Sir Lancelot Sanderson -

This is an appeal by the plaintiffs in the suit against the judgment and decree of the High Court of Judicature at Allahabad, dated 2nd April 1924, whereby the judgment and decree of the Court of Subordinate Judge of Cawnpore, dated 8th July 1921, was reversed.

The suit was instituted on 3rd August 1920. The plaintiffs alleged that on 3rd December 1919, at Patehpur, Kishori, defendant 1, entered into a contract with Gobind Prasad, plaintiff 2, who was acting for both the plaintiffs, for the sale of mouza Rithuan, permanent mahal of 16 annas of Kishori Saran, and his eight annas' share in the fluctuating mahal. The plaintiffs claimed specific performance of the alleged contract. The defendant Kishori, and the other three defendants, who were subsequent purchasers of the property in suit from defendant 1 in August 1920, denied the alleged contraot between Kishori and the plaintiffs.

The learned Subordinate Judge decided in favour of the plaintiffs and directed that, on the plaintiffs paying Rs. 42,000 within one month, their claim for possession should be decreed with costs against all the defendants, that the deed conveying the property to defendants 2, 3 and 4, should be cancelled, and that the defendants should execute a sale-deed in favour of the plaintiffs. The defendants appealed to the High Court, which allowed the appeal, set aside the decree of the learned Subordinate Judge, and dismissed the suit. The plaintiffs have appealed to His Majesty in Council from the said decree of the High Court.

It appears that the mouza Rithuan was originally one entire mahal. It was situated on the banks of a river and its area was liable to fluctuation. There was a partition of the permanent portion into a 16 annas mahal of Kishori Saran and another 16 annas mahal of Kishori's brother. The fluctuating portion was formed into one mahal Ehtamali, in which each of the brothers had an eight annas' share. Defendants 2, 3 and 4 in 1913 acquired the interest of Kishori's brother for Rs. 24,000, and thus they became cosharers with Kishori in the mahal Ehtamali (fluctuating), but not in the permanent mahal of Kishori Saran. Kishori had mortgaged to the plaintiffs in 1911 other property belonging to him for Rs. 17,000 and interest; this property was nearer the town and was alleged to be more valuable than the property in suit. At the time of the suit the amount owing in respect of the mortgage was about Rs. 33,000.

The plaintiff's case was that Gobind Prasad the plaintiff 2, whose residence was at Kora, went to Fatehpur on 2nd December 1919; that he stayed at the house of Krishna Behari Lal, who is the younger brother of Kishori; that he told Krishna Behari that Kishori was asking Rs. 45,000 for the property in suit; that Lachman Prasad, the father of Gobind, was offering Rs. 40,000, and that he asked Krishna Behari to get the sale effected for Rs. 1,000 or Rs. 2,000 more than what had been offered; that Krishna Behari did use his influence with Kishori and that on the following day, viz., 3rd December 1919, Gobind Prasad agreed with Kishori to purchase the property for Rs. 43,000.

It was alleged that one Gobind Prasad, son of Badir Prasad, a Brahman, happened to come to the house of Krishna Behari, and that he was present when the alleged contract was made. It was further alleged by the plaintiffs that on 15th December 1919, Lachman Prasad and his son Binda, the first plaintiff, went to Fatehpur, taking Rs. 1,000 with them, that they spent the night at the house of a mukhtar named Ram Adhin, that on the morning of 16th December Lachman and Binda went to the house of Kishori and paid him Rs. 1,000 as earnest money in respect of the contract made by Gobind Prasad on 3rd December. It was alleged that Kishori received the money and handed it to his treasurer.

Lachman in his evidence said :

"My son asked for a receipt, but I prevented him from doing so, saying that there have been dealings with him since a long time, and that no such