Judgement

Appeal (No. 52 of 1929) from a decree of the Court of the Judicial Commissioner, Central Provinces (April 8, 1926), reversing a decree of the District Judge of Hoshangabad (September 30, 1924).

The appeal arose out of a suit for specific performance of a contract for the sale of a share of a mauza subject to the provisions of the Central Provinces Tenancy Act, 1920, " with sir and khudkast." The first appellant was the son of the vendor, who was defendant No. 1, the other appellants were mortgagees from him. The respondents were the assignees of the purchaser Masammat Jankibai, who was plaintiff in the suit.

The facts, and the terms of s. 50, sub-s. 1, of the above Act, appear from the judgment of the Judicial Committee.

The appellate Court (reversing the trial judge) made a decree in favour of the plaintiff in the terms appearing in the present judgment. The assignment by Jankibai to the respondents was made after the decree, and the respondents names were ordered to be substituted for hers as respondents to the present appeal.

1930. July 17, 18. Dunne K.C. and Wallach for the appellants. De Gruyther K.C. and Parikh for the respondents.

July 29. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal from a decree of. the Court of the Judicial Commissioner, Central Provinces, dated April 8, 1926, which reversed a decree of the District Judge of Hoshangabad dated September 30, 1924, and decreed the plaintiffs suit with costs.

The appeal is brought by Seth Motilal, the son of Seth Sobhagmal (who was the first defendant in the suit and is now dead), and Seth Lachmandas and Seth Manakchand, the second and third defendants in the suit.

The respondents are the assignees of the plaintiff, Mst. Jankibai, widow of Govindram Chaudhari. The plaintiff assigned all her interest in the subject matter of the suit and in the decree appealed against to the respondents, whose names by order of the Court dated October 7, 1927, were substituted for that of the plaintiff, as respondents in the appeal.

The material facts are as follows —

On July 9, 1914, Mst. Jankibai, the plaintiff, had agreed to buy from Seth Jiwandas and the latter had agreed to sell to the former a four annas and four pies share of mauza Raisalpur, including sir and khudkast lands, with cultivating rights in the sir, for Rs.46,100. Mst. Jankibai paid Rs.5000 as earnest money, but being unable to raise the balance of the purchase money, arranged with Seth Sobhagmal (defendant 1) that he should have the benefit of her contract with Jiwandas, pay the balance, take the sale-deed in his name, and convey to her the said share at any time within ten years on her paying him (Sobhagmal) Rs.41,100. On August 25, 1914, Seth Sobhagmal accordingly took a sale-deed from Jiwandas and paid him the balance of the purchase money.

On September 4, 1914, two agreements were executed, one by Seth Sobhagmal in favour of Jankibai, and the other by the latter in his favour, stating the arrangement already mentioned.

On March 18, 1918, Seth Sobhagmal mortgaged a four anna share to the defendants 2 and 3.

On October 9, 1919, Jankibai gave notice to Sobhagmal that she was prepared to pay him the price, and called upon him to carry out his contract with her, but he took no notice of it.

Consequently the plaintiff instituted the present suit against Seth Sobhagmal and his mortgagees (the second and third defendants), praying for a decree that the defendants should be ordered to execute a sale-deed in favour of the plaintiff for the said share of the said village with cultivating rights in the sir land, after obtaining sanction under the Central Provinces Tenancy Act for the transfer of the sir lands on payment by her of the sum of Rs.41,100 and other sums that might be due under the agreement. The plaint contained other alternative reliefs, which it is not necessary to mention in detail at present.

At the trial many issues were raised ; most of them are not now