Madras High Court
Sangali Solagan vs Nagamuthu Malavadi And Ors. on 1 January, 1800
Equivalent citations: AIR1925MAD227
JUDGMENT Krishnan, J.
1. In this case, the 3rd defendant is the appellant before me. The plaintiff brought a suit for specific performance of a contract, entered into with him, by the 1st defendant, Exhibit A in the case, for a sale of the suit property to him. The terms of the contract are embodied in the document. The property which was arranged to be sold belonged to the first defendant and his brother, the second defendant. The third defendant is a subsequent purchaser from defendants 1 and 2 of the property. Specific performance has been decreed by both the lower Courts, both against defendants 1 and 2 and the third defendant, who is found to have had notice. On his behalf, it is urged before ma that the contract was not a completed one, so far as the second defendant was concerned, as he had not joined in the document and that it should be treated as an inchoate and incomplete document and as there is a covenant in it, which says that if the younger brother, the second defendant, made default in executing the contemplated sale deed, the first defendant should return the advance of Rs. 200 paid with interest at Rs. 11/2 per mensem and also pay a sum of Rs. 200 as damages for failing to get the sale-deed executed, no decree for specific performance should have been given. It seems to me, in the first place, that that covenant does not in any way affect the completeness of the agreement to sell at all. The agreement to sell, so far as it goes, is complete, all the terms being fixed. The provision about damages relates only to what according to the parties should be done, if the 2nd defendant failed to go in time and execute the sale deed. He was in the service of the Railway Company and there was apparently some doubt, as to whether he would come within the time fixed for the completion of the sale.
2. Then it was argued that the agreement, not having been signed by the 2nd defendant, is not binding on him and that, as he came two days afterwards and insisted on the payment of the purchase money in five days and as such purchase-money was not paid within those 5 days, the contract to sell became infructuous and the subsequent sale to the 3rd defendant was a valid sale. The difficulty in the way of the learned vakil for the appellant on this point, is that the 2nd defendant had, before the 1st defendant entered into negotiations with the plaintiff and executed the agreement Exhibit A, authorised his brother, the 1st defendant to sell the property and "to settle the same." The 1st defendant says so, in his evidence, as the defence 1st witness. When a person authorises another person to effect a sale of property belonging to him, it must be taken that the authorisation will cover all the terms that the agent agrees to, unless the authorisation is limited in any manner. It is not suggested in this case that there was any limitation of the authority given by the younger brother to the older brother, to effect a sale of the property. In these circumstances, it seems to me that it must be held that the agreement Exhibit A entered into by the elder brother with the plaintiff, on behalf of both brothers, for the sale of the property, is binding upon the younger brother, and that it was not open to the younger brother, who came two days thereafter, to vary or alter its terms, unless the plaintiff agreed to it. It is found that the plaintiff did not give up his lights under Exhibit A, or agreed to any variation of the terms of it. That being so, Exhibit A is binding upon the 2nd defendant as it stands.
3. The lower appellate Court has found that the 3rd defendant had notice of the agreement, Exhibit A, and therefore he could not claim the rights of a bona fide purchaser without notice. Finally, it was argued that as Exhibit A provided for a special kind of remedy, in case the 2nd defendant failed to join and execute the sale-deed, the Court could not grant a decree for specific performance at all. But the answer to this is contained in Section 20 of The Specific Relief Act, and as the suit relates to the sale of land and as damages are seldom considered a proper remedy, for breach of an agreement to sell lands I am inclined to think that specific performance was properly ordered in this case, by the lower Courts, in spite of the covenant in the document Exhibit A, for re-payment of the advance and for payment of damages for such breach.
4. These are the only points argued in this appeal and as they have failed, the second appeal fails and must be dismissed with costs.