BAJIRAO Vs. SHIVARAM

JUDGEMENT

(1.) ON the 30th of July 1922, the first three defendants agreed to sell a field and a half share in another to the plaintiff appellant by the 31st of January 1923 for Rs. 5,555, which were to be paid by the cancellation of a decree held by the plaintiff by which these defendants had to pay him Rs. 1935 and the cancellation of a debt of Rs. 120 due by them as rent of a field and by the payment of Rs. 2,500 in cash. The sum of Rs.

(2.) ,055 due on the decree' and for rent was treated as paid and called "earnest money," which the plaintiff agreed to forfeit if he failed to carry out the contract. The sale deed was. never executed, and on the 25th of April 1923, these defendants sold one of the fields that of which they owned the whole, to the fourth defendant. On the 3rd of November 1924 : the plaintiff filed the suit, out of which this appeal arises, for specific performance of the contract of July 1922, claiming in the alternative a sum of Rs. 5,000 as damages. 2. It was found in the lower Court that the plaintiff broke the contract. Even if that is a fact, a matter which has to be decided now, the basis of the finding is undoubtebly wrong. It is, that the plaintiff has failed, to prove that he went to the defendants during January 1923, taking Rs. 3,500 with him and offered that sum to them. The agreement to sell makes the money payable "before the Sub-Registrar" not before the execution of the sale-deed. Also it was the duty of the sellers to seek out the purchaser with a proper sale-deed.

(3.) THE necessary inference from this seems obvious.