ANANDA CHANDRA ROY Vs. ABDULLAH HOSSEIN CHOWDHURY

JUDGEMENT

(1.) This was a suit for rent brought by the plaintiff against Mr. Weatherall, the estate of Mr. Garth represented by the Administrator-General, and Babu Ananda Chandra Roy. The suit has been dismissed as against the second defendant on the ground that no notice was served under Section 80 of the Code. It has been decreed against the other two, and the third defendant appeals.

(2.) The first and principal point taken on his behalf is that he cannot be made liable at all for the rent. The rent is claimed for a patni or quasi-patni tenure which was granted by the predecessors of the plaintiffs in 1893 to Garth and Weatherall. The property covered by the patni was part of the family property of one Abdul Ali, over which he and his relations had been litigating for years and which had apparently been the subject of numerous execution sales and successful and unsuccessful claims. In 1898 an agreement was arrived at between Garth and Weatherall on the one side and the appellant on the other that the former should sell, and the latter should buy, all the property which at one time belonged to Abdul Ali or his wives and children, and was held or might hereafter be held by Garth and Weatherall. It was stipulated that in order to ascertain the price the first party was to make during Agrahayan 1305 an account of all receipts and expenditure with respect to the property since 1893. This was to be given to the appellant on the 1st of Pous 1305, and if he found it correct he was to endorse it as correct, and, if not, he was to state his objections during that month. In the case of a difference of opinion, the account was to be referred to arbitration during the month of Magh. After the, account was settled the appellant was to be liable to Garth and Weatherall from the date of the settlement of the account for one-third of their losses over the property. The possibility of the account showing a profit was apparently not contemplated. The management was to remain with Garth and Weatherall, but in consideration of certain circumstances the appellant was to be allowed a deduction of Rs. 12,00, and Garth and Weatherall agreed to convey to the appellant a one-third share of the property for the cost price as settled in the foregoing paragraphs, less a deduction of Rs. 12,000. The sale was to take effect from 1st of Magh 1305, even if the execution of the conveyance was delayed, and the appellant was to be entitled to share in the profits and to be liable for his share of the expenses from that date.

(3.) Now, clearly this is not a sale. In the first place, there is no ascertained price. In the second, it is clearly not a sale but a contract for sale, as defined in Section 54 of the Transfer of Property Act, 1882, which does not of itself create any interest in the property. It is, therefore, contended by learned Counsel for the defendant appellant, on the authority of Cox v. Bishop (1857) 8 DeG.M. & G. 815 which has been followed in this country Chaturbhuj Morarji v. Bennett (1904) I.L.R. 29 Bom. 323 that under this agreement the appellant cannot be held liable for the rent of the tenure of which a share was covenanted to be sold.