AMBALAL KESHERBHAI Vs. RANCHHODBHAI JERBHAI

JUDGEMENT

(1.) RESPONDENT No. 1 had filed suit from which the present appeal arises lor specific performance of an agreement for sale of property entered into between him and the owner of the property, respondent No. 2 who was defendant No. 1 in the trial Court. The agreement is dated 13-12-1946. The appellant is the subsequent transferee of the property from respondent No. I, and it was his case that prior to the agreement bet-ween respondent No. 1 and respondent No. 2, respondent No. 2 had entered into an agreement With him orally on 27-11-1946 to convey the same property to him and that the subsequent sale deed executed by respondent No. 2 was in pursuance of the prior oral agreement. He also claimed in the alternative that he did not know of oral agreement. He also claimed in the alter, native that he did not know of the agreement between the respondents and was a bona fide transferee for value without notice of the agreement in favour of respondent No. 1.

(2.) THE learned trial Judge has held that there was no oral agreement between respondent No. 2 and the appellant, and in the second! instance that the appellant knew full well of the agreement between the respondents when he took a sale deed of the properties conveyed to him. He has consequently called upon the appellant to execute a sale deed of the property covered by the agreement of 13-12-1946 in favour of respondent No. 1 on payment to the appellant of the consideration of the agreement, namely, Rs. 5940. He has also ordered both respondent No. 2 and the appellant to hand over possession of the properties agreed to be conveyed to respondent No. 1.

(3.) DEFENDANT No. 2 has come in appeal and the first point which falls for determination is as to whether the appellant has proved the oral agreement of 27-11-1946. Now, the agreement being oral, there could be of course no document in regard to it. But the appellant relied upon two letters Exs. 34 and 89, in support of his case that there was such an oral agreement, and the oral evidence of himself and one Ishwarbhai, who was the attesting witness to the sale deed. Now, Ex. 34 is a postcard written by defendant No. 1's husband to the appellant. It does not specifically mention anything about any oral agreement to convey the property later on agreed to be conveyed to respondent No, 1 on 13-12-1946; but defendant No. 1's husband says that he would write to the appellant and then he should be present. He said that he could not come (apparently at some earlier time) because of some Government work, but immediately he finds that he could come, he would intimate the appellant and come. It may at the most show that the appellant was anxious to purchase the property from defendant 1 as respondent No. 1 was. If an oral agreement had as a matter of fact been entered into, there was no particular reason for defendant No. 1's husband not to say that he would come for the purpose of executing the document together with his wife defendant No. 1. In any case, it is obvious that in the absence of any specific reference in the letter to the agreement, which was supposed to have taken place before, it is not possible to say that Ex. 34 supports the case of an oral agreement on 27-11-1946. The second letter is a letter dated 30-12-1946 written by the plaintiff's witness Jhaverbhai Lal-lubhai to the appellant. When the witness was asked about this letter, he said that he had written the letter to the appellant because the appellant had told him that he was willing to purchase part of a house belonging to cne Soma and had asked him to approach Soma in the matter. There is nothing in the letter of 30-12-1946 written by the witness which is against this reply given by him. All that the letter says is that the man was about to accomplish or bring about something. It could hardly be the sale in furtherance of the oral agreement upon which the defendant relied, because prior to this date the witness had already written the agreement between the two respondents by which respondent No. 2 had agreed to convey the property to respondent No. 1. Mr. pradhan contends that it may be that Jhaverbhai. was running with both the purchasers; but there is nothing to show that that was so.