ABDULLAH KHALIFA Vs. BICHUK GOSAIN

JUDGEMENT

(1.) In 1901 defendant 1 execute a usufructuary mortgage of his house in favour of Gobind Ram, grandfather of defendant 3, for Rs. 300 and, on 15 May 1927, he executed in favour of the plaintiff a sale deed in respect of the house for a consideration of Rs. 900. It is stated that Rs. 300 of the consideration money was left with the plaintiff for redemption of the mortgage, that Rs. 175 was set off against debts due from defendant 1 to the plaintiff, and that the balance of Rs. 125 was paid to defendant 1 in cash. The sale deed was registered on the following day, i e. 16 May 1927, but as the vendor failed to deliver the registered deed to the plaintiff, the latter served him with a notice on 20 May calling for the deed. Three days later notice was also sent to defendant, informing him of the sale and offering to redeem the mortgage.

(2.) In reply defendant 3 stated that he had transferred his interest to one Chiranji Lal. The plaintiff sought recovery of the sale deed executed in his favour and of the house, or, in the alternative, for refund of Rs. 300, that is to say, Rs. 175 on account of the previous debts, and Rs. 125 on account of the cash said to have been paid at the date of the sale. The defence was that, as the plaintiff had failed to pay the consideration money at the time of the registration as agreed upon, the sale fell through, and, therefore, that defendant 1 then sold the house to defendant 2 by a deed which was registered on 27 May 1927, eleven days after the registration of the plaintiff's deed.

(3.) It is alleged by the defence that this deed had actually been executed on 20th April, that is to say, prior to the plaintiff's deed, for a consideration of Rs. 550, Rs. 150 of which was paid to the vendor in cash, while the remainder was paid in August to Chiranji Lal. The first Court found in favour of the plaintiff and decreed the suit. Defendant 2 appealed. The appellate Court dismissed the suit, holding that the plaintiff had not paid the consideration money, as alleged, and that defendant 2's purchase had retrospective effect from the date of its execution, that is to say, 20 April. The plaintiff has preferred this second appeal.