SURENDRA NATH ROY Vs. KEDARNATH 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 No. 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 No. 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 No. 1 at Calcutta, and according to the direction of defendant No. 1, he (Rash Behary) On Junuary 30, 1930, corresponding to Magh 16, 1336 B. S. having settled with Felu to purchase for Rs. 7,000, the price proposed by defendant No. 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 January 31, 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 No. 1, Nand Felu accepted the same. It is stated that defendant No. 1 is legally bound by the acceptance of his son who was given, if not an express at last 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. January 30, 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 No. 1, the vendor, but also defendants Nos. 2 and 3 as it is said that they are purchasers subsequent to the contract, their purchase having been effected on March 14, 1930. It is stated in the plaint that the purchase of defendants Nos. 2 and 3 was with notice of the earlier contract in favour of the plaintiff. In consequence of defendants Nos. 2 and 3 having been impleaded the plaintiff has asked for a further declaration that the kobala of March 14, 1930, corresponding to Falgoon 30, 1336 B.S. executed by defendant No. 1 in the name of defendant No. 3 one Romola Dutt Chowdhurani, wife of defendant No. 2, was not binding on the plaintiff and for a further declaration that no title had accrued to defendants Nos. 2 and 3 on the basis of the same. Defendant No. 4 is said to have been a lessee under defendants Nos. 2 and 3. But the suit as against him has been dismissed as will appear from an order in the order sheet.

(2.) The defences to the suit for specific performance of contract are: (1) that there was no completed contract on January 30, 1930, or on a subsequent date prior to the conveyance in favour of defendant No. 3 and that whatever talk there was between the plaintiff and defendant No. 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 Nos. 2 and 3 are purchasers without notice. It may be said in this connection that these defendants have also set forth in their written defence a contract with an agent of defendant No. 1, namely Surendra Nath Bose who figures very largely in this case, entered into on February 1, 1930, alleging that the sale on March 14 was in pursuance of the contract of February 1, 1930, and even if it be held that there was a ratification of the agreement by Felu (son of defendant No. 1) on February 7, 1930, defendant No. 3's purchase should prevail in view of the earlier contract of February 1, 1930.

(3.) 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 January 30 was a valid contract with defendant No. 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 February 1, 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 purposes to rest the appeal on be half of this client it is necessary to refer to the oral and the 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 No. 1 on January 30, 1930, our attention has been drawn to two letters, namely, Ex. 1, dated January 24, 1930. and Ex. 3 dated January 26, 1930, which have been printedat pp. 7 and 8 of the second part of the paper-book respectively. It appears that on January 24, 1930, the present plaintiff wrote to defendant No. 1 to the following effect. It is only necessary to quote the material portion. The plaintiff writes thus: "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 Magh 14, and settle the terms thereof (i.e., Magh 14, corresponding to January 28, 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."