Weir, J - (1.)In this case the plaintiff sued for possession of a 4 pie share in area Mahulani Khurd which he alleges was sold to him for Rs. 400 by Ram Milan, defendant 1. He has joined as defendant Ram Milan's wife Mt. Pran Dei and one Shiva Haragh Pathak. The sale in respect of which the suit was brought was effected on 29th November 1923. Several defences were raised, but I am concerned with only two of them. The first is this: Mt. Pran Dei, who is the sole appellant in this appeal, alleges that on 7 September 1920, her husband Ram Milan entered into an agreement with her that he would not alienate, either by mortgage or sale, any part of his property without her consent. This agreement is in writing and has been registered; and counsel for Mt. Pran Dei contends that the agreement is valid under Section 25, Contract Act. The learned Subordinate Judge decided that the agreement was ineffectual to restrain Ram Milan's right to sell the property, and secondly, that in any event,the plaintiff was not aware of the existence of the agreement and could not be in any way affected by it, because no specific property was mentioned in the agreement. I agree with the learned Subordinate Judge in holding that the fact that this agreement though registered cannot be treated as notice to the plaintiff since the property in suit is not mentioned in it, and, therefore, a purchaser or mortgagee would not have discovered the existence of the agreement by a search for transactions affecting the property in suit. The learned Subordinate Judge has found as a fact that the plaintiff "had no knowledge of this agreement," i.e., had no actual notice of it, and so I hold that the agreement has no effect upon his rights as a purchaser of the property in suit. It is, therefore, unnecessary for me to decide whether the learned Subordinate Judge was or was not right in holding that the agreement between Mt. Pran Dei and her husband, Ram Milan, could not affect the validity of the sale to the plaintiff even if the plaintiff had express notice of it. The point does not seem to be free from doubt: see Ali Hasan V/s. Dhirja [1882] 4 All. 518 and. Kuldip Singh V/s. Khetrani Koer [1898] 25 Cal. 869 and I abstain from expressing any opinion on the point.
(2.)The next question is whether the plaintiff is entitled to a decree for possession of the property in suit. The deed by which the property was sold to him contained a statement that Rs. 230 of the consideration had been paid to Ram Milan before the deed was registered, and that the remaining Rs. 200 were left with him to be paid to one Mt. Mukhraji, the mistress of Ram Milan. The plaintiff says that he paid Rs. 200 before the deed was executed and also paid the remaining, Rs. 200 to Mt. Mukhraji, but both the Courts below have disbelieved his statement and have held that no part of the consideration has been paid by him. The learned Subordinate Judge has nevertheless decreed the plaintiff's claim for possession with costs relying on the authority of Raj Nath Singh V/s. Paltu [1908] 30 All. 125. That case was decided by Stanley, C.J., and Pramada Charan Banerji, J. It was in many respects similar to the case before me. There had been a sale of four pies share in a village for Rs. 200. The plaintiff alleged that this money had been paid and claimed possession. The defendants denied that any part of the consideration had been paid and both the Courts below held that this was the fact. Stanley, C.J., and Banerji, J., held that although the plaintiff was entitled to sue notwithstanding the fact that he had not paid the consideration, there was nevertheless, an equity arising out of the non-payment of the purchase-money by the plaintiff, and that regard ought to be paid to it in any decree which the Court might pass. Accordingly they directed, that if within six months from the date of their judgment the plaintiff should pay to the defendants the sum of Rs. 200, the property mentioned in the plaint should be delivered to him, but in default of such payment the plaintiff shall forfeit his right to recover the property. That decision is binding upon me. I shall follow it and make the same order as was made in it.
(3.)I accordingly vary the decree of the Court below and direct that if the plaintiff pays to Ram Milan within six months from the date of this judgment the sum of Rs. 400, the property mentioned in the plaint shall be delivered to him: but if the plaintiff does not pay the purchase-money within the time aforesaid, his suit shall stand dismissed with costs in all the Courts. If, however, the plaintiff pays the Said purchase money within the said period, then in view of the fact that the plaintiff falsely alleged that he had paid the entire purchase money when in fact he had not, I direct that the parties shall abide their costs in the Courts below; but that if the plaintiff pays the said purchase money within the time aforesaid, he shall be entitled to the costs of the appeal in this Court.