Sir George Lowndes:-

The dispute in this appeal is as to the appellant's right to specific performance of an agreement for the sale of land. The facts are of an unusual character and make the determination of this question a matter of considerable difficulty. The appellant, was, in the year 1920, the owner of plot of land with a four-storeyed building upon it situated opposite the Mulji Jetha Cloth Market in Bombay. Parts of the building were in a dilapidated condition, and in February of that year the municipality served him with notice to pull down certain portions of three of the upper floors which appeared to be dangerous. The appellant was advised to rebuild, and had plans prepared and submitted to the municipal authorities but they were not approved. Meanwhile, he was in negotiation with one Narandas Thakersey Mulji, who was a director of the Cloth Market Co., and interested in the development of the site, which was evidently a valuable one and on 18th December 1920, an agreement was come to between them under which the appellant was to sell and Narandas was to buy an undivided half share in the property which was thereafter to be let out to tenants upon the joint adventure of the two. The terms of this agreement were reduced to writing and it is necessary to set out the more material clauses in extenso:

"1. The vendor shall sell and the purchase shall buy an undivided half share in the said property for the sum of Rs. 1,90,000.

“2. The vendor shall forthwith carry out all the repairs and works specified in the said notice ..... from the municipality and the purchaser shall pay in addition to the said sum of Rs. 1,90,000 half of the expenses incurred in carrying out the requirements of the said notice.

“4. The sale shall be completed within two months from the date of this agreement if the requirements of the said notice are carried out before that period. If the requirements are not carried out within the said period then the sale shall be completed within two weeks after all the said requirements have been carried out and completed and the property is fully occupied by the tenants.

“5. The vendor shall within seven days of the date of this agreement hand over to the purchaser's attorneys all documents of title for investigation of title.

“8. After completion of the purchase the purchaser shall attend to the management of the property and shall collect the rents of the entire property and shall keep regular account thereof."

Then followed detailed provisions for the division of the net rents under which Narandas was to have a preferential 6 per cent on his capital expenditure, any deficit being made good by the appellant and charged on his moiety of the property, for the creation of a reserve fund, for auction between the parties if either wished to sell his share, and for arbitration in case of disputes. The property was described in a schedule to the agreement as a parcel of land containing by admeasurement 101 square yards or thereabouts “with the message tenement or dwelling house standing thereon,” situated at Champa Gully, and bounded, etc.

There is, no doubt, therefore, that the sale was to be of a small but valuable plot with an existing building upon it, and that before the appellant (the vendor) could demand completion and payment of the Rs. 1,90,000, he would have to comply with the terms of the municipal notice above referred to. Their Lordships think that having regard to the reference in Cl. 2 to "repairs and works “the intention was that the appellant should not merely pull down the portions referred to in the notice, but should also make them good again.

Within a few days after the execution of this elaborate document the parties agreed to a variation, which is the cause of all the difficulty. This new agreement was, unfortunately, not put in writing, and its bearing on the other terms of the original document was not considered. The variation was in effect that instead of complying with the terms of the municip