Decided on February 04,1960



P.N.Mookerjee, J. - (1.) This is the defendant's second appeal, arising out of a suit for specific performance. In the view, which we are taking it is not necessary to go into any controversial question of fact, inasmuch as the case has to be remanded to the Court of appeal below for re-hearing and further consideration, as the appeal before it, out of which this instant second appeal arises appears to have been disposed of on a point of law, more or less of a preliminary nature, upon a wholly wrong view of the same.
(2.) The facts, relevant for our present purpose, stand as follows : The suit property originally belonged to defendant No. 1 Padmabati. According to the plaintiffs, Padmabati agreed to sell the said property to the plaintiff Nos. 1 and 2, who were respectively the wives of plaintiffs Nos. 3 and 4. The alleged stipulated price was Rs. 599/- and the agreement in Question was stated to have been made on January 27, 1950, when Padmabati took Rs. 100/- from the plaintiffs Nos. 3 and 4, in part-payment of the aforesaid stipulated price, under the aforesaid agreement. According to the plaintiffs, the balance of the consideration money, viz. Rs. 499/-, was paid to Padmabati upon execution of the sale deed or conveyance on 31st January, 1950, when the parties went to the Registration Office for completing the transaction, but, as it was late for the purpose of registration, that was put off till the nest day. Thereafter, however, Padmabati on some pretext or other, delayed the matter and, eventually, on coming to know that Padmabati and her brother had arranged to sell away the suit property to or in the name of defendant No. 4, wife of defendant No. 3, they, before, registration of this defendant's Kobala, though after presentation of the same for registration, informed the said defendants of the above earlier agreement in their (plaintiffs') favour, but, in spite of the said notice or intimation, the said Kobala was registered, thus compelling the plaintiffs to institute the present suit.
(3.) The defence was a complete denial of the plaintiff's agreement and also of the receipt of any money by Padmabati from the plaintiffs. The defence, further, was that the defendants Nos. 3 and 4, or, more accurately, defendant No. 4 was a bona fide purchaser for value without notice, and hence her or their title under the above disputed kobala would prevail.;

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