1. This is an appeal from the judgment and decree passed by Mr. M.D Deoras, 3rd Subordinate Judge, 1st Class, Nagpur, on 22-12-1939 in civil Suit No. 9-A of 1937. The suit was brought by plaintiff Mohammad Abdul Sattar (predecessor in title of the present appellants, except appellant 3) against Noorumiya (who died during the pendency of this appeal) and his two sons and a daughter who are now the legal representatives of Noorumiya as well as respondents in their own right.
2. The suit was for specific performance of a contract of sale of certain immovable property and its possession. The suit is based on an isar chithi, Ex. P-2, executed on 161-1934 in favour of Mohammad Abdul Sattar. By this document the signatories purported to agree to sell some house property to Mohammad Abdul Sattar for a consideration of Rs. 10,000 to be made up as follows:
Rs. 100,
taken as earnest money on 16-1-1934,
Rs. 1056,
Khata balance,
Rs. 7444,
havala for two mortgage deeds dated 17-8-1921 and 28-9-1922 in favour of Abdul Aziz son of Abdul Ramhim and
Rs. 1400,
to be received before the Sub-Registrar at the time of execution.
Rs. 10,000
Total.
3. The signatories further purported to agree to execute the sale-deed and get it registered within one month. The sale deed was not executed and Mohammad Abdul Sattar presented the isar chithi for registration on 14-5-1934. Since the defendants (executants) were not present, the Sub-Registrar refused to register the instrument because there was no time to summon the executants: vide Ex. Pi-1. Mohammad Abdul Sattar did nothing till the last day of limitation, and on 15-1-1937 presented his plaint and asked for the relief of specific performance against the defendants-respondents in this matter. Defendants 1 to 3 denied the allegations and pleaded fraud and defendant 4 denied that she made her thumb mark on the document. All the four defendants further pointed out that by notification No. 1475–1075-XII, dated 20-4-1937, Provincial Government had started land acquisition proceedings in respect of this house and site and that the suit for specific performance was, therefore, not maintainable. Even though warned in this manner, Mohammad Abdul Sattar did not choose to amend his plaint and ask for damages either simpliciter or even in the alternative. Of course his claim to have specific performance precluded at the moment a relief by way of damages for if he elected to have damages, he could not go on asking for specific performance. He contented himself by saying:
“Plaintiff does not know if any proceedings for the acquisition of any land in suit is started under the Land Acquisition Act. Even if any such proceedings are going on, it would not affect plaintiff's right to get the specific performance. The compensation money would go to the person who would be found by the Government entitled to get the same.”
4. So the suit went on and the proceedings, for acquisition also went on, and the suit terminated on 22-12-1939 against the plaintiff Mohammad Abdul Sattar. A decree for as lie was passed in his favour, but his remaining claim was negatived. Hence this appeal.
5. Mr. Bobde who appears for the respondents raised a preliminary objection that inasmuch as the land acquisition proceedings have long since terminated, there is no possibility of specific performance and the appeal is liable to be dismissed on that ground alone. Mr. Shareef on the other hand contended that he was entitled to the compensation money lying with the Collector. In support of his case, he cited Section 73(2) of the Transfer of Property Act. That sub-section deals with substituted security in cases where as a result of compulsory acquisition, the mortgagee is entitled to claim payment of his mortgage money, in whole or in part, out of the amount due to the mortgagor as compensation. This sub-section has no relevance whatever in this context and we are not inclined to extend the principle of this sub-section to any other case even if it could be done.
6. Mr. Shareef next relied on Section 91 of the Trusts Act and said that his right must be declared in accordance with this section. The section has no application to cases of compulsory acquisition under the Land Acquisition Act for under S. 16 of the latter Act the property vests absolutely in the Crown. The property cannot be said to be held for the benefit of anybody other than the local body for whose benefit the property is acquired. For the same reasons Section 3, illust. (g) of the Specific Relief Act, does not constitute Government a trustee.
7. Mr. Shareef next contended that on the authority of 15 C.W.N 4201 he should be allowed specific performance. That case decided nothing of the kind. It was a suit for damages for breach of an agreement of sale. Since the plaintiff claimed damages to start with and his cause of action had airsen prior to the acquisition proceedings, he was permitted to sue. The case here is entirely different. The plaintiff in the present suit has elected to sue for specific performance and even when he knew that the claim for specific performance had become impossible, he has persisted in that course. The case in 15 C.W.N 420 does not, therefore, help the appellants.
8. The distinction between a claim for specific performance and a claim for damages is a matter of history. Before Lord Cairn's Act the Courts of Equity in England could not award damages, for as Lord Eldon said that was ‘purely at law.’
9. After Lord Cairn's Act, the Courts of Equity could award damages additional to or alternative to specific performance. But this exercise of power was limited by certain well-settled considerations. In 52 Bom. 597,2 their Lordships have given the history of the delevopment of this branch of law in England and stated the considerations in these words:
“In a series of decisions it was consistently held that just as its power to give damages additional was to be exercised in a suit in which the Court had granted specific performance, so the power to give damages as an alternative to specific performance did not extend to a case in which the plaintiff had debarred himself from claiming that form of relief, nor to a case in which that relief had become impossible.”
10. The case of 52 Bom. 597, fell within the first category of cases described above under the alternative relief of damages. This case falls within the second part where the relief of specific performance has become impossible.
11. Mr. Shareef's claim that he is seeking specific relief against the compensation money is untenable. A contract of sale of immovable property does not, of itself, create any interest in or charge on such property. The law in India is different and equitable estates not being recognised, there was no right or title, legal or even equitable, entitling the plaintiffs-appellants to the money.
12. When Mr. Shareef was faced with this difficulty, he applied for amendment of the pleadings and claimed the relief of damages. To a case of this type the observations of their Lordships in 52 Bom. 597 apply with even greater force. The suit was launched on 15-1-1937, on the last day of limitation. The Revenue Department Notification of which the plaintiff in this case must be presumed to have knowledge came out on 20-4-1937. On 27-8-1937 the defendant in the case pointed out this fact. The plaintiff elected to pursue the remedy of specific performance even though he knew that if not impossible at the time, (the acquisition proceedings might have been abandoned) it could at any moment become impossible. Twelve years have now elapsed and having lost the claim for specific performance the plaintiff seeks the alternative relief. On a dismissal of such a suit, the plaintiff's right in respect of the contract must be deemed to be at an end and there was no reservation of any right, as if, to proceed again for damages and this is what it would amount to were the plaintiffs (appellants) allowed to amend the pleadings at this late stage. We accordingly reject the application for amendment.
13. It is not now necessary to discuss the merits of the claim but we have satisfied ourselves that the transaction is not entirely above suspicion. The consideration for the sale is made up of various items of which the only real item appears to be Rs. 100. With regard to Rs. 1056 the lower Court has found that Rs. 1000 cannot be included. The lower Court's observations can be quoted here:
“As regards the alleged Khata debt of Rs. 1056 it is clear from the plaintiff's own evidence that the amount of Rs. 1000 was advanced by the plaintiff not to the defendants 1-4 but to Abdul Aziz who took a mortgage from the defendants. The plaintiff could not, therefore, credit this amount of Rs. 1000 in the name of Abdul Aziz and debit the same to the defendants without the consent of the defendants. The plaintiff himself admits in his cross-examination that he had never consulted the defendants about this.”
14. The trial Court's finding, therefore, that Rs. 1000 were not part of the money owed by the defendants appears to us proper and correct. Though the trial Court did not give its finding on the question whether the two mortgages of Abdul Aziz were within time, we cannot help noticing that prima facie they are not. Mr. Shareef claimed that the mortgage money has been paid or at any rate the amount was adjusted. There is no evidence of this which would be acceptable. When this is coupled with the fact that the thumb mark of defendant 4 is seriously in dispute and that the trial Court found it to of some other persons, we reach a stage where even if specific performance was possible, it would have been refused by us. The Court of Equity refused specific performance not only for fraud but also for trickiness for he who comes into equity must come with clean hands. Dam ages also, should not be granted in cases where the Court of Equity would not have granted specific performance: See, (1888) 39 Ch. D 5083 at pp. 518, 519. We accordingly conclude that specific performance is now impossible and we cannot decree it for “equity like nature does nothing in vain.” We cannot hold the plaintiffs-appellants entitled to the compensation money into which the property was converted because they had no right or interest in that property. We cannot all-owe the amendment as it is late and after the dismissal of the suit for specific performance, when plaintiff, Mohammad Abdul Satfcar, was warned and elected to go on with specific performance. We would not allow amendment also because on the facts found by the trial Court (with which we see no reason, whatever, to differ) we would have refused specific performance, and the claim for damages on this account would also have been negatived because damages could have been awarded only if specific performance could rightly have been claimed. The appeal, therefore, fails and is dismissed with costs.
15. Appeal dismissed.