Judgement

Appeal (No. 23 of 1921) from a judgment and decree of the High Court in its appellate jurisdiction (July 29, 1919) reversing a decree of Marten J.

The suit was brought in the High Court by the respondent, since deceased, against the appellant for specific performance of a contract dated November 28, 1917, for the sale by the appellant of immovable property in the City of Bombay.

The facts are fully stated in the judgment of the Judicial Committee.

The trial judge, Marten J., dismissed the suit. He was of opinion that the documents relied on did not constitute a binding contract. On appeal Macleod C.J. and Heaton J. reversed that decision, and made a decree for specific performance.

1922. Nov. 7. Upjohn K.C., De Gruyther K.C., Holman Gregory K.C., E. B., Raikes and Parikh for the appellant. There was no concluded contract between parties. The documents in Gujarati expressly make the drawing up of a formal contract by a vakil a condition; further the earnest [@ page LRIA

Law Rep. 50 Ind. App. 25 ( 1922- 1923) Harichand Mancharam V. Govind Luxman Gokhale

218

26] money was not to be paid until that had been done. The vakil introduced further terms upon which the parties failed to agree. The authorities show that there was merely a conditional agreement which the Court could not order to be specifically performed Winn v. Bull (( 1877) 7 Ch. D. 29.); Lloyd v. Nowell ([ 1895] 2 Ch. 744.); Watson v. McAllum (( 1902) 87 L. T. 547,); Von Hatzfeldt-Wildenburg

v. Alexander. ([ 1912] 1 Ch. 284.) The rejected evidence of a separate oral agreement was admissible under the Indian Evidence Act, 1872, s. 92, proviso 3 Roger v. Hadley (( 1863) 2 H. & C. 227.); Pym v. Campbell (( 1856) 6 E. & B. 37.)

Clauson K.C., Tomlin K.C. and R. J. T. Gibson for the respondent. The documents in the Gujarati vernacular amounted to a complete and binding contract. The vakil had merely to draw up in English a contract setting out the Agreed terms; that provision, although described in the translation as a condition, was not a condition to which the agreement was subject but was merely a term. The oral evidence was rightly rejected; no oral agreement was pleaded. [Reference was made to Rossiter v. Miller (( 1878) 3 App. Cas. 1124.); Ridgway v. Wharton (( 1857) 6 H. L. C.238, 263,264.); and Bonnewell v. Jenkins. (( 1878) 8 Ch. D. 70.)

E. B. Raikes replied.

Dec. 20. The judgment of their Lordships was delivered by

MR. AMEER ALI The suit which has given rise to this appeal was brought by the plaintiff in the High Court of Bombay in its original civil jurisdiction for a decree against the defendant for specific performance of a contract entered into on November 28, 1917, for the sale, by the defendant to the plaintiff, of certain immovable property in Bombay.

Two documents in the Gujarati vernacular were prepared on the occasion, one of which was signed by the defendant Harichand Mancharam, the other by the plaintiff, the vendee, Govind Luxman Gokhale. Both bear one and the same date, and are practically in identical terms. The document executed by the defendant is marked in these proceedings as exhibit A; the other, signed by the plaintiff, is marked exhibit Al. Exhibit A, after giving the name and designation of the intending purchaser, the plaintiff, and describing the vendor, Harichand Mancharam, proceeds thus " I agree to give you in sale the said immovable property, together with the messuage building (standing thereon), for the price of rupees two lacs and fifteen thousand." It then gives the " conditions " of the sale in these terms " The conditions thereof are as follows 1. The bargain paper in respect of the sale of the said immovable property shall be made through a vakil within two days from this day and at the time of making the bargain paper I am to take from you by way of earnest money in respect thereof Rs. 10,000 that is you are to pay the same to me and as regards Rs.2 lacs and five thousand being the balance you are to pay the same to me