HALIMA KHATUN Vs. SASHI KUMAR BANIK

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract to sell certain lands described in the schedule to the plaint.

(2.) The material facts as found by both the Court of first instance and the Court of first appeal are as follows : In Aswin 1343 B.S. Arsadali defendant approached Sashi Kuma Banik, plaintiff with a proposal to sell the suit lands. The plaintiff agreed to purchase the lands for Rs. 1800 out of which Rs. 450 only should be paid to the defendant in cash, and the balance should be retained by the plaintiff in full satisfaction of his dues under five bonds. After this agreement was arrived at, the parties came to learn that 20 per cent, of the consideration for the sale would have to be paid as landlord's fee. The plaintiff was not willing to pay more than Rs. 1800; the defendant was unwilling to accept less.

(3.) The defendant thereupon enquired whether it was possible to avoid payment of the landlord's fee; and, in the course of his enquiries) learned that it was expected that the provision for payment of landlord's fee would shortly be repealed. Then, on the advice of people in the locality, he suggested that a deed of mortgage by conditional sale be executed and that a deed of sale be executed subsequently when the provisions regarding landlord's fee were repealed, or at all events within one year from the date of execution of the mortgage by conditional sale was executed; Rs. 45 was paid in cash by the plaintiff to the defendant; possession of the land in suit was made over by the defendant to the plaintiff with effect from Baisakh 1344 B.S. and the five bonds were regarded as fully satisfied.