A plaintiff is not entitled to a charge on property under Section 55(6)(b) of the Transfer of Property Act if the contract for sale fell through due to the plaintiff's improper refusal to accept delivery of the property.

Narasimham, J.

1. These two appeals by the plaintiff arise out of the judgment of Raj Kishore Prasad, J. partially reversing the judgment of the Additional Subordinate Judge of Patna and setting aside a charge created under Sec. 55(6) (b) of the Transfer of Property Act on some bakasht lands in the possession of defendants 5th and 6th parties. They were heard together and will be disposed of in one judgment. The plaintiffs case was that on the 28th January, 1951, defendant No. 1, Parasnath Choubey and defendant No. 4, Ramadas Choubey, entered into an oral contract with the plaintiff for the sale of their zamindari interest together with bakasht lands to the plaintiff, and on the 29th March, 1951, they also executed and registered two deeds of agreement (moahadanamas), exhibits 1 and 1(a), undertaking to execute the actual sale-deeds conveying the said properties on the 13th April, 1951. It was further alleged that the vendors definitely assured the plaintiff-purchaser that there were no encumbrances on the said properties and a recital to that effect was also made in the contracts (sic) agreement.

In pursuance of the contract the plaintiff also advanced certain sums to them by way of earnest money and part of the consideration. The plaintiff was all along ready and willing to perform his part of the bargain and though he issued repeated notices to these two defendants about his readiness and willingness to get the sale-deeds executed, and even went to the length of purchasing the requisite stamps papers on the 11th April. 1951, the defendants did not execute the documents in pursuance of the contract on the due date, namely, the 13th April, 1951. Thereafter, when the plaintiff met them on the 17th April, 1951, these defendants were alleged io have flatly refused to execute the sale-deeds. Hence the plaintiff rushed to the court with two suits against the two defendants, namely, Title suit No. 35 of 1951 and Title suit No. 36 of 1951. The suits as originally framed were simple suits for specific performance of the contract. Subsequently by an amendment some other defendants, namely, defendants 5th and 6th parties, were added as parties, because they were subsequent purchaser from defendants 1 and 4 of the same property by three registered sale-deeds dated the 25th April, 1951. It was alleged that they were not bona fide purchasers for value and that they were aware of the existence of the previous contract. The plain! was filed on the 20th April, 1951, when the zamindari interest in the village remained with the contesting defendants. But by 1956 the zamindari had vested in the Government under the provisions of the Bihar Land Reforms Act. Hence the plaintiff filed an amendment to the plaint on the 27th February, 1956, giving up his prayers for specific performance of the contract of sale and asking for a statutory charge on the bakasht lands under Section 55(6) (b) of the Transfer of Property Act.

2. The main defence of defendants 1 and 4, the original contracting parties, was that the plaintiff and these defendants were fully aware of the existence of the previous encumbrances on the property and that the plaintiff undertook to pay the consideration money in full to these defendants and also to discharge the encumbrances. Hence, though these defendants were ready and willing to perform their part of the contract by executing the sale-deeds on receipt of the full consideration as stipulated in the contract, the plaintiff committed breach of the terms by insisting on deduction of the mortage dues from the total consideration money. This was said to be the main reason why the contract fell through.

3. The trial court was inclined to accept the plaintiffs case that the sellers created a false impression on the plaintiffs mind about the absence of any encumbrance on the properly and that consequently the plaintiff was entitled to deduct the mortgage dues from the total consideration money. The trial court, therefore, direc