(1.) This appeal by defendants 1, 3, 7, 10 and 11 arises out of an action for specific performance of an oral contract.
(2.) The plaintiff's case is that defendants 1 to 9 are members of a joint Mitakshara Hindu family with defendant No. 1 as its karta, who entered into an agreement with the plaintiff for a permanent lease of 18 bighas of Bakasht land in village Piprarh for a consideration of Rs. 7,200/-which the defendants needed for paying off a decree and usufructuary mortgages and for household expenses in June, 1943, which roughly corresponds to Jeth of the Fasli year 1350. The rental agreed upon between the parties was at the rate of rupee one per bigha. According to the plaintiff the agreement was to make over to the plaintiff a registered permanent lease to take effect from the agricultural season of that year. The consideration was payable as follows : a sum of Rs. 4,000/- was to be deposited in Court towards payment of the decree in Title Mortgage Suit No. 17 of 1939; Rs. 1,200/- was payable to Nathun Mahto on account of two rehan bonds; a sum of Rs. 1,675/- was payable to Nathu Singh on account or another rehan bond; and Rs. 375/-was payable to defendant No, 1 in cash for being utilised towards household expenses. All these payments are proved, and accepted by the defence. The plaintiff's case further is that, as the document was not executed, the plaintiff went to Dhrup Singh, defendant No. 1, and there for the first time the defendant disclosed that in July, 1943 there was a farzi sale deed in favour of defendant No. 10 in respect of properties including the suit land, and that, therefore, the lease would be executed by defendant No. 10. This talk took place in presence of defendant No. 10, who promised to execute the permanent lease, and it was agreed that it would be so done by the 24th July, 1943. Thereupon, the plaintiff paid a sum of Rs. 150/- for buying stamps, to defendant No. 10, and, in pursuance thereof, defendant No. 10 purchased several stamps at Arrah. The stamps, however, were such as could not have been used for execution of a permanent lease. As the plaintiff was insistent upon execution of the document, defendants 1, 3 and 7 executed a handnote for Es. 7,200/- on the 25th July, 1943 for the satisfaction of the plaintiff and as an additional security for the plaintiff's money already advanced. The plaintiff, however, learnt later that the defendants in collusion with each other, had executed two farzi pattas in favour of defendants 11 and 12 on the 7th September. 1944 which, the plaintiff alleges, were all without consideration. It is also averred that defendants 11 and 12 are creatures of defendants 1 to 10, and they had full knowledge of the contract in favour of the plaintiff. On these allegations, the plaintiff prayed for specific performance of the contract and, in the alternative, for damages.
(3.) The defence of defendants 1 to 9 is that there was no contract for executing a permanent lease, that the suit is barred by the Bihar Money-Lenders Act, 1939, that defendants 1 to 9 are not members of joint Mitakshara Hindu family, that the sale in favour of defendant No. 10 is genuine and he is in possession, that these defendants and defendant No. 10 never promised to execute any mokarrari (permanent) lease and that the pattas in favour of defendants 11 and 12 are genuine, and further that the plaintiff filed the present suit in order to avoid the effect of the Bihar Money Lenders Act as to registration of moneylenders.