SOHAN LAL Vs. ATAL NATH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for specific performance of a written contract. Originally seven defendants filed this appeal jointly. With the exception of Bansidhar all the others applied to withdraw the appeal. So far as the adult appellants were concerned, their appeal has been withdrawn and they have submitted to the decree of the Court below. An application was made on behalf of the minor appellant, Har Mohan, by his guardian and also by his mother to withdraw the appeal, but no order was passed, inasmuch as it was not clear whether there had been any compromise with the minor's guardian and whether such a compromise was for the benefit of the minor.

(2.) The parties belong to the same family with distinct branches. It appears that at one time all the members had a common fund, though the family was not joint in status. The leading members proposed to purchase three villages in Benares from Raja Madho Lal for a sum of Rs. 90,200. The plaintiff Atal Nath, represented one branch; Jagmohan and others represented the second branch and Bansidhar and others represented the third branch. These were the descendants of three sons of the common ancestor, the fourth son having died issueless. Each branch was entitled to a one-third share in the common fund. Admittedly the plaintiff Atal Nath, was not a member of the joint Hindu family at the time and, although the fund was undivided, he was entitled to a distinct one-third share in it. Apparently Bansidhar and other? and Jagmohan and others had sufficient funds to pay the entire sale consideration. It therefore seams to us to have been agreed that the whole of Rs. 90,200 should be taken out of the common fund and the three villages should be purchased; and that Atal Nath should have the option of either getting back his Rs. 30,000 with interest at 6 per cent per annum or getting a one-third share in the entire property purchased. It is obvious that as Rs. 30,000 provided by Atal Nath had not been forthcoming the villages might not have been acquired at ail, as tne vendor might not be disposed to transfer only a two-thirds share in the three villages. It is an admitted fact that Rs. 30,000 belonging to Atal Nath was taken out of the common fund along with Rs. 60,200 belonging to the three branches, and the. whole sum of Rs. 90,000 in that way was paid to the vendor and the three villages were acquired by the family. As evidence of the transaction inter se, a letter, dated 10 August 1921, was written and signed by Sohan Lal, Bansidhar and Rajnath, who belong to Bansidhar's branch. The defendants put forward the case in the Court below that this letter had been obtained under undue influence or coercion, but the finding being against them, the point has not been re-agitated in appeal.

(3.) We shall have to refer to its contents in detail when we come to examine the plea that specific performance-should not be granted. Apart from oral evidence we have no documentary evidence showing what passed between the-parties during the interval between August 1921 a June, 1927. We shall refer to the later correspondence when we come to deal with the conduct of the defendants.