusion that the Judge who bad them was plainly wrong? If I cannot be satisfied

in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

The privileges pointed out by Lord Shaw involve more than questions of credibility. He said:

Witnesses without conscious bias towards a conclusion may have, in their demeanour, in their manner, in their hesitation, in the nuance of their

expression, in even the turns of the eye-lid left an impression upon the man who saw & heard them which can never be reproduced in the printed

page.

See also Watt v. Thomas (1947) A.C. 484: 1947 ALL. E. R. 582. That this is also the Jaw in India has bean repeatedly laid down by the Judicial

Committee whose latest pronouncement on the subject is to be found in AIR 1949 32 (Privy Council) . It is impossible that the appellate Ct.

should take upon itself to say, by simply reading printed & written evidence, which is right when it had not that decisive advantage of hearing verbal

evidence & seeing witnesses which the Judge had who had to determine questions of fact & to determine which story to believe. I am, therefore,

unable to agree with the finding of the learned Dist. J. & would unhesitatingly accept this appeal & restore the judgment of the Munaif.

But the applts stand on even stronger ground as the decision of the points of law raised at the Bar must be in their favour. I am obliged to my

learned brother who pointed out during arguments that on the findings recorded by the learned Dist. J., there arises-an implied term in the contract

that a fair & reasonable price was stipulated to be paid. We have heard Council for both sides at great length & have come to the conclusion that

this contention must be upheld. A contract can only be implied when it is obvious that the parties must have intended it. The rule is that the Ct. has

no right to imply in a written contract any stipulation unless, on considering the terms of the contract in a reasonable manner, the implication

necessarily arises, that the parties must have intended that the suggested stipulation should exist (Hamlyan Co. v. Wood &.Co ) (1891) 2 Q. B.

488: 60 L. J. Q. B. 784 It is not enough to say that; it would be a reasonable thing to make such an implication. The principle was laid down by

Bowen L. J. in The Moorcock (1889) 14 P. D. 64 as follows:

An implied warranty, or, as it is called a covenant in law, as distinct from an express contract or express warranty, really is, in all cases, founded

on the presumed Intention of the parties & upon reason. The implication which the law draws from what must obviously have been the intention of

the parties, the law draws with the object of giving efficacy to the transaction & preventing such failure of consideration as cannot have been within

the contemplation of either side.

The law, therefore, raises an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both

parties must have intended that at all events it should have. The stipulation that we are asked to imply in this case is whether the parties agreed to a

reasonable price being paid. It is contended that no question of price was at all mooted on 5-4-1941 at the residence of D. W. 8 either it had

already been settled, as the learned Munsif held, or because, having regard to the relationship of the parties, the parties tacitly understood that

whatever price was considered reasonable would be paid as consideration money. It is, therefore, contended & pressed on us that the Ct. should

import a term into the contract that a reasonable & fair price was intended to be paid, in order to give effect to the contract. As a corrollary to this

proposition it is also urged that a contract which is otherwise good but omits to mention some term explicitly, does not become void or uncertain

for that reason if the uncertainty can otherwise be made certain id certum est quod certum reddi potest. There may be difficulties in arriving at what

is a reasonable price, but as was observed by the Judicial Committee in New Birbhoom Coal Co., Ltd. v. Balaram 7 I.A. 107: 5 Cal. 932 these

are difficulties which the Ct. is bound to overcome. It has uniformly been the law in England that where the act to be done is not purely personal &

can be supplied without the intervention of the mind & act of the party a Ct; can intervene & substitute a reasonable & fair valuation into the

contract. Two principles are well settled, viz., (1) where the parties have prescribed a mode in which the value is to be ascertained by reference to

an umpire or nominated arbitrators, it is the valuation of the arbitrators, that will give efficacy to the contract & (2) where the agreement is to sell at

a fair valuation the Ct. can adopt means adapted to the purpose. The Ct. never proposes to bind a person to any agreement except that which he

has made, but sometimes holds the agreement which it executes & that which he has made to be substantially the same: Milnes v. Gery (1807) 14

Ves. 400: 33 E.R. 574. Where the term, however,-appears to be non essential as was the case in Gourlay v. The Duke of Somerset (1815) 19.

Ves. 429 but stipulates that the conditions of the leasts shall be settled "" as shall be judged proper by one J. G."", it was held that the Agency of J.

G. was not of the essence of the contract. Where the Ct. finds that the agreement is binding & concluded, it does not require foreign aid to carry

the details into execution. Our attention was invited to Secretary of State v. Volkart Brothers 60 Mad. 595: A. I. R. 1927 Mad. 513 where the

stipulation in the contract was that the settled lease might be renewed for a further term of 99 years ""upon such conditions as may be judged

reasonable"". Venkatasubbarao J. observed in this case that it is an ordinary function of the Ct. to decide what is reasonable & that questions such

as what is reasonable care & what is reasonable enquiry are questions which the Ct. is often invited to decide:

I find no difficulty in regard to a contract which leaves the parties to fix a reasonable rent. If they will not agree upon a reasonable rent then the Ct.

will Intervene & fix it.

In Harichand v. Govind 50 I.A. 25: A. I. R. 1923 P.C. 47 the contract provided for the preparation of a contract by a Vakil, & it was urged that

there was no concluded contract until the Vakil bad prepared it. The Judicial Committee held that the question whether the agreement is a

completed bargain or is merely a provisional agreement depends upon the intention of the parties as deducible from the language used by the

parties when the negotiations took a concrete shape, & concurred in the view of the H. C. that the stimulation to have a contract prepared by a

Vakil was not a condition to which the bargain was subject, but that it was one of the terms of the contract. We have no doubt in our mind, & it is

not disputal by the resp. that the Ex. 5 records the settlement of a dispute between pltf. 2, on the one hand & defts. 1 & 2 on the other with regard

to the sale of plots Nos. 1061 & 1052 by which the pltf. withdrew his objection to the sale of plot No. 1052 to deft. X & agreed to purchase plot

no. 1051. The defts. having had the benefit of the contract in respect of plot no. 1052 cannot be allowed to escape from the subsidiary contract to

sell plot no. 1051 on the ground of difficulty as to valuation. For a similar case see Dinham v. Bradford (1877) 5 Ch. 519.

Having regard to the antecedent negotiations the final draft prepared by D. W. 3 the relationship between the parties. & the subsequent conduct

of deft 2 in closing the bargain with deft. 1 six weeks after the contract, no doubt is left in my mind that the intention of the parties was that plot No.

1051 should be sold to pltf. 2, either at a price already settled according to the pltf. or at a price to be settled by the parties, as is now suggested

by the deft, at a future date. If the parties have not been able to come to a settlement with regard to the price, the Ct. is not helpless & is bound to

fix a price. This, in our opinion, is only a subsidiary matter & does not affect the enforceability of the contract to sell. Even in a case where there is

no intention to make a complete contract at the time of making it, the Ct. will enforce it if the circumstances so justify-See Thomas v. Derring,

(1937) 1 Keen 729: . The Ct. is bound to carry into effect a contract framed in general terms where the law will supply the details. If such an

inference that the parties must have intended the stipulation in question is legitimate & the Ct. is necessarily driven to that conclusion, it must be

implied in the contract-See Fry on Specific Performance, 6th Edn., para. 378:

The material terra may well be supplied by construction of inference where the circumstances justify it. If the price is not legitimately ascertainable,

the contract is obviously incapable of enforcement.

The question, therefore, is whether such is the case here, I am considerably assisted in coming to a conclusion in this case by the decision of the Ct.

of Appeal in Folley v. Classique Coaches Ltd., (1934) 2 K.B. 1: 103 L. J. K. B. 550 . In this case the pltf. sold apiece of land to the deft, who, in

turn, agreed to purchase from the pltf. ell the petrol required by him for running his business ""at a price to be agreed between the parties in writing

& from time to time."" It was held by the Ct. of Appeal, distinguishing an earlier decision of the House of Lords in May and Butcher v. The King,

(1934) 2 K.B. I7 following Hillas & Co. v. Arcos, Ltd , a later decision of the House of Lords reported in (1932) 147 L. T. 503that a term must

be implied in the agreement that the patrol supplied by the pltf. should be of reasonable quality & sold at a reasonable price. Lord Hewart L. C. J.,

who delivered the judgment in the trial Ct. held that as the parties intended to make a binding contract & thought that they had done so, that was a

circumstance which, according to the judgment in Hillas & Co. v. Arcos Ltd., 1983 L. T. 503ought to be taken into consideration in deciding

whether there is a concluded contract or not. If nothing had been said or if the parties had failed to agree on the price of the petrol, the law would

imply that a reasonable price should be paid. In Hillas & Co. v. Arcos Ltd (1932 L. T. 503) the House of Lords held that if the parties believed

that they had a contract, the Ct. would imply a term in the contract that a reasonable price shall be paid. The old maxim that the document should,

if possible, be so interpreted as to operate rather than be inefficient-ut res magis valeat quam pereat-should apply. In Ex. 5 no price was fixed for

either of the plots agreed to be sold by deft. 2. Nonetheless the parties had no doubt as to what they were bar. gaining for & intended that it

should be a good & binding contract. My construction of the document, therefore, is that they stipulated for a fair & reasonable price. Having

regard to the sum of Rs. 500 actually paid by deft. 1, six weeks after the contract for the purchase of the suit plot & the price paid by him for the

adjoining plot, I am satisfied that Rs. 500 represents the true value of the plot in dispute. The applts. are, therefore, entitled to succeed & the

judgment under appeal should be reversed.

Another contention that was raised by the resps. is that the contract is void for uncertainty & is incapable of specific performance as the

permission of the Khasmahal authorities sanctioning transfer has not been obtained. Reliance was placed by Mr. H. Mohapatra counsel for the

resps. on the expression in Ex. 5 ""for which separate appln. for permission shall be presented in due course"" & it was argued that this was a

condition precedent to the contract coming into force. The language used does not warrant this inference, viz., that the contract was of the class

known as contingent contracts which come into force only on the! happening of a certain event. It was suggested that the failure to obtain sanction

would invalidate, the alienation as the lease under which deft, holds lands from the Khasmahal prohibital an alienation without such prior sanction,

Our attention was drawn to the form of the lease printed in the Khasmahal Manual. The provisions of this lease lay down that no alienation of

Khasmahal shall be made except with the sanction of the district authorities & that any alienation is made the District Collector has the option to

terminate the lease & take possession of the land or levy a penalty. On a plain reading of the provisions of the lease deed we are satisfied that there

is no legal bar to the alienation so as to render an alienation void ab initio. It is admitted that the Collector has not taken any steps to eject deft. 1

although eight years have expired. The alienation is, therefore, valid until terminated by the Collector. This contention is accordingly overruled.

In the result this appeal succeeds, the judgment of the learned Dist. J. is set aside & tha5 of the Munsif restored. The applts. will have their coats

throughout. Period for execution is three months from to-day as proposed by my learned brother.

Das, J.

I agree with my learned brother that the appeal should be allowed & that the decree of the Mansif should be restored. The learned Dist. J.

disagreeing with the Munsif has found as a fact that there was no completed -contract between the parties. The only reason for his so holding is

that in his view the price was not fixed not the time when the Kabala was to be executed. The question before us is that accepting his view on the

facts, namely, that the price had not been fixed & the time for execution of the Kabala had not been specified, does it follow on the evidence which

he has accepted, that there is no completed contract. The attention of the learned Judge has not been drawn to the principle that there can be a

binding contract without fixation of the price. A contract may fix the manner in which the price is to be determined or it may stipulate for a fair price

being fixed & it is nevertheless binding, though the price is not specifically as. certained in the contract itself. (See Fry on Specific Performance, p.

165, 6th Edn.) Of course it is not within the province of a Ct. to make a contract for the parties. If the parties have no consensus ad idem with

reference to any essential term of the contract, then there is no binding contract at all. But if the parties, having agreed that there should be a

binding engagement between them for sale & purchase, which is definite in every other respect, relegate the question of pries to a secondary

position & if they agree to this extent, namely, that the sale shall be at a reasonable price, such a contrast is valid & binding since the

reasonableness of the price is one that can be determined by the Ct. if the parties themselves do not ultimately agree about it. u/s 29, Contract Act,

it is only agreements the meaning of which is not certain or is not capable of being made certain that are void. A contract to sell at a reasonable

price is one that can be made certain within the meaning of this section, that is by fixation of the price by the Ct. on the standard of reasonableness

in case the parties do not ultimately agree, This principle has been laid down by the House of Lords in Hillas & Co., v. Arcos, Ltd. (1932) 147 L.

T. 503 followed in Folley v.. Classique Goaohes Ltd., (1934) K. B. 1 :

The Ct. could not indeed make a contract for the parties or go outside the words they bad used, except in so far as there were appropriate

implications of law, as for instance, the implications of what was just & reasonable, where the contractual intention was clear, but the contract was

silent in some detail which the Ct. could thus fill in.

It is also well settled that such a binding contract for sale at a fair price is capable of specific performance. (See Secy. of State v. Volkart Bros 50

Mad. 595 : A. I. R. 1927 Mad. 513 Similar considerations apply to the non-fixing of the time of performance.

The question, therefore, in this case is whether on the evidence as accepted by the lower appellate Ct. a reasonable inference can be drawn as

a fact that the parties agreed finally between themselves that there should be a sale & that, at a reasonable price or at least whether such a term

''''for sale at a reasonable price"" can be implied as a matter of law. For this purpose it is enough to notice the following undisputed facts :

On the appln. filed by deft. 2 on 20-1-1941 Ex. 11, before the Khasmahal Officer for permission to sell the plot no. 1052, pltf. 1 & deft, 1

had both filed objection petns. Exs. II & VI. Thereafter deft. 2 filed a petn., Ex. IV as an amendment to Ex. 11 whereunder he intimated his

willingness to sell the land to deft, 1. Subsequent to it on 17-3-1941, deft. 2 filed another petn., Ex. III in supersession of his previous applns. Exs.

II & IV, whereby he requested the Khasmahal Officer for permission to Bell plot No. 1058 to pltf. 2 for a consideration of Rs. 400. This was the

last petn. of the vendor, deft. 2, pending on the date of Ex. V. There were thus two competitors for the plot No. 1052 belonging to deft, 2,

namely, deft. 1 & pltf. 2 & the latest preference indicated by the vendor deft. 2 was in favour of pltf. 2. Then a settlement was brought about, D.

W. 3, the fatherin-law of deft. 2 who is a lawyer & whose evidence has been totally accepted by the learned appellate Judge says as follows in his

evidence:

Ex. V was written in accordance with the terms of my decision which was made in the presence of Raikriahna Babu (D-2), Bajkishore (P 1),

Bonu Babu(D-l). None else was present. The parties tacitly agreed to terms. This decision was made between 7 & 8 P. M. on 5-4-1942. The

fixing of consideration was then not deemed to be necessary.

Ex. V itself states as follows :

The petnr. is the owner in possession of plot No. 1051, 1052 in Mouza Ramgarh Samil Hasnabad Jamabandi No. 97.

On the petnr''s appln, for permission to transfer the property to the objectors, namely, Dr. Banbehati Patnaik & S. N. Mohanty, putting their

objections, have alternatively pressed their claims. Both of them happen to be the petnr''s friend. Under the circumstances the petnr. has settled in

their presence to the effect that Dr. Banbehari Patnaik will purchase the disputed plot (No. 1052) which is contiguous to his land. The objector S.

N. Mohanty will purchase the other plot adjacent to the disputed plot on its south belonging to the petnr. & his brothers, ''for which a separate

appln. for permission will be presented in due course.

This is obviously a tripartite arrangement under which out of the two plots belonging to deft. 2, plot No. 1052 was to be purchased by deft, l,

& pltf. 2 was to'' give up his claim to it & purchase plot no. 1051. It is as a result of this arrangement (vide the order of the Khasmahal Officer

dated 6-4-1941, marked as Ex. l) that the permission for sale in favour of deft. 1 was granted. Deft. 1 who has had the advantage of this

compromise cannot now be heard to say that there was no binding contract for sale of plot No. 1052 to pltf-2. Even otherwise, the intention of the

parties is quite clear that there was a binding contract for the sale of plot No, 1051 as a result of which pltf. 2 did not any further pursue his

objection to the sale of plot No. 1052 in favour of deft-1. It is obvious that the parties intended that the tripartite arrangement would be binding

between themselves notwithstanding that the price was not settled for sale of plot No. 1051. In the circumstances it is proper to infer as a fact that

the parties agreed that the sale should be for a reasonable price; or at any rate, the law will imply such a term in order to give effect to the true

intention of the parties that there should be a binding contract for the sale. It has been urged that the evidence of D.W. 3 itself shows that on 6-4-

41 there was absolutely no talk about the consideration. Bat this does not negative the implication that the parties have agreed that the sale should

be for a fair price. Unless it positively appears that the parties deliberately left the question of price for further agreement between themselves &

contemplated that only on such agreement being reached the contract was to be treated as binding, there is nothing in law to prevent a Ct. implying

a term that the sale must be for a reasonable price in order to give effect to the main intention of the parties which it finds, namely, that there is to

be a binding arrangement between them for sale of the specified item of land. It is just in such situations that the principle in Hillas & Co. v. Arcos,

Ltd. (1932) 147 L. T. P 503 applies, viz. that where the contractual intention is clear the Ct. will fill details by appropriate implication to give effect

to the intention. As pointed out by my learned brother there is no dispute in this case that the sum of Rs. 500 is a reasonable price. It is also clear

that the sale to deft. was before the expiry of any reasonable time. It must, therefore, be held that there is a binding contract between the parties to

sell the plot for Rs. 500 & that the same can be specifically enforced.

My learned brother has reached the same conclusion. In this view of the facts & the evidence, there was an agreement about the quantum of

the price also between the parties by the date of Ex. v & the conclusion of the learned appellate Judge negativing this & differing from; that of the

trial Ct. was unwarranted. I do not,, however, feel myself free to disregard the estimate of the evidence on this matter, which the learned appellate

Judge has found, sitting as we do in second appeal. I would also like to reserve my views as to the limitation under which the first appellate Ct. can

disregard the estimate of the evidence found by the trial Ct. while I agree that considerable weight is to be attached to the view of the trial Ct. on

the evidence.

The further question that has been urged by the resp. & the point on which the learned Dist. J. also has negatived the pltf''s. claim is that

inasmuch as Ex. V shows that the permission of the Khasmahal Officer is to be obtained before the sale-deed is to be executed, the contract is a

contingent one & that, therefore, there can be no specific performance. I agree with my learned brother that on a construction of Ex, V, the

contract cannot be treated as a contingent one. The contract undoubtedly contemplates an appln. to be made to the Khasmahal Officer but the

obligation under the contract is not made dependant on the obtaining of the permission & it rather assumes that the permission is a matter of

course. It may be that if the Khasmahal Officer does not ultimately grant the permission the sale may become infructuous. But that is a matter on

which if the pltfa. are prepared to take the risk neither the first nor the second deft. can have any reason to demur. Deft, himself admittedly had

taken the sale-deed without obtaining the permission of the Khasmahal Officer & he cannot complain if the pltfs. are equally prepared to take the

chance.''

It has been urged that the property itself is a lease hold from the Khasmahal authorities in favour of deft. 2 & that under terms of such lease the

lease-hold is not transferable & that therefore the Court will not direct the execution of the sale-deed which is invalid in law & conveys no title.

This argument would be sound if it is correct to say that on transfer the vendee gets no hind of interest or title. This, however, does not appear to

be the position. The particular lease under which the suit property has been held by deft. 2 has not been exhibited & is not on record. But the form

for the lease of the town Khasmahal property (the suit property is a piece of building site in Cuttack town) is given in Appen. ""a"" to the Bihar &

Orissa Govt. Estates Manual which states as follows :

No. 2. Except with the previous sanction of the Collector in writing & on payment of a fee, the lessee shall not transfer, assign, subject or part

with the possession of the said demised land or premises or any part thereof.

No. 10. On breach of any of the conditions aforesaid, the Collector may re-enter upon the said demised premises & may determine the lease.

No. 13. In the event of any breach or infringement of the conditions aforesaid the lessee shall be liable to a fine etc.

It is clear from the above terms taken together that while no doubt the lease cannot be transferred without the permission of the Collector, the

lease is not ipso facto determined by the transfer without permission. The transfer only renders the lease liable to forfeiture & the lease is

determined only by the exercise of the power to re-enter. It, therefore, follows that even after the transfer & until the re-entery is made there is still

a subsisting though defeasible intetest in the leasehold. There is no reason why that defeasible interest cannot be the subject matter of a sale. I can,

therefore, see no objection to the decree for specific performance being granted in this case on the ground that the leasehold is not transferable

without the permission of the Khasmahal authorities. Of course the actual gale deed executed by deft. 2 either in favour of deft, 1 or in favour of

pltf. 2 cannot by itself fetter the discretion of the Khasmahal authorities though it will undoubtedly form a legitimate circumstance for their

consideration.

It, therefore, follows that the appeal must be allowed with costs throughout. The decree for specific performance to be passed afresh by this

Ct. on the lines of the decree of the trial Ct. will provide for a period of three months from the date of the decree for the execution of the sale deed.