Mutuality in specific performance is required at the time the condition of a conditional contract is fulfilled.

S.C.Prasad, J.

1. This is an appeal by the defendants against the judgment of the 1st Additional Judicial Commissioner of Chotanagpur reversing a decision of the Additional Subordinate Judge of the same place.

2. The suit was for specific performance of a contract in respect of some property in the town of Ranchi. It was alleged that Tafazul Karim had contracted with the plaintiff on the 23rd June, 1940 to sell 16 annas interest in a house for Rs. 6,000.00 representing that the house belonged to him and his wife. He took Rs. 100.00 as earnest money. A period of three years was fixed for the performance of the contract.

Later on this contract was cancelled and subsequently on the 5th November, 1941, there was a fresh oral contract between the same parties under which it was agreed between them that the plaintiff would first take sale deeds from Musammat Latifan, Bashir, Sharfuddin and the Municipality of Ranchi in respect of their shares in the house in dispute and thereafter the plaintiff would take sale deed from the defendants for Rs. 1,750/-, which was the price fixed for their share in the house, namely, 4 annas 8 pies.

On the 9th November, 1941, 14th November, 1941 and 26th November, 1941 the plaintiff took three sale-deeds from Musammat Latifan, Bashir and Sharfuddfn, but so far as the share of the Ranchi Municipality was concerned, he took the sale deed on the 22nd February, 1947. Thereafter he asked the defendants to execute the sale deed in respect of their share but they did not carry out their part of the contract and then the plaintiff filed this suit on the 2nd February, 1949.

3. The main defence relevant for the purpose of this appeal was that the defendants denied the execution of the verbal contract and resisted the claim of the specific performance on the ground that there had been inordinate delay, that the agreement was uncertain and that there was no mutuality in respect of this contract and, therefore, it was not specifically enforceable against the defendants.

4. The trial Court upheld the case of the plaintiff that there had been an oral agreement, but it refused to give a decree for specific performance of contract because of the change of the position of the parties due to rise in prices on account of the inordinate delay by the plaintiff, but it granted a decree for the refund of advances taken by the defendants from the plaintiff.

5. Two appeals were filed against the judgment, one by the plaintiff and the other by the defendants. The appellate Court allowed both the appeals. No cross appeal has been filed here by the defendants. The plaintiff was also allowed a decree for specific performance of contract.

6. The only point which was urged before me by the learned counsel for the appellants was that there was no mutuality of contract, because in view of the terms thereof the defendants could not have enforced the contract on the date it had come into existence nor could the plaintiff have claimed the performance of the contract and, therefore, the plaintiff was not entitled to claim specific performance of this contract.

The learned Counsel urged that he had not been able to get a direct ruling of any High Court but it was established that this doctrine of mutuality was applicable in India and had been accepted in some cases. He relied on the cases of Zeebunnissa Begum V/s. Mrs. H.B. Danagher, AIR 1936 Mad 564 and Jatadhari Prasad V/s. Kishun Lal AIR 1950 Pat 535.

7. The rule of the English Law on the point is that a contract can be specifically enforced only if, as a general rule, there is mutuality between the parties thereto. In other words, it should be such as it might have been enforced by either of the parties against the other at the time it came into existence but there are exceptions to this rule, one of which is that where the contract is conditional, the mutuality must be at the time when the condition is fulfilled. In my view, this is a sound rule grounded in common sense and nat