BHUP NARAIN SINGH Vs. GOKUL CHAND MAHTON

JUDGEMENT

(1.) The appellant, who is the plaintiff in a suit for specific performance of a contract for sale of certain immovable properties, appeals against a judgment and decree of the High Court of Judicature of Patna, dated 12 June 1930, which reversed the judgment and decree of the Subordinate Judge of Patna, dated 31st March 1928, and dismissed the suit.

(2.) In the suit, which was filed on 27 January 1927, the appellant seeks specific performance of an agreement dated 26 November 1926, under which he alleges that defendant 1 (now respondent 2), as karta of his joint family, which consisted of himself and his two sons, defendant 2 (now represented by respondents 2 and 4) and defendant 3 (now respondent 4), agreed to sell to him certain property of the joint family at the price of Rs. 13,000. The present respondent 1 who was impleaded as defendant 4, claimed the property in suit by virtue of a registered sale-deed, dated 22 December, 1926, by defendant 1, for himself and as guardian of his two minor sons, defendants 2 and 3, in favour of defendant 4 at the price of Rupees 15,000.

(3.) Defendant 1 did not appear to defend the suit, but defendants 2 and 3 put in a written statement by their guardian ad litem, denying the plaintiff's contract, and alternatively in the event of the contract being held proved, denying that defendant 1 was entitled to alienate their interests as the sale was not for family necessity or for their benefit. All the defences of defendants 2 and 3 were rejected by the Subordinate Judge, and no appeal was taken against that decision to the High Court. Accordingly, the issue now lies between the plaintiff-appellant and defendant 4 now respondent 1. At the trial defendant 4 sought to prove that he had concluded an oral agreement with defendant 1 for purchase of the property in suit at the price of Rs. 15,000 on 23 November 1926, and the appellant sought to establish an even earlier agreement for their purchase at Rs. 13,000. Further defendant 4 sought to prove that the appellant's agreement of 26 November 1926 was not genuinely made on that date, but was concocted at a date subsequent to 22 December, 1926, when the sale-deed to defendant 4 was executed and registered. But the Subordinate Judge rejected all these contentions, declining to believe the evidence in support of them, and remarking that both parties had adduced a mass of false evidence in support of their respective cases. The learned Judge held that defendant 1 had contracted on 26 November 1926, to sell the property in suit to the appellant at the price of Rs. 13,000, and that finding is not now disputed.