AMRITLAL MAGANLAL Vs. HARKISANDAS KAHANDAS

JUDGEMENT

(1.) THIS appeal arises out of a suit for specific performance of a contract of sale of the defendant's one-third share in the property called Bapana-Khar in Bassein taluka and for recovery of its possession as well as mesne profits, or in the alternative for the return of the earnest money, together with Rs. 5,250 as damages for breach of contract. The main facts which led to this suit are undisputed. Bapana-Khar was owned in equal shares by the defendant Amritlal, his brother Hiralal and their nephew Navanitlal. They were separated, and had divided their property, but they had kept Bapana-Khar undivided, and wanted to dispose of it. The defendant had already mortgaged his one-third share to his niece Kamalabai, and an estate-broker named Bhagwandas had obtained a money decree against him. So on March 24, 1943, he passed a writing, exhibit 39, to Bhagwandas authorising him to bring about a contract for the sale of his share in Bapana-Khar for Rs. 10,000 within one month. The plaintiff, a business man of Bombay, wanted to invest some money in lands, and had asked his father Kahandas, as well as the broker Nanuram, to negotiate for the purchase of some suitable lands. It was at the instance of Nanuram that Bhagwandas took the agreement, exhibit 39, from the defendant. Then on April 5, 1943, the plaintiff obtained an agreement, exhibit 381, from Hiralal for the sale of his share in Bapana-Khar, together with some other property for Rs. 15,001. On April 10, 1943, the defendant, at the instance of Bhagwandas, passed a writing (exhibit 39) to the plaintiff agreeing to sell his share to him for Rs. 10,000. On April 21, 19143, Navanitlal also passed an agreement (exhibit 35) to the plaintiff for the sale of his share for Rs. 9,999. Both Hiralal and Navanitlal executed sale-deeds in favour of the plaintiff in fulfilment of their agreements without any hitch on June 22 and June 16 respectively. But the defendant's agreement did not run a smooth course, and as he refused to pass a sale-deed, the plaintiff had to institute this suit.

(2.) THE defendant resisted the plaintiff's claim on two grounds, namely, that he had been fraudulently misled into agreeing to sell his share for Rs. 10,000 on a misrepresentation that his brother Hiralal also had agreed to sell his share for Rs. 11,000, and that the alleged agreement was not a concluded contract and therefore the plaintiff was not entitled to claim its specific performance. THE lower Court disallowed both these objections and decreed specific performance of the contract on payment Of the balance of the consideration, and also possession of the defendant's one-third share in the Bapana-Khar; but it did not award any damages. THE defendant has appealed against the decree and the plaintiff has put in! cross-objections claiming Rs. 2,200 byway of damages.

(3.) WHEN the defendant entered into the agreement with Bhagwandas on March 24, 1943, he had filed a suit for partition and separate possession of his one-third share in Bapana-Khar against Hiralal and Navanitlal, and the suit was pending. By that agreement (exhibit 39) the defendant authorised Bhagwandas to bring about an agreement of sale of his one-third share in Bapana-Khar for Rs. 10,000 within one month on the following terms: (1) On the date of the agreement, he should be paid Rs. 1,000 as earnest; (2) Rs, 3,000 more should be paid to him within seven days thereafter; (3) the balance of Rs. 6,000 should be paid within one month from the date of agreement and the sale-deed executed; (4) the vendee should bear the expenses incurred thereafter for the prosecution of the partition suit pending in the Andheri Court; (5) the vendor should take the income of 1942-43 and thereafter the vendee should take it; (6) the vendee should pay the Government assessment for 1943-44 and thereafter; (7) the vendee should bear the cost of the execution of the sale-deed; and (8) on receipt of Rs. 4,000 as provided above, the defendant should satisfy Kamalabai's mortgage on the land.