TaxTMI 
TaxTMI 
TaxTMI 
1953 (11) TMI 28
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....tiff states that the appellants had notice of his prior agreement. 3. The appellants' case that the plaintiff's so called agreement of 7th February, 1942, was not a concluded one as the parties never reached finality. They raised a number of other defenses such as misrepresentation and fraud, an agreement with the Nawab prior to that of the plaintiff, lack of knowledge of the plaintiff's agreement and so forth. But all those positions were abandoned in this court and the only point argued, aside from certain subsidiary ones with which we shall deal later, was whether the parties reached finality on 7th February, 1942. 4. The learned trial Judge held, among other things, that there was no concluded contract and so dismissed the suit. In the High Court the appellate Bench which heard the appeal differed. Harish Chandra J. held that the parties reached finality while Kaul, J. differing from him agreed with the trial court and held they had not. The matter was accordingly referred to a Full Bench of three Judges. All three held that there was a concluded contract. In view of this, the appeal was allowed and the plaintiff's suit was decreed on condition that the plaint....
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....377; 62,000 for the contract of sale [of the plaint property] through Babu Chhater Sen and executed a receipt. 7th February, 1942. It is further declared that the sale deed would be executed within three months and that in default the contract would be deemed canceled." 9. " This is the language of a completed contract and if there was nothing more the plaintiff would succeed. The burden therefore shifts because of the Nawab's unqualified admission in this document. We must accordingly turn to the defendants' pleadings and their evidence to see how this burden is discharged. 10. The Nawab's plea in the main is one of fraud and misrepresentation. In his written statement he says that there was a previous contract with the appellants for ₹ 58,000 and that they paid him ₹ 6,000 as earnest money on 5th February, 1942. After this, the plaintiff's broker Chattar Sen told him (the Nawab) falsely that the appellants had backed out and that in view of this it would pay the Nawab to accept the plaintiff's offer of ₹ 62,000. The Nawab believing this to be true entered into the contract of 7th February, 1942, with the plaintiff and accepted &....
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....Nawab and the appellants to explain away the receipt, Exhibit 35-G. 17. [Their Lordships then reviewed the evidence.] 18. A question was also raised about the plaintiff demanding a warranty of title and the Nawab refusing. But this had nothing to do with the bargain struck on 7th February, 1942. The question of warranty arose in this way. When the sale deed was in the course of preparation in March, 1942, Chattar Sen brought a draft containing a warranty in a form to which the Nawab's manager objected because the plaintiff was insisting on it; but there the matter ended. It is usual to insert a warranty of title in most sale deeds and when that is not done the law imports one; and in some deeds there is a covenant for quiet enjoyment as well. All that happened here was that the kind of warranty inserted by Chattar Sen in the draft was not acceptable to the other side. But nobody suggested either in the evidence or the pleadings that the plaintiff refused to accept a sale deed unless the exact form of warranty placed in the draft was given. As we have said, this question arose subsequent to the contract for sale and the plaintiff's insistence on this form of warranty at th....
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....urt, we hold that there was a completed contract on 7th February, 1942, which the plaintiff is entitled to have specifically performed. 22. Now arises a question which touches the Custodian, Uttar Pradesh. The contract was for ₹ 62,000. The plaintiff paid ₹ 10,000 as earnest money but this was later returned, so ₹ 62,000 is still due. But there is a conveyance outstanding in favour of the appellants for which they have paid, according to their case, ₹ 58,000. If the ₹ 62,000 due to the Nawab is paid to him, or to the Custodian, U.P., who represents his estate, it is evident that the Nawab, who is at fault, will be paid twice over for the same property and his estate will benefit accordingly while the appellants will be left to pursue their remedies against Nawab or his estate. The question is whether we have power to direct that the ₹ 58,000 be paid to the appellants instead of to the Nawab and thus obviate further, and possibly fruitless, litigation. But before we decide that, we will consider another question which is bound up with it, namely, the proper form of decree in such cases. 23. The practice of the courts in India has not been unifor....
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....s steps are taken to re vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance to the vendor was ordered but Sulaiman C.J. adopted the other course in Kali Charan v. Janak Deo AIR1932All694 . He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring in its train complication between the vendor and the subsequent purchaser. There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution. 29. We are not enamoured of the next alternative either, namely, conveyance by the subsequent purchaser along to the plaintiff. It is true that would have the effect of vesting the title to the property in the plaintiff but it might be inequitable to couple the subsequent transferee to enter into terms and covenants in the vendor's agreement with the plaintiff to wh....