Ramachandra Aiyar vs Sundaramurthi Mudali and Another

It being found as a fact that a contract to sell was made by the defendant Ekambara, now dead, and the appellant, the only question is whether

there is anything in the circumstances of the case rendering it inequitable that specific performance of that contract should be decreed. It is not easy

to understand from the judgment of the District Judge on what precise ground he has thought fit to refuse the prayer of the plaint. His judgment

does not proceed on the ground of law declared in Section 28 (a) of the Specific Belief Act, because though he observes that the property is

worth considerably more than Rs. 2,000 he does not find that the price was so grossly inadequate as to justify an ""inference of fraud having been

practised.

Again ho refers to the case in Gurusami v. Ganapathia I. L. R. 5 M 337 as an authority, but he does not follow it, for apparently his decree is

intended to dismiss the suit altogether and not even to give effect to the contract so far as regards the share of Ekambara. It was contended on

behalf of the defendants who being Ekam-bara''s sons were brought on the record after his death, that inasmuch as they are minors the contract

cannot be enforced against them, and Flight v. Holland 4 Russ., 298 followed in Fatima Bibi v. Debnauth Shah I. L. R. 20 G 508 was cited. These

two cases are distinguishable from the present in a material point, for in them the contract was made by a minor whereas here both parties to the

contract were of age and it is as representatives that the minors are brought on the record. It is unnecessary for us to say whether having regard to

the express provision of the Specific Relief Act the principle of mutuality is one which ought to be recognized here.

It is argued however that the defendants though in form only representatives of their deceased father, are themselves also interested in the

property independently of their father. That is true but the circumstance does not make the case similar to Flight v. Bolland. On its appearing that

the party to a contract against whom specific performance is sought is a trustee or otherwise has not unlimited powers of disposition it is incumbent

on the court to see that no decree is made against him which would involve a breach of trust on his part or compel him to do what he is not legally

competent to do. And so in the case cited, it was held that as there was no necessity for any sale of the son''s interest, the contract could be

enforced only to the extent of the father''s interest in the property. Here, however, no such difficulty arises. It is admitted that there were debts, and

it is not suggested that they were immoral. It was competent to Ekambara to sell the family property to liquidate his debts and as a sale by him of

the property comprised in the contract would have been valid to pass the son''s interest we cannot see why specific performance of the contract

for sale should not be decreed. The contract no less than the conveyance was within the power of Ekambara and was not made in breach of trust.

We must reverse the decree of the District Judge and decree that on payment into court by the plaintiff within two months from this day, of the sum

of Rs. 1,800, the defendants execute to the plaintiff a conveyance.

The respondents must pay appellant''s costs, throughout.