BABU BINDEPARSHAD Vs. MAHANT JAIRAM GIR

JUDGEMENT

(1.) THE Appellant in this case, and the Respondent, on the 3rd of October, 1882, entered into an agreement for the sale of an estate which is described in the agreement as Ilaka Dabha. The agreement is very short, and is in these words: - "Out of Rs. 10,075 (ten thousand and seventy-five) at which it has been settled by Mahant Jairamgir to convey Ilaka Dabha to Babu Bindeshri Parshad, Rs. 200 (two hundred) have been received as earnest money, through Lala Chhedi Bal and Mata Parshad Malwai. The balance, viz., Rs. 9875 (nine thousand eight hundred and seventy-five), exclusive of costs, will be received in cash within fifteen days, and then I will execute the sale deed and get it registered. The purchaser will bear the costs on account of the stamp paper and the registration and mutation fees. I will have nothing to do with them. I will take the entire amount in cash. If the balance is not paid within fifteen days the earnest money will be forfeited, and the vendor will be at liberty to sell the Ilalca or not."

(2.) ON the 16th of October the following letter was written to the Appellant: "My dear Mahant Jairaimgir," - after compliments - "I beg to say that you contracted with me to sell the zamindari of taluqa Babha, pargana Kiwai, zilla Allahabad, for Rs. 10,075, and accepted Rs. 200 as earnest money. The draft of the sale deed is also ready. However, you make excuses in executing the sale deed. It is thirteen days since you were paid the earnest money. You have also sent to me the stamp, but nobody appears on your behalf to write and complete the sale deed. I have over and over again sent my man to you, but you have put the matter off from day to day. As I have some misgivings in the matter, and I am ready to pay the money and have the sale deed executed by this writing, I request you to duly execute the said sale deed in accordance with the corrected draft, and accept the money from me as soon after the receipt of this as possible." It is stated in the statement of the pleader who was examined by the Subordinate Judge before the settlement of the issues that this notice was served on the 18th of October, "and about three or four days after this, the aforesaid draft of the sale deed was sent to Madho Chanbay, Defendant's gumashta at Mirzapur. The draft was not sent to the Defendant's gumashta within the term of fifteen days." It is stated afterwards that there was some mistake as to that date, and it would seem that the draft of the sale deed was sent three or four days before the 18th, probably on the 14th of October. As sent to the Defendant, it contained this clause: - "Should a stranger now or hereafter acquire any other title in the property sold, or any kind of flaw arise, I, the vendor, my heirs and assigns, shall in every way be responsible therefor. The vendee shall, at all events, be at liberty, if any such contingencies arise, to seek his relief in the Civil Court and realise his losses and damages from me, the vendor, from my person and property, and that of my heirs and assigns, together with interest and costs incurred in the Court; and to this I will have no objection whatever," thus requiring the Defendant to give an absolute warranty of title to the property which was sold. The Defendant objected to this, and struck out this clause, and it would seem that he substituted for it a clause to the following effect: - "Should any kind of dispute arise, whether now or hereafter, on my part, or that of my heirs or assigns, in the property sold, I, the vendor, and my heirs will be responsible therefor," and the draft thus altered was returned to the Plaintiff. The Defendant appears to have thought that the Plaintiff was entitled to this, but their Lordships are not prepared to hold that such a contract of sale as this gave the purchaser a right to insist on any formal covenants such as the practice of English lawyers has attached to an English contact of sale if that is what was in the minds of the parties.

(3.) TH of December he brought his suit in the Court of the Subordinate Judge of Allahabad, in which, after stating the contract and the payment of the earnest money, he alleged that "the Defendant did not perform the aforesaid contract, and when the Plaintiff saw that the Defendant delayed in the complete execution of the deed in question,, he requested the Defendant to have the deed completely executed and registered by means of a written and registered notice on the 16th of October, 1882," and that he sent the draft on the 18th of October, 1882, which, as has been stated, was admitted to be a mistake. Then he said: "the Plaintiff has all along shewed readiness to have the contract completely performed as far as he himself was concerned;" and prayed that a judgment might be passed ordering the Defendant to execute and get registered a sale deed in favour of the Plaintiff in respect of the property claimed, by entering a guarantee of good valid title. 4. Now there he distinctly claimed to have the contract performed by having this warranty of title; and when he says that he was ready to have the contract completely performed, as far as he himself was concerned, it must be taken that he was ready to have it performed in that way.