ZAKIR SADAGAR Vs. DOLEGOBIND GHOSE

JUDGEMENT

(1.) IN this appeal the plaintiff appeals against the decision of the Subordinate Judge of Purulia dismissing his suit for specific performance. His case was that there was an agreement to sell certain holdings between him and Dolegobind Ghose, defendant 1, for the sum of Rs. 17,999/-. This price was settled on 10-3-1948, and in pursuance of this agreement a sum of Rs. 33778/- was paid to de-fendant 1 for purchase of the requisite stamp paper for the drawing up of a sale-deed. Defendant 1 handed over the sum of Rs. 337/8/- to Ram Sun-dar Kundu, a deed-writer of Purulia, who was to purchase the stamp paper from the local treasury. The stamp paper was accordingly purchased and a sale-deed was actually written out-and executed. After execution defendant 1 demanded the cost of registration from the plaintiff who handed over to Ram Sundar Kundu the sum of Rs. 70/-for that purpose. All this happened on 10-3-48. Thereafter on the same day the parties went to the Registration office. Defendant 1 and Ram Sundar Kundu went inside the office. The sale-deed, however, could not be registered as the Sub-Registrar was going out on commission. Defendant 1, however, was requiring money as he had to attend some marriage ceremony in his family at Calcutta. Accordingly he asked the plaintiff to give him some money in advance and the plaintiff paid defendant 1 the sum of Rs. 550/- that day. The sale-deed, however, remained in the custody of Ram Sundar Kundu. The plaintiff met defendant 1 thereafter at Purulia and asked him to register the sale-deed, but the latter avoided registration, whereupon the plaintiff sent a registered notice to Ram Sundar Kundu to return the sale-deed, to which no reply was sent. The plaintiff then filed a criminal case against defendant 1 and Ram Sundar Kundu for cheating under Section 420, Penal Code. Thereafter it transpired that defendant 1 had sold the properties which he had agreed to sell to the plaintiff to defendant 2 by one sale-deed and to defendants 3 and 4 by another sale-deed both dated 19-3-1948. The plaintiff also alleged that after the execution of the sale-deed by defendant 1 the latter approached him for an advance of Rs. 1000/- and the plaintiff in good faith approached Sheo Prasad Marwari (P. W. 4), as he himself had not the money at the time, to advance the said sum to defendant 1, which was done, defendant 1 executing a handnote in favour of Sheo Prasad Marwari. The plaintiff had all along been willing to pay the consideration money after registration of the sale-deed and to close the transaction by registration of the deed. He never expressed his unwillingness to pay the consideration money or his inability to do so. The entire consideration money was not paid on the date of execution as the deed was not registered on that date. Defendants 2, 3 and 4 had purchased the property which had been agreed to be sold to the plaintiff with full knowledge of the agreement between the plaintiff and defendant 1 and their purchase was subject to the prior agreement with the plaintiff.

(2.) DEFENDANT 1 filed a written statement and his case was that he was the owner of the property mentioned in the plaint. He admitted that there was an agreement of sale with respect to the said properties. His case, however, was that at the time of the agreement there was a definite stipulation between him and the plaintiff that the latter would pay to him the full consideration before execution and . registration and that this stipulation was a condition precedent. It was clearly understood that until the entire consideration was paid defendant 1 would be under no obligation to execute the deed or to register the same. The plaintiff gave a solemn as-surance that he would pay the full consideration before the execution of the deed and on that assurance the sale-deed was written out on stamp paper. He demanded the consideration agreed upon, but as the plaintiff did not pay it and wanted to put off payment after execution and registration so he did not execute the. deed. It was altogether wrong to suggest that he had ever executed the sale-deed. He further dented that the plaintiff paid any money towards the purchase of the stamp paper for the sale-deed or towards the cost of registration. He further denied that he ever took Rs. 550/-from the plaintiff on 10-3-1948. The plaintiff was not a man of means and he had not the sum of about Rs, 18,000/- to pay to him. As the plaintiff ' could not pay the consideration money, the deed became ineffective and it remained with him. He was in need of selling the property, however, and therefore he sold to defendants 2 to 4, defendant 2 purchasing municipal holdings Nos. L 429 to L, 431 for Rs. 12,751/- and defendants 3 and 4 purchasing holding No. L 428 for Rs. 4,249/- on 19-3-1948.

(3.) THE Subordinate Judge found as a fact that the sale-deed in favour of the plaintiff was not only scribed But in fact executed by defendant 1. He has given very good grounds for coming to this conclusion and it would be difficult for an appellate court to reverse his finding when there is no evidence of a reliable kind on the side of the defendants to prove that the sale-deed was not executed by defendant 1. (After discussing the evidence, the judgment proceeded:) I would accordingly affirm the finding of the Subordinate Judge that the sale-deed in favour of the plaintiff was not only written out on the stamp paper for the drawing up of a sale-deed but that it was also executed by defendant 1.