SASHI BHUSAN DEY Vs. RAI CHAND BURAL

JUDGEMENT

(1.) This is a suit by the plaintiffs for specific performance of an agreement for sale dated 12th March 1946 is respect of premises No. 21, Madan Gopal Lane, Calcutta, and for compensation for the delay in executing the conveyance and for turning out the trespassers. The agreement is in writing signed by Rai Chand Bural, Kissen Chand Bural and Bissen Chand Bural. They are the vendors and plaintiff Rai Bahadur Soshi Bhusan Dey is the purchaser. The agreement provides that the vendors shall sell the said premises to the Rai Bahadur free from all encumbrances at a price of Rs. 45,000 and that the vendors shall within 15 days deliver all documents of title and shall at their expense make out a marketable title and cause the property to be freed from all encumbrances. The agreement also provides that the conveyance is to be executed in favour of Rai Bahadur or his nominee or nominees. The sum of Rs. 1,000 was paid as earnest money and in part-payment of the purchase price on the execution of the agreement.

(2.) The plaintiffs in their plaint referred to a deed of trust dated 15th March 1939 alleged to have been executed by defendant Rai Chand Bural whereby he appointed Kissen Chand Bural and Bissen Chand Bural the other two defendants as the trustees and conveyed this property to Each trustees upon trust, Rai Chand Bural was the absolute owner of the premises. The deed of trust was declared void and inoperative and not binding on the defendant Raichand Bural by decree made in suit No. 986 of 1946 of this Court made on 19th December 1946. It is alleged in the plaint that in those circumstances Rai Chand Bural is the owner of the premises and defendants 2 and 3 Kissen Chand Bural and Bissen Chand Bural are joined only as pro forma defendants and no relief is claimed against such pro forma defendants. Plaintiffs 2 and 3 are the relations and nominees of plaintiff 1 Rai Bahadur Soshi Bhusan Dey. The title was approved and the draft conveyance was also approved subject to the objections of the Attorney of Rai Chand Bural as pleaded in para. 5 of the plaint.

(3.) The defendants' attorney cancelled the agreement for sale on 14th May 1947 and forfeited the earnest money. The plaintiffs contend that such cancellation and forfeiture are unjustified and unlawful.