- (1.) THIS is a defendant's appeal against a decree passed by the lower courts for specific performance of a contract dated 10-4-1942. The property agreed to be sold consisted of shares in khewat No. 1 in Mauza Kishorepur, Mahal Durga Prasad, Pargana Jewar, and in Mauza alawalpur, Mahal Durga Prasad, in the same Pargana. The facts are that defendant No. 5, Lala raghubar Dayal, had applied under the Encumbered Estates Act and on 7-4-1942, he filed an application under Section 20 for the quashing of the proceedings. On 10-4-1942, he entered into an agreement with the plaintiffs to sell the property to them for Rs. 2,600/ -. The plaintiffs paid a sum of Rs. 1,600/- as earnest money and the balance was to be paid at the time of the execution of the sale deed. On 18-7-1942, the application under Section 20 was granted and the proceedings under the Encumbered Estates Act were quashed. The plaintiffs served a notice on 13-8-1943, for specific performance of the contract and on 18-12-1943, filed the suit. They claimed specific performance of the contract, and in the alternative, refund of Rs. 1,600/-, the amount of earnest money, and a sum of Rs. 300/-, excess price which defendant No. 5 had received from defendants Nos. 1 and 2 to whom the property had been sold.
(2.) ON 5-5-1942, defendant No. 5, Lala Raghubar Dayal had sold the property in village alawalpur to Munshi Lal, defendant No. 1, for Rs. 2,000/-; and on 6-5-1942, the same defendant has sold the property in Kishorepur to Musammat Gendo, defendant No. 2, wife of Munshi Lal.
(3.) IT has been held by the lower courts, and the finding does not appear to have been challenged that Musammat Gendo was a 'benamidar' for Munshi Lal. So in fact the vendee of both the sale deeds, was Munshi Lal.;