R.J. Bhave, J.

1. On a difference between Honourable Justice Shiv Dayal and Honourable Justice S.B. Sen, the following question has been referred to me for my decision :-

Whether the agreements (Exs. D-1 and D-2), relied on by the defendants, were executed before the agreement for sale between the plaintiff and defendants 1 and 2 Was executed ?

2. To appreciate the circumstances in which the difference between the honourable Judges arose it is necessary to narrate a few facts. The original defendant No. 1 Hidayatullah owned the suit house situate in Lashkar, Gwalior, near the Town Hall. In one portion of the ground floor the plain has his shop, while the other portion is occupied by the Bata Shoe Company (the third Defendant). Hashmatullah (defendant No, 2) is the son of defendant No. 1 Hidayatullah. Hashmatullah had entered into an agreement with the plaintiff, to transfer the suit house for a consideration of Rs. 20,000 on 30 11-1958. Under this agreement, a sum of Rs. 1,000 was to be paid by way of earnest money, and rest of the amount was to be paid at the time of registration. Inasmuch as Hashmatullah had entered into this agreement on behalf of his father as his Mukhtaya