LexLALA DURGA PRASAD AND ANOTHER versus LALA DEEP CHAND AND OTHERS.
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1963 Nov. 18. 360 SUPREME COURT REPORTS [1954] LALA DURGA PRASAD AND ANOTHER v. LALA DEEP CHAND AND OTHERS. [B." K. MUKHEBJEA, VIVIAN BOSE and BHAGWATI JJ.] Specific performance-Agreement for sale of land-Suit hy pu,rchaser against vendor anrl .«.itbsequent transfp,ree for speci fie performance-Forni of decree-Ref1tnd of rnone11 paid by snbsequent transferee-Oontract-DisputP.. arising s11,bsequently as to Jorni of 'lvarranty-Whether repudiation. A dispute arising, Rubseqnent to a contract for sale or land, about the particular form in which the warranty of title should be inserted in the sale deed cannot affect the completeness of the contract already made, nor can it amount to a repudiation of the contract when the party who wanted a particular form to be adopted does not persist in it and expresses his readiness and willingness to perform the contract agreed to. Even if a party insists on a particular form that would not affect the contract, though it may in certain circumstances disentitle hin1 to specific performance, Binde8hri Prasad v. Mahant .Tairam Gir (I.L.R. 9 All. 705) referred to. In a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale, if the plaintiff succeeds, the proper form of the decree to be passed is to direct specific performance of the contract between the vendor and the plaintiff and <lirect the subsequent transferee 1 to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. Kafiladdin v. Samira.dilin (A.I.R. 1931 Cal. 67), Potter v. Sanders (67 E.R. 1057) and Kali Charan v. Janak Deo (A.I.R. 1932 All. 694) referred to. In such a suit it would not be right to lay down that in every case the balance of the purchase money should be paid to the subsequent transferee up to the extent of the consideration paid by him. There may be equities between the vendor and the subsequent transferee which would make that improper, and unless these are also raised and decided in the case, the normal rule should be to direct the money to be paid to the vendor. CIVIL APPELLATE JURISDICTION; Civil Appeal No. 86 of 1950. .• ..... S.C.R. SUPREME cotJR'r REPORTS 361 Appeal from the Judgment and Decree, dated the 1953 12th May, 1949, of the High Court of Judicature at d W h JJ) . F' t , Lala.Durgu Allahabad (Seth, Agarwal an anc oo . m irs Pra~ad Appeal No. 410 of 1943, arising out of the Judgment and Another and Decree, dated the 28th April, 1943, of the Court of v . .• '°"( the first Civil Judge ofMeerut in Original Suit No. 4LalaDeep Ohund } of 1942. and Others. } ( S. K. Dar (Ram Kumar and B. S. Shastri, with BoseJ. him) for the appellants. G. S. Pathak (G. 0. Mathur, with him) for respond- ent No. 1. Jagdish Chandra for the Custodian of Evacuee Property. 1953. November 18. The Judgment of the court was delivered by BosE J.-This appeal arises out of a vendee's suit for specific performance of a contract of sale dated 7th February, 1942. The vendor is the first defendant whom we will call the Nawab as that is how he has been referred to in the courts below. He is now in Pakistan and his property has been taken over by the Custodian, U. P. The plaintiff is the vendee and the second and third defendants, who appeal, are sub- sequent purchasers. The only question which we are asked to decide here, except for certain subsidiary matters, is whether the agreement of 7th February, 1942, was a concluded one. The plaintiff's case is that on that date the Nawab agreed to sell the plaint property to him for Rs. 62,000 and accepted Rs. 10,000 as earnest money the same day. Later, namely on 4th April, 1942, the Nawab sold the same property to the appellants for a sum. of Rs. 72,000. The plaintiff states that the appel- lants had notice of his prior agreement. The appellants' case is that the plaintiff's so called agreement of 7th February, 1942, was not a concluded one as the parties.never reached finality. They raised a number of otheLdefences such as misrepresentation and fraud, an agreement, with the Nawabprior to that of the plaintiff, lack of knowledge of the plaintiff's 362 SUP:R:EitE COURT REPORTS [19541 1958 agreement and so forth. But all those positions were aban
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