SAMIR KUMAR HALDAR Vs. NIRMAL CHANDRA BANERJEE

JUDGEMENT

(1.) THIS appeal arises out of a suit for specific performance of an agreement for sale. The appellant is the assignee of the original plaintiff Bishnupada Bose.

(2.) THE property in suit belonged to one Nemai Chandra Banerjee, the brother of the defendant No. 1 Nirmal chandra Banerjee. By an agreement dated February 24, 1950, Nirmal Chandra Banerjee agreed to sell the property to the plaintiff for a consideration of Rs. 10,000/ -. It is recited in the agreement that his brother Nemai suddenly disappeared on May 21, 1946. He was suffering from various ailments. He made searches for his brother but he could not be traced. He believes that his brother is not alive and that he has committed suicide. Further, it is stated that after the death of his brother he is his only heir and that he has been in enjoyment and possession of the disputed property. In order to be sure as to the death of his brother he agreed to defer the execution of the sale deed till six months after May 21, 1953. On the date of the agreement the plaintiff paid a sum of rs. 2,500/- to his vendor Nirmal Chandra Banerjee on account of earnest money. It is the plaintiff's case that although he was ready and willing to perform his part of the contract the defendant No. 1 failed and neglected to complete the same by executing the sale deed as agreed. Instead, he transferred the disputed property by a registered deed of conveyance dated October 1, 1954, to the defendant No. 2, the predecessor-in-interest of the defendants Nos. 2 (a) to 2 (d ). On the afore said allegations the plaintiff Bishnupada Ghosh prayed for a decree for specific performance of the contract or in the alternative, for refund of the earnest money.

(3.) THE suit was contested by the defendant No. 2 and subsequently, after his death, by one of his heirs the defendant No. 2 (a ). One of the contentions of the contesting defendant was that the agreement to sell executed by the defendant No. 1 in favour of the plaintiff was hit by the provision of section 6 (a) of the Transfer of Property Act, for what was agreed to be transferred was a mere chance of the vendor to succeed to his brother Nemai. The other defences, which were taken by the defendant, are not relevant for our present purpose.