MAHOMED EBRAHIM MAHOMEDI Vs. ESSAK HAJI ALIMAHOMED HAJI SUMAR

JUDGEMENT

(1.) THIS is an appeal from the judgment of Mr. Justice K. K. Desai in suit No. 277 of 1954.

(2.) THE relevant facts are as follows: The defendants Nos. 1 to 4 had agreed under a deed dated 21st February 1949 to sell to the plaintiff, who is the appellant before us, certain property situate in the city of Bombay for a sum of Rs. 2,80,000/ -. Under the agreement the plaintiff paid to the defendants Nos. 1 to 4 a sum or Rs. 15,000/- as earnest money. The defendants had agreed to make out a marketable title free from all claims and demands. The plaintiff thereafter through his attorneys repeatedly called upon the defendants Nos 1 to 4 to make out a marketable title to the property but the defendants failed to make out such a title. Ultimately, the plaintiff by his attorney's letter dated 21st August 1951 put an end to the agreement for sale and called upon the defendants Nos 1 to 4 to return the earnest money of Rs. 15,000/- with interest thereon at 9 per cent per annum from 21st February 1949 and a further sum of Rs. 3,500/- being the estimated cost and the expenses incurred by him in the meanwhile. Eventually the plaintiff instituted the suit of which his appeal arises.

(3.) IN that suit the plaintiff has claimed a charge under Section 55 (6) (b) of the Transfer of Property Act upon the property which was agreed to be sold. It would appear that the defendants Nos. 1,3 and 4 eventually migrated to Pakistan.