AI Drafter 
TaxTMI 
TaxTMI 
1922 (6) TMI 3
X X X X Extracts X X X X
X X X X Extracts X X X X
....th December 1924, executed an agreement embodying the terms of the contract and promised to execute the sale-deed on 5th January 1925, but notwithstanding the said contract defendant 1 sold 17½ gandas share to defendants 2 and 3 for a sum of Rs. 2,700 on 12th January 1925. 3. The suit was contested by all the defendants. The case put forward by the defendants was that, prior to the agreement alleged by the plaintiff, defendant 1 had on 17th November 1924 agreed to sell his 1 anna 7 ganda and odd share to defendants 2 and 3, and that the plaintiff had knowledge of the said agreement. The defendants alleged that the sale of 12th January 1925 was in pursuance of the agreement dated 17th November 1924, that was prior in date to the ag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the letter sent by the plaintiff to defendant 1. 8. In view of this correspondence that passed between plaintiff and defendant 1 and other evidence in the case, the Courts below have come to the conclusion that defendant 1 entered into a contract with defendant 3 to sell his 1 anna 7½ ganda share in November 1924 and that the plaintiff was fully aware of that agreement when he entered into the contract of sale on 26th December 1924. 9. It was maintained by the defendants that by the contract of November 1924 defendant 1 had agreed to sell his share to both Mahabir and Mukh Ram Singh defendants 2 and 3, and as the contract with those defendants was prior in date to the contract of sale entered into between the plaintiff and de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....here is no escape from the conclusion that the sale in favour of defendants 2 and 3 was not carried out in pursuance of and in conformity with the agreement of November 1924. It is urged that the defendants having given a go by to the agreement of November 1924, the plaintiff is entitled to a decree for specific performance of the agreement, dated 26th December 1924. 12. The learned advocate for the defendant-respondents supports the decree of the Courts below on the ground that a contract of sale may be assigned and the assignee can enforce specific performance of it, and that it must be deemed that when Mukh Ram Singh joined Mahabir with him as a purchaser, he did no more than assign his rights under the agreement of November 1924 to M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mber 1924. It cannot be denied that Mukh Ram Singh, on the facts found, would have been entitled to claim specific performance of the contract of November 1924. In other words he could insist on the sale of the entire 1 anna 7½ gandas share to him. That being so, he was fully competent to waive his right with respect to a portion of that share and by mutual agreement with defendant 1 to agree to purchase the lesser share. Equally so it was open to defendant 1 and to Mukh Ram Singh to vary the terms of the agreement of November 1924 regards consideration. The decisive factor in such cases must be the priority in date of the agreement and not the terms of that agreement. In our judgment the purchase of 8¾ gandas by Mukh Ram Sing....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en the parties, it will not be open to either patty to that contract to assign his interest under the same but in the absence of any such agreement the benefit of such a contract can be assigned: vide Fry on Specific Performance, Edn. 6, para. 222 and C Muniswami Nayudu v. Sagalaguna Nayudu A.I.R. 1923 Mad. 699. 16. But we are unable to agree with the learned advocate for the respondents that Mukh Ram Singh must be deemed to have assigned the benefit of the contract of November 1924 in favour of Mahabir to the extent of the share purchased by him. The case of assignment was not put forward in the written statement. In both the Courts below it was maintained by the defendants that Mahabir was a party to the contract of November 1924. This....