MAUNG SHWE GOH Vs. MAUNG INN

JUDGEMENT

(1.) This appeal is a step-and their Lordships hope the last step-in litigation, which was commenced on the 17th August, 1906, by the present appellant, who claimed against one George William Davis specific performance of a contract dated the 4th April, 1906, for the sale of some 19,318 acres of land situate in the Pegu district, Lower Burma. The question raised depends on the true construction of this contract, but in order to understand its meaning it is necessary to consider some antecedent facts.

(2.) On the 30th September, 1905, a formal mortgage of the property, which subsequently became the subject of the contract, was executed by the defentant Davis in favour of the appellant to secure the repayment of Rs. 50,000 on the 30th December, 1905, together with interest at the rate of eight annas per cent. per month and also interest thereafter at the current bank rate of interest in Rangoon. It appears from the mortgage that it was really given as security for the payment of Rs. 50,000 the amount of five hundis which had been drawn by the mortgagor upon the mortgagee and negotiated by the mortgagor with the Bank at Bengal. The mortgage contained a formal conveyance of real property and a covenant, the effect of which has already been mentioned. It also contained a further and independent covenant that if the sum of Rs. 50,000 should not be paid when it was due, the mortgagor would pay interest thereon at eight annas per cent. per month and also interest on the Rs. 50,000 at the current bank rate until the principal should be duly paid. The hundis were not met by the mortgagor at the due date and were renewed until the 4th April, 1906, on which date the mortgagor, not being in a position to pay the money, wrote to the plaintiff a letter in the following terms :- My Dear Maung Shwe Goh, I write this to inform you that as I have not got the interest due on 50,000 rupees ready now I request you to give me three months more for payment to you of all interest due thereon. Should I fail to do so on or before the 6th July 1906, I agree the whole land being sold to you for 1 lakh rupees (1,00,000 rupees). After deducting out of this amount 50,000 rupees already received by me and all interest due thereon, the balance should be paid to me when the land shall become yours unconditionally.

(3.) The request was acceded to by the plaintiff and the contract thus made is the contract in question.