JUDGMENT

Bhide, J. - This was a suit for recovery of Rs. 60,000 on the basis of a mortgage deed, by the sale of certain land situate at Mauza Bahrampur, or in the alternative for specific performance of the contract on the part of the defendant Buta Ram to sell two-third share in 2111 kanals, 15 marlas of land situated at Mauza Bohar as provided for in the deed and also for Rs. 21,600 as damages on account of the breach of contract. The learned Judge of the trial Court has granted the first relief to the plaintiff but disallowed damages for the alleged breach of the contract to sell land on the ground that the plaintiff was not ready to perform his part in respect of the contract. From this decision the defendant has preferred the present appeal to this Court. The material conditions of the mortgage deed on which the plaintiff's suit was based were as follows:

1. I (i.e. the mortgagor) will remain in possession of the aforesaid mortgaged land, but will not in any way transfer the said land to any other person till payment of the entire aforesaid mortgage money. 2. I have agreed to sell to the mortgagee in lieu of Rs. 60,000 (rupees sixty thousand) two-third share of the entire land, situate at mauza Bohar, Tahsil Pakpattan, together with all rights, decreed in suit No. 24, re, I Buta Ram decree-holder versus Gobind Ram and Parshotam Das judgment-debtors, for possession by pre-emption of land situate at Mauza Bohar, by the Court of the Senior Subordinate Judge, Montgomery, on 7th April 1924. I will take possession of the land decreed after taking out execution and making payment of the balance of the price. I will then execute and complete a sale-deed in respect of two-third share of the land decreed in lieu of Rs. 60,000 (rupees sixty thousand) will get the same registered in favour of the said Diwan Sahib. I will also deliver possession at the spot, and will get mutation of names effected. I will at that time redeem the aforesaid mortgaged land situate at Bahrampur that is this mortgage money shall be considered as the sale money of that land. If I do not get a sale-deed in respect of two-third share of the land decreed, situate in Mauza Bohar registered after having executed and uompleted it in favour of the abovenamed Diwan Sahib within a period of one month and 20 days, or object to delivery of possession or mutation of name being effected, the mortgagee shall be competent to recover from me Rs. 60,000 (rupees sixty thousand) mortgage-money of the said mortgage on the security of the land mortgaged situate at Mauza Bahrampur.

2. The defendant's case as disclosed in his written statement briefly was that the mortgage with respect to the land at Bahrampur was to be enforced only if the defendant failed to sell the land at Bohar to the plaintiff, that the defendant had been willing to convey the land to the plaintiff within one month and 20 days as stipulated in the deed but the plaintiff backed out of the contract on the ground that the land had been attached in execution of a decree against the defendant; that as a matter of fact, the attachment was legally no bar to the sale of the land to the plaintiff but the attachment was merely used by him as a pretext to evade the purchase of the land and that the real reason for not complying with the terms of the deed in that respect was that the whole transaction had been entered into by the plaintiff merely benamidar for the benefit of Malak Zaman Mehdi Khany who was then the Deputy Commissioner of the Montgomery District where the land is situated but the Malak had for some reason, or other given up his intention of purchasing the land. The defendant further pleaded that the real consideration for the sale was a sum of Rs. 32,692 only and the sum of Rs. 60,000 was fictitiously shown in the deed as the consideration? merely to prevent pre-emptors front coming forward to claim the land.

3. The plaintiff in his replication denied that he had entered into the transaction merely as a ben