Sadasiva Aiyar, J.
1. The plaintiff is the appellant in the second appeal here. He sued for specific performance of a contract whose terms according to the plaint were as under:
(1 The purchase-money was fixed at Rs. 4,600 on the 11th November 1909 out of which the plaintiff gave an advance of Rs. 200;
(2a) Of the remaining Rs. 4,400, Rs. 900 should be deposited before the Sub-Registrar before whom the sale-deed of the plaint properties had to be registered;
(2b) For the remaining Rs. 3,500, the plaintiff (vendee) was to execute a mortgage-deed to the defendants (vendors) mortgaging the properties that were to be sold, and fixing a period of three years for the repayment of the Rs. 3,500 with interest at 81/2 per cent, per annum; and
(3) That the defendants should go to Satur with the title-deeds of the properties on 1st December 1909 and execute the sale-deed and register it.
2. The lower Appellate Court found that the contract between the plaintiff and the defendants was not on the terms 2 (a) arid 2 (6) mentioned above, but that the term was that the plaintiff should pay the Rs. 4,400 (the balance of purchase-money) in cash before the 1st December 1909 and obtain the sale-deed, and that the plaintiff’s case as to his being entitled to obtain the sale-deed by merely tendering a hypothecation deed for Rs. 3,500 of the purchase-money repayable in three years was false and that it was due to the default made by the plaintiff in not being ready to pay the whole Rs. 4,400 that the contract was rightly put an end to by the defendants. On these findings, the plaintiff’s suit was dismissed with costs.
3. We must accept the findings of fact by the learned District Judge including the finding that the plaintiff was not ready and willing to pay the Rs. 4,400 on or before the 1st December 1909. But then it is contended by the plaintiff’s learned Vakil
(a) that time in this case is not of the essence of the contract; and
(b) that the plaintiff ought to have been at least given a decree for the specific performance of the contract with the terms as found by the District Court.
4. Neither of the Courts below has definitely found that time was or was not of the essence of the contract in this case. Even if time was not of the essence of the contract, the question remains whether the contract proved in this case being different from the contract alleged in the plaint, the plaintiff is entitled in a Court of Equity to obtain specific performance of the contract proved. This question is by no means free from difficulty. See paragraphs 634 to 63d of Fry on Specific Performance.) In Mortimer v. Orchard 2 Ves. (Jun.) 243 : 30 E.R. 615, Lord Chancellor Loughborough considered that in strictness the bill ought to have been dismissed when the contract alleged by the bill filed in equity was different from the contract made by the defendants, (in Fry the decision is attributed to Lord Rosslyn.) But the Lord Chancellor gave “the plaintiff credit for building the house” on the property agreed to be leased and specific performance was decreed for the plaintiff according to the contract set up by the answers of the defendants. In Hawkins v. Maltby 3 Ch. App. 188 : 37 L.J. Ch. 58 : 17 L.T. 397 : 16 W.R. 209 where one contract was alleged and another proved, the bill was dismissed without prejudice to another bill permitted to be filed. Under the old practice of the Court of Chancery that Court was incapable of permitting an amendment of the record at the hearing except under very unusual circumstances, and hence unless the defendants consented to a decree being passed in the plaintiff’s favour according to the contract admitted by them or unless the variation between the contract alleged and that proved consisted in the plaintiff’s admission of some terms against himself or the omission of some terms in his own favour or unless such variation was immaterial and unimportant, the Court of Equity had to dismiss the bill. But after the Judicature Acts, the High Court with its larger powers of amendment of records at any stage and ability to deal with the matter once for all would probably allow such amendments as are necessary “for the purpose of determining the real questions in controversy between the parties”. Where there had been part-performance, the inclination of Lord Cottenham’s mind in Mundy v. Jolliffe (1839) 5 Myl. & Cr. 167 : 9 L.J. Ch. 95 : 3 Jur. 1045 : 41 E.R. 334 : 48 R.R. 262 seems to have been against dismissing the bill. Their Lordships of the Privy Council seem also to have been influenced by the fact of the part-performance of the contract in Oxford v. Provand 5 Moore P.C. (N.S.) 250 : 2 P.C. 135 : 6 E.R. 472 in arriving at the conclusion that the real contract between the parties might be ordered to be specifically performed, though the contract alleged in the plaint was different. In the present case the plaintiff alleged in paragraph 5 of the plaint that the properties agreed to be sold were placed in plaintiff’s possession on the very date of the contract but the defendants denied it. That question has not been gone into by the lower Courts. Nor was any specific issue raised upon the question whether time was or was not considered of the essence of the contract and whether on the plaintiff’s failure to pay the Rs. 4,400 in cash before the 1st December 190(sic) the defendants were entitled to rescind the contract. This suit was brought on 21s January 1910 within two months of the time fixed for the performance of the contract. Having regard to Order VI, Rule 17, of the Civil Procedure Code if time was not of the essence of the contract and the defendants were, therefore, not justified in putting an end to the contract and if especially there had been a part-performance of the contract as alleged by the plaintiff, I would be disposed to allow an amendment of the plaint (if necessary) and give judgment for the plaintiff for specific performance of the contract as proved in the case, allowing damages to the defendants for the plaintiff’s failure to pay the Rs. 4,400 within the 1st December 1909. But before deciding the second appeal, it is necessary to obtain findings on the following issues on the evidence on record:
(1) Was the time mentioned in Exhibit I for the performance of the contract of the essence of the contract?
(2) Was there part-performance of the contract by the plaintiff’s having been put in possession of the properties as alleged in the 5th paragraph of the plaint?
5. Two months’ time from the date of the receipt of records is allowed for submission of findings, and ten days for objections.
6. I concur in the order proposed by my learned brother and reserve the consideration of the principles to be applied until the return of the findings.
7. In compliance with the above order, the District Judge of Ramnad submitted a negative finding on the first issue and an affirmative finding on the second issue.
8. The 2nd defendant’s sons, though they obtained their father’s interest in the plaint properties by survivorship, might be treated as properly added as his legal representatives for the purposes of the Code of Civil Procedure in this suit brought on a personal contract by their father and they will also be liable as legal representatives to fulfil that contract in the place of their father if that contract was, according to the Hindu Law, binding on them.
10. There is nothing in the plaint to indicate that the plaint contract was entered into for any such family necessity as will be binding on the undivided minor sons of the 2nd defendant. The plaintiff ought to have, strictly speaking, made the sons of the 2nd defendant also parties to the suit from the beginning, as they were interested in the properties in respect of which he wished to obtain a sale-deed [see Section 27, Clause (c) of the Specific Relief Act.]
11. The plaintiff’s learned Vakil argued that it is possible that the plaint lands are the self-acquisitions of the defendants Nos. 1 and 2 and that the 2nd defendant’s sons are only entitled to their father’s half share as his heirs in the strict sense. There is, no doubt, such a possibility though the probability seems to point the other way.
12. One of us was to some extent prepared at the former hearing in this case to use the discretionary power of the Court to decree specific performance in the plaintiff’s favour even though plaintiff did not prove the particular contract set up by him But having regard to the further difficulties raised by the contention now put forward by the minor sons of the deceased 2nd defendant who are, having regard to the presumptions of Hindu Law. prima facie, not bound by the contract of their father to sell his share in the plaint lands, we are of opinion that the Court’s discretion will be more properly exercised by refusing specific performance in plaintiff’s favour.
13. In the result the lower Appellate Court’s decree so far as it -dismisses the suit is confirmed but as to the question of costs, the parties to bear their respective costs throughout.