Judgment

ALAGIRISWAMI, J.:- This appeal is by special leave from the judgment of the High Court of Assam and Nagaland. The defendants are the appellants. The facts giving rise to the appeal are as follows.

2. There were four rooms in a land of an extent of 18 losses belonging to the plaintiff s father, in one of which the defendants were tenants since 1922 on an annual rent of Rupees 410/-. In 1942 they took another room on rent agreeing to pay Rs. 425/- a year. According to the defendants they built a double storeyed building at a cost of about twenty-six thousand rupees behind the above mentioned four rooms with the consent of the plaintiff s father, who was also the appellants attorney. Subsequently the plaintiff s father made a gift of this property in favour of his son, the plaintiff. The plaintiff s father had filed a suit against the appellants for certain sums due to him from the appellants. He had also filed a petition for declaring them insolvent. The plaintiff himself had filed a suit in the Sub-Judge s Court at Jorhat T. S. No. 14 of 1958 for eviction of the appellants from suit land and premises. On 7th June, 1959 an agreement was entered into between the appellants and the 1st respondent under which the 1st respondent agreed to sell the whole property to the appellants for a sum of Rs. 80,000/- to be paid to him by annual instalments of Rs. 10,000/- on the 31st March of each year, the first instalment being payable on 31st March 1960. As soon as the purchaser paid Rs. 40,000/- the vendor was to execute a sale deed for half the land and half the building. If the balance of Rs. 40,000/- was paid in equal annual instalments by 31st March of each year and the entire amount paid within 8 years the vendor was to execute a sale deed for the remaining half. The most important clause of this agreement which it would be useful to extract in full reads:

"5 That in case of default of any instalment, this agreement for sale shall stand cancelled and if the purchasers fail to pay the defaulted instalments within one month s notice the payments made shall stand forfeited and the purchasers shall make over possession of the land and houses shown Schedule to the vendor."

3. As a result of this agreement all the three proceedings against the appellants started by the respondent and his father were withdrawn. The first instalment was not paid on 31st March, 1960. Instead the appellants filed a petition before the Subordinate Judge at Jorhat on 31st March 1960 stating that the plaintiff could not be found and wanted to be permitted to deposit the sum of Rupees 10,000/- in Jorhat Treasury to the credit of plaintiff. But even by 2-6-1960 no Treasury challan had been submitted by them. Instead they filed a petition stating that they had not deposited Rs. 10,000/- as the plaintiff had asked them not to do so and prayed for keeping the petition on file.

4. Thereafter the respondent filed a suit out of which this appeal arises for possession of the land together with the buildings. The defendants contended that the terms of the agreement were unconscionable and obtained by putting undue pressure, that the suit had been filed even without notice. The learned Subordinate Judge, who tried the suit held that the agreement was not obtained by fraud and coercion nor was it illegal and the plaintiff was entitled to possession as well as the declaration of his right and title in the suit properties. This judgment was upheld by the High Court of Assam & Nagaland. With regard to clause (5) mentioned above the High Court held that:

"The requirement of one month s notice is only in case where there is a default for payment of instalments and the purchaser wants to avoid forfeiture of the money which has already been paid under the agreement. There is nothing in clause 5 which enjoins upon the vendor to give one month s notice before he can bring a suit for possession."

It also held that:

"If a default is committed in payment of any instalment, the agreemen