(1.) THIS is a second appeal on behalf of Defendant No. 2 arising out of a suit for specific performance.
(2.) THE facts are that the Plaintiff filed a suit as minor represented by his natural guardian -his father -for specific performance of a contract for sale of the suit land on the allegation that Poraram Saloi borrowed Rs. 1,500 from him on the 16th February 1950 by executing a mortgage bond in respect of the suit land. The possession was delivered to the Plaintiff's father who was the mortgagee. Thereafter he again borrowed Rs. 570 from the Plaintiff and on the 16th May 1951 executed a deed of agreement in favour of the Plaintiff contracting to sell the suit land to the Plaintiff for Rs. 2,120 within six months. The sale deed was never executed by Poraram and he sold the land in favour of Defendant No. 2 Lachuram Nath on the 18th June 1951. Defendant No. 2 according to the Plaintiff had knowledge of the contract between Poraram and the Plaintiff for sale, of the suit land. After filing of the written statement, Poraram Saloi who was impleaded as Defendant No. 1, died. His heirs were impleaded as parties to the suit. Poraram's case was that he borrowed Rs. 570 from the Plaintiff by executing a pronote and thereafter borrowed Anr. sum of Rs. 930 and for the total amount of Rs. 1,500 he executed a mortgage in favour of the Plaintiff's father on the 26th February 1950, and thereafter sold the land to Defendant No. 2 on the 13th June 1951 and paid off the mortgage dues to the Plaintiff's father. He denied the execution of any 'bainapatra' in favour of the Plaintiff. Defendant No. 2 contested the suit on various grounds, on law and fact.
(3.) MR . Ghose for the Appellant has canvassed three points before us. Firstly his contention is that the agreement to sell being in favour of the Plaintiff minor, cannot be specifically enforced by him. His contention is that the deed was executed in the name of the minor through the guardian -his father. By assuming that the deed was executed in favour of the father as the guardian of the minor, the minor had no right to bring a suit for specific performance of the contract. Secondly he has contended that the Defendant No. 2 being a bona fide purchaser for value, no decree for specific performance can be given in favour of the Plaintiff against the said transferee. His contention is that the court below has wrongly held that the Defendant failed to make the necessary inquiries. The Defendant having no knowledge of the contract of the Plaintiff and being a bona fide purchaser, no decree for specific performance could be passed against him. Lastly he contends that the Plaintiff came with a specific case that he had paid up the entire consideration money. The court below having found that his case was not true, as regards the payment of Rs. 570, he should have held that the Plaintiff failed to discharge his part of the contract and thus in equity no decree could be passed in his favour for specific performance of the contract. The relief of specific performance is an equitable relief and the Plaintiff having come with a false case, is not entitled to any decree for specific performance.