MT PARBATI Vs. SARUP SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought by Sardar Sarup Singh for damages for breach of a contract. Some of the facts are admitted and others are clearly proved. There was undoubtedly a contract, oral at first, between Mt. Parbati on the one hand and Sardar Tara Singh, the father of the plaintiff, on the other, under which it was agreed between the parties that Mt. Parbati would grant a lease of certain house property for six years on a certain rent. The lease money was to be payable in instalments and nearly half of it was to be paid at the very beginning. On 17 March 1918, Mt. Parbati executed a receipt for a sum of Rs. 3,300, acknowledging that she had received that amount on account of lease money in respect of the houses and the shops for the period mentioned. It was a disputed point in the Court below whether on that date she had only received Rs. 2,950 or had received the whole of Rs. 3,300. On the next day, viz: 18 March 1918, Sardar Tara Singh executed a document called a thekanama which was really a qubuliat or the counterpart of a lease under which he undertook to take the property on lease on the conditions mentioned above. This document was duly registered. The recital contained in this deed shows that only Rs. 2,950 had been paid under the receipt, dated 17 March 1918, and that the balance of Rs. 350 would be paid within a month. The case for the plaintiff was that this document was faired out from a draft which had been prepared long before that date and that was the explanation offered as regards the discrepancy between the recital of this deed and that of the receipt. On behalf of the defendant it was urged that as a matter of fact only Rs. 2,950 had been paid in cash and the balance of Rs. 350 remained outstanding, though a receipt was given for the whole amount and that it was on account of the failure to pay the balance that the defendant did not execute the patta. It was further pleaded that the claim was barred by the three years rule of limitation.

(2.) The learned Subordinate Judge has held that the full amount of Rs. 3,300 had been paid when the receipt was executed and he has accepted the explanation offered by the plaintiff as to the discrepancy in the recital contained in the thekanama. He is further of opinion that the breach was committed by the defendant, particularly as the payment of Rs. 350 had been made, and even if it had not been made it is not shown that the time fixed for its payment was of the essence of the contract. He is further of opinion that the claim is not barred by limitation, but is saved by the provisions of Art. 116, Lim. Act.

(3.) As regards the question of fact which was in dispute in this case, the evidence is all one sided. The plaintiff Sarup Singh has gone into the witness-box and he has also produced a witness Bali Ram. According to this oral evidence, the whole amount mentioned in the receipt was paid in cash before the receipt was obtained, and the discrepancy in the thekanama was due to the fact that it was faired out from a draft prepared Previously. The defendant has not gone into the witness-box and has produced no evidence to rebut it. Therefore, the evidence remains absolutely uncontradicted. The plaintiff's evidence further goes on to show that the draft of the thekanama had actually been dictated by Mt. Parbati herself, and that the thekanama was executed and registered in pursuance of the contract entered into by the parties, and that after the registration of the deed the original was given to Mt. Parbati who kept it and accepted the same. This evidence has been believed by the Court below, and in the absence of any evidence to the contrary we are unable to take a different view of that evidence. We are thus in agreement with the learned Subordinate Judge that Rs. 350 had been paid. Even if it had not been paid in time, the time of its payment not being of the essence of the contract, there would be no breach committed on the part of the plaintiff so as to entitled the defendant to avoid the contract. The execution of the patta by Mt. Parbati was entirely a matter within her power, and if she wanted to perform her part of the contract, there could possibly be no obstacle in her way. Under these circumstances the breach was undoubtedly committed by the appellant.