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Judgment
Viswanatha Sastri, J.—The plaintiff, whose suit for specific performance of a contract for sale of land belonging to defendant 1 was decreed
by the trial Court but dismissed on appeal, has preferred this second appeal. Defendant 1 is the wife of defendant 2. Under Ex. P-1, dated 11-10-
1943 in the handwriting of the husband and bearing the thumb impressions of the wife, two plots of land belonging to the wife were agreed to be
sold to the plaintiff for Rs. 1750, out of which a sum of Rs. 160 was recited as having been paid in advance. The time for completion of the
conveyance and payment of the balance of the price was fixed at one month from the date of the contract and it was provided that an
encumbrance certificate should be furnished by the vendor to the purchaser before the execution of the conveyance. The plaintiff alleged that on
22-10-1943 the title deeds of the property were handed over to him, that the tenant of the land was also made to attorn to him and that he
purchased stamp papers and had the conveyance engrossed thereon, but the defendants acting in concert evaded performance of the contract and
eventually resiled therefrom. The plaintiff averred that he was ready and willing to perform his part of the contract and prayed for specific
performance or for damages in the alternative in the sum of Rs. 1200. He deposited in Court Rs. 1600 the balance of the purchase money along
with his plaint. Defendant 1 denied that she entered into the contract Ex. P-1 or received the advance of Rs. 150, or promised to furnish an
encumbrance certificate. She denied all knowledge of the delivery of the title deeds of the land or of the attornment by the tenant to the plaintiff or
of the purchase of stamp papers and the engrossing of a conveyance thereon. She alleged that her husband took her thumb impressions to a paper
representing that it was required for effecting a sale of the groundnut crop on the land for Rs. 150 and that even that sum had not been paid to her.
Her'' case was that there was some temporary estrangement between her and husband at the time of the contract and that the agreement, Ex. P-1,
if true, must have been brought about by the plaintiff and her husband in collusion with each other for the purpose of defrauding her of her
properties.
The learned District Munsif discredited the story of the defendants. His findings are as follows : Exhibit P-1 was written by the husband in his
own hand and the thumb impressions of the wife were affixed on both pages after Ex. P-1 had been written. The plea that her thumb impressions
were taken to a blank paper was untrue. A sum of Rs. 150 was paid as advance on the date of Ex. P-1. The story of a temporary estrangement
between the husband and his wife, who had presented him with seven children, of whom the last was a baby a few months old, was untrue and a
pretence. The husband and wife were living amicably in the same house throughout. The husband was a shopkeeper and the wife, a shrewd and
intelligent lady, who understood the contents of Ex. P-1 before affixing her thumb impressions thereto. The wife''s story of a sale of a groundnut
crop, which was worth only Rs. 40, for Rs. 150 and the execution of some document in connection with the sale of the crop was untrue. The title
deeds of the lands were handed over to the plaintiff by the husband and the tenant of the land was also made to attorn to him. The husband had
arranged for the purchase of the suit lands for his wife under Exs. p-3 and P-3 (a) for Rs. 235 and RS. 300 in 1941 and 1942. He had also been
looking after the cultivation of the land by the tenant and realising the produce. The husband did not induce the wife to affix her thumb impressions
to Ex. P-1 on any misrepresentation as to its contents. The wife resiled from the contract after consultation with her mother and evaded
performance. The husband has been acting in the interests of the wife both in entering into the contract and in resiling therefrom. The plaintiff and
two of the attestors to Ex. P-1 gave an exaggerated and incorrect version of the events connected with the execution of Ex. P-1 and the payment
of the advance of Rs. 150. The husband was attending to the negotiations and details of the transaction evidenced by Ex. P-1, though the wife was
aware of the contents of the contract for sale. The plaintiff and his witnesses in their anxiety to connect the wife with every detail of the negotiations
gave exaggerated and conflicting versions, as for example, about the order in which the attestors came, the conversation that transpired at the time
of the execution of EX. P-1, the ink that was used for taking the thumb impressions of the wife, the handing over of the advance of Rs. 150 to the
husband or the wife or to both. The husband, who filed a written statement supporting his wife''s case and engaged an advocate, who cross-
examined the plaintiff''s witnesses, did not choose to give evidence in the case. This was a serious infirmity in the defendants'' case.
At the end of a careful and lucid judgment the learned District Munsif granted a decree for specific performance on the following finding:
The price is certainly a fair one and there is no special hardship at all in selling lauds for three times the price for which they were purchased.
The learned District Judge substantially, but not entirely, agreed with the findings of the District Munsif and came to the conclusion that
defendant l
ought to have been merely made to pay the plaintiff handsome damages and costs and that the plaintiff should have been refused the remedy of
specific performance.
The learned District Judge summed up his conclusion in these words :
I am of opinion, that in this case Jagadambal (defendant 1) should have been merely made to pay the plaintiff RS. 500 as damages for breach of
contract, with interest at 6 per cent. per annum thereon from 22-10-1943, the date of the breach, till the date of payment, together with the RB. 10
he had paid that day under Ex. P-4 (a), and interest thereon at 6 per cent. per annum from that date till the date of payment, and Rs. 60 he had
wasted on the stamp paper, with similar subsequent interest, and Bupeea 150 he had paid as advance on 11-10-1948, with interest thereon at 6
per cent. per annum from that date till the date of payment, and the entire suit costs of Bs. 334-11-0 with interest thereon at 6 per cent. per annum
from 14-12-1945, the date of the lower Court''s decree till the date of payment, and the taxed costs in both these appeals and the memorandum of
cross-objections with interest thereon at 6 per cent., per annum from to-day till the date of payment, besides the interest on Rs. 1600 deposited by
him in the lower Court at 6 per cent. per annum from the date of deposit till to-day, the plaintiff being allowed to withdraw the said sum of Rs.
1600 forthwith. Of course, the aggregate sum thus arrived at should carry interest at 6 per cent. per annum from to-day till payment, and should be
made a charge on the suit lands.
The learned Judge purported to act in the exercise of the discretion vested in him as an appellate Court with a view to redress the hardship caused
to the defendants by the decree of the District Munsif.
I shall presently examine the reasons given by the learned Judge for upsetting the decree of the District Munsif. I must first repel the argument of
Mr. D. Ramaswami Aiyangar, the learned advocate for the respondents, that I cannot interfere in second appeal with the discretion exercised by
the learned District Judge. u/s 22, Specific Relief Act ""the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial
principles and capable of correction by a Court of appeal."" Where a decree for specific performance granted by the trial Court is reversed by the
appellate Court in disregard of the relevant statutory provisions or legal principles recognised by judicial precedents, the judgment of the appellate
Court is liable to be reviewed in second appeal by this Court.
Underlying the judgment of the learned District Judge is the old common law notion that damages ought to satisfy a disappointed party to a
contract. It is hardly necessary to point out that the Court has no discretion to dispense parties from keeping their plighted word merely because it
does not like the bargain the parties have made. The time is long gone by, when equitable doctrines were moulded according to the predilections of
individual Judges. The rules of equity crystallised and embodied in the Specific Relief Act should be our guide. In England the tendency of modern
decisions has been towards the grant of relief by specific performance, and if there is a valid contract for the sale of land, specific performance has
been the general rule. u/s 12 (c) , Specific Relief Act, read with the Explanation to that section, the presumption of law is that a breach of contract
to transfer immovable property cannot be adequately relieved by compensation in money. The intention of the Legislature is that a party entering
into a contract for sale of immovable property should not be allowed to avoid its performance to suit his own convenience by offering to pay
damages and pleading that the disappointed party might well be compensated thereby. The decision in Ramji v. Rao Kishore Singh, 66 I. A. 280 :
A.I.R.1929 P.C. 190 cited by the respondent was an exceptional case. There the plaintiff financed a litigation on the terms that, if it was finally
decided in favour of the borrower, the latter should convey a portion of the property forming the subject-matter of the litigation, and if it was not so
decided, should repay with interest the money advanced by the plaintiff. The agreement was a champertous one. The borrower was desperately in
need of money, the terms of the bargain were hard and oppressive and the lender merely invested his money on a speculation in the expectation of
profit. In those circumstances the Judicial Committee held that the decree of the District Judge awarding damages, in view of the nature of the
transaction, the terms of the agreement itself and the other matters mentioned in the judgment, was not open to interference. Beyond setting out in
extenso the provisions of Sections 12, 19, 21 and 22, Specific Relief Act, Sir Lancelot Sanderson, who delivered the judgment of the Board, did
not formulate any general principle for the guidance of Court,
It is now necessary to examine the reasons given by the learned District Judge for reversing the decree of the trial Court in the light of Section
22, Specific Relief Act. The learned Judge states that ""he who seeks equity must do equity""; that is, he who wants an equitable remedy must come
to Court with a true story and clean hands. Of the maxim ""he who seeks equity must do equity,"" Knight Bruce L. J., said that it was less wide in
meaning than its expression and not always easy to understand or apply: Gibson v. Goldsmith, (1854) 5 De. G. M. & G. 757 : 24 L. J. Ch. 279.
In the present case the contract for sale is found to be true and valid; the defence of non est factum is found to be untrue; the purchaser paid an
advance of Rs. 150; he was ready to pay the balance of Rs. 1600 and paid it into Court after filing the suit; and there was no default on his part at
any time in any respect in the matter of performing his part of the contract. The maxim quoted by the learned Judge does not mean that the Court
can force on the plaintiff the acceptance of arbitrary terms and conditions which the Court chooses to impose upon him according to its own
notions of what is just and equitable. All that it means is that he, who comes to seek the aid of a Court of equity to enforce the claim, mast be
prepared to submit in such proceedings, to any directions which the known principles of a Court of equity may make it proper to give. The Courts
of common law acted differently and held that when the plaintiff was entitled to judgment, the law must take its course and no terms could be
imposed. Even the Courts of Chancery held that the equity to be observed by a person claiming equity, must be an equity involved in the terms of
the contract and in the subject of the suit: See Halsbury vol 13, para. 60.
The learned District Judge paraphrased one legal maxim in terms of another equally vague and more loosely worded. Exhibit P-1 the contract of
sale has been found to be true and valid and its wholesale denial by the defendants has been found to be false. The transfer of the leasehold interest
to the plaintiff, the attornment of the tenant of the land to him and the purchase of stamp papers by the plaintiff are all found to be true by the
learned District Judge himself. He however was of the opinion that the plaintiff and some of the attestors to Ex. P-1 gave an exaggerated, and in
part, an unacceptable version of the part played by defendant 1 in connection with the execution of EX. P-1 and the receipt of the advance of Rs.
He disbelieved the story of a temporary estrangement between the husband and wife at the time of the contract and held that they were living
amicably in the same house with perfect conjugal felicity. The husband was espousing the wife''s cause and conducting the case in her interest.
Notwithstanding these facts, the plaintiff, it is said, has not come to Court with a ""true case and clean hands"". The cleanest of hands sometimes get
soiled in their passage through Courts on account of the over anxiety of parties and their advisers and occasionally on account of the imperfections
of human judgments also. The phrase ""with clean hands"" is not a statement of any definite legal principle. ""This does not mean a general depravity;
the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as in a
moral sense""--See Halsbury, vol. 13, para. 81. A mere phrase or jingle of words sometimes gains currency as a legal principle by repetition but it
can hardly form the basis of a judicial pronouncement.
The learned District Judge disallowed specific performance on the ground that the preliminary negotiations were carried on with the husband,
that the wife was an illiterate lady and, that the plaintiff was a vakil''s clerk and a broker. Neither sympathy for the weaker sex nor aversion to the
tribe of vakils'' clerks is a ground for refusing relief to parties who are legally entitled thereto. It is not pretended that defendant 1 was a
purdanashin lady. Her husband was a merchant carrying on business and she was also doing, according to the evidence of her side, a small trade in
oil in her own house. The trial Judge who recorded her deposition stated:
Jagadambal did not look like a person unable to look after herself of her interests or devoid of a sense of inquisitiveness in respect of such a
serious transaction which called for the affixture of her thumb impressions . . . She could not have been fooled to part with her lands merely on the
procurement by deceitful means of an agreement to sell..... I have refused to believe the case of Jagadambal as to the circumstances under which
her thumb impressions came on to this document, Ex. P-1. I have also given reasons as to why the husband could not possibly have either been
able to fool his wife or had motives to cheat her.
This lady with a resourcefulness and imagination, which few adult males could command, tried bravely to maintain from the witness box an
incredible story which has been disbelieved by the lower Courts. If her evidence were true, there was no contract at all to which she was a
consenting party, and even if there was such a contract, it was vitiated by the fraudulent misrepresentation of her husband and the plaintiff, and
therefore liable to be rescinded. The lower appellate Court however has by its decree affirmed the validity of the contract and its enforceability by
awarding damages and other reliefs.
The next reason given by the learned District Judge for disallowing specific performance was the omission of a reference to a well that existed
on the punja land in the contract for sale Ex. P-1. Says the learned Judge :
It has been held that in a suit for specific performance where the plaintiff claims something which is not in the document sought to be specifically
enforced, he cannot be given specific performance along with that additional thing. Of course, the reason for this is ""He who seeks equity must do
equity.
Except this maxim, which is repeated in the judgment no other authority has been cited by the learned District Judge. It is not stated whether the
well had any appreciable value or whether, as sometimes happens, it was a mere pit or depression. This point was developed from a stray passage
in the oral evidence about the existence of a well and was not put forward as a ground for resisting specific performance in the trial Court. When a
punja land is conveyed for its full value, a well situated on the land would presumably pass along with the land unless expressly excepted by the
conveyance.
The next reason assigned by the learned Judge is best stated in his own words :
Again in a suit for specific performance, specific performance will be granted only when there is mutuality, that is, when either side could apply for
specific performance of the contract. Here, the plaintiff insisted, in Ex. P-1, that Jagadambal should, at her expense, obtain an encumbrance
certificate in respect of the suit lands within a month and produce it. and that the plaintiff was only bound to buy the lands after such production.
So, specific performance could not be got against him by her under Ex. P-1 without fulfilling that condition. It is, therefore, not quite right to give
him the right to specific performance under Ex. P-1.
This conclusion, with all respect to the learned Judge, rest on a total misapprehension of the doctrine of mutuality. A contract to be specifically
enforced by the Court must, as a general rule, be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by
either of the parties against the other of them. When therefore whether from personal incapacity to contract or the nature of the contract, the
contract is incapable of being enforced against one party, the other party is, generally, incapable of enforcing it. Here there were two adults who
entered into a valid contract for sale of land and I fail to see why the default of the vendor to produce in encumbrance certificate, as undertaken by
her in the contract of sale, should deprive the purchaser of his right to specific performance or how the doctrine of mutuality at all comes in.
11a. The next reason given by the learned District Judge is that defendant 1 ""would not be really, at least morally, in a position to sell the lands to
the plaintiff under Exs. P-1 and P-2 as her mother was alive."" The argument is that the mother gave funds with which the property was purchased
for the daughter in the expectation that she would keep the property. Bays the learned Judge :
There was no necessity at all for Jagadambal to alienate the properties. It has been held that a Court will not decree specific performance of an
act which the defendant is not in a position to perform. That ruling will apply in my opinion to the above facts of this case also, and will make the
grant of damages and costs the proper remedy in this case.
No ruling has been referred to by the learned Judge and I cannot imagine any ruling of any Court which prevents an absolute owner of property
from selling it, even though there was no pressure or necessity for the sale. It is not disputed that defendant 1 was the absolute owner of the
property and that she was legally entitled to sell it without reference to her mother or anybody else. There is no substance in the reasoning of the
learned Judge.
The further reason given by the learned Judge for refusing specific performance is that the plaintiff had asked for an alternative remedy by way
of damages and not confined his relief to specific performance. In his opinion the Court has a greater freedom in such a case to award damages
than it would have, if only specific performance had been prayed for. This dictum of the learned Judge is opposed to the plain terms of Section 19,
Specific Belief Act, and does not call for further comment. The learned Judge further observes that the plaintiff was a broker and therefore might
well rest content with damages, though he himself protested that he wanted to buy the property for his own use and there was no evidence contra.
Lastly the learned Judge held that the sum of Rs. 1750 fixed as the price of the land under Ex. P-1 was a fair price, and in any case the
property would not have fetched more than Rs. 2250 on the date fixed for the completion of the sale. Nevertheless, he declined to grant specific
performance on the ground of ""unnecessary hardship"" to the defendant. The question of the hardship of a contract or its reasonableness has
generally to be judged of at the time it is entered into. If it was then fair and proper and not oppressive, it is immaterial that by force of subsequent
circumstances or events, as for instance, by a rise in the price of landed property due to war conditions, the contract has become more beneficial
to the purchaser. Here the parties had equal means of knowledge and equal means of ascertaining the value of the property. The vendor, who had
purchased the property for RS. 535 in 1941 and 1942, bargained for a price of Rs. 1750 in 1943. There was here no intimidation or duress of the
defendants, no element of mental deficiency or want of mental alertness, no element of surprise, no pressure caused by want or impecuniousness,
and in fact nothing to show that there was not a free, full and intelligent consent to the contract on the part of the defendants. The parties were
throughout dealing at arm''s length. In Davis v. Maung Shwe Go, 38 Cal. 805: 38 I. A. 155 the Judicial Committee held that in the absence of any
evidence of fraud or misrepresentation on the part of the plaintiff which induced the defendant to enter into a contract of sale or that the plaintiff
under the circumstances took an improper advantage of his position or the difficult ties of the defendant, specific performance was rightly decreed,
though the contract was onerous but not unconscionable. This decision would have afforded a surer and sounder basis of decision than the legal
saws relied upon by the learned Judge.
As the learned District Judge in reversing the decree of the District Munsif misdirected himself in law and erred in substituting damages for
specific performance, I reverse the decree of the learned District Judge and restore that of the District Munsif with costs here and before the lower
appellate Court. The order as to costs-made by the trial Court will stand. Time for execution of the conveyance by defendant 1 is extended by two
months from this date.
The memorandum of cross-objections fails and is dismissed but without costs.
No leave.