KRISHNAJI KUNBI Vs. TUKARAM KUNBI

JUDGEMENT

(1.) THIS is a second appeal arising out of a suit for recovery of money due on a bond and a pro-note executed by the defendant in the plaintiff's favour in the year 1925. On 10th March 1926 the defendant agreed to sell to the plaintiff some land for Rs. 2,400. An isar chithi (Ex. P. 3) was then executed by the defendant in the plaintiff's favour, and Rs. 100 were paid to the former as earnest-money. Under the agreement of sale the amounts due under the bond and the pro-note were to be deducted from the purchase money. These facts are undisputed. It is not denied by either party that the contract of sale of the land was not carried out. It seems that each party blames the other for non-performance of the contract. In December 1926 the plaintiff instituted 'a suit for' recovery of the amount due under the bond and the pro-note. The only defence was that there was novation of the contract sued on, and consequently the suite was not maintainable. This plea did not find favour with the Court of first instance, which decreed the plaintiff's claim in full. On an appeal being preferred from the decree by the defendant, the lower appellate Court held that a new contract was substituted for the old one, and that the suit was not in consequence maintainable. In this view it allowed, the appeal and dismissed the plaintiff's suit.

(2.) THE plaintiff now comes up in second appeal, and it is urged on his behalf that there was no novation. The only question arising for decision in this appeal is therefore whether the contracts evidenced by the bond and the pro-note were substituted by the contract for sale, and whether the plaintiff's present suit is consequently untenable? A preliminary objection is taken by the respondent's learned counsel to the effect that the finding of the lower appellate Court concerning novation is one of fact, and consequently is binding on this Court. On the other hand it is argued that the question raised in this appeal involves the construction of the isar chithi (Ex. P. 3,) and the construction of a document is a question of law which can be considered in second appeal. Now it admits of no doubt that the question of novation mainly rests on a proper construction of the isar chithi (Ex. P. 3), and the question of a right construction of document, and of a legal inference to be drawn from a document, have been held to be questions of law which may very well be considered in second appeal; vide Fateh Chand v. Kishan Kunwar [1912] 34 All. 579, Vithoba Madhav v. Madhav Damodar [1918] 42 Bom. 344 and Satgur Prasad v. Kishorelal A.I.R. 1919P.C. 60.

(3.) THERE is not the least doubt that the agreement for sale did not involve present payment of the debt. Had the debt been treated as paid on the very date of the agreement for sale there would have been no necessity of paying Rs. 100 as earnest money. The very fact of payment of Rs. 100 as earnest money on the date of the agreement thus precluded the possibility of the debt being actually paid off on that date. Farther the fact of no account of the debt being made and of its exact amount, being left unmentioned at the time of the agreement tends to negative such a payment.