R. Couch, J.

1. The appellant in this case, and the respondent, on the 3rd of October 1882, entered into an agreement for the sale of an estate which is described in the agreement as taluka Dhobha. The agreement is very short, and is in these words: "Out of Rs. 10, 075 (ten thousand and saventy-five) at which it has been settled by Mahant Jairam Gir to convey taluka Dhobha to Babu Bindeshri Prasad, Rs. 200 (two hundred) have been received as earnest-money, through Lala Chedi Lal and Mata Prasad Malwai. The balance, viz., Rs. 9, 875 (nine thousand eight hundred and seventy-five), exclusive of costs, will be received in cash within fifteen days, and then I will execute the sale-deed and get it registered. The purchaser will bear the costs on account of the stamp paper and the registration and mutation fees. I will have nothing to do with them. I will take the entire amount in cash. If the balance is not paid within fifteen days the earnest-money will be forfeited, and the vendor will be at liberty to sell the ilaka or not."

2. On the 16th October the following letter was written to the appellant: "My dear Mahant Jairam Gir,"--After compliments--"I beg to say that you contracted with me to sell the zamindari of taluka Dhobha, pargana Kiwai, zilla Allahabad, for Rs. 10, 075, and accepted Rs. 200 as earnest-money. The draft of the sale-deed is also ready. However, you make excuses in executing the sale-deed. It is 13 days since you were paid the earnest-money. You have also sent to me the stamp, but nobody appears on your behalf to write and complete the sale-deed. I have over and over again sent my man to you, but you have put the matter off from day to day. As I have some misgivings in the matter, and I am ready to pay the money and have the sale-deed executed by this writing, I request you to duly execute the said sale-deed in accordance with the corrected draft, and accept the money from me as soon after the receipt of this as possible." It is stated in the statement of the pleader who was examined by the Subordinate Judge before the settlement of the issues, that this notice was served on the 18th October, "and about three or four days after this, the aforesaid draft of the sale-deed was sent to Madho Chaubay, defendants gomashta, at Mirzapur. The draft was not sent to the defendants gomashta within the term of 15 days." It is stated afterwards that there was some mistake as to that date, and it would seem that the draft of the sale-deed was sent three or four days before the 18th, probably on the 14th October. As sent to the defendant, it contained this clause: "Should a stranger now or hereafter acquire any other title in the property sold, or any kind of flaw arise, I, the vendor, my heirs and assigns, shall in every way be responsible therefor. The vendee shall, at all events, be at liberty, if any such contingencies arise, to seek his relief in the civil Court and realize his losses and damages from me, the vendor, from my person and property, and that of my heirs and assigns, together with interest and costs incurred in the Court; and to this I will have ho objection whatever," thus requiring the defendant to give an absolute warranty of title to the property which was sold. The defendant objected to this, and Struck out this clause, and it would seem that he substituted for it a clause to the following effect: "Should any kind of dispute arise, whether now or hereafter on my part, or that of my heirs or assigns, in the property sold, I, the vendor, and my heirs will be responsible therefor," and the draft thus altered was returned to the plaintiff. The defendant appears [711] to have thought that the plaintiff was entitled to this, but their Lordships are hot prepared to hold that such a contract of sale as this gave the purchaser a right to insist on any formal covenants such as the practice of English lawyers has attached to an English contract of sale, if that is what was in the minds of the parties.

3. The plaintiff., the purchaser, was not satisfied with this. After the 18th October there appears to have been some correspondence or negotiation between the parties with respect to the receipt of some outstanding rents, and it is said that a letter was written on the 30th October, but that letter does not appear in the proceedings. The plaintiff insisted upon having in the sale-deed the agreement or covenant which had been inserted being an absolute warranty of title; and on the 4th December he brought his suit in the Court of the Subordinate Judge of Allahabad, in which, after stating the contract and the payment of the earnest-money, he alleged that "the defendant did not perform the aforesaid contract, and when the plaintiff. saw that the defendant delayed in the complete execution of the deed in question, he requested the defendant to, have the deed completely executed and registered by means of a written and registered notice on the 16th October 1882," and that he sent the draft on the 18th October 1882, which, as his been stated, was admitted to be a mistake. Then he said: "the plaintiff. has all along showed readiness to have the contract completely performed as far as he himself was concerned; "and prayed that & judgment might be passed ordering the defendant to execute and get registered a sale-deed in favour of the plaintiff. in respect of the property claimed, by entering a guarantee of good valid title.

4. Now there ha distinctly claimed to have the contract performed by having this warranty of title; and when he says that he was ready to have the contract completely performed, as far as he himself was concerned, it must be taken that he was ready to have it performed in that way.

5. The case went for trial before the Subordinate Judge of Allahabad, and he, in his judgment, came to the conclusion that the time fixed for the payment of the balance of the purchase money was material, and that the plaintiff. had not paid the purchase money at the time fixed, and no valid excuse had been shown for his not doing so, and consequently he was not entitled to have a decree, and he dismissed the suit. It then went by way of appeal to the High Court, and it is important to see what the plaintiff. insisted upon when he made his appeal to the High Court. In his memorandum of appeal, he said that he appealed because the appellant had done "all that lay in his power within the stipulated period to secura the due execution and completion of the sale contract which had been previously accepted in unqualified terms by the defendant, the respondent; because there is ample evidence to prove that the appellant could not deposit with the respondent the balance of the consideration money in consequence of the refusal of the latter to execute a proper conveyance with a warranty of good title," distinctly insisting then on his right to have a warranty of good title; and "because upon the facts admitted by the respondent himself, the plaintiff-appellant is entitled to an equitable decree for his claim," namely, the claim for a deed with a warranty of good title, It has been suggested, that the plaintiff was willing to take a decree upon the terms which was said the defendant admitted he was liable to perform, namely, to have a sale-deed with a qualified covenant; but there is no evidence that at any time before this stage of the case the plaintiff. had in any way submitted or shown his willingness to take any other sale-deed than one with a warranty of title. The pleader was examined, and there is no trace of any willingness to do this.

6. When the case came before the High Court, it went into a consideration of some evidence, which, in its opinion, showed that the agreement between the parties was different from that which was stated in the writing; that all that the defendant undertook to sell, and the plaintiff contracted to buy, were the rights and interests of the defendant whatever they might be; that it was known to them that the subject-matter of the agreement was the right and interest of certain persons, and that the vendor could not be expected to give any absolute warranty of title. Their Lordships have not gone into this evidence, and therefore express no opinion as to the ground upon which the High Court rested their judgment. They came to the conclusion, upon the oral evidence, that it was not a proper case for a decree for specific performance.

7. The question which has now to be considered, is whether the decree of the Subordinate Judge dismissing the suit ought to stand, and the position of the parties appears to be this: that the plaintiff. has all along, until he saw that the judgment of the High Court was likely to be given against him, been insisting upon having the sale-deed with the warranty of title; and it is admitted by his learned Counsel at the bar, that he had no right to any such covenant. It has not been attempted to be shown that he had. Thus he was insisting upon having that which he had no right to have, and he delayed performing his part of the agreement for the payment of the purchase-money on that account. Under such circumstances as these, it certainly is not a case in which it would be right for this Committee to advise Her Majesty to make any decree for specific performance.

8. The cases to which their Lordships have been referred are very different from this. They are cases where apparently the plaintiff. has been willing to submit to have the agreement which was actually proved performed. Their Lordships will therefore humbly advise Her Majesty that the appeal should be dismissed, and the decree of the High Court affirmed, and the appellant will pay the costs of this appeal.