SANKALCHAND KUBERDAS JINGAR Vs. JOITARAM RANCHHOD KUMBHAR

JUDGEMENT

(1.) THE facts of the case are as follows :

(2.) THE plaintiff was the owner of the suit properties. He had sold them to different persons but had continued to remain in possession. THE defendant purchased the properties in the name of his minor son for Rs. 1,500 from the plaintiff's vendees. On October 29, 1934, there was an agreement, exhibit 42, between the defendant and the plaintiff, under which the defendant agreed to sell the property for Rs. 2,000 to be paid at any time within three years with interest at Rs. 0-14-6 per cent, per month. If the money was not paid, the defendant was at liberty to deal with the property in any manner he liked. On the same day, the plaintiff executed a rent note in defendant's favour in respect of the properties purchased by him, agreeing to pay Rs. 17-8-0 per month. On July 20, 1937, the defendant sent a notice to the plaintiff calling upon him to pay the arrears of rent and give vacant possession within 15 days. On August 14, 1937, the plaintiff replied by exhibit 36, alleging that he had sold to the defendant by conditional sale for Rs. 2,000 and that the defendant was to sell the properties to him if he paid Rs. 2,000 with interest at the rate of Rs. 17-8-0 per month, which amount the defendant was pleased to call as rent, and that he was arranging to return the amount due to him. THE defendant sent another notice by exhibit 37 on December 31, 1937, calling upon him to surrender possession immediately and intimating to him that a suit would be filed against him if he failed to vacate. In this notice defendant did not say anything about the allegations made by the plaintiff in exhibit 36. THE defendant then filed Regular Suit No.132 of 1939 against the plaintiff to recover possession of the properties on the strength of the rent note and obtained a decree, and in execution of the decree he got possession in June 1940. On October 26, 1940, the present suit was filed by the plaintiff in forma pauperis for specific performance of the agreement to sell executed on October 29, 1934.

(3.) WE are not convinced that the learned Judge is right in holding that the plaintiff did not commit breach of his promise to pay. It is the plaintiff's case that the defendant had been responsible for the plaintiff's failure to pay in time. According to him he had persuaded one Ghanehi to advance to him Rs. 3,000. It was arranged that the Ghanehi should pay Rs. 3,000 to plaintiff and the plaintiff was to pay the same to defendant and get a sale deed in his favour and the plaintiff then was to pass a mortgage deed in favour of the Ghanehi in respect of those properties. This part of the plaintiff's story is corroborated by entries in the stamp vendor's book which shows that on April 14, 1936, stamps of the value of Rs. 49 were purchased in the name of the defendant and stamps worth Rs. 78-8-0 were purchased in the name of the plaintiff. This amount of Rs. 127-8-0 for the purchase of stamps was advanced to the plaintiff by the Ghanehi and the plaintiff had executed a pro-note for that amount in the Ghanchi's favour. The stamp vendor's book contains the thumb impression of the defendant against the entry of Rs. 49.It is therefore clear that the defendant was a party to this arrangement. But the versions of the plaintiff and the defendant differ with regard to what happened subsequently. According to the plaintiff, the negotiations fell through because the defendant refused to show his title deeds to the Ghanehi. The defendant, on the other hand, says that he showed the title deeds to the Ghanehi but he declined to advance Rs. 3,000 to plaintiff as the sale deeds had been taken in the name of his minor son Chandrakant. WE are inclined to hold that the defendant's version is true. The Ghanehi had filed a Small Cause suit to recover Rs. 127-8-0 from the plaintiff on the promissory note. The present plaintiff then contended in his written statement that he was not liable to pay as the Ghanehi committed a breach of agreement by refusing to advance Rs. 3,000. When the plaintiff was asked in his cross-examination about this written statement in the suit on the pro-note, he admitted that what he stated in the written statement was true. In this written statement the present plaintiff has not stated anything about the defendant's refusal to show the title deeds. The plaintiff has therefore not established that the defendant was responsible for the failure of negotiations with the Ghanehi. But this incident only serves the purpose of showing that the plaintiff was attempting to pay the amount to the defendant but he did not succeed as the title deeds were in the name of a minor and the Ghanehi was not willing to risk his money.