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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. Sarat Chandra Basak, Messrs Akhil Chandra Dutta, Ramendra Chandra Roy and Saroj Kumar Maity for the Appellants.
  • Messrs H.D Bose (Counsel) and Sailendra Mohan Das for the Respondents.
  • Mr. Biraj Mohan Majumdar for the minor Respondent.
Judges
  • Suhrawardy
  • Costello, JJ.
Acts
  • clauses of sec. 27 of the Specific Relief Act.
  • sec. 27 of the Specific Relief Act
  • SPECIFIC RELIEF ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. Sarat Chandra Basak, Messrs Akhil Chandra Dutta, Ramendra Chandra Roy and Saroj Kumar Maity for the Appellants.
  • Messrs H.D Bose (Counsel) and Sailendra Mohan Das for the Respondents.
  • Mr. Biraj Mohan Majumdar for the minor Respondent.
Judges
  • Suhrawardy
  • Costello, JJ.
Acts
  • clauses of sec. 27 of the Specific Relief Act.
  • sec. 27 of the Specific Relief Act
  • SPECIFIC RELIEF ACT
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The Plaintiff sued for specific performance of a sale contract entered into with Defendants Nos. 1 to 3, who purportedly acted on their own behalf and on behalf of Defendants Nos. 4 to 7. Defendants Nos. 8 to 10 (the Appellants) are subsequent purchasers of the property. Both lower courts found that the Appellants had obtained a kabala from Defendants Nos. 1 to 3 with knowledge of the prior agreement between those Defendants and the Plaintiff, and accordingly decreed specific performance in favour of the Plaintiff.

The Appellants appealed, arguing that Defendants Nos. 4 to 7 were not parties to the original contract, that Defendant No. 7 was a minor, and that the Appellants therefore should not be bound. Defendants Nos. 4 to 7 had been made parties to the suit and a decree was passed against them by the trial Court, but they did not appear or appeal further. The trial Court's decree required payment by the Plaintiff and directed Defendants Nos. 1 to 7 to execute a kabala in the Plaintiff's favour; on appeal the wording of that decree and the proper parties against whom specific performance should be directed were examined by this Court.

Legal Issues Presented

  1. Whether the Appellants (Defendants Nos. 8 to 10), as subsequent purchasers, can object to specific performance on the ground that some original defendants (Defendants Nos. 4 to 7) were not parties to the contract or that one was a minor.
  2. Whether the trial Court's decree is lawfully and properly worded — specifically, against whom the decree for specific performance (and a directive to execute a kabala) should be made: against the contracting parties, the subsequent purchasers, or both.
  3. Whether any special procedure or form of decree should be followed when specific performance is sought against a subsequent purchaser who claims under the contracting party.
  4. Whether the Court should now decide the question of preemption raised by the Appellants (the Court was asked to reserve consideration of this issue).

Arguments of the Parties

Appellants' Arguments

  • Defendants Nos. 4 to 7 were not parties to the contract; Defendant No. 7 was a minor; therefore the contract (purportedly on their behalf) could not be enforced against them, and the Appellants should not be bound by it.
  • The Plaintiff has not derived title from Defendants Nos. 4 to 7, so if those Defendants are not bound by the original agreement, the decree for specific performance should be set aside as against the Appellants.
  • The Appellants also raised a claim of preemption, and their counsel requested reservation of that question for later consideration.

Plaintiff-Respondent's Position

  • The Plaintiff sought a decree that the contract made with Defendants Nos. 1 to 3, on their own behalf and on behalf of Defendants Nos. 4 to 7, should prevail over the later contract entered into with Defendants Nos. 8 to 10 (the Appellants).
  • Both Courts below had found that the Appellants obtained their kabala from Defendants Nos. 1 to 3 with knowledge of the prior agreement between those Defendants and the Plaintiff — a factual conclusion supporting enforcement against the Appellants.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Subbiah Pillay v. Vellappa Naicker (Madras High Court) Viewed that a subsequent purchaser is a trustee in law for the holder of a prior agreement and that the proper course is to direct reconveyance by the subsequent purchaser in favour of the holder of the prior contract. The Court noted that it had earlier relied on this view in some unreported cases but on further consideration decided to modify that view in light of sec. 27 of the Specific Relief Act and other principles set out in this opinion.
Daniels v. Davison English authority where decrees have been passed against both contracting party and subsequent purchaser in specific performance matters. Mentioned as one of the English cases illustrating that decrees may be fashioned against either or both contracting parties and subsequent purchasers; used as illustrative support for practice consistent with sec. 27.
Potter v. Sanders English authority cited as an example of decrees in specific performance cases involving contracting parties and subsequent purchasers. Referred to as part of the English jurisprudence showing varying forms of decrees; cited for general support of the Court's approach.
Lightfoot v. Heron Another English case illustrating decrees passed in various forms in specific performance suits involving subsequent purchasers. Referred to as further illustrative authority consistent with the statement from Dart and sec. 27.
Chandra Kant Roy v. Krishna Sundar Ray Example where a decree passed against the contracting party only was upheld. Cited to show that decrees in specific performance cases have been upheld in different forms; the Court observed that practice is not uniform.
Kannan v. Krishnan Another instance where the decree against the contracting party only was upheld. Used to illustrate diversity in practice as to whom a decree is directed against.
Himatlal Motilal v. Vasudeb Decree passed against both the contracting Defendant and the subsequent purchaser was approved. Cited to show that decrees joining both contracting parties and subsequent purchasers have been accepted by courts.
Faki Ibrahim v. Faki Gulam Case in which a decree passed against the subsequent purchaser only was adopted. Mentioned to demonstrate that courts have sometimes directed decrees only against subsequent purchasers; overall supports the observation that practice varies.
Gangaram v. Luxman Case in which the suit was by the subsequent purchaser and the decree required him to convey the property to the holder of the prior agreement. Used to illustrate different procedural outcomes; supports the Court's survey of varied decree forms.

Court's Reasoning and Analysis

The Court proceeded in a stepwise legal analysis restricted to the facts and authorities referred to in the opinion:

  1. Initial factual conclusion: Both lower courts found that the Appellants had obtained the kabala from Defendants Nos. 1 to 3 with knowledge of the prior contract between those Defendants and the Plaintiff. This finding supported the trial Court's decree for specific performance.
  2. Objection by Appellants rejected on appeal: The Court held that the Appellants could not successfully object to specific performance on the ground that some of the Defendants with whom the agreement was made were not parties to the contract (or that one was a minor), because Defendants Nos. 4 to 7 had been made parties to the suit, a decree had been passed against them at trial, and they did not appear or prefer an appeal. Thus the Appellants were not entitled in this appeal to raise that point successfully.
  3. Statutory guidance—sec. 27 Specific Relief Act: The Court examined section 27, which authorises enforcement of specific performance against (a) either party to the contract and (b) any other person claiming under him by a title arising subsequently to the contract, with the exception of a transferee for value who paid in good faith and without notice. The Court emphasised that the section lists the persons against whom specific performance may be enforced and noted that the illustrations reinforce clause (b).
  4. Support from English law and treatise: The Court cited Dart on Vendors and Purchasers summarising the English rule: equity will enforce specific performance against the vendor and against persons claiming under him by title arising subsequently, except purchasers for value without notice. The Court treated this statement as reflecting what sec. 27 means.
  5. Survey of case law and procedural forms: The Court reviewed various cases showing that decrees in specific performance suits have been made in different forms — sometimes against only the contracting party, sometimes against only the subsequent purchaser, and sometimes against both. The Court concluded that procedure has not been uniform, but that the English procedure aligned with sec. 27 is appropriate.
  6. Practical concern favouring decree against both parties: The Court explained the practical reason for directing conveyance by both the contracting parties and subsequent purchasers — to avoid subsequent controversies over the title (for example, the original vendor later asserting that his title had not passed to the subsequent purchaser for want of consideration, which could impair a reconveyance executed by the subsequent purchaser).
  7. Application to present case—peculiar circumstances: The trial Court had found the Appellants' kabala bad for want of consideration and not bona fide; the appellate court had doubts about passing of the consideration money. Given these findings (that title arguably had not passed to the Appellants), and because the trial Court's decree did not rely solely on that ground, the Court concluded it was proper that the Appellants (Defendants Nos. 8 to 10) should join in the conveyance along with Defendants Nos. 1 to 7.
  8. Modification of decree: On this basis the Court modified the trial Court's decree to direct that Defendants Nos. 1 to 7 and Defendants Nos. 8 to 10 should execute a kabala in favour of the Plaintiff within the specified period. The Court also addressed the deposit of Rs. 1,226 already made by the Plaintiff, directing that the sum be distributed by the trial Court to whichever party or parties it finds entitled, and that the Plaintiff is entitled to costs out of the money so deposited.
  9. Preemption question reserved: Because the Appellants' counsel submitted that the time for exercise of preemption had not yet arrived, the Court refrained from expressing any opinion and declined to decide the preemption question at this stage.

Holding and Implications

Holding: This appeal is dismissed with costs, but the decree of the trial Court is modified to require Defendants Nos. 1 to 7 and Defendants Nos. 8 to 10 to execute a kabala in favour of the Plaintiff within the time specified by the Court.

Direct consequences and practical effects:

  • The Plaintiff's right to specific performance is declared, and the Plaintiff is entitled to get khas possession of the lands in suit as ordered.
  • The modified decree (as phrased by this Court) requires that within a fortnight from the arrival of the record in the Court below, Defendants Nos. 1 to 7 and Defendants Nos. 8 to 10 shall execute a kabala in favour of the Plaintiff in respect of the disputed land.
  • The Plaintiff had already deposited Rs. 1,226 in Court as mentioned in the trial Court's decree; that sum will be distributed or made over to such party or parties as the trial Court finds entitled, and the Plaintiff-Respondent is entitled to costs of the litigation out of that money.
  • The Court declined to decide the preemption question now and expressly reserved that issue because the time for exercising the right of preemption had not arrived.

Broader doctrinal note (as stated by the Court): The opinion explains and applies section 27 of the Specific Relief Act and aligns the preferred procedure with the English principle (as stated in Dart and illustrated by English cases) that specific performance may be enforced against the vendor and persons claiming under him by titles arising subsequently, subject to the exception for purchasers for value without notice. The Court modified an earlier, more restrictive view it had expressed in some unreported cases and emphasised practical reasons for directing conveyances by both contracting parties and subsequent purchasers in appropriate circumstances to prevent later disputes over title.

Show full summary ...

    Kafiladdin v. Samiraddin

    The Judgment of the Court was as follows:—

    This appeal arises out of a suit for specific performance of a contract entered into with the Plaintiff by Defendants Nos. 1 to 3 on their own behalf and on behalf of Defendants Nos. 4 to 7. The appeal is by the Defendants Nos. 8 to 10 who are subsequent purchasers of the property agreed to be conveyed to the Plaintiff. Both the Courts below have found that the Appellants got the kabala from Defendants Nos. 1 to 3 with knowledge of the agreement between them and the Plaintiff. They have accordingly decreed the Plaintiff's suit. But it has been argued before us on behalf of the Appellants that Defendants Nos. 4 to 7 were no parties to the contract and that Defendant No. 7 was a minor; therefore the contract on their behalf could not be legally enforced. It appears that Defendants Nos. 1 to 3 purported to enter into an agreement with the Plaintiff for the sale of the property on behalf of themselves and Defendants Nos. 4 to 7. They subsequently sold the property to the Appellants in the same way acting on their own behalf and on behalf of Defendants Nos. 4 to 7. The Defendants Nos. 4 to 7 were made parties to the suit and a decree was passed against them by the trial Court. They however did not appear in the suit nor did they prefer any appeal to the Lower Appellate Court or to this Court. The Plaintiff prayed in the suit that the contract with him and the Defendants Nos. 1 to 3 on behalf of themselves and Defendants Nos. 4 to 7 ought to prevail over the contract entered into by them with Defendants Nos. 8 to 10. The Appellants contend that the Plaintiff has not derived any title from Defendants Nos. 4 to 7 and if therefore they are not bound by the contract, the decree of the Court below must be set aside. We do not think that the Appellants are entitled in this appeal to object to the specific performance of the contract on the ground that some of the Defendants with whom the agreement was made were no parties to the contract in question. This disposes of the Appellants' appeal with regard to the question raised by then before us.

    The question that we wish to consider in this case, is whether the decree passed by the trial Court is correctly worded: The decree is in these words: “The Plaintiff's right to the specific performance of the contract claimed to be declared and he do get khas possession of the lands in suit. The Plaintiff do pay the sum of Rs. 1226-0-0 within a fortnight from the date of the signature of the decree and the Defendants Nos. 1 to 7 within a month thereafter do execute a kabala in favour of the Plaintiff in respect to the disputed lands as claimed”. At the time of hearing of this appeal it struck us that this decree is not according to law. We therefore considered this matter with the help of the learned Advocates of the parties. The decree as passed directs Defendants Nos. 1 to 7 who were the contracting parties with the Plaintiff to execute a kabala in his favour. But it may be said that Defendants Nos. 1 to 7 had already parted with their interest in the property in favour of the Appellants and therefore a document executed by them may not convey the entire interest in the property to the Plaintiff. It has thus become necessary for us to go carefully into this matter as to the form in which the decree should be drawn. I have been personally interested in this matter because in some unreported cases I have indicated that a decree should be passed not against the contracting party but against the subsequent purchasers directing them to convey the property to the Plaintiff. That view I expressed relying upon a decision of the Madras High Court in Subbiah Pillay v. Vellappa Naicker (1). In that case the view expressed was that a subsequent purchaser was a trustee of the property in law for the person who had the prior agreement for the same. The proper course in such cases would be to direct a reconveyance to be executed by the subsequent purchaser in favour of the holder of the prior contract. On further considering this matter I think the view taken there must be modified. Apart from the peculiar facts of this case to which I shall refer later, it seems to me that the law indicated by sec. 27 of the Specific Relief Act is quite clear. That section says that specific performance of a contract may be enforced against (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who had paid his money in good faith and without notice of the original contract. I need not quote the remaining clauses of the section as they relate to persons who may, in special circumstances, be bound by a decree for specific performance. Now sec. 27 does not direct that specific performance of a contract may be enforced against the party to the contract or against any other person claiming under him. The section as it stands can only mean that the specific performance may be enforced against all the persons named and enumerated in that section. The illustrations to that section emphasise the law as laid by cl. (b), namely, “any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract”; that is to say, specific performance may be enforced against persons (not the only persons) who subsequently acquired title to the property with the knowledge of the contract with the Plaintiff or with the knowledge of circumstances leading to the discovery of such a contract. The English law on this point is quite clear and has never been doubted. In Dart on Vendors and Purchasers, 8th Edition, Volume II at page 883, the law is thus stated: “Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchaser for valuable consideration who have paid their money and taken a conveyance without notice of the original contract.” This statement of law is exactly what is meant by the first two clauses of sec. 27 of the Specific Relief Act. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. It is enough to mention some of them. Daniels v. Davison (2), Potter v. Sanders (3) and Lightfoot v. Heron (4), The question did not pertinently arise in any reported case in India; but decrees in cases of specific performance of contract have been passed in several cases in different forms. In Chandra Kant Roy v. Krishna Sundar Ray (5), the decree passed against the contracting party only was upheld. So was in Kannan v. Krishnan (6). In Himatlal Motilal v. Vasudeb (7), the decree passed against the contracting Defendant and the subsequent purchaser was approved. In Faki Ibrahim v. Faki Gulam (8) the decree passed against the subsequent purchaser only was adopted. In Gangaram v. Luxman (9) the suit was by the subsequent purchaser and the decree was that he should convey the property to the person holding the prior agreement to sale. It would appear that the procedure adopted in passing decrees in such cases is not uniform. But it is proper that the English procedure supported by the Specific Relief Act should be adopted. The apparent reasoning is that unless both the contracting party and the subsequent purchaser join in the conveyance it is possible that subsequently difficulties may arise with regard to the Plaintiff's title. Suppose in a case in which the contracting party did not appear and the decree passed directed the subsequent purchaser only to convey the property to the Plaintiff. The original vendor may subsequently raise, the objection that his title had not passed for want of consideration or otherwise to the subsequent purchaser and therefore the conveyance executed by the subsequent purchaser in favour of the Plaintiff did not pass good title. In order to avoid all controversies of this sort that may be available to any of the Defendants it is proper that the conveyance should be executed in favour of the Plaintiff in a suit for specific performance of a contract for sale by the contracting party as well as by the subsequent transferee of his interest.

    In the present case, there are peculiar circumstances which make it necessary that the conveyance should be executed by both the Defendants Nos. 1 to 7 and 8 to 10 who are the Appellants before us. The trial Court found that the Appellants' kabala was bad for want of consideration and was not bona fide. The lower Appellate Court did not reverse that finding but on the other hand made observations showing that it had doubts with regard to the passing of the consideration money under the Appellants' conveyance. With these findings the title to the property did not pass from the Defendants, first party to the Appellants. But as the decree of the lower Court did not rest on this ground it is proper that the Appellants should join in the conveyance.

    The decree passed by the trial Court therefore will be modified in the following way: “The Plaintiff's right to the specific performance of the contract claimed be declared and he do get khas possession of the lands in suit. Within a fortnight from the arrival of the record in the Court below Defendants Nos. 1 to 7 and Defendants Nos. 8 to 10 do execute a kabala in favour of the Plaintiff in respect of the disputed land as claimed.” We are told that the Plaintiff has already put in the sum of Rs. 1,226 as mentioned in the decree of the trial Court. The sum thus deposited in the Court will be distributed or made over to such party or parties whom the trial Court finds entitled to. The Plaintiff-Respondent is entitled to be paid the costs of this litigation out of the money so deposited.

    We have been asked by the learned Advocate for the Appellant to reserve the consideration of the question of preemption raised by his clients in this case. The lower Appellate Court dismissed this claim on the ground of preemption by observing that the Plaintiff was as much entitled to it as the Defendant. It is submitted on behalf of the Appellants that as a matter of fact the time for exercise of the right of preemption has not yet arrived. As the time has not yet arrived we refrain from expressing any opinion at this stage.

    The result is that this appeal is dismissed with costs with the modification in the decree passed by the trial Court as suggested above.

    P.C

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    Comments

    Kafiladdin v. Samiraddin
    (Feb 24, 1930)