KUNCHA RAMAKRISHNAYYA Vs. KONDAMUDI SREERAMULU

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance, instituted by a vendor and his son. The son who is the second plaintiff may be ignored for the purpose of this appeal and the vendor referred to as the plaintiff. The contract, evidenced by Ex. I, was entered into on 26th January, 1930. The plaintiff thereby agreed to sell 7 acres 74 cents of land to the defendant for a sum of about Rs. 9,000. He received Rs. 100 by way of advance and it was agreed that the balance should be paid within one month and the transaction completed. As the sale-price was mainly intended to be utilised by the vendor in discharge of his debts, it was agreed that such balance as might remain after the debts had been discharged should be paid before the Sub-Registrar at the time of the registration of the sale-deed. As a lease of the land was then outstanding, Ex. I finally provided that possession should be delivered to the vendee on the expiry of the term of that lease. For almost a year after the date of Ex. I, the sale was not completed, and in January, 1931, notices (Exs. A and B) passed between the parties wherein each accused the other of default in carrying out the contract. The defendant also alleged in his reply (Ex. B) that the plaintiff had consented to give up the contract but was now trying to revive his claim under it.

(2.) This suit was instituted on 26 August, 1932, after a preliminary attempt by the plaintiff to sue in forma pauperis had failed. As usual, the plaint alleged that the plaintiff was ready and willing to perform his part of the contract. The defendant raised a number of defences; of which it is sufficient at this stage to refer to one founded upon Ex. II. This is a document executed by the plaintiff on 4 August, 1932, in favour of his son-in-law, for the purpose of raising a sum of Rs. 1,000 stated to be required to enable the plaintiff to file a suit for specific performance in respect of the suit contract. The document is described as a munigutta lease under which the transferee was to remain in possession of the suit property for a period of twelve years from fasli 1342 to the end of fasli 135.3 and thereby get his advance of Rs. 1,000 liquidated. The defendant contended that by the execution of this document in respect of the suit property, the plaintiff had disabled himself from carrying out his part of the contract and that the suit should accordingly be dismissed. By way of rejoinder, the plaintiff alleged that Ex. II had been executed on the understanding that the transferee under Ex. II should give up possession whenever the plaintiff so required with a view to enable him to deliver possession to the defendant. Before the suit came on for final disposal, the plaintiff had also obtained from the transferee under Ex. II a deed of release, marked Ex. C in the case, on the 14th August, 1933. This recited the prior agreement between the parties and stated that the executant had thereby given up his rights under Ex. II and shall thereafter have nothing to do with the land. It, however, contained a clause at the end that as certain cultivators had then raised crops on the land, they should be allowed to harvest those crops at the harvest season. With reference to this contention and the allegations bearing thereon on both sides, the lower Court framed the third issue, namely, whether the plaintiff disabled himself by the date of suit from performing his part of the contract.

(3.) During the pendency of the suit, the plaintiff amended the plaint by including an alternative claim for damages. In answer to this claim, it was contended on behalf of the defendant that if the plaintiff had disentitled himself to claim specific performance by his own conduct, the claim for damages could not be sustained under Section 19 of the Specific Relief Act, in view of the decision of the Judicial. Committee in Ardeshir H. Mama V/s. Flora Sassoon (1928) 55 M.L.J. 523 : L.R. 55 I.A. 360 : I.L.R. 52 Bom. 597 (P.C.). It was also contended that the claim for damages, if regarded as an independent claim, was barred by limitation, as more than three years had elapsed from the date of the breach of contract, before the amendment was made. These questions relating to the claim for damages form the subject- matter of issues 9 and 10. The eighth issue is substantially the same as the third issue for our present purpose.