DWIJENDRA KUMAR ROY Vs. MONMOHAN DE

JUDGEMENT

(1.) A short point requires consideration in the Second 'Appeal. The point is not altogether free from difficulty but it appears to be covered by certain decisions of this Court, to which, reference will be made in the course of this judgment, and, giving the matter my best consideration, I have myself reached the same conclusion as found favour with the learned Judges on these previous occasions, and, as that conclusion favours the plaintiff-respondent, this appeal must eventually fail.

(2.) The appeal arises out of a suit for specific performance of a contract to settle the suit lands at an annual rental of Rs. 70/- per annum on re ceipt of a selami of Rs. 700/-. The suit lands belonged to Defendants Nos. 1 to 4. On 28th Ashar, 1364, B.S., Defendant No. 5 Nibaran Chakrabarty who was an officer of Defendants Nos. 1 to 4, under due authority from them, accepted the plaintiff's offer to take settlement , of the suit lands on the above terms arid received from him a sum of Rs. 100/- towards the selami. This was followed' by payment of the balance selami of Rs. 600/- on 3rd Sraban following, when a further- sum of Rs. 40/- was also paid by the plaintiff to Nibaran towards costs of the necessary document of lease. This document was to be registered on 25th Bhadra 1354 B.S. but the defendants Nos. 1 to 4 refused to register it on the plea that defendants Nos. 6 and 7 were willing to take the lease for- a much higher consideration. The present suit was brought - on 20th September, 1947, corresponding to early Aswin 1354 B.S. Defendants Nos. 6 and 7 were sub sequently impleaded on the allegation that, during the pendency of the suit, they had obtained a docu ment of lease from defendants Nos. 1 to 4 in res pect of the disputed property with full knowledge of the said defendants' contract to settle the same with the plaintiff.

(3.) The suit was contested by defendants Nos. 1 to 4 and defendants Nos. 6 and 7 and their principal defence was that there was no contract with the plaintiff, as alleged in the plaint, that defendant No. 5 Nibaran had no authority to enter into any such contract, that the story of payment or payments narrated in the plaint, was false, that defendant No. 2 was a minor and no specific performance would lie against him, the alleged contract not being binding upon him, and on that ground tlie entire suit would fail as the alleged contract could not be specifically enforced in part and that defendants Nos. 6 and 7 were bona fide transferees for valuable consideration without notice and were entitled to protection as such,