proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass onthe title which resides in him to the prior transferee.

Citation

AIR 1954 SUPREME COURT 75

SUPREME COURT

(From :Allahabad, AIR 1951 All 93)

B. K. MUKHERJEA , J. and VIVIAN BOSE , J. and N. H. BHAGWATI , J.

Civil Appeal No. 86 of 1950, D/- 18 - 11 - 1953

Durga Prasad and another Appellants v. Deep Chand and others Respndents

(C)Specific Relief Act (1 of 1877), S.27 - Suit for specific performance by prior purchaser against

his vender and subsequent purchaser - Proper form of decree. Transfer of Property Act (4 of

1882), S.40 - Decree.

Where there is a sale of the same property in favour of a prior and subsequent transferee and the

subsequent transferee has, under the conveyance outstanding in his favour, paid the purchase-moneyto the vendor, then in a suit for specific performance brought by the prior transferee, in case he

succeeds, the question arises as to the proper form of decree in such a case. The practice of the Courts in

India has not been uniform and three distinct lines of thought emerge. According to one point of view,

the proper form of decree is to declare the subsequent purchase void as against the prior transferee and

direct conveyance by the vendor alone. A second considers that both vendor and vendee should join,

while a third would limit execution of the conveyance to the subsequent purchaser alone. According to

the S. C., the proper form of decree is to direct specific performance of the contract between the vendor

and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on

the title which resides in him to the prior transferee. He does not join in any special convenants made

between the prior transferee and his vendor; all he does is to pass on his title to the prior transferee.

AIR 1931 Cal 67, Appt.; AIR 1932 All 694, Not Appr., (1846) 67 ER 1057, Ref.

 [Para 36 , 37 , 42]