JAGGO BAI Vs. HARIHAR PRASAD SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit in which the plaintiff prayed for the following reliefs: (a) That the defendants be ordered to execute a deed of assignment of their mortgagee rights under the mortgage deed, dated 18 February 1921, executed by the late Bindeshwari Prasad in favour of the defendants on payment by the plaintiff of a sum of Rs. 23,000, the balance of the amount of sale consideration, or any other amount that the Court may be pleased to fix, and a decree in favour of the plaintiff be passed for the specific performance of the contract against the defendants. (b) That if, for any reason, in the opinion of the Court a decree for specific performance of contract cannot be passed, the defendants may be ordered to refund the sum of Rs. 29,000 with interest to the plaintiff, and a decree for a sum of Rs. 26,000 be passed against defendant 1 and for a sum of Rs. 3000 against defendant 2 with interest by way of compensation from the date of payment up to the date of realization, and the Court may grant any further relief.

(2.) On 16 December 1928 the appellant, Mt. Jaggo Bai, agreed to transfer to the plaintiff her mortgagee rights under a mortgage executed by Bindeshwari Prasad on 18 February 1921. The sale price of the mortgagee rights was fixed at Rs. 52,000. The material clauses of the deed executed by Mt. Jaggo Bai are as follows: Accordingly negotiations for transfer of the document aforesaid together with all the rights were started with Rai Bahadur B. Harihar Prasad Singh through B. Girja Shankar Vakil of Lucknow, and it has been settled that I shall transfer the amount of the mortgage deed aforesaid with interest together with all the rights and powers for a sum of Rs. 52,000 and I shall see that the Rai Bahadur aforesaid acquires the entire property permanently. In case the legal advisers of the Rai Bahadur aforesaid consider that I would not be in a position to transfer the entire property mentioned in the mortgage deed free from all defects and disputes, unless Seth Beni Chand is made to join the Seed of transfer, I shall transfer to the Rai Bahadur aforesaid one-half of the property mentioned in the document aforesaid for a sum of Rs. 26,000 without raising any plea or objection. Whenever within three years the Rai Bahadur aforesaid wants I shall execute the deed of transfer in respect of the mortgage deed, dated 18 February 1921, and have it registered in any way and in favour of anyone proposed by him. For the present, I have already received a sum of Rs. 7000 out of the amount agreed upon by means of a cheque No. 4-A 19887, dated 28 November 1928, and I have this day received Rs. 19,000 by means of cheque No. 4-A 19893, dated 16 December 1928, i.e. in all I have received a sum of Rs. 26,000. At the time of compliance and completion of the deed of transfer I shall, as directed by the Rai Bahadur aforesaid, allow credit for the sum of Rs. 26,000 and accept the balance of the amount settled, whatever it might be, subject to the terms noted above.

(3.) The mortgage deed of 18 February 1921 was executed for a sum of Rs. 60,000 in favour of defendant 1, Mt. Jaggo Bai, and defendant 2, her son Seth Beni Chand. The plaintiff avers that the defendants refused to implement the agreement of 16 December 1928. He accordingly claimed a decree for specific performance or, in the alternative, a decree for refund of Rs. 29,000 plus interest thereon. After the evidence had been completed and during the course of arguments in the trial Court the plaintiff withdrew his claim for decree for specific performance. This was done by means of a statement made by the plaintiff's pleader, which is in the following terms: Babu Makut Behari Lal, pleader for the plaintiff, stated that regard being had to the facts of the case, he does not want to press the point re- specific performance prayed for in relief (a).