SATIS CHANDRA CHATURDHURIN Vs. JNANADA SUNDARI CHAWDHURANI

JUDGEMENT

(1.) This is an appeal against the decision of the Subordinate Judge of Mymen-singh dated the 5 February 1907. The suit was for specific performance of a contract and the plaintiff claimed that the defendant had agreed to grant him Kxmi Mokarari Dartaluk of the Mouzahs in dispute at an annual rent of Rs. 100 on receiving the sum of Rs. 22,700 by way of Selami. The plaintiff further claimed that under that agreement he is also entitled to the outstanding arrears of the mehal. This agreement was come to on the 6 Ashar 1310, that is, the 21st June 1903, and on the following day a sum of Rs. 1,000 was received by the defendant as earnest money and she, the defendant, gave a receipt for that money. The plaintiff goes on to say that under the above agreement, pattah and Jabuliat were executed within three months of the granting of the receipt, and that the plaintiff in due time tendered the remainder of the selami with a request that the defendant should execute the pattah and that she refused to do so.

(2.) The defendant, on the other hand, alleges that by the Will of her husband certain charges were created on the property in dispute and that under that Will she had no right to grant any Kaemi mokarari dartaluk, and that when this agreement was made, her right to make it was not ascertained or discussed. It was only subsequently that she came to know after consulting her legal advisers that she had no such power. She also alleges that as she had adopted a son as authorized in the Will, the adopted son became the rightful owner of the property, and her own position has been changed to that of an executor with limited powers. She admits the receipt of the one thousand Rupees as earnest money and says that after she came to know that she had no power to grant any kaem mokarari dartaluk, she tendered to the plaintiff the above sum with interest thereon at 12 per cent. per annum, from the date of receipt of that sum by her up to the date of tender, which the plaintiff declined to accept. She has made other allegations also, with which, so far as the present appeal is concerned, we have nothing to do.

(3.) The Subordinate Judge held that the plaintiff was not entitled to specific performance of the contract, that he should get back the one thousand Rupees together with interest thereon at 12 per cent. per annum from the 7 Ashar 1310 up to the end of Kartik 1311, and further held that the plaintiff should bear his own costs and pay the costs of the defendant.