AMARENDRA NATH MONDAL Vs. NOOR JAHAN BIBI

JUDGEMENT

(1.) THIS appeal arises out of a suit for specific performance of a contract for sale instituted by the plaintiff against the defendant-appellant.

(2.) THE plaintiff's case is that 71/2 cottans of land in the bustee holding no. 54, Russa Road, South is the suit property. This land comprises undivided 1/32 share of the land belonging to the defendant. The defendant No. 1 being in need of money agreed to sell this land to the plaintiff at a price of rs. 500/- per cottah and an agreement for sale in favour of the plaintiff way executed to that effect on 9. 10. 1953 after accepting Rs. 2001/- as earnest money, under the agreement the defendant was to execute a kobala in favour of the plaintiff accepting the balance of the consideration money and after obtaining permission of the court for sale of the said land as a partition suit was pending in respect of the said land and other lands among the defendant No. 1 and his co-sharers. On several instalments the defendant No. 1 altogether is alleged to have taken Rs. 2951/- from the plaintiff after making endorsements on the back of the agreement for sale. But ultimately on 25. 9. 61 the defendant refused to execute a kobala in favour of the plaintiff. Hence the present suit for specific performance.

(3.) THE defendant Nos. 2 and 3 are the Receivers appointed in the partition suit. Before the learned Munsif, 1st court, Alipore, the main contention raised was that the agreement in question embodied a loan transaction and not an agreement for sale in respect of the said property. This contention was negatived by both the Courts below. On a Second appeal before this Court Mr. Ranjit Kumar Banerji, learned Counsel appearing for the defendant-appellant did not make any attempt to support his client's case on any of the pleas taken before the courts below. He however sought permission of this Court to urge an additional ground, viz. that the agreement for sale being a contingent contract, no decree for specific performance of the contract could be allowed in respect of such a contract.