- (1.) THE facts giving rise to this appeal are as follows:- There is a Nazul land about which there was a lease deed in favour of Nathu Ram. Nathu Ram gifted his property in cluding the right in this lease tp Smt. Lilawati, wife of Bengali Mai. This leas deed was executed in favour of Nathu Ram on 11-1-1937 for a period of 30 years. Therefore, the term of the lease had ex pired on 11-1-1967. On 13-11-1967, there was an agreement of sale between Smt. Lilawati wife of Bengali Mai and Smt. Lilawati wife of Shiv Sarup about the sale of the lessee rights. The price settled was Rs. 8,250/- out of which Rs. 500/-was paid as earnest money. There was a condition in this agreement that the sale deed was to be executed after Smt. Lila wati wife of Bengali Mai had got her name mutated over the property in dis pute. Smt. Lilawati wife of Bengali Mai, who shall hereinafter be called as 'the vendor', made an application for getting her name mutated. It appears that till April 1969, she was not able to get her name mutated over the disputed property. She then sent a notice to Smt. Lilawati wife of Shiv Sarup. who shall hereinafter be called 'the plaintiff', that the vendor had not been able to get her name mutat ed and that the plaintiff either could take the sale as the property stood or could get the refund of her earnest money. To this, a reply was sent by the plaintiff that the vendor was not taking interest in getting the condition fulfilled and Rs. 600/- was needed to get her name mutated and in case she was prepared to spend that amount, the plaintiff would get the name of the vendor mutated, but it was insisted in this reply that the sale would be executed only in accordance with the terms of flhe agreement.
(2.) THEREAFTER the sale was taken by Durga Prasad and Jalaluddin for Rs. 7,500/- on 20-6-1969. Earlier two telegrams were sent by the plaintiff, one to the vendor and the other to one Nanhey that there was an agreement of sale in her favour. After this sale, the plaintiff filed the present suit for specific perfor mance of the contract. The suit was con tested by the vendor as well as Durga Prasad and Jalaluddin on various grounds and inter alia it was pleaded that the agreement for sale being a contingent agreement, it could not be specifically en forced and secondly that Jalal Uddin and Durga Prasad were purchasers in good faith for value and without notice of the agreement of sale.
(3.) THE defence found favour with the trial court and the trial court dis missed the suit for specific performance but decreed it for the refund of the earnest money against the vendor.;