KADU MAHAR Vs. MAHARAJ SINGH

JUDGEMENT

(1.) THIS second appeal raises one question only. It is this. The plaintiff's contract of purchase, which is dated 4th March 1922, and which was to be performed within two months, but which the defendant admittedly failed to perform by reason of his failure to serve notice on the landlord of his intention to sell, and which he expressly repudiated by serving notice on plaintiff on 4th September 1922, was to be regarded as still subsisting at the date of the suit, namely, on 26th February 1925, i. e., after the lapse of two years and five months from the time its repudiation had become known to him (plaintiff). In short whether the silence of plaintiff from 11th September 1922 to 26th February 1925 was indicative of an intention to forgo the right to enforce due performance of the contract or it was consistent with the plaintiff's treating that right as still subsisting. The lower appellate Court, dissenting from the view taken of the facts by the trial Court, came to the conclusion that the delay or inaction was no proof of waiver or abandonment of the right, inasmuch as the plaintiff had notified his intention to 'enforce the contract not to the defendant, but to the landlord, by serving notice on him on 23rd August 1924. The Court of appeal has regarded this serving of notice on the landlord as a piece of evidence negativing the inference of abandonment or waiver which the delay in forcing the contract might lead to. The correctness of this conclusion is being challenged in second appeal. The question, therefore, is whether the Court of first appeal has drawn the only right conclusion from the facts found or has committed any error of law in failing to draw the right conclusion.

(2.) TO my mind the silence was very significant and could have given rise to the inference for which the appellants are fighting, especially as, in view of the express repudiation of the contract of sale on the defendant's part, plaintiff's silence was liable to be misconstrued as conduct amounting to waiver or abandonment. Under the circumstances, it was the plaintiff's duty to speak out and put himself into communication with the defendant directly, and disabuse him of the impression by warning him that he was going to be held bound to perform the contract of sale in spite of the breach he committed, and that, with that end in view, he (plaintiff) had taken steps to secure his own position, even as against the landlord, by serving a notice practically on his (defendant's) behalf of his (tenant's) intention to sell the holding to him, and calling upon him to enforce a right of pre-emption. How far this indirect notification of the tenant's intention to sell by the purchaser to the landlord was effective as against the latter, is not a matter the legality of which cant or need be tested in this suit; still it was not without value as a piece of conduct on plaintiff's part indicating that he still had the willingness and readiness to perform his part of the contract, namely, to purchase and pay the unpaid purchase money for the land. No doubt the plaintiff could have made it much more effective, even as against the defendant, by sending him a copy of the notice served on the landlord, and thus apprising him also of the steps he was taking towards the enforcement of the contract of sale, but then he failed to so notify them to the defendant. I have, therefore, to consider whether from this omission on plaintiff's part to notify his intention to enforce the contract to the defendant, the latter could be said to have in any way been misled into acting to his prejudice. On the findings arrived at by the lower appellate Court, defendant 1 has not acted to his prejudice. There is, therefore, no reason to think that the omission was in any way instrumental in leading the defendant to infer abandonment or waiver and to act to his prejudice, so as to debar the plaintiff from asserting that his right to enforce the contract was still subsisting.

(3.) THE appeal fails and is dismissed with costs.