Appeal No 398 of 1962
Appeal by special leave from the judgment and decree dated January 7 1959 of the Orissa High Court in Appeal from Original Decree No 57 of 1953
BR L Iyengar section K Mehta and K L Mehta for the appellant
K Blimsankaram B Parthasarthy J B Dadachanji O C Mathur and Ravinder Narain for the respondent
April 24 1964
The judgment of the Court was delivered by J
RAGHUBAR DAYAL J
This appeal by special leave raises the question of the correct interpretation of section 18a of the Act I of 1877 hereinafter called the Act
859 Ramchandra respondent executed an agreement to sell the house in suit to the appellant on February 21 1951
The agreement stated that he was in sole possession and en joyment of the house which was his paternal property that he was the Managing Member and Karta of the family and that for meeting family necessities and discharging certain loans he agreed to sell his undisputed house for Rs 6000on condition that he and his mother would execute a deed of sale in favour of the appellant with respect to the house within a period of one year from the date of the execution of the deed of agreement
Ramchandra did not execute the sale deed and the appellant instituted the suit for specific performance of the contract
The trial Court held that the sale was not to be for legal necessity and therefore decreed the suit in part on the appellant s depositing a sum of Rs 6000 less the sum of Rs 300 paid before the Sub Registrar at the time of the execution of the agreement to sell and less the amount of costs granted to the appellant against Ramchandra within a month and directed that defendant No 1 would execute the sale deed for the alienation of his interest in the entire house as covered by the agreement and that the plaintiff would be entitled to get possession of the same jointly with defendant No 2 mother of Ramchandra
The appellant went up in appeal to the High Court against the dismissal of his suit with respect to the sale of half the house
During the pendency of the appeal Ramchandra s mother died and therefore the only question urged on behalf of the appellant at the hearing of the appeal was that Ramchandra respondent having perfected his title to the entire house be made to sell the same
The High Court did not agree with the contention and held that section 18a of the Act did not apply to the facts of the case as it comes into operation subsequent to the sale having taken place
The High Court therefore dismissed the appeal
It is against this order that this apeal has been filed
Section 18a of the Act reads Where a person contracts to sell or let certain property having only an imperfect title thereto the purchaser or lessee except as otherwise provided by this Chapter has the following rights aif the vendor or lessor has subsequently to the sale or lease acquired any interest in the property the purchaser or lessee may compel him to make good the contract out of such interest 860 The question is whether the expression subsequently to the sale or lease  means subsequently to the contract to sell or let  or means subsequently to the execution of the sale deed or lease deed by the vendor or the lessor as the case may be  in pursuance of the contract to sell or let
It is contended for the appellant that this expression means subsequently to the contract to sell or let while the contention for the respondent is that it means subsequent to the actual sale or lease
We are inclined to agree with the contention for the appellant
The case in a way is concluded by the decision of this Court in Kalyanpur Lime Works Ltd vs State of Bihar1
In that case the Government agreed to let the lease of the bills to Kalyanpur Lime Works Ltd but the lease could not be executed as the forfeiture of the lease of a previous lessee was held invalid by the Court
When the lease of the previous lessee expired Kalyanpur Works Ltd wanted the execution of the lease for a period during which the lease to it would have continued if it had been granted in 1934
This Court held that the case fell within section 18a of the Act
It said at p 972 We agree with the High Court that section 18a of the applies to the case
That section lays down that where a person contracts to sell or let certain property having only imperfect title thereto if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property the purchaser or lessee may compel him to make good the contract out of such interest
There can be no doubt whatever that when the Government entered into the contract to grant leases to the Lime Co in 1934 it had an imperfect title inasmuch as it could not grant a fresh lease to anyone during the existence of the previous lease in favour of Kuchwar Co No doubt the Government thought it had the right to forfeit those leases and did in fact order forfeiture but it having been found subsequently that the forfeiture was legally invalid rights of the previous lessees were restored
As already pointed out above this is not the case of absence of title but is one of imperfect title and hence falls within the meaning of section 18
After the 31st March 1948 when the leases in favour of Kuchwar Co expired the impediment in the way of the Government to grant leases of the property stood removed and the Lime Company s right to get the leases revived in its favour
This right  861 of the plaintiff was resisted by the Government who on the other hand granted the leases to defendant No 2
The High Court of Patna rightly took the view that section 18a was applicable to the facts of this case and although defendant No 1 was not in a position to grant a lease from the time it agreed to do the impediment being now removed and a suit for specific performance not being barred the Lime Company was entitled to sue for that relief
We have already held in agreement with the view of the High Court that section 18 is attracted to the facts of this case and the contract of which specific performance can be decreed in favour of the plaintiff is the one embodied in Exhibits 22 and 22a
 It is urged for the respondent that in that case it was not contended before this Court that s18a could not apply to the facts of the case as no lease in favour of Kalyanpur Lime Works Ltd had been executed and that therefore the question now before us was not discussed
It is also urged that the Patna High Court had not actually applied the pro visions of section 18a to the facts of the case but had decreed the specific performance of the contract on the basis of the general principle that the purchaser in a contract to sell entered into in the circumstances of the case was entitled to sue for specific performance against such interest as the vendor might afterwards acquire in the property and support was found in what was said in article 994 in Fry s Specific Performance  5th Edition
In these circumstances we would like to consider the question directly before us
Sections 12 to 20 of Chapter 11 of the Act deal with con tracts which may be specifically enforced
Section 18a deals with the rights of the purchaser or lessee in cases where the vendor has imperfect title to the property which he has contracted to sell or let
Apparently this must deal with the rights of the would be purchaser or lessee and not of those who have already got the sale or lease of the property in pursuance of the contract to sell or let
If the person who contracted to sell or let has completed the sale or the lease transaction nothing is left for the vendee or the lessee to seek by way of specific performance of the contract
This is when he himself acts according to the contract
If he does not act according to the contract the person who has agreed to purchase or take on lease the property will have to seek enforcement of the contract through Court and then it may be that the Court might not enforce the contract
The Court will not in view of the provisions of sections 14 to 17 be able to 862 enforce the contract even with respect to the property over which the person contracting to sell or let had perfect title
except in certain special circumstances dealt with in sections 14
15 and 16
Section 14 deals with cases where the part of the contract which could not be performed bears only a small proportion to the whole in value and admits of compensation in money
Section 16 deals with the specific performance of a part of a contract when that stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed
Cases
coming under these two sections are not expected to give rise to circumstances in which provisions of sub cl
a of section 18 can be applied
Section 15 deals with the specific perform ance of a contract where the part unperformed is large
The Court has discretion in such circumstances to direct the party in default to perform specifically so much part of the contract as it could perform provided that the plaintiff re linquishes all claims to further performance and all right to compensation either for the deficiency or for the loss ordamage sustained by him through the default of the defen dant
When a Court has dealt with a case under section 15 no question can however arise for action under section 18a
It follows from the consideration of both the sets of circum stances viz when the person contracting to sell or let him self performs his part of the contract and when he is made to perform the contract wholly or partially by Court the occasion to apply for specific performance of the contract with respect to the property over which the person contracting to sell or let had originally imperfect title does not arise
This points to the conclusion that this clause cannot therefore be restricted in its application to cases where actual sale or lease of property had taken place
If clause a of section 18 was to apply after the completion of the sale or lease and on the vendor or lessor acquiring interest in the property in which he had imperfect title to start with there would be considerable overlapping between the provisions of cl
a of section 18 and section 43 of the Transfer of Property Act
Section 43 of the Transfer of Property Act comes into play when a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration while cl
a of section 18 would come into play when the person with imperfect title has sold or leased the property
There is some sort of representation whenever a person sells or leases property the representation being implicit and to the 863 effect that he is competent to sell or let the property
Thus there is over lapping of the provisions of the two sections
The actual right of the transferee under section 43 and cl
a of section 18 is however expressed in different language
In cases where section 43 operates the transferee at his option can have the transfer operate on any interest which the transferor may acquire in the property at any time during which the contract for transfer subsists
The illustration to the section indicates that the transferee can require the transferor to deliver the property acquired to him
The purchaser or lessee on the other hand acting under cl
a of section 18 can compel the seller or the lessor to make good the contract out of such interest
The difference between the two provisions is this that in the case of the operation of section 43 no recourse to Court is necessary
The transfer operates on the property transferred and the transferee can call upon the transferor to deliver the property to him
The purchaser or the lessor having the right mentioned in cl
a of section 18 has to go to Court to compel the vendor or lessor to perform the contract out of the interest subsequently acquired by him
The purchaser or lessee goes to the Court to enforce the contract and the contract in cl
a of section 18 must refer to the contract to sell or let and not to the contract of sale or lease which as indicated earlier if voluntary would have covered the entire property contracted to be sold or leased and if enforced through Court no occasion for the operation of clause a of section 18 would arise
The expression in cl
a of section 18 should preferably be construed in a way so that there will be no overlapping bet ween the provisions of this clause and of section 43 of the Transfer of Property Act as ordinarily the legislature does not intend to make duplicate provisions for similar situations
The use of the words vendor or lessor  in cl
a are no definite pointers to the conclusion that the expression subsequently to the sale or lease  be given the meaning subsequently to the actual sale or lease 
The sections preceding section 18 deal with specific performance of contracts in general and therefore use the expression party to a contract 
Section 18 deals with the cases of contracts to sell or let and therefore appropriately uses the simple word vendor  or lessor  with respect to the party contracting to sell or let and purchaser  or lessee  with respect to the party agreeing to purchase or take the property on lease
There is no incongruity in using such expressions so long as one knows to whom those expressions refer
In fact the word purchaser  or lessee  can be appropriately applied to persons agreeing to purchase or take the property on lease
864 In this connection reference may also be made to the provisions of cl
d of section 18 which uses the words vendor or lessor  and provides that where the vendor or lessor suesfor specific performance of the contract and the suit is dismissed on the ground of his imperfect title the defendant has a right to a return of his deposit and to a lien for such deposit  on the interest of the vendor or lessor in the property agreed to be sold or let
It is clear that the words vendor or lessor in this clause refer to the person contracting to sell or let the property and who did not perform his part of the contract
Section 25 of the Act also uses the expression vendor or lessor  who has not actually sold or leased the property
It provides inter alia that a contract for the sale or letting of property cannot be specifically enforced in favour of the vendor or lessor who comes within the provisions of cls
a to c of the section
The provisions of section 27A also use the expression lessor and lessee  in connection with provisions relating to the contract to let when actually no lease is executed
There may be another reason for using the expression sale or lease  in cl
a of section 18
Section 13 and illustration a read 13
Notwithstanding anything contained in section 56 of the Indian Contract Act a contract is not wholly impossible of performance because a portion of its subject matter existing at its date has ceased to exist at the time of the performance
Illustrations aA contracts to sell a house to B for a lakh of rupees
The day after the contract is made the house is destroyed by a cyclone
B may be compelled to perform his part of the contract by paying the purchase money
    In Pollock  Mulla s   8th edition under section 13 is a note Illustration a assumes that a contract for the sale of a house does of itself transfer the beneficial interest in the house to the purchaser and make him owner in equity in the English phrase
This was also the law here before the  came into force
By section 54 of that Act it is provided that a contract for the sale of immoveable property does not of itself
865 create any interest in or charge on such property
By section 555 it is enacted that the risk of destruction is borne by the purchaser only from the date when the ownership appears to pass on execution of a proper conveyance by the vendor see section 55ld
It would therefore seem that the illustration cannot now be applied where the is in force
 It may be that just as illustration a to section 13 continues in the Act the expression sale or lease  continued in cl
a of section 18 as at the time cl
a of section 18 was originally enacted some sort of beneficial interest had passed to the person agreeing to purchase the property by the mere agreement to sell arrived at between the parties
It has also been urged for the respondent that cl
a of section 18 of the Act applies only when the person contracting to sell or let has imperfect title to the property and not when be is not entitled to the property as is the case in this suit as Ramchandra had no title to half the house
We do not consider it necessary to decide this question as we are of opinion that it cannot be said that Ramchandra had no interest in half the house
He had interest in the entire house and so had his mother though in case of actual partition the interest of each would have been fixed at half
If Ramchandra was not competent to pass title with respect to the entire house during the life time of his mother he can be said to have imperfect title to it
We are therefore of opinion that on the death of the mother Ramchandra obtained title to and interest in the portion of the house which on a private partition subsequent to the contract to sell had taken place between Ramchandra and his mother and that therefore he has to make good his contract out of the property he acquired subsequent to the contract to sell
It has been submitted for the respondent that it need not be taken for granted that Ramchandra got title to the property which belonged to his mother as it might be that the mother had executed some will
No such allegation appears to have been made before the High Court where it was urged that Ramchandra had acquired title to that portion of the house
It was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal the ground being that Ramchandra had agreed to sell for reasons of legal necessity
We therefore do not consider any force in this contention
LPD 1 SCI 28 866 We hold that the High Court was wrong in not applying the provisions of cl
a of section 18 of the Act to the facts of the case
We therefore allow the appeal set aside the orders of the Courts below and decree the plaintiff s suit and order that on payment of Rs 6000 minus Rs 300 paid to the respondent at the time of the execution of the agreement for sale and such other costs to which the appellant be entitled within a month from the date of the costs being taxed the respondent will be directed to execute the sale deed of the entire house covered by the agreement in favour of the appellant
The appellant will get his costs of the trial Court as decreed by that Court and of the appeal in this Court the parties bearing their own costs of the appeal in the High Court
In case the appellant fails to deposit the amount aforesaid within the time allowed his suit will stand dismissed with costs throughout
Appeal allowed


Summary:
The respondent executed an agreement to sell his house in order to meet family necessities for a certain sum on the condition that he and his mother would execute a sale deed in favour of the appellant On the failure of the execution of the sale deed the appellant instituted a suit for specific performance of the contract
The trial court held that the sale was not for legal necessity and therefore decreed the suit in part directing that the respondent would execute the sale deed for the alienation of his interest in the entire house and that the appellant would be entitled to get possession of the same jointly with the respondent s mother
The appellant appealed to the High Court and during its pendency the respondent s mother died and therefore the only question urged on behalf of the appellant was that the respondent having perfected his title to the entire house be made to sell the same
The High Court did not agree with the contention and held that section 18 a of the Specific Relief Act did not apply to the facts of the case as it comes into operation subsequent to the sale having taken place
On appeal by special leave
Held The High Court was wrong in not applying the provisions of section 18a of the Act to the facts of the case
The expression subsequently to the sale or lease  in section 18a means subsequently to the contract to sell or let
This clause cannot be restricted in its application to cases where actual sale or lease of property had taken place
Kalyanpur Lime Works Ltd vs State of Bihar 1954 SCR 958 referred to