SIKANDAR ALI KHAN Versus NAWAB BIBI

1. A. R. SHIEKH, J.‑ The proper decision of this case depends upon the correct construction of the contract dated the 10th of September 1954 (Exh. P. 1) between Agha Stkandar Ali Khan, the appellant, and Mst. Nawab Bibi (respondent No. 1). The contract reads:‑

2. "I, Mst. Nawab Bibi, widow of Taj Din, caste Bhatti, am resident of Muzaffarpur, Tehsil and District Sialkot. My husband Taj Din is dead, and I have filed a suit in the Court of the Senior Civil Judge, Sialkot, for 1/4th share out of his inheritance. As I am a poor woman, I had no money for spending on the litigation, I have taken Rs. 1,400.00 on loan from Doctor Agba Sikandar Ali Khan, son of Agha Muhammad Ghias Khan, caste Pathan Durrani, resident of Muzaffarpur, Tehsil and District Sialkot and am spending it on the litigation. Therefore, I do hereby promise that if the case is decided in my favour, I will sell to Agha. Sikandar Ali Khan whatever land I get and I will sell it within one week of the date of the final decision. If I do not do so, Doctor Agha Sikandar Ali Khan will have the right to get the sale effected through suit for specific performance of the agreement. Moreover, I will have no right of entering into any compromise with the other heirs of Taj Din deceased. Therefore, in possession of full senses and of my own free will, I hereby reduce this agreement to writing so that it may serve as evidence."

2. It is contended on behalf of the appellant that the suit of the widow, respondent No. 1, for 1/4th share in the estate of her husband Taj Din having fructified inasmuch as she had been accepted as a widow of Taj Din and her claim bad also been stated to have been satisfied both in the statements Exhs. P. 3 and P. 5 (of the widow and the collaterals, respondents Nos. 2 to 11, respectively) and the judgment of the Court Exh. P. 4, the Courts below have misdirected themselves in not enforcing the contract between the parties on the ground of uncertainty‑of its terms. It is argued that the execution of the agreement and receipt of at least some amount (if not the entire amount of Rs. 1,400.00) by the widow having been established, the provisions of section 27 of the Specific Relief Act would come to the rescue of the appellant. It is maintained that in refusing the relief in specie against the respondents collaterals in whose hands is the one‑fourth share of the widow, which property would be deemed to have been given to them by the widow by way of surrender or relinquishment, the learned District Judge has misconstrued the provisions of section 27 (b) of the Specific Relief Act. For the proposition that when a dispute arises between a widow and the reversioners as to the right of inheritance of her husband and a compromise is entered into whereby although her status as a widow is acknowledged yet her claim is shown to be satisfied without actually giving her share in the estate, such a compromise would amount to surrender of the share, learned counsel for the appellant has relied on Bhuta Singh and others v. Mangu and others (A I R 1930 Lah. 9).

3. Learned counsel for the respondent does .not join issue on the question of availability of the property in the hands of the collaterals under section 27 of the Specific Relief Act, if the contract in question is held to be otherwise enforceable. He argues that the terms of the contract, or even the evidence pro duced, do not show that Rs. 1,400.00 was fixed as the price of the land, which the widow promised to convey to the appellant. According to him the recital that she bad borrowed Rs. 1,400.00 from the appellant and she was spending this amount on her litigation does not in any manner advance the case of the appellant to take it out of the mischief of section 21(a) of the Specific Relief Act.

4. While dealing with the necessary completeness of the contract, Fry in his celebrated treatise on Specific Performance (Sixth Edition) observes in paragraph 341.

3. "The necessary completeness of the contract may be considered in respect of (i) the subject‑matter, (ii) the parties to the contract, (iii) the price, and (iv) the other terms."

4. The ingredient of price is dealt with in paragraph 353 as under :‑ "in all sales it is evident that price is an essential ingredient, and that where this is neither ascertained nor rendered ascertain able, the contract is void for incompleteness, and incapable of enforcement."

5. In paragraph 354 the learned author proceeds to say :

6. "It is not, however, necessary that the contract should in the first' instance determine the price. It may either appoint a way in which it is to be determined, or it may stipulate for a fair price."

7. Again, in paragraph 355 dealing with the same subject, the learned author observes

8. "Where the contract appoints a way of determining the price, the Courts have in some cases deemed that way essential in other cases they have deemed it non‑essential, and have treated the contract as essentially one to sell at a fair price. In all cases where the principal subject of the contract is to be valued in a specified manner, the manner has, it is believed, been held essential the manner has often been held non‑essential where it is applied only to an incident to the main subject, as timber to land, fixtures to a house, or plant to a business."

9. In paragraphs 360 and 364 the subject is further elucidated by saying

10. Paragraph 360.

11. "Of the first class of cases, viz., those in which the contract provides the mode of ascertaining the price, and this provision is an essential term, Milnes v. Gery (14 Vs. 400) may be considered as the leading case. There was there a contract that land should be sold at a price to be fixed by one valuer appointed on each side, or their umpire: the valuers could not agree; and Grant M. R. held the contract to be incomplete, anti that the Court could not supply the defect by appointing other persons as valuers, which would be to execute a contract different from that of the parties; although, where it is merely a contract to sell at a fair price, that is a matter which the Court can ascertain."

12. Paragraph 364.

13. "The second class of cases embraces those contracts which are substantially for the sale of the property in question at a fair price, the mode of ascertainment, though indicated by the contract, being subsidiary and non‑essential: and where consequently, if that mode of ascertainment has failed, the Court will have recourse to some other means of coming at the fair price and. of thus carrying into effect the contract in its essential parts. As already remarked, these cases are principally of the valuation of incidental matters and not of the principal subject‑matter of the contract."

14. Reverting to the subject in paragraph 378, the learned author gives the exposition of law in the following terms :‑‑

15. "Again, a material term may well be supplied by construction or inference where the circumstances justify it: but if neither supplied by expression, construction, nor inference, the contract is incapable of performance."

16. The question for determination here is whether having regard to the principles enunciated in the excerpts above, with which we are in complete accord, any case has been made out by the appellant to show that the essential ingredient of price is ascer tained or rendered ascertainable in the document under considera tion. From the plain language of the contract it is not ascertain able at what price the property which the widow might get in case of her success, which she had premised to convey to the appellant would be sold. Even the extent of the land to be conveyed, the maximum of which was one‑fourth share in the inheritance of her husband, was left to further determination. The document does not even mention any mode of ascertainment nor does it further say that the land will be conveyed for reason able and fair price. All this has been left to imagination. Learned counsel for the appellant proceeded on the assumption that Rs. 1,400.03 was the price of the land likely to be obtained by the widow in the suit against the collaterals. This interpretation can clearly not be spelt out of the text of the contract and the argument is unsustainable. The document being incomplete, as its terms are not ascertainable with reasonable cer tainty, it comes within the mischief of section 29 of the Contract Act and is void and by virtue of the provisions of section 21 (a) of the Specific Relief Act is not to be enforced specifically.

5. It will not be out of place to mention that section 93 of the Evidence Act provides that when any particular document is ambiguous or defective, no evidence can be given to explain or amend the document. There is no denying the fact that the Court is bound to overcome the difficulties that often occur in determining what is a reasonable price or a reasonable rate or in fixing the amount of damages which a man has sustained under particular circumstances and upon a proper enquiry the Court Is not unable to determine it. All the same the Court will not undertake to supply defects or remove ambiguousness accord ing to its own notions of what is reasonable, for this would not be enforcing the contract made by the parties but to make a new contract for them. On parity of reasoning it way held in Tirumala Chetty Rangayya Chetty v. Kandalla Srinivasa Raghavacharlu and others (A I R 1929 Mad. 243) that an agreement to sell at a mode rate price or at a fair rate or at a proper rate may be perfectly valid but an agreement to sell at a favourable or concession rate is indefinite and must be regarded as void for uncertainty. The case before us is no better. We, therefore, hold in agreement with the two Courts below that the contract is too uncertain to be enforced. The appeal is without merit and Is dismissed with costs.

17. K. B. A. Appeal dismissed.