RADHA RAI Vs. RAM REKHA RAI

JUDGEMENT

(1.) This appeal by the heirs of the original plaintiff arises out of a suit for specific performance of contract for sale of certain landed property. The plaintiff had taken a usufructuary mortgage bond on the 20th May, 1940, from Badri Bind (defendant No. 1) for Rs. 300/- in respect of that property. On the same date, Badri Bind executed a kabuliyat in respect of the mortgaged land in favour of the plaintiff and costi-nued to remain in possession of the same as lessee on payment of a certain amount as annual rent. On the 3rd February, 1955, defendant No. 2 (respondent No. T) took a sale-deed in respect of the same property from Badri Bind, and out of the consideration money for the sale-deed Rs. 300./- was left with the vendee in deposit for redemption, of the specific mortgage bond in favour of the plaintiff and the balance was paid in cash to the vendor, that is, Badri Bind. Accordingly, Respondent No. 1 came into possession of the vended projiferty.

(2.) Then, the case of the plaintiff was that on the 15th January, 1955, Badri Bind had agreed to sell this property to him for Rs. 500/-, out of which Rs. 300/- was to be adjusted towards the dues of the mortgage bond, Rs. 100/- towards the arrears of rent and the balance amount of Its. 100/- was to be paid in cash, and, accordingly, an unregistered contract for sale was written and executed. But, subsequently, Badri Bind did not execute the promised sale-deed and the plaintiff came to know that he had executed the collusive sale-deed in favour of respondent No. 1. It was alleged by the plaintiff that respondent No. 1 was present at the time when the contract for sale was executed, and, therefore, he was not a bona fide purchaser for value without notice. Respondent No. 1 resisted the claim of the plaintiff mainly on the; ground that he was a bona fide purchaser for value without notice, and the contract for sale in favour of the plaintiff was not genuine.

(3.) The learned Munsif, who tried the suit, found that the contract for sale was a genuine document and respondent No. 1 was present when this contract was executed in favour of the plaintiff. It was further found that though the sale-deed of respondent No. 1 was for consideration, it could not affect the claim of the plaintiff as he had notice of the contract for sale. Accordingly, the suit was decreed by the learned Munsif. On appeal, the learned Additional Subordinate Judge of Chapra agreed with the learned Munsif that the contract was executed by defendant No. t in favour of the plaintiff; but he was further of the opinion that respondent No. 1 had no notice of the contract and that he was a purchaser for value without notice. Accordingly, he allowed the appeal, and dismissed the suit. Hence, the present appeal by the plaintiff.