DINANATH SARMA KATAKI Vs. GOUR NATH SARMA KATAKI

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of the Assam Valley Districts reversing, a judgment of the Munsif at Gouhati. The facts are as follows: A certain dag No. 219 belonged to the plaintiff, the first and second defendants and one Krishna Nath. They were all brothers and owned the property in equal shares. The first defendant-approached the plaintiff representing to him that he was the owner of i of this dag, and agreed to sell his half share to the plaintiff for a sum of Rs. 800. The 1/2 share purported to comprise the 1/4th share belonging to the first defendant and the 1/4th. share belonging to Krishna Nath which, he alleged, had fallen to him by succession. Before the contract was completed, however, it appears that the plaintiff came to know that Krishna Nath's 1/4 th share had been in fact inherited by Krishna Nath's daughter's son. The plaintiff thereupon sued for specific performance on the footing of being entitled to the 1/4 th share belonging to the first defendant on a proportionate payment of Rs. 400-Rs. 200 having been already paid as earnest money by the plaintiff.

(2.) The first Court decreed the suit. The lower appellate Court reversing that decision dismissed the suit, the basis of the dismissal being that inasmuch as Section 15 of the Specific Belief Act applied to the circumstances of the case the plaintiff would only be entitled to a decree upon the footing that he should take over the 1/4 th share of the first defendant in return for payment of the whole of the consideration money of Rs. 800 agreed upon, and abandoning his claim to further performance and to compensation.

(3.) It has been argued before us in appeal first of all that the decision of the Trial Court was correct and that the plaintiff is entitled to a decree for specific performance as regards the 1/4 th share upon payment of Rs. 400 only. It is argued that the case falls not within Section 15 but within Section 16 of the Specific Belief Act. Reference is also made to the case of Krishna Chandra Dey V/s. W. Graham A.I.R. 1923 Cal. 694. The facts in that case were undoubtedly- very similar to those of the present. But in that case there were two plots of land one belonging to a stranger to the contract, in the present case the property in question was ijmali property unpartitioned belonging to the brothers in equal share. Be that as it may, I am unable to distinguish the facts of the case now before us from the facts which are given in illustration (a) to Section 15 of the Specific Belief Act, and I think the lower Appellate Court was right in holding that, that was the section to be applied in the circumstances of this case.