KIRTARATH RAI Vs. SRIPAT RAI

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract to sell certain property by the plaintiffs-respondents Sripat Rai and others, the owners of the property.

(2.) The suit was brought by the plaintiffs on the allegation that Ramsurat Rai had executed an agreement to sell the property in suit on 18 January 1923. The alleged agreement was that the property would be sold within ten days for a consideration of Rs. 5,099 set off against previous debts which the vendee would pay at all events and for Rs. 99-15-9 earnest-money. There is some contradiction in the terms of this agreement, because in one part it is stated that the whole consideration was Rs. 5,099 whereas reading the deed as a whole, it would appear to be Rs. 5,099 plus Rs. 99-15-9 earnest-money. This discrepancy, however, does not appear to me to be of any importance. The plaintiff went on to state that on 28 August 1923, Ramsurat Rai had sold this property and other property to the defendant Kirtirath Rai and others for a cash payment of Rs. 2,500. In this case it appears that the vendees were to take the property with the risk of any encumbrances attaching to it. The reason given in the plaint for the owner of the property selling the property to Kirtirath Rai in spite of having agreed to sell it to the plaintiffs is said to be a desire to cause the plaintiffs and other creditors loss. Although it is difficult to demonstrate positively that the sale to Kirtirath Rai was more valuable to Ramsurat Rai than the sale which the plaintiffs allege was agreed upon by him, on general considerations it is probable that the sale impugned by this suit must have been considered by the vendor more to his advantage. The vendor was at least getting Rs. 2,500 in cash, whereas under the agreement he would only get Rs. 99 in cash. It is true that the property for which he was getting Rs. 2,500 exceeded the property for which he would get Rs. 99 in cash, but it would appear probable that this extra property was encumbered. It is unlikely that the vendor would have acted against his agreement unless he obtained a better price than he could by that agreement.

(3.) The suit was resisted on two grounds. One ground was that the agreement was a forgery in the sense that it was never executed by the defendant Ramsurat Rai. He made the usual allegation that he signed a blank paper. The blank paper, he said, was to have contained a mere bond for Rs. 20 odd. It is obvious that before such a story can be accepted on the part of the defendant there must be very cogent evidence. In this case little reliance has been placed on this plea by the appellants, and I am not disposed to accept it. The other ground on which the decision of the Subordinate Judge is contested is that the appellant, that is to say, the vendee under the second deed, had no notice of the former deed, and this is the real question in this appeal. On this point the Subordinate Judge has used the following language in his judgment: I have no doubt the vendees had knowledge of the agreement when they got the sale-deed executed. The evidence on the plaintiffs side shows this. On the other side the statement on this point is that of Raja Ram alone. The burden of want of knowledge lay on the defendants. In my opinion the defendants had knowledge of the agreement with the plaintiff