RATANLAL ACHARATLALSHET Vs. NANABHAI MIYABHAI

JUDGEMENT

(1.) THIS appeal arises from a suit to recover the amount of earnest money paid under an agreement of sate. The facts leading up to the suit are shortly these.

(2.) THE property in suit is Final Plot No. 516/1 with a storied bungalow therein. This property was at one time, described as Plot No. 1 of City Survey No. 125 A. It was part of a bigger property owned by a Mahomedan family and there was on 17-3-1933, a partition between the members of the family and the partition is evidenced by a document. Under the partition property now known as Final Plot No. 516/1 fell to the share of one Atekabai and property now known as Final Plot No. 516/2 fell to the share of one Alihussein. On 26-7-1937 Atekabai executed a deed of gift of her property in favour of the defendant Nanabhai and the deed is Ex. 65 in the case. On 14-6-1944 Alihussein executed in favour of one Narandas a deed of sale in respect of Final Plot No. 516/2.

(3.) ON 9-12-1947 the defendant executed in favour of the plaintiff an agreement to sell to the plaintiff Final Plot No. 516/1. The agreement is Ex. 35 in the case. According to the agreement a pacca sale deed was to be executed within four months from the date of the agreement, after removing whatever claims and bur-dons which might exist on the property and after making clear title to the property and also after getting a rent note executed in favour of the plaintiff by Nandlal Banchhodlal who was in possession of a part of the property as a tenant. The agreement provides that if the vendor did not pass a Pakka sale deed within the time specified in favour of the plaintiff, the plaintiff would be entitled to get a conveyance passed in his favour. The agreement further provides that if the plaintiff did not obtain the pakka sale deed from the vendor, the earnest money paid by him to the defendant would stand forfeited and that the plaintiff would not be entitled to the return of the earnest money.