Wasiuddin, J. – This appeal arises out of a suit for specific performance of contract for sale in respect of 7 bighas 2 kathas 15 dhurs of lands belonging to defendant no. 1 as described in the schedule of the plaint. The aforesaid lands belong to Shrimati Babua Binda Devi, defendant no. 1 of the suit and admittedly this property came in possession of defendant no. 1 by virtue of a deed of surrender dated 30-6-36 executed by the mother of defendant no. 1 in her favour. It may also be mentioned here that the properties are situated in village Nehra in the district of Darbhanga and that place is the Naihar (father’s place) of defendant no. 1. She is married in the district of Chapra where she ordinarily resides. Defendant no. 2, Babu Raj Narayan Singh is her husband and he belongs to the district of Chapra. He is a retired Railway guard and from the evidence it appears that he is commonly known as Guard Saheb. This fact was also not disputed that after the acquisition of the properties by defendant no. 1 from her mother, she executed a deed of Mokhtearnama (power of attorney) in favour of her husband, defendant no. 2. Plaintiff of the suit is Babu Jagarnath Chaudhary who is a resident of village Nehra and his full brother is Babu Jata Shankar Chaudhary, who is P.W. 23 and it may also be mentioned here that Babu Jata Shankar Chaudhary is commonly known as Bare Sarkar and the plaintiff is known as Chhote Sarkar. I have mentioned these facts because in the evidence there is a reference to these persons by these names.

2. Now the case of the plaintiff who is a respondent in this appeal briefly stated was as follows :

Defendant no. 2 by virtue of the authority under the Mokhtearnama referred above entered into an agreement with plaintiff in the first week of July, 1967 to sell the lands described in Schedule 2 of the plaint for a consideration of Rs. 19,565/-. After this agreement for sale defendant no. 2, asked the plaintiff to purchase stamp from the Collector’s Treasury, Darbhanga. The plaintiff accordingly purchased stamps worth Rs. 412.50 Paise from the Darbhanga Treasury. After this purchase plaintiff and defendant no. 2 went to Shri Nageshwar Missir, Advocate Laheriasarai for seeking his advice. Shri Nageshwar Missir then gave some advice to them and also at that time made a note on a piece of paper which is Ext. 2 in this case. It was the further case of the plaintiff tat after having consulted Shri Nageshwar Missir the plaintiff and defendant no. 2 went to Shri Kamla Kant Jha, pleader Laheriasarai for further advice and also for requesting him to make a draft of the kebala which was to be executed. Shri Kamla Kant Jha gave some further advice and he also made out a draft of the kebala which was to be executed by defendant nos. 1 and 2. According to the plaintiff after the draft for the sale deed was prepared the defendant no. 2 agreed that it should be faired out on the stamp paper and then defendant no. 1 would be brought from Chapra for execution and registration of the sale deed at Bahera Registration Office within which the lands of Schedule 2 are situated. The plaintiff’s further case was that after the kebala was faired out on the stamp paper at his residence in village Nehra, then defendant no.2 was paid a sum of Rs. 500/- towards consideration and for meeting the expenses for bringing his wife (defendant no.1) from Chapra, and this was on 11-8-1957. Defendant no. 2 thereafter left for Chapra for bringing his wife defendant no. 1, but he did not turn up. The plaintiff then sent a post card to defendant no. 2 in the third week of August, 1957 requesting him to come with defendant no. 1 so that the execution and the registration of the sale deed may be expedited. The plaintiff then received a post card dated 27-8-1957 from the defendant no. 1 to the effect that the delay in his coming to Nehra should not be interpreted otherwise and defendant no. 2 also sent another post card of the same contents to Shri Jata S