ISHWARI PRASAD MISRA Vs. MOHAMMAD ISA

JUDGEMENT

(1.) The appellant Pandit Ishwari Prasad Misra sued the respondent Mohammed Isa for the specific performance of an agreement of sale executed by him on May 18, 1950, in the Court of the 1st Additional Sub-Judge, Muzaffarpur. By the said agreement, the respondent had promised to execute a sale-deed in favour of the appellant in respect of his house situated at Sitamarhi Bazar, Sitamarhi. The appellant's claim was decreed by the trial Court which ordered the respondent to execute a sale-deed within a month from the date of the decree on receipt of Rs. 4,000/- which is the balance of consideration remaining to be paid to him. The respondent challenged this decree by an appeal before the Patna High Court and his challenge has succeeded. In the result, the decree passed by the trial Court was reversed and the appellants suit dismissed with costs throughout. It is against this decree that the appellant has come to this Court with a certificate issued by the Patna High Court, and so, the principal question which arises in the present appeal is whether the agreement on which the appellant's suit is based is genuine, valid and for consideration.

(2.) The subject-matter of the agreement of sale is a house belonging to the respondent. According to the appellant, at the time when the agreement was executed, the consideration for the transfer was settled at Rs. 14,000/- out of which Rs. 10,000/- were paid as earnest money. The agreement had stipulated that the sale-deed to be executed within three months from its date; in other words, under the agreement, the respondent was bound to execute The sale-deed on or before August 18, 1950. The appellant called upon the respondent to carry out the terms of the agreement and offered to pay the balance of Rs. 4,000/, but since the respondent did not comply with he demand made by the appellant but attempted to dispute the genuineness and validity of the agreement itself, the present suit was filed on the 27th August, 1950, for specific performance of the said agreement.

(3.) The appellant's case is that negotiations for the sale of the respondent's house had commenced on the 3rd May, 1950, between the father of the appellant and the respondent at the instance of Bihari Lal Singh who acted as a negotiator. The respondent then claimed Rs. 20,000/- as the price of the house and the appellant's father was prepared to pay only Rs. 10,000/-. On the 8th of May, 1950, the parties met again when the appellant raised his offer to Rs. 13,000/-, but the respondent refused to go below Rs. 15,000/-. At last on May 18, 1950, the respondent went to the appellant and said that he was willing to sell the house for Rs. 14,000/-. The appellant was then told by the respondent that he was anxious to purchase an Ice-cream machine which was likely to cost Rs. 12,000/-, and so, he wanted the agreement to be made that very day. Both of them then went to Babu Amer Choudhury, a senior lawyer of the place at about 9 A.M., but he had then gone to the court which was holding morning sittings, and so, the parties met him at his office at 2 P.M. along with the scribe Khakhan Singh and the necessary stamp paper. Thereafter, the parties went to the house of Mr. Choudhary and he dictated the draft of the agreement in the presence of his son who was also a lawyer. The draft was taken down by Khakhan Singh. After the draft was thus completed, the appellant, the respondent and the scribe went to the house of the appellant. At this place Khakhan Singh (P. W. 11) scribe copied the draft fair on a stamp paper which had already been purchased in the morning that day. After the draft was thus copied on a stamp paper, the appellant paid to the respondent Rs. 10,000/- and the respondent executed the document admitting in his own handwriting the receipt of the earnest money of Rs. 10,000/-. The document was then attested by Ganesh Thakur (P. W. 5), Jamuna Singh (P. W. 8) and Bihari Lal Saraogi (P. W. 9). That, in brief, is the case set up by the appellant in support of his claim for specific performance.