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16. Now as far as the English Courts are concerned, although there has been a considerable divergence of opinion upon minor points, the fundamental principles upon which this branch of the law rests, appear to me to be fairly clear and firmly established. Probably no better summary of the whole question can be found than in Chapter XVIII of Fry on Specific Performance upon which counsel for the executors and the plaintiff have almost exclusively drawn for their arguments. The first and widest principle-stated in the most general terms is that where the vendor of land sues the purchaser for specific performance of the contract, the defendant is entitled to have the action dismissed, if it appear that the plaintiff cannot make out a good title to the land. Now, of course, what is and what is not a good title is precisely the point to be found in cases of this' kind; also there may be differences owing to differences of procedure in England to which there is no equivalent in this country, in the method of deciding between the parties to such a dispute, what is a good title. And as I have said that I do not propose if I can help it to deviate a hair's breadth from the principles of the English Courts in dealing with matters of this kind, I shall have to examine one or two at least of the English cases, which may seem to suggest doubts and difficulties in the way I understand and apply those principles. Baskcomb v. Phillips (1856) 22 Beav. 510 decided that where the detect of title had not been put prominently forward but only appeared at the trial, the Court refused to grant specific performance. I note the case because from the reference it might be thought an indirect authority for the plaintiff's contention here, that any doubt thrown upon the title ought properly to be cleared up at the trial, and that in order to do so the party whose claim occasioned the doubt ought to be joined. For part of the plaintiff's argument was that the principle of all the English cases, so far as it boars on this point, is that specific performance is refused in England where a third party has a prima facie claim, because decreeing it in those' circumstances would not bind that third party and would still leave the purchaser exposed to a law suit. Therefore, it was said the proper course is to join the third person and settle his claim along with all other disputes arising between vendor and purchaser upon the requisitions etc Now as I have said if that argument had not been strenuously pressed upon the Court by the senior counsel at this bar, I should hardly have thought it merited notice. But as it was I must be careful to-be sure, that what seems to me so obvious and incontrovertible, but what evidently did not appear to Mr. Inverarity to be anything of the kind really is so. And no doubt the procedure followed in England introduces some slight confusion Now in Baskcomb v. Phillips (1856) 22 Beav. 510 what happened was that the defendants refused to. take up the lease because he found that the plaintiff had misrepresented material facts, such as that the water supply was-constant, the fernery completed, the stables drained, and so on, none of. which were" true. Then there was a reference referred to in the judgment of the Master of the Rolls as a trial. At least that is what I gather from the report. The plaintiff was interrogated and his replies disclosed quite a new defect of title. The defendant: had not known of that when; he repudiated the lease. Still as it was a substantial defect, the Master of the Rolls refused to. force the title on the defendant although most of the objections he had raised were purely frivolous. I' also observe that the Master of the Rolls in giving judgment laid great stress on the fact that the dispute had been going on from March to December" and that the plaintiff even then was not in a position to give the defendant possession and a good title. As the defendant had entered into the contract on the understanding that ho was to have early possession, this fact alone appeared to the Master sufficient warrant, for refusing specific performance.' And remembering that granting specific performance is always within the Court's discretion, this consideration must, in all cases, be weighty, did the-purchaser buy with the object of getting present possession? If he did, and if owing to a defect of title the vendor cannot give him present possession or anything like it, if he must be kept out for four or five years at least, would any Court force such a bargain on him?

17. I here note a sentence in Fry which no doubt helped to ground plaintiff's argument, "Though every title must in itself be either good or bad, there must be many titles which the Court cannot pronounce with certainty to belong to either of these categories in the absence of the parties interested in supporting' both alternatives, and without having heard the evidence they might have to produce, and the arguments they might be able to urge; and it is in the absence of these parties that the question is generally agitated in proceedings for specific performance". The words "the question is generally agitated" appear on the face of them to imply that this is not and need not always be the case. So that the plaintiff might contend that as in the present trial those parties have been present, and all that they have to say has been heard the Court cannot avail itself of the common reasoning in support of the latitude allowed to Courts in England to refuse specific performance not because a title is bad but because it is doubtful. I shall have to say something more about that later. Here it is sufficient to say that I am obliged to conclude that the qualified form of Fry's expression is due to the special legislation I have already mentioned. For oases falling within it are tried on a full array of all concerned including the objectors to the plaintiff's title. J. must suppose that the sentence is really so limited, because I have not been able to find a single case in the English Courts (not falling within the scope of those Acts) in which the person, whose claim threw a doubt on the plaintiff's title, was made a party to the suit between the plaintiff-vendor and the defendant-vendee for specific performance. In re the Trustees of Hellis Hospital (1899) 2 Ch. 540 : 81 L.T. 90,47 W.R. 691 : 68 L.J. Ch. 673 is no exception; rather the reverse. There, it is true, that the person claiming adversely to the vendor was a party to the suit. But that was in his capacity as one of the trustees who were the vendors. In his private capacity, as claiming adversely to the trustees' right to sell, he refused to plead or be bound by the decision. now in such a case had any English Judge, thought for a moment that it was proper to drag in a third party, make him a party; to the suit for specific performance, and try out the questions in issue between him and the vendor, this is the case in which it would have been done. For the only objector was, in fact, in another capacity before the Court, the Court held a very strong opinion against the validity of his claim, yet it would not join him, (though. that, claim rested entirely on the decision of a point of law and would not as far as I can see have involved taking evidence) and so after deciding upon that claim as between him and the trustees, declare the title good On the contrary, notwithstanding its opinion that the objector had no legal claim at all, none, that is to say, that the Court would be at all likely to affirm, what did the Court do? It refused to decree specific performance, for the sole reason that doing so would expose the purchaser to a suit at the instance of the objector. In other words the Court although it did virtually know all the facts which were material, and although it inclined to hold that the title was, or could be made good against the objector, held that it was a doubtful title as between vendor and purchaser, because this outstanding dispute could not be settled in that litigation, and remaining unsettled would or might expose the purchaser to immediate further litigation. I think that is about as strong a case as could be put against the plaintiff's argument that where the doubtfulness of the title depends upon the settlement of a bona fide claim, however shadowy, brought by a third person against the vendor, the Court is at liberty in a suit for specific performance to bring in that third party, and try his case, along with the case of the vendor and the vendee. The former of these two cases has obviously nothing to do with the latter. It is in no sense the same cause of action, nor are the legal interests involved in any sense the same. (Cf. Luckumsey Ooherda v. Fazulia Cassumbkap 5 B. 177. I hope I am making it, clear throughout all this part of my judgment that my observations apply to the stale of affairs existing at the time the suit was filed, and not to the state of affairs which did exist, though in my opinion, it never ought to have existed when the trial was over, I wish to clear the ground in this way to a right understanding of what I believe to be the only real issue in this suit. Doing so involves a consideration of arguments which were addressed to the Court at the close of the trial, but which I do not think would have boon used had the amendment of the plaint not been allowed, and as a result had the litigation not been deflected into totally wrong channels.

37. Going back to Pyrkes case (14), we find the Vice Chancellor stating that from Lord Eldon's time the rule rests on this that the purchaser is entitled to require a marketable title, (unfortunately an accurate analysis of the terms shows that this is arguing in a circle), and further on that this is the true rule, is I think, the more apparent from the repeated, decisions that the Court will not compel the purchaser to take a title which will expose him to litigation or hazard."The learned Vice Chancellor proceeds to give the scale upon which the doubt is to be measured, "If the doubts arise upon a question of the general law the Court is to judge whether the general law upon that point is or is not settled, enforcing specific performance in the one case and refusing to enforce it in the other. If the doubt arises upon the construction of particular instruments and the Court is it self doubtful upon the points, specific performance must, of course, be refused. And even though the Court may lean in favour of the title its duty is either as expressed by Lord Eldon in Jarvoise v. Duke of Northumberland (1820) 1 J. and W. 559 at p. 569 to consider whether it would trust its own money upon the title, or at least to weigh whether the doubt is so reasonable and fair that the property would be left in the purchaser's hands not marketable. If the doubts which arise may be affected by extrinsic circumstances which neither the purchaser nor the Court has the means of satisfactorily investigating, specific performance is to be refused." Now that last sentence appears to me to lit this case exactly. It is clear that without making the male issue parties to this suit neither the purchaser nor the Court could satisfactorily investigate all the extrinsic circumstances necessary to be investigated before the doubt could be resolved. Observe not a word is said or the remotest hint given of the feasibility of joining those other persons with whose co-operation the extrinsic circumstances might be satisfactorily investigated in the suit. Turner, V. C, goes on: "I think that each case must depend upon the nature of the objection and the weight which the Court may be disposed to attach to it and that in determining whether specific performance is to be enforced or not, it must not be lost sight of that the exercise of the Court of its jurisdiction in cases of specific performance is discretionary; and that, as was observed in Cooper v. Denne, the Court has no means of .binding the question as against adverse claimants or of indemnifying the purchaser, if its own opinion should ultimately turn out not to be well-founded." Now I glean a great deal of useful matter from these observations. For one thing it is plain beyond doubt that had such a case as this come before Turner, V.C., at the stage when the suit was filed, and had he realized all that was involved in the objection, he would, upon the principles he has enunciated, have unhesitatingly refused specific performance. The cases he contemplates are all cases in which the doubt arises upon the general law of the land or the particular construction of documents. Even in such cases there may be extrinsic circumstances which cannot be satisfactorily cleared up between the vendor and purchaser but they could hardly be of the extensive and complicated kind with which this objection confronts the Court. It appears to me equally certain that had the proposal been made to Lord Turner to join the male issue, and their go on to try, the suit between them and the plaintff as an incident and preliminary to the suit of the plaintiff for specific performance, it would have been utterly scouted. In each case we are to look at the nature of the objection, And it is safe to say, I think after studying the whole case law on this subject, that it is only where the doubt thrown upon the title arises out of the law, general, or particular, that a Judge ought to confidently decide it. Where, further, in order to prepare for the application of the law. disputed facts have to be proved, as of course they often have, the Court is to consider whether the facts are of a nature which can be adequately, and with some prospect of finality, be found between vendor and vendee. For if they go beyond that, and the proof of them depends more or less upon resources and knowledge peculiar to third parties, then as those parties cannot be joined in the suit, nor can be bound by the decision, it would be going too far, first to say that the Court could give a confident judgment upon what must be ex hypothesi imperfect materials, second, that it ought to try to do so, when doing so would expose the purchaser to further litigation, Hence the old rule of thumb that no man ought to be forced to buy a law suit. And a very sound practical rule too. But if the procedure which has been followed here and which as the plaintiff admits was necessary if he was to have any chance of success, is the right procedure, the purchaser is not only compelled to buy a possible law suit, but has one ready made thrown in with the rest of the bargain. He cannot escape it. The position is absurd. Be is tied already to the tail of a litigation, to avoid which he rescinded his contract. And the Court is gravely told that whatever decision it comes to upon this heavy and costly litigation neither party will accept it but will carry it through to the Court of final appeal. And willy nilly I suppose the unhappy purchaser must go along with these refractory litigants through this Court, and the Court of Appeal, and then to England where in four or five years he may reasonably hope their Lordships of the Privy Council will be in a position to give a final decision. That is ludicrous enough, but after all it is not so bad as what the defendants had to expect if what ought to have been done had been done, and this litigation between the vendor and his own male issue postponed. For them, assuming that the defendants had had this title forced upon them, there can be no question that they would have been exposed to the risk of precisely this litigation as soon as Ahmedbhoy died, with the difference, that they would have had to pay all the costs of the plaintiffs had the plaintiffs succeeded; whereas if this matter went on as it has begun, and the decision were finally against Ahmedbhoy and in favour of his sons, Ahmedbhoy would have had to defray the taxed costs of the whole and that comes to this, that supposing with this imminent possibility before it the Court had forced the purchaser to take the title and pay say four and a half lacs to Ahmedbhoy, no sooner does he die, than the purchasers will have to prepare to defend themselves in a litigation, which upon the most moderate computation would hardly cost them less than another lac before they came to the end of it. Suits of this kind, in this Court, have unfortunately become so unwieldy, and from their very nature susceptible of almost indefinite protraction, while every account book that has ever been used in the business of the family is labouriously inspected, and laid out in detail before the Court that any litigant who embarks upon such a suit would I suspect reckon himself fortunate if success cost him less than half a lac while failure would, of course, be much more costly. A law suit in England is forbidding enough, .and no wonder that Chancery Judges hesitated to force purchasers into one. But as things are going in this country, an English suit is child's play to one of these big Indian cases. It, therefore, behoves Judges here to be still more careful before forcing a title on a purchaser to be quite sure that it will not involve him in litigation at all, if that be possible, but at any rate in unsuccessful litigation. I will, before passing on from Pyrhe v. Waddingham (1852) 10 Hare 1 repeat that one of Lord Turner's guiding principles was that where the doubt arose on the general law, if that law were still unsettled, specific per-fromance ought to be refused. And this has an important and direct bearing upon the decision of this case in two ways. First, can it be said that the law governing Khojas is settled? Can it be said that it is yet settled law that property bequeathed by will to a son is taken as self-acquired property? Is it settled law that a Khojd father can alienate ancestral property daring his life-time without the consent of his sons. I shall have to say a word or two upon these points' later in their place, after I have finished what I may call the more general part of my judgment.

59. And the reason of the decision would have been simply this. It is entirely immaterial whether in the result Ahmedbhoy's male issue are proved to have had or not to have had an interest in the property. It is enough that they claim such an interest; that that is at least a plausible claim; that on the face of it they have a very good fighting chance; and they are perfectly certain to fight. Is the Court then going to compel the defendants to buy this property, and so lay up for themselves huge and costly litigation in the near future? In the ordinary course of nature, Ahmedbhoy who is already over 70 must soon die. Then the defendants will find themselves or may find themselves sued by Ahmedbhoy's sons and grandsons, and if such a suit is launched it is most unlikely that it will end within less than three or even five years, while the expenses are sure to be enormous. Those considerations I apprehend would be amply sufficient to warrant any Court of Equity refusing specific performance. And they are entirely independent of any finding one way or the other about the rights of Ahmedbhoy and his Sons inter se.