SUREUDRA NATH ROY Vs. KEDAR NATH BOSE

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract to sell. The plaintiff is the purchaser in whose favour the contract has been entered into by defendant 1. The suit has been dismissed by the Subordinate Judge. Hence the present appeal by the plaintiff. The case of the plaintiff is that defendant 1, Kedar Nath Bose, who is now the owner of a portion of the house known as Raja Bahadur's Haveli purported to sell the portion which is still left with him for a sum of Rs. 7,000. The case is that the contract to sell was entered into between the present plaintiff and the son of Kedar Nath Bose, Kali Das who has been described throughout these proceedings as Felu whom Kedar Nath Bose empowered to deal in the matter of the sale. The plaintiff in pursuance of certain correspondence to which reference will be made hereafter sends his kinsman and nephew Rash Behary Roy to the residence of defendant 1 at Calcutta, and according to the direction of defendant 1, he (Rash Behary) on 30 January 1930, corresponding to the 16 Magh 1336 B.S. having settled with Felu to purchase for Rs. 7,000, the price proposed by defendant 1, sent a wire to the plaintiff for sending the earnest money. Accordingly a sum of Rs. 100, was sent to Harendra, son of the plaintiff, on 31st January 1930 by telegraphic money order and Harendra and Rash Behary paid that sum of Rs. 100, to Felu as earnest money as directed by defendant 1, and Felu accepted the same. It is stated that defendant 1 is legally bound by the acceptance of his son who was given, if not an express at least an implied, power to deal with the matter of sale and accept any offer that would be made. The plaint then narrates certain circumstances on which the plaintiff submits that Kedar ratified the acts done by his son even if there was no express or implied authority by Kedar in the matter of sale. He has accordingly prayed for a decree for specific performance of the contract of 30 January 1930 directing the defendants to execute a Kobala of out and out sale in favour of the plaintiff free from incumbrances and to get it registered within the time to be fixed by the Court. There is an alternative prayer, namely, that in case the defendants failed to execute the Kobala within the time fixed by the Court, the Court would proceed to execute and register such a Kobala in favour of the plaintiff in that behalf. The suit impleaded not only defendant 1, the vendor, but also defendants 2 and 3 as it is said that they are purchasers subsequent to the contract, their purchase having been effected on 14 March 1930. It is stated in the plaint that the purchase of defendants 2 and 3 was with notice of the earlier contract in favour of the plaintiff. In consequence of defendants 2 and 3 having been impleaded the plaintiff has asked for a further declaration that the Kobala of 14 March 1930 corresponding to the 30 Falgoon 1336 B.S. executed by defendant 1 in the name of defendant 3 one Romola Datt Chowdhurani, wife of defendant 2, was not binding on the plaintiff and for a further declaration that no title had accrued to defendants 2 and 3 on the basis of the same. Defendant 4 is said to have been a lessee under defendants 2 and 3. But the suit as against him has been dismissed as will appear from an order in the order sheet. The defences to the suit for specific performance of contract are (1) that there was no completed contract on 30 January 1930 or on a subsequent date prior to the conveyance in favour of defendant 3 and that whatever talk there was between the plaintiff and defendant 1 or his son that talk did not pass beyond the stage of negotiation and could not constitute contract specifically enforceable and (2) that defendants 2 and 3 are purchasers without notice. It may be said in this connexion that these defendants have also set forth in their written defence a contract with an agent of defendant 1, namely Surendra Nath Bose who figures very largely in this case, entered into on 1 February 1930, alleging that the sale on 14 March was in pursuance of the contract of 1 February 1930 and even if it be held that there was a ratification of the agreement by Felu (son of defendant 1) on 7 February 1930, defendant 3's purchase should prevail in view of the earlier contract of 1 February 1930.

(2.) The Subordinate Judge has given effect to these defences and has dismissed the suit. The plaintiff has consequently preferred the present appeal and Mr. Atul Chandra Gupta for the appellant has contended before us that the Subordinate Judge should have held that the contract set up by the plaintiff dated 30 January was a valid contract with defendant 1 by which he agreed to sell the properties now in question. It is contended that he should have further held that Felu, the son of Kedar, was empowered by Kedar to accept any offer that Felu could get and that he did really accept the offer by receiving Rs. 100 by way of earnest money. It has been further argued that apart from the question of Felu's authority to accept the offer and to receive the earnest money the Subordinate Judge should have held that Kedar ratified the acceptance of the offer of the plaintiff by Felu. It has been further contended that in so far as the defendants case with regard to the contract executed by the Am-mukhtear of the plaintiff, Surendra Nath Basu dated 1 February 1930 is concerned, the agreement entered into on that date was really an ante-dated agreement for defeating the rights of the plaintiff. In order to consider the soundness or otherwise of these contentions on which Mr. Atul Chandra Gupta proposes to rest the appeal on behalf of his client it is necessary to refer to the oral and documentary evidence which has been given in this case on behalf of both the parties. In support of the contention of the appellant that there has been a valid contract between them, the plaintiff and defendant 1 on 30 January 1930, our attention has been drawn to two letters, namely, Ex. 1 dated 24 January 1930 and Ex. 3 dated 26 January 1930, which have been printed at pp. 7 and 8 of the second part of the paper-book respectively. It appears that on 24 January 1930, the present plaintiff wrote to defendant 1 to the following effect. It is only necessary to quote the material portion. The plaintiff writes thus:

(3.) The news for the present is that I hear that you would sell your house in Raja Bahadur's Haveli at "Barisal and that some one would come here on 14 Magh and settle the terms thereof (i.e. 14 Magh corresponding to 28 January 1930). I spoke to my maternal uncle, Khitish Chandra Roy about this matter. ... I am ready to purchase that house. I hope that the terms of sale may not be settled without informing me. On arrival at Barisal I may be enquired for at the house of my father-in-law, Biseswar Ghose. Or if you or Felu come to Barisal, please put up at our house.