SUBEDAR DUBEY Vs. MADHO DUBEY

JUDGEMENT

(1.) This is a defendant's second appeal arising out of suit for specific performance of a contract of sale. The facts are very brief,

(2.) On 30-9-1944, Narsingh Dubey and Singhasan Dubey, defendants first set and respondents in this appeal, entered into a contract of sale In respect of a fixed rate tenancy plot No. 1719 of 16 biswas area in village Manikpur in the district of Ghazipur, with Pt. Madho Dubey and Pt. Mahesh Dubey, plaintiffs-respondents. The sale deed was to be executed for a consideration of Rs. 900/- out of which Rs. 125/- were paid as earnest money. One of the terms of the agreement was that the vendors would obtain permission for sale from the Sub Divisional Officer as required by law and that within a week of their securing permission they would execute a sale deed in favour of the plaintiffs for the unpaid purchase money. It was further stipulated that in case the vendors failed to execute the sale deed & have it registered within the time fixed, the vendee would have the right to have the sale deed executed by the vendors and to have it registered according to law and that in case the vendee failed to get the sale deed effected within the stipulated time and prevaricated, they would forfeit the right to the return of the earnest money. The U. P. Agriculturist Credit Act, 1940 prohibits transfer of protected lands without the permission of the Sub Divisional Officer.

(3.) The vendors obtained the necessary permission on 15-11-1944. Plaintiff No. 1 was then at Calcutta and plaintiff No. 2 who seems to have got information of the fact that the permission had been granted wired on the same date to plaintiff No. 1 for sending the balance of the purchase money. The money was remitted without delay from Calcutta by plaintiff No. 1 to plaintiff No. 2 under an insured cover on 17-11-1944. It was, however, received by plaintiff No. 2 at his village on 23-11-1944. It may be noticed that one week after the grant of the permission expired on 22-11-1944. Plaintiff No. 3 then, as shown by his statement on oath, asked the defendants vendors to execute the sale deed. But they did not agree and instead they executed the sale deed in favour of Subedar Dubey appellant and Kanhaya Lal pro forma respondent for Rs. 1200/- on 25-11-1944. Plaintiff No. 2 made an application to the Sub-Registrar on the same date asking him not to register the sale deed and asked the appellant and Kanhaya Lal not to purchase the property as it had been contracted to be sold to the plaintiffs. The protest was unheeded and the sale deed was duly registered in favour of the appellant and Kanhaya Lal respondent. The plaintiffs then brought this suit on 7-12-1944 for specific performance of their contract.