BALDEO PRASAD Vs. PRAGDAS

JUDGEMENT

(1.) PANDIT Prag Das instituted a suit for specific performance of a contract. The suit was instituted against one Ram Dial the person who had entered into an oral contract according to the plaintiff and PANDIT Baldeo Parsad defendant transferee from the said Ram Dial. The property in dispute was a share in a certain mahal. It is found by the lower Appellate Court upon the questions of fact, based upon evidence, that Ram Dial did agree on the 2nd of April to sell the share in dispute to the plaintiff for a total consideration of Rs. 100 which the plaintiff was to pay on the proposed sale-deed being executed, also that Ram Dial did receive from the plaintiff Rs. 15 as an advance in cash as earnest money, also that the plaintiff did on the 18th of April inform the defendant, Baldeo Prasad, of all these facts, lastly that Baldeo Prasad persuaded Ram Dial to sell the share to himself and not to Prag Das. On these findings, the lower Appellate Court gave the plaintiff a decree for specific performance of a contract by Baldeo Prasad and it also passed an order that Baldeo Prasad should pay the plaintiff s costs throughout. In appeal on behalf of Baldeo Prasad, it is contended that the registered document, which Baldeo Prasad persuaded Ram Dial to execute in his favour, should, in accordance with the provisions of Section 48 of the Indian Registration Act of 1908, take effect as against the oral agreement made by Ram Dial in favour of Prag Das, the more so as the oral agreement has not been followed by possession. The result of giving effect to this contention would be to set at naught the provisions of Section 27, Clause (6) of Act I of 1877 and to favour what on the findings appears to be if not a case of actual fraud, a case so narrowly divided from fraud that it is difficult to draw a distinction. The learned Vakil for the appellant relies upon the case of Nathu Ram v. Phulchand 6 A. 581; A.W.N. (1884) 183. The judgment in that case is a very meagre one, and its does not appear whether this particular aspect of the question was brought to the notice of the learned Judges. If there is no ruling of this Court to the contrary, there are abundant rulings in other Courts in which this particular point was brought to the notice of the learned Judges, who held that an oral agreement, even though not accompanied or followed by delivery of possession, would be protected against a subsequent competing registered instrument if the person claiming under the latter had in fact notice of such agreement. See Nemaicharan Dhabal v. Kokil Bag 6 C. 534; 7 C.L.R. 437; Waman Ramchandra v. Dhondiba Krishnaji 4 B. 126. It was next contended that the findings of the lower Appellate Court were open to question inasmuch as that Court had not considered certain material evidence, namely, admissions made by the plaintiff and reliance was placed upon Yar Ali v. Hashmat Bibi A.W.N. (1897) 90. The case relied on differs from the present inasmuch as in that case it was found that the lower Appellate Court had improperly rejected important piece of evidence bearing on the issue before it. The contention, to my mind, is merely an attempt to get behind findings of fact based upon evidence in second appeal.

(2.) THE last plea raised is that in this case Ram Dial ought not to have been exempted from his liability. As I understand the case, Baldeo Prasad had attempted to carry out a piece of what I must call very sharp practice and has cat his fingers in the attempt. THE appeal is dismissed with costs.