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1919 Supreme(SC) 14
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, VISCOUNT CAVE, LORD DUNEDIN, SIR JOHN EDGE, AND MR. AMEER ALI.
DAMUSA - Appellant
Versus
ABDUL SAMAD - Respondents
On Appeal from the Court of the Judicial Commissioner, Central Provinces.
Decided On : Feb. 26. 1919.
Solicitor for appellants: E. Dalgado.
Solicitors for first respondent: Watkins & Hunter.
A second appellate court may interfere with concurrent findings of fact under Section 100 of the Code of Civil Procedure, 1908, if the lower courts misconceived the real issue, specifically regarding a party's readiness and willingness to perform a contract.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Scope of second appeal - Interference with concurrent findings of fact - Where the lower courts misconceived the real question of a party's readiness and willingness to perform a contract, the second appellate court is within its powers to examine the evidence and determine if the failure to complete the transaction was due to the conduct of the opposing party, notwithstanding that the appropriate issue had not been framed.
(B) Contract - Right to repurchase - Readiness and willingness - If a party is ready and willing to pay the purchase money on the stipulated date but is prevented from completing the transaction because the vendors and the registering officer leave the office before the usual closing hour, the right to repurchase is not forfeited.
(C) Fraud - Finding of fraud must be based on evidence; in the absence of such evidence, a finding of fraud cannot be sustained.
Facts of the case:
A party sold land with an agreement to resell if the purchase money was paid by a specific date. On the day before the deadline, the purchaser attempted to pay and register the reconveyance. While the purchaser's agent was present and paid registration fees, the purchaser arrived shortly after the vendors and the sub-registrar had left the office, despite it being before the usual closing time. The vendors subsequently refused to complete the sale, contending that the date for exercising the right to repurchase had passed.
Findings of Court:
The court found that the purchaser was ready and willing to pay the purchase money on the specified date and was prevented from completing the transaction by the premature departure of the vendors and the sub-registrar from the registration office. It was further found that there was no evidence to support a finding of fraud against the purchaser.
Issues: Whether the vendors were entitled to the cancellation of the sale deed on the ground that the purchaser failed to attend the registration office before the sub-registrar left, and whether the second appellate court could interfere with concurrent findings of fact under Section 100 of the Code of Civil Procedure, 1908.
Ratio Decidendi: The second appellate court is justified in interfering with concurrent findings if the lower courts failed to appreciate the real issue. The central question was not whether a new agreement for a later date had been reached, but whether the purchaser was ready and willing to perform the contract and was prevented from doing so by the actions of the vendors.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- second appeals
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civil procedure
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property law
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transfer of property
- sale with right to repurchase
- mortgage by conditional sale
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transfer of property
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contract law
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performance of contract
- time as essence
- prevention of performance
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performance of contract
-
equity
- fraud
Judgement
Appeal from a judgment and decree of the Court of the Judicial Commissioner (June 27, 1913), reversing a decree of the District Judge of Amraoti which affirmed a decree of the Subordinate Judge.
The facts appear from the judgment of their Lordships.
1919. Feb. 14, 17. De Gruyther K.C. and Parikh for the appellants. There was no ground within s. 100 of the Code of Civil Procedure, 1908, upon which the second appeal could be maintained Durga Choudhrain v. Jawahir Singh (( 1890) L. R. 17 I. A. 122.) ; Nafar Chandra Pal v. Shukur . (( 1918) L.
R. 45 I. A. 183.) The case depended entirely upon the facts.
[Viscount Haldane. Why had not the respondents the rights of mortgagors ?]
The transaction was rightly considered by all the Courts in India to be a sale with a right to repurchase, and not a mortgage Bhagwan Sahai v. Bhagwan Din (( 1890) L. R, 17 I. A. 98.); Balkishen Das v. Legge (( 1899) L. R. 27 I. A. 58.) ; Jhanda Singh v. Wahid-ud-din . (( 1916) L.
R. 43 I. A. 284.)
Sir William Garth for the respondents. There was no evidence to support the finding of fraud arrived at by the trial judge and upon the first appeal. The real question had not been considered in either of the lower Courts. In these circumstances there were grounds for the second appeal. The decision of the Court of the Judicial Commissioner was right on the evidence. The entry in the registrars book was admissible in evidence. The respondents are entitled to have the suit dismissed apart from the reasons for which the Court of the Judicial Commissioner set aside the decree. The transaction of 1908 was a mortgage by conditional sale; the respondents were therefore entitled to redeem. If they had only a right to repurchase, time was not of the essence.
De Gruyther K.C. in reply. The decisions of the two lower Courts were not open to the objections contended. In any event the case should have been remitted, no issue having been framed upon the question raised in the second appeal. [Order xli., r. 25, was referred to.]
Feb. 26. The judgment of their Lordships was delivered by
VISCOUNT HALDANE. This is an appeal from a judgment of the Court of the Judicial Commissioner, Central Provinces, which reversed a judgment of the District Court, Amraoti, which in its turn affirmed a judgment of the Subordinate Judge there.
The question which arises is whether the appellants are entitled to cancellation of a sale deed, dated June 26, 1909, executed by them in favour of the respondent, Abdul Samad, and to possession of the land to which it relates. Abdul Samad was the owner of three fields, and on June 27, 1908, he executed a deed in favour of the appellants purporting to be a deed of absolute sale of these fields for Rs. 3000, it being the fact that the fields were of a much greater value. He also executed an agreement reciting the sale deed and providing that if purchase money of the same amount be paid for the fields on June 27, 1909, the appellants should resell, but the entire amount was to be paid on the date mentioned. This agreement was of the same date as the deed of sale. There was also a lease, dated two days later, on June 29, 1908, under which the first appellant purported to let the fields to the first respondent in the benami name of his nephew, for a year at a rent which would have been equal to about 24 per cent, interest on the purchase money.
The effect of the transactions referred to was that the first respondent remained as before in possession of the fields. A year later, on June 26, 1909, which was a Saturday, he appears to have desired then to pay the stipulated purchase money of Rs. 3000, and of obtaining a reconveyance of the property. A sale deed was drawn up for signature by him and the appellants, and for registration, and he paid to the appellants agent Rs. 720, being the rent due under the lease, as well as Rs. 30 laid out for the stamp on the deed. The terms of the reconveyance provided that the amount of the purchase money was to be re
