JUDGMENT

Kanhaiya Lal, J. - This was a suit for the specific performance of a contract of sale in respect of a house situated in Bareilly, and the main question for consideration is whether the persons who entered into the contract of sale had a subsisting right in the property which they could have conveyed to the plaintiff.

2. The allegation of the plaintiff was that the house belonged to the defendants Jagdish Narain and Gopal Narain and their father Hirdey Narain; that on the 24th of July 1920, they agreed to sell the same to the plaintiff for Rs. 10,000, out of which Rs. 9,265 were to be paid to the defendant Ganesh Prashad on account of the money said to have been due on a prior mortgage; Rs. 500 were paid to Raja Lalta Prashad on account of another mortgage; Rs. 200 are said to have been paid as earnest money and the balance was to be paid at the time of registration. The plaintiff also alleged that in pursuance of the said contract he had paid Rs. 500 to Raja Lalta Prashad through the vendors and also advanced Rs. 100 for the purchase of the necessary stamp paper for the execution of the sale-deed. He further stated that a draft sale-deed was eventually prepared and faired out, but in the meantime the defendant, Ganesh Prashad, induced the vendor to resile from the bargain and to refuse to sell the, said property to the plaintiff. The plaintiff also claimed Rs. 140 as damages for having been kept out of the possession of the house.

3. The defendant Jagdish Narain denied having entered into the said contract. The other defendants, Gopal Narain and Hirdey Narain, pleaded that no sale-deed was executed because the plaintiff himself had been guilty of the breach of the contract by insisting on entering in the sale-deed certain terms which were out side the original bargain. He denied that any money had been paid to him by the plaintiff for the purchase of the stamp pager, and further stated that they had returned Rs. 728 to the plaintiff as per detail given by him in the written statement. The defence of Ganesh Prashad was that the defendants Jagdish Narain, Gopal Narain and Hirdey Narain had already conveyed their rights in the house in dispute by an absolute sale to him on the 6th of September 1917, that they had obtained an agreement from him to reconvey the property to them if they repaid this sale consideration with interest thereon in the shape of rent at 12 annas per cent, per mensem within three years, and that on the 6th of September 1920, the vendors relinquished their rights to obtain a reconveyance. He denied that the vendor had any power to agree to sell the house to the plaintiff after they hail sold their rights to the contesting defendant, and that the plaintiff was not entitled to any relief.

4. The Court below found that the house in question had already been conveyed by an absolute sale by the vendors to Ganesh Prashad by the sale deed of the 6th September 1917, and that the agreement to reconvey the house to the vendors on repayment by them of the consideration money and the lease granted by Ganesh Prashad to the vendors were separate transactions which did not in any way derogate from the right of Ganesh Prashad to claim to be the absolute owner of the disputed property on the date on which the vendors purported to reconvey the same to the plaintiffs.

5. In order to appreciate the precise bearing of the various transactions entered into by the vendors it is necessary to go into some of the attendant circumstances in detail. The house in dispute stands contiguous to a temple, and originally belonged to the persons by whom that temple was founded. In 1918 it was purchased by the defendants. Gopal Narain and Jagdish Narain, from those persons, and it was subsequently mortgaged by them with Ganesh Prashad on the 11th of March 1916. In order to pay the money due on that mortgage the transaction, the precise nature of which is here in question, was entered into on the 6th of September 1917. It was evidenced by th