IRPAN ALI LASKAR Vs. JOGENDRA CHANDRA DAS PATNI

JUDGEMENT

(1.) This is an appeal by defendant 1 from a decree passed by the Subordinate Judge at Silchar. The suit was instituted by the plaintiffs for recovery of the unpaid consideration for a Kobala after deducting certain payments which were admitted, The facts necessary to be stated are the following: One Kanak Ram Patni died leaving a widow Kunja Patni, two daughters of the name of Fula Patni and Neridi Patni and the two plaintiffs, his grandsons being the sons of a third daughter who had predeceased the said Kanak Ram Patni.

(2.) The plaintiffs case was that the properties which belonged to Kanak Ram Patni devolved on his death in life interest to Kunja, that Kunja in 1914 sold her interest to Fula Patni and the plaintiffs. Fula having died without issue, the plaintiffs alleged and they had become the owners of the properties. Their case was that their father Nayan, defendant 6, had been appointed their guardian by the Court and that defendants 2, 3 and 4 had stood surety for the purpose of the said appointment. Their case further was that on 27 February 1922, defendant 6, as such guardian, sold to defendant 1 certain immovable properties and the right to realize the dues under five bonds, for a consideration of Rs. 7,000. Their case also was that this amount had not been paid by defendant 1, the vendee, but that the latter had made only certain payments aggregating Rs. 866-8-0. They sued to recover the balance. The defence of defendant 1 was that the allegation that Nandi was insane, on the basis of which allegation it was that the plaintiffs alleged that they had title to the properties under purchase from Kunja and on the death of Fula, was not true; and that therefore the sale which defendant 6 had made on the footing of the plaintiffs being the sole owners of the properties did not pass a good title to the vendee and consequently the plaintiffs were not entitled to recover in this suit. The further defence taken on behalf of defendant 1 was that the consideration of Rs. 7,000 was made up of two items, viz., of Rupees 3,500 each, that Rs. 3,500 which was the consideration for the lands had been paid, and that as regards the balance of consideration Rs. 3,500 which was on account of the bonds it was not paid because there was a certain agreement between the parties.

(3.) This agreement was sot out in the written statement in these words: That the vendor was not in possession of the bonds but he handed over certified copies thereof and it was agreed between the parties that notices would be served on the debtors and in case the debtors admitted the debts and the amounts on those mortgage bonds wore realized from the debtors amicably or by suit at the expense of defendant 1 then defendant 6 would get the said amount of Rs. 3,500.