Tottenham and Agnew, JJ.
1. This was a suit to enforce the specific performance of a contract to sell certain property to the plaintiff for the sum of Rs. 763. It was alleged that Rs. 600 out of the sum agreed upon as the price had been paid in advance, and the plaint contained an alternative prayer that should the Court be of opinion that the contract could not be enforced, a decree may be made for a refund of the Rs. 600 with interest. The defendants in the suit were two minors represented by their mother and guardian. The mother of the minors was the person alleged to have made the contract with the plaintiff, and to be acting as guardian of the minor sons. She had been appointed guardian under Act XL of 1858, and had therefore no power to sell the property of the minors without the consent of the Court. This fact was recognized in the agreement, and the contract to sell was subject to the consent of the Court being obtained. The terms of the agreement were reduced to writing in a document called a shuttanamah. An application was made to the Court for sanction. In the meantime, the plaintiff sought to have the shuttanamah registered. On this the mother of the minors denied execution, and the Sub-Registrar was compelled to refuse registration. The District Registrar, ‘however, on appeal ordered the document to be registered. In the meantime, the Court having sanctioned the sale of the property in question, not for Rs. 763 but for Rs. 800, the mother of the minors sold to the defendant No. 2. The plaintiff has sued both parties, that is, the minors represented by their mother and the purchaser, for the specific performance of the contract to sell the property to him at the price originally fixed.
2. The first Court decided the case against the plaintiff upon the merits.
3. The lower Appellate Court was of opinion that specific performance of the shuttanamah could not be had. It found that the defendant had no power to carry out the contract in its original state; that the Court sanctioned the sale only at a price higher than that agreed to by the plaintiff; and that the defendant was not competent to sell the property to him at a price less than that fixed by the Court. The Judge further considered that the specific performance sought by the plaintiff was barred by certain clauses of the Specific Belief Act, namely, Clause (e) of Section 21 and Clause (b) of Section 27. The plaintiff appears to have suggested that Section 26 of the Act would permit the Court to give a decree for the performance of the contract with a variation, that is as to the price to be paid by the plaintiff. The lower Appellate Court held that Section 26 did not apply to the case. I ought to say here that as to the alternative relief prayed for in the plaint, namely as to the refund of the consideration money advanced by the plaintiff, the lower Appellate Court states that the pleader for the plaintiff before him admitted that in this suit he could not expect to get that relief, inasmuch as the defendants in this suit were the minors and the purchaser, whereas the refund of the money must be sought against the mother personally, not in her capacity as guardian, and as against the minors only in respect of such part of the sum as may have been used for their benefit.
4. The appeal was, therefore, dismissed by the lower Appellate Court.
5. In this second appeal the vakeel for the appellant has contended that the Judge was wrong in law in holding that Section 26 of the Specific Belief Act did not apply to the case, and that the plaintiff was barred by Clause (e) of Section 26 [Section 21?] and Clause (b) of Section 27, It has also been contended that the Court should have decided the matter as to the alternative relief sought in the plaint.
6. It is not necessary for us to express any opinion as to whether the suit was barred by Clause (e) of Section 21 or Clause (b) of Section 27 of the Specific Belief Act, for in our opinion the Judge was quite right in saying that the contract as it stood could not be enforced, and that Section 26 had no application to the case. The contract, such as it was, was not a complete contract at any time. It was contingent upon the permission of the Court. ‘The Court’s permission did not extend to the whole contract as set out in the shuttanamah. The defendants, therefore, could not be compelled to carry out the terms of the original agreement, nor could they have insisted upon the plaintiff’s carrying out the terms sanctioned by the Court. Section 26, upon which the vakeel for the appellant relies, sets out cases in which contracts cannot be specifically enforced except with a variation; and there are five particular cases set out in which a contract may be enforced subject to a variation, such variation being in favour of the defendant, and the section in our opinion assumes that the parties or vakeels representing them are agreed as to the existence of the contract but not agreed as to specific terms. The section provides that, when fraud or. mistake of fact, or misrepresentation has induced the defendant to sign an agreement, that agreement can only be enforced on the terms which the defendant intended to agree to. There is no provision of law of which we are aware which entitles the plaintiff to clayn a variation in the terms of his contract, when he finds that the contract itself cannot be carried out. In the present case the plaintiff by his plaint sought to enforce the original contract without any variation. It seems to us, therefore, that the Judge was right in holding that the agreement in the shuttanamah could not be enforced as it stood, and that Section 26 would not entitle the plaintiff to enforce it with a variation.
7. As regards the alternative prayer for a refund of the Rs. 600 advanced by the plaintiff, we think that upon the fact stated by the Judge that the plaintiffs pleader did not press for a decision on that question in this case, it cannot be said in second appeal that the lower Appellate Court was wrong in law in not coming to a decision upon it. Strictly speaking, the Judge was perfectly correct in law in not going into that point in the present suit framed as it was.
8. The appeal is dismissed with costs.