A subsequent purchaser of property with notice of an existing contract affecting that property must hold the property for the benefit of the person in whose favor the prior agreement to sell has been executed to the extent it is necessary to give effect to that contract.

( 1 ) THIS is a defendant's Second Appeal against the judgment and decree dated the 12th of October, 1960 passed by the Addl. District Judge Gwalior, in Civil Appeal No. 57-A of 1960.

( 2 ) THE facts giving rise to the suit out of which the present appeal arises axe that the present appellant entered into an agreement on 9-3-1956 for purchase of the house in dispute for a sum of Rs. 4500/- from its owner Babulal. Surajmal and Kanhaiyalal with prior knowledge of this agreement purchased the said house on 7-4-1956 from Babulal for a Sum of Rs. 6000/- under a registered deed. The defendant was at the time of the sale occupying a shop forming part of the said house on a rent of Rs. 12/-/- p. m. On 26-5-1956 the present respondents served a registered notice on the defendant demanding arrears of rent from 7-4-1956. This notice was followed by another dated 9-7-1956 terminating the defendant's tenancy with effect from the 7th of September, 1956 or in the alternative from 10-9-1956. This notice also contained a demand for the arrears of rent. The defendant thereupon filed a suit against the plaintiffs and their predecessor-in-title Babulal for specific performance of the contract dated 9-31956 with Babulal for the purchase of the house, of which the suit accommodation forms a part. The plaintiffs on the other hand filed the present suit on 25-9-1956 for eviction of the defendant from the premises under his occupation.

( 3 ) THE defendant contended, inter alia, that the plaintiffs were purchasers of the house in question with notice of his prior contract with Babulal. They were, therefore, according to his contention not entitled to recover any rent from him or to eject him. The defendant further alleged that he had offered to pay the arrears of rent under protest to the plaintiffs but the latter did not accept the offer. He, therefore, contended that the suit was not maintainable.

( 4 ) THE trial Court held that the plaintiffs were the purchasers of the house in question with notice of the prior agreement entered into by Babulal in favour of the defendant for sale to him of the house in question. It further held that an offer to pay rent under protest was tantamount to refusal to pay the arrears of rent as such and that the defendant was, therefore, liable to be evicted u/s. 4-A of the M. P. Accommodation Control Act, The trial Court held that the plaintiffs did not genuinely require the premises for their own business. It, however decreed the plaintiffs' suit for ejectment on the basis of non-payment of rent.

( 5 ) ON appeal it was held by the learned Addl. District Judge that 'the appellant had not set up a case in defence of his possession under S. 53-A of the Transfer of Property Act, and that he could not invoke the aid of that section, since he was in possession of the suit accommodation even after the alleged unregistered contract of sale dated the 9th of March, 1956 with Babulal as his tenant. It was further held by the lower appellate Court that the provisions of Section 91 could be availed of by the present appellant only when he won in the suit for specific performance of the contract of sale. Till such, a sale-deed is executed, in consequence of the decree in the suit for specific performance, by the subsequent purchaser in favour of the present appellant, the latter cannot, on the strength of the prior agreement acquire any title to the property agreed to be sold. Reliance was placed by the learned Judge for this observation on the decision in Appa Rao v. Veeranna, AIR 1953 Mad 409.

( 6 ) IN support of the present appeal the learned counsel for the appellant urged several grounds; Firstly he contended that the lower Courts erred in holding that the present, appellant has not tendered the amount of arrears of rent. In paragraph 4 of his written statement the defendant stated that he had both prior to as well as after the receipt of the plaintiffs' notice offered to pay the rent under protest, but that the