JUDGMENT
S. Wasiuddin, J.
1. This appeal arises out of a suit for specific performance of contract for sale in respect of 7 Bighas 2 Kathas 15 dhurs of lands belonging to defendant No. 1 as described in the schedule of the plaint. The aforesaid lands belong to Shrimati Babua Binda Devi, defendant No. 1 of the suit and admittedly this property came in possession of defendant No. 1 by virtue of a deed of surrender dated 30-6-36 executed by the mother of defendant No. 1 in her favour. It may also be mentioned here that the properties are situated in village Nehra in the district of Darbhanga and that place is the Naihar (father’s place) defendant No. 1. She is married in the district of Chapra where she ordinarily resides. Defendant No. 2 Babu Raj Narayan Singh is her husband and he belongs to the district of Chapra. He is a retired Railway guard and from the evidence it appears that he is commonly known as Guard Saheb. This fact was also not disputed that after the acquisition of the properties by defendant No. 1 from her mother, she executed a deed of Mokhtearnama (power of attorney) in favour of her husband, defendant No. 2. Plaintiff of the suit is Babu Jagarnath Chaudhary who is a resident of village Nehra and his full brother is Babu Jata Shankar Chaudhary, who is P.W. 23 and it may also be mentioned here that Babu Jata Shankar Chaudhary is commonly known as Bare Sarkar and the plaintiff is known as Chhote Sarkar. I have mentioned these facts because in the evidence there is a reference to these persons with these names.
2. Now the case of the plaintiff who is a respondent in this appeal briefly stated was as follows:
Defendant No. 2 by virtue of the ‘authority under the Mokhtearnama referred above entered into an agreement with plaintiff in the first week of July, 1967 to sell the lands described in Schedule 2 of the plaint for a consideration of Rs. 19,565/-. After this agreement for sale defendant No. 2, asked the plaintiff: to purchase stamp from the Collector’s Treasury, Darbhanga. The plaintiff accordingly -purchased , stamps worth Rs. 412.50 Paise from the Darbhanga Treasury. After this purchase plaintiff and defendant No. 2 went to Shri Nageshwar Missir, Advocate Laheriasarai for seeking his advice. Shri Nageshwar Missir then gave some advice to them and also at that time made a note on a piece of paper which is Ext. 2 in this case. It was the further case of the plaintiff that after having consulted Shri Nageshwar Missir the plaintiff and defendant No. 1 went to Shri Kamla Kant Jha, pleader Laheriasarai for further advice and also for requesting him to make a draft of the kebala which was to be executed. Shri Kamla Kant Jha gave some further advice and he also made out a draft of the kebala which was to be executed by defendant Nos. 1 and 2. According to the plaintiff after the draft for the sale deed was prepared, the defendant No. 3 agreed that it should be faired out on the stamp paper and then defendant No. 1 would be brought from Chapra for execution and registration of the sale deed at Bahera Registration Office within which the lands of Schedule 2 are situated. The plaintiff’s further case was that after the kebala was faired out on the stamp paper at his residence in village Nehra, then defendant No. 2 was paid a sum of Rs. 500/- towards consideration and for meeting the expenses for bringing his wife (defendant No. 1) from Chapra, and this was on 11-8-1957. Defendant No. 2 thereafter left for Chapra for bringing his wife defendant No. 1, but he did not turn up. The plaintiff then sent a post card to defendant No. 2 in the third week of August, 1957 requesting him to come with defendant No. 1 so that the execution and the registration of the sale deed may be expedited. The plaintiff then received a post card dated 27-8-1957 from the defendant No. 1 to the effect that the delay in his coming to Nehra should not be interpreted otherwise and defendant No. 2 also sent another post card of the same contents to Shri Jata Shankar Chaudhary, that is, the elder brother of the plaintiff. In this latter post card, defendant No. 2 explained the reasons which prevented him from coming to Nehra. According to the plaintiff his brother Jata Shankar Chaudhary had played an important part in the finalisation of the agreement and, therefore, a post card had been written to him also by defendant No. 2. In the third week of September, 1957 defendant No. 2 sent a letter to the plaintiff’s brother suggesting therein that it would be better if the plaintiff would go to Chapra, where a document would be registered by inclusion therein some lands of that place to enable registration at that place. This suggestion was because of the ailing condition of defendant No. 1 who was not able to come to Nehra. It was the case of the plaintiff that at first he agreed to this proposal regarding the execution and registration of the sale deed at Chapra and accordingly he and his brother jointly wrote to the defendant No. 2 in the first week of October, 1957 intimating to them the approval of the plaintiff of this suggestion. Defendant No. 2 then wrote a post card dated 17-10-1957 addressed to Jata Shankar Chaudhary, that is, the plaintiffs-brother stating therein that the plaintiff should go to Chapra at least two days before the Diwali festival which fell on the 22nd of October, 1957. It was the case of the plaintiff that by that time he had changed his opinion about going to Chapra as he thought that it was rather risky to get a sale deed executed and registered in the Chapra Registration Office and, therefore, he sent information about this change in his mind through one Sat Narain Chaudhary, who was a Manhundedar of defendant No. 1. This Sat Narain Choudhary has been examined on behalf of the plaintiff and he is P.W. 24. Sat Narain Chaudhary conveyed this information to defendant No. 2 and defendant No. 2 sent reply through him that he would come to Nehra with his wife (defendant No. 1) when she will be able to come to that place. Plaintiff then sent a notice dated 21-10-1957 under a registered cover to defendant No. 2 through Shri Shiva Shankar Chaudhary a pleader practising at Laheriasarai calling upon defendant No. 2 to execute and register the sale deed within a fortnight and this had to be done because in spite of the promise defendant No. 2 had not come to Nehra with defendant No. 1. It was said that defendant No. 2 refused to accept the notice on 24-10-1957. Now as regards the post card dated 17-10-1957 the case of the plaintiff was that he came to learn of the contents after the return of the registered notice when his brother Jata Shankar Chaudhary communicated the contents of that letter to him. The plaintiff then again sent Sat Narain Chaudhary to Chapra making enquiry as to when defendant No. 2 would be coming with his wife and Sat Narain Chaudhary on return informed the plaintiff that the condition of defendant No. 1 had deteriorated. The plaintiff was also informed from time to time that defendant No. 1 was confined to bed on account Of her illness till August, 1958 and then all on a sudden the plaintiff came to know in the first week of October, 1958 that defendant No. 2 representing defendant No. 1 had executed the sale, deed dated 29-8-1958 in favour of Mossamat Gulabrani Chaudharain who is defendant No. 5 in the suit. The plaintiff thereafter also learnt that defendant No. 2 executed two sale deeds on 8-11-1958 in favour of Nathuni Mallah, defendant No. 3 and several deeds on 13-11-1958 in favour of defendant Nos. 4 to 6.
3. It was alleged that all these sale deeds were executed with dishonest intention simply because the defendant No. 2 had received more consideration from these transferees and there is also an explanation on behalf of the plaintiff for the . delay in the institution of the suit. It has been stated that plaintiff could not bring the suit for specific performance of the contract earlier on account of his ill health and on account of the talk which was going on for amicable settlement.
4. It was also alleged that the other defendants of the suit who are the transferees had knowledge of the contract for sale and they had purchased the property of Schedule 2 with malafide intention and that there were no laches whatsoever on the part of the plaintiff to perform the contract and that the plaintiff as a matter of fact has performed a good deal of his part of the contract by purchasing stamps and by paying a sum of Rs. 500/- to defendant No. 2 and the plaintiff was still ready to perform his part of the contract by paying the remaining consideration of the sale deed.
5. The plaintiff, in the circumstances, therefore, sought for a decree in the suit and it is rather important to note the reliefs which have been prayed for in the suit. The first relief is that on the adjudication of the aforesaid facts it be declared by the court that defendant No. 2 as representative of the defendant No. 1 entered into a contract for sale of the Schedule 2 lands with the plaintiff for a consideration of Rs. 19,565/- and that both the defendant Nos. 1 and 2 are liable for a decree of contract for sale of the Schedule 2 lands. The second relief which was prayed for is that the court be pleased to order the defendant Nos. 1 and 2 or in any case the defendant No. 1 to execute a kebala on terms of the kebala which was faired out and copied and which has been filed in this case and to admit the registration of the same within a time, to be fixed by the court.
6. There were eight defendants in the suit of whom defendant No. 1 is Shrimati Babua Binda Devi and defendant No. 2 is her husband. Defendants 3 to 8 who have been arrayed as defendants third party in the suit are the subsequent transferees of the properties in question. Defendants 1, 2, 5 and 6 filed separate written statements and defendants 7 and 8 filed a joint written statement. There was the common defence of defendants 5 and 6 and their defence inter alia was a denial of all the allegations of the plaintiff regarding the agreement, drawing up of the kebala, purchase of stamps, payment of Rs. 500/- etc. Both of them pleaded that they were bona-fide purchasers for value without notice of the alleged contract of the plaintiff and as such the alleged contract cannot be enforced against them. They also pleaded that the suit was bad as being barred by limitation, estoppel, waiver, acquiescence and abandonment.
7. Defendant No. 2, as stated above, filed a written statement in which it was pleaded that he had some talk for the sale of the lands in favour of the plaintiff, but the talk never achieved finality and that he never asked the plaintiff to purchase the stamps from Darbhanga Collector’s Treasury and that if he had done so, it was with some ulterior motive known to him. He also pleaded that he had no specific Authority to sell to any body the lands of defendant No. 1 without her consent and the power of attorney only conferred power on him to sign and present the document for its registration on behalf of defendant No. 1. He also denied having gone either to Shri Nageshwar Misra or to Shri Kamla Kant Jha, Pleader for consultation and advice and also denied having received any sum of Rs. 500/- from the plaintiff. There was also a denial of the preparation of the draft sale deed and its fairing out as alleged on behalf of the plaintiff. It was also stated that defendant No. 2 had never left Nehra with a Promise to the Plaintiff to bring his wife (defendant No. 1) for the execution and registration of the sale deed. He also denied having written any letter either to the plaintiff or to his brother Jata Shankar Chaudhary or to have sent any message through Sat Narain Chaudhary to the Plaintiff. As a matter of fact it was asserted in the written statement that Sat Narain Chaudhary never went to meet him at Chapra nor he had any business to go to him as he never cultivated hos lands on Manhunda rent. Defendant No. 2 also denied the alleged service of notice through the Pleader and it was also said that he never informed the Plaintiff about the illness of his wife defendant No. 1.
8. Defendant No. 1 who is the owner of the Property in question also filed a written statement and she supported the statement made and the case made out in the written statement of defendant No. 2. She also Pleaded that she had not given any authority to defendant No. 2 to enter into any negotiation for the sale of her land to the Plaintiff.
9. Defendants 7 and 8 also filed a separate written statement, as stated above and they in their written statement supported the case of the Plaintiff.
10. The learned Additional Subordinate Judge held that Raj Narain Singh, defendant No. 2 had entered into a final agreement with the plaintiff for the sale of the lands, the kebala was also faired out at his instance and that Rs. 500/- was also paid to him. He also held that defendant No. 2 under the power of attorney and in the circumstances of the case had power to enter into contract for sale. The learned Additional Subordinate Judge also held that the sale deeds in favour of defendant 5 and 6, no doubt, were for consideration but he was of the view that these defendants had notice and knowledge of the contract for sale between the defendant No. 2 and the plaintiff, and as such they were not bona fide purchasers. As regards the plea of limitation, the learned Additional Subordinate Judge was of the opinion that the suit was not barred by limitation. As regards the explanation for delay in the institution of the suit, it may be mentioned here that the plaintiff had put forward two explanation in this respect. One of these was that he was not keeping good health and was ill during the period and secondly that there was a talk of compromise. As regards the latter plea, the finding of the learned Additional Subordinate Judge was that the talk of compromise fizzled out in the initial stage and as such this could not be an explanation for the delay. The defendants to controvert the contention of the plaintiff that he was not keeping good health during the period filed a large number of documents showing that the plaintiff during that period had been taking steps in different cases etc. and, therefore, the learned Additional Subordinate Judge in view of the evidence adduced before him was of opinion that the plaintiff was not so ill as he could not be in a position to file the suit for specific performance of the contract. The learned Additional Subordinate Judge, however, was of opinion that the suit was within the period of limitation and, in the circumstances, it cannot be said that there was an abandonment and hence the suit of the plaintiff could not fail on this ground.
11. The suit has, therefore, been decreed by the learned Additional Subordinate Judge and the defendants 5 and 6 who were the purchasers of the properties in. question being aggrieved and dissatisfied with the judgment and decree of the learned Additional Subordinate Judge have preferred this appeal on the grounds inter alia that the evidence on record and the circumstances of the case do not at all show that there was any concluded and final agreement about the contract for sale between defendant No. 2 and the plaintiff and further that defendant No. 2 had no authority to enter into a contract for sale because his powers under the power of attorney were limited to the extent of signing and admitting the execution on behalf of defendant No. 1 and did not confer upon him any authority to enter into a contract for sale. It was also urged that the learned additional Subordinate Judge in view of the evidence and the circumstances of the case ought to have also disbelieved the plaintiffs case about the alleged agreement, purchase of stamps, payment of Rs. 500/- etc. It was also urged that the learned Additional Subordinate Judge should have held that the: defendants were bona fide purchaser for value without notice, and as such there could not be any enforcement even, if there was any such contract for sale, against the defendants. It was also urged that in view of the evidence and the circumstances of the case, the court should have also held that the delay on the part of the plaintiff and his conduct snowed that there was an abandonment.
12. After having stated in brief the introductory facts I will now proceed to examine the evidence on record and the circumstances of the case to see how for the plaintiff has been able to prove and establish about the alleged agreement, authority of defendant No. 2 in this respect and that in view of the other circumstances how far he was entitled to the reliefs claimed in the suit.
13. It may be mentioned here that from the pleadings as well as the evidence adduced by the parties, Japness (?) there can be no doubt on this point that there was some negotiation for sale between defendant No. 2 and the plaintiff, but the question is whether this negotiation had reached its conclusion and a stage of finality and was of such a nature which could be enforceable against defendant No. 2 and also defendant No. 1. I may also point out here that the case of the plaintiff throughout was that this negotiation was between the plaintiff on one side and defendant No. 2 on the other. Defendant No. 1 as apparent, from the evidence was not present at any time when the negotiation was taking place, I have already pointed out to the reliefs claimed in the plaint in which the plaintiff has sought for a relief to the effect that the sale deed which was faired out should be executed by defendant No. 1 also. A question naturally raised as to how far it could be enforceable against defendant No. 1 and answer to this naturally will depend on the interpretation of the power of attorney (Ext. 9) admittedly executed by defendant No. 1 in favour of her husband defendant No. 2 because if the document as it stands and in the eye of law the. document, did not confer any authority on defendant No. 2 to enter into any contract for sale, then naturally he had no authority to enter into such an agreement and the agreement cannot be valid and binding against defendant No. 1. It will also appear from the facts which I have stated above that besides the oral evidence great reliance has been placed on behalf of the respondent on the post cards to have been sent by defendant No. 2 to the plaintiff or to his brother. There can be no doubt that the most competent person who could have denied about the post cards and the agreement etc. In the witness box was defendant No. 2 himself. Defendant No. 2, as stated above, filed a written statement and he was contesting the suit also. Inasmuch as, the depositions of the witnesses will show that was cross-examination on his behalf and he was also present in Court at the time of such cross-examination. But defendant No. 2 did not examine himself as a witness in the suit. Defendant No. 1, although she filed written statement supporting defendant No. 2 in her written statement did not also examine herself as a witness in the suit. It is difficult to say as to how and why defendant No. 2 avoided coming into the witness box but irrespective of the fact whether he has or has not examined himself it has to be seen on the basis of the evidence already adduced in the case as to how the plaintiff was able to prove his case which would entitle him to the relief for specific performance of the contract for sale. Now apart from the oral evidence on which reliance has been placed on behalf of the plaintiff, there are some documents on which a great reliance has been placed and these are the post cards said to have been written by defendant No. 2. Now I will take up a discussion of these post cards to see how her these post cards show that there was a final or concluded agreement as alleged on behalf of the plaintiff. The first post card which has been filed on behalf of the plaintiff is Ext. 1 and it is dated the 15th of June, 1957. It was from defendant No. 2 to plaintiff’s brother. This document will not show whether there was final and concluded agreement or not because it was of a date prior to the alleged date of agreement. According to the plaintiff the completed contract was in the week of July, 1957. Ext. 1, no doubt, shows that there was some negotiation about the sale going on and defendant No. 2 stated in this post card that he was waiting to hear from the plaintiff. It is also important to note that there was a request in this post card by defendant No. 2 to the plaintiff’s brother that it may be kept a secret. The next post card which comes in chronological order is “Ext. A(3) dated 9-8-1957. This post card purports to be from Jata Shankar Chaudhary (P.W. 23), that is, the plaintiff’s brother to defendant No. 2 who had been addressed therein as Guard Sahab. Recitalin this post card is to the effect that the plaintiff’s brother had made enquiry and they were apprehensive because of the ceiling and that if Guard Saheb agrees to sell the entire 7 Bighas 12 kathas of land for Rs. 15,000/- then he may come with his family to Darbhanga and inform him and take the entire amount in one lump sum in the Court and get the deed registered. This is a very important piece of document because of the recital contained therein. A question arises as to how far reliance can be placed on this document. Jata Shankar Chaudhary (P.W. 23) has denied having written this post card. Defendant No. 2, has stated above, has not examined himself and this post card has been proved by D. W. 1, His evidence is to the effect that his son Pashupati Jha was tutor at the place of Jnta Shankar Chaudhary and that this witness happened to go to the place of Jata Shankar Chaudhary and at that time he was getting this post card written by the aforesaid Pashupati Jha, D. W. 1 also stated that Jata Shankar Chaudhary affixed his signature on this document. This document (Ext. A/3) purports to bear the signature of Jata Shankar Chaudhary, which as stated above by me has been denied by him. Jata Shankar Chaudhary was examined on commission and his defence was tendered in evidence and his deposition shows that he did not sign the deposition but affixed his left thumb impression. It also appears from the evidence of Jata Shankar Chaudhary that he is suffering from a disease in which there is trembling or shaking of the hand and it was on account of his ill health that he was examined on commission. The signature on Ext. a/3 appears to be by a person whose hand is steady and not shaky. In view of these facts, I think Ext. A/3 should not be relied upon and be excluded from consideration.
14. Now the next two documents are Exts. 1(a) and 1(b). These two are also post cards and both dated 27-8-1957. One of these is addressed to the plaintiff’s brother and the other to the plaintiff himself by defendant No. 2. These were proved by P.W. 4 and P.W. 12. Defendant No. 2 by whom these post cards are said to have been written as stated above, has not examined himself. The recitals of both these post cards are more or less the same, and as for instance in Ext. 1(b) which is addressed to the plaintiff wherein he has been described as Chhote Sarkar. The recital if as follows:
…It is for information of Chhote Sarkar that he will not think otherwise on account of my failure to come because the word of a gentleman never changes. If one changes his word he is no man. There was delay in coming under compulsion. The word of a gentleman is valuable. You know that my words are always the same. I shall try to come as early as possible.
15. In the post card addressed to the plaintiff’s brother there were recitals to the same effect and there was a recital that 2nd was the date fixed in his case and that thereafter defendant, No. 2 will come and meet the plaintiff’s brother and that his not coming should not be misunderstood. It was further stated that plaintiff’s brother will know everything after defendant No. 2 will come. In view of the fact that these documents have been duly proved and hot denied on oath by defendant No. 2 himself who is said to have written these two post cards, I think there is no reason to discredit them and, in my opinion, these two post cards were written by defendant No. 2, one was addressed to the plaintiff and the other was addressed to the plaintiff’s brother. The question which arises for consideration is whether the recitals in these two documents show that there was a concluded and completed agreement and a contract for sale as alleged by the plaintiff; In the post cards the defendant No. 2 only gave explanation for his delay in coming and he was giving assurance that he was a man of words and he would come, but there was not a single word therein about the bringing of his wife that is, defendant No. 1. There was also no mention about the execution of the document or any reference to the same, These two post cards, in my opinion, undoubtedly show that some negotiation relating to the sale of the lands in question were going on, but it was not a concluded and completed agreement for sale till then. The agreement for contract for sale was finalised according to the plaintiff in the first week of July, 1957 and admittedly it was an oral agreement. It seems rather improbable that there was a contract for sale for a valuable consideration amounting to Rs. 19,000/- and odd but no document was drawn up and it was all oral. These two post cards which are of much later date do not show that there was such a concluded contract for sale.
16. Now according to the chronological order of the documents the next important event which is said to have taken place according to the plaintiff was that defendant No. 2 after having gone back to Chapra with the assurance of bringing his wife from there, made a suggestion sometime in the third week of September, 1957 to the effect that the execution and the registration may take place at Chapra and that for this purpose some properties of Chapra may be included therein. It was very vague indeed and neither the evidence nor the pleading discloses as to what kind of property was to be included therein for enabling registration at Chapra. I may again mention here that defendant No. 1 belonged to village Nehra which was her Naihar and she was only married in the district of Chapra so unless there was some property of defendant No. 1, then how could such properly which did not belong to her be included in a document which was to be executed by defendant No. 2 and defendant No. 1. According to the plaintiff, a post card from defendant No. 2 making such a suggestion for the inclusion of such property had been received in the third week of September, 1957. This post card was not filed on behalf of the plaintiff, and in paragraph 9 of the plaint and also as stated by P.W. 22, that is the plaintiff himself in his evidence, this post card was missing. This was the explanation for not producing this post card. Now the evidence of P.W. 22, that is the plaintiff shows that on receiving this post card, he at first got ready to go to Chapra, that is to say accepted the suggestion, but latter on he felt that it was rather risky and, therefore, changed his mind and sent a message through Sat Narain Chaudhary, who is P.W. 24 that he was not willing to accept this suggestion. The further evidence of P.W. 22 is that Sat Narain Chaudhary (P.W. 24) went to Chapra and thereafter he returned and informed the plaintiff that defendant No. 2 had said that as soon as his wife, that is, defendant No. 1 recovered from her illness he will come with his wife to Nehra. The plaintiff has also stated that he waited for some time and then again sent Sat Narain Chaudhary. Sat Narain Chaudhary, who is P.W. 24 has stated that he had been to Chapra in Kartik 1365 Fs, and the date so given by him will show that he went to Chapra some time in Oct., 1958 because 1st of Kartik, 1365 corresponds to 28th of October, 1958.:
17. The next document in chronological order is the post card (Ext. 1/c) dated 17-10-1957 from defendant No. 2 to the plaintiff’s brother. According to the plaintiff’s case a registered notice through Shri Shiva Shankar Chaudhary, pleader (P.W. 5) was sent to defendant No. 2 on 21-10-1957. It may also be mentioned here that according to the plaintiff this post card dated 17-10-1957 addressed to his brother was communicated and received by the plaintiff after he had sent the pleader’s notice dated 21-10-1957. In this view of the plaintiff’s evidence, it will be better first of all to take up a discussion of the pleader’s . notice dated 21-10-1957. The plaintiff in paragraph 10 of the plaint staled that a pleader’s notice dated 21-10-1957 was sent and it was refused on 24-10-1957. He has also stated therein that after its refusal and the receipt of the post card dated 17-10-1957 Sat Narain Chaudhary was again sent to the defendant. This pleader’s notice which is Ext. 3 is an important document because this is the only document filed on behalf of the plaintiff in which there is a reference to the contract for sale. In Ext. 3 it was mentioned that defendant No. 2 had negotiated and contracted with the plaintiff on 7-7-1957 to sell the lands and further that at the instance of defendant No. 2 stamp was also purchased and that after getting draft of the kebala prepared fair copy of the same was made and that defendant No. 2 went to Chapra for bringing his wife for execution and registration, but be did not return. There was a recital to the effect that Rs. 500/- had been paid to defendant No. 2. It was also mentioned in the notice that although there was an assurance given in the post card dated 27-8-1957, but yet it had not been fulfilled. I have already referred to the two post cards dated 27-8-1957 in this connection. There was a further recital in this notice to the effect that defendant No. 2 in his letter dated 17-9-1957 further showed his readiness by his proposal for the registration of the document at Chapra by inclusion of some lands at Chapra, but that his silence was giving misgiving to the plaintiff. This post card dated 17-9-1957 is that post card about which the plaintiff has stated that it was missing. In this notice there was no mention of the fact that the plaintiff had refused to accept the suggestion for the inclusion of land at Chapra. This pleader’s notice was proved by Shri Shiva Shankar Chaudhary (P.W. 5). It appears from his evidence that this notice (Ext. 3) and its envelope which was returned on account of the refusal by defendant No. 2 to accept the same was filed by P.W. 5 on the day he was being examined in court because it appears from his evidence that he took out the document from his pocket. This was one of the documents which should have been filed much earlier. Now the evidence of P.W. 5 along with the envelope and the pleader’s notice (Ext. 3) show that the envelope was already opened from before at the time when he produced it from his pocket and a portion of the notice (Ext. 3) was also torn off. P.W. 5 stated that this portion of the notice got torn by mistake when his clerk opened it. At the time of the hearing of this appeal, a scrutiny of this document showed that on refolding this notice (Ext. 3) on the folding marks as they existed this document (Ext. 3) on account of its size and dimensions could not be easily put back inside the envelope. A reasonable inference also arises that if this document (Ext. 3). was actually inside and envelope and had been taken out from the envelope, then in that case the marks of folding would have been deeper and after refolding the document itself would have been in such a condition that it would have been again put back in the envelope. It also appears on examination of the envelope that the envelope had been Gut by a knife or a paper cutter at the time of opening it as such marks are present and in doing so the inside portion of Ext. 3 could not get torn. It appears, therefore, that it could not be said that this portion got torn by mistake of the clerk when he was opening it.
18. This document (Ext. 3), as stated above, was in the custody of P.W. 5 and it seems rather strange that it was not made over to the plaintiff after its return on refusal. The plaintiff was aware of its return after seeing the envelope after its return because he in his plaint has, mentioned the date of refusal which is 24-10-1957. In ordinary course of events the document should have been given to the plaintiff for custody, but it was allowed to remain in the custody of the lawyer (P.W. 5). If the suit had been filed immediately thereafter, then there could have been some ground for saying that it was allowed to remain in the custody of the lawyer. But here in this case the suit was filed long time after viz. on 19-9-1960. The evidence of P.W. 5 also shows that; he did not give the envelope with its notice to the plaintiff-because he did not approach him till a month back. P.W. 5 was deposing oh 19-6-1962 and the suit as stated above was instituted on 19-9-1960. If the plaintiff approached P.W. 5 only a month back before, the date on which he was deposing in this suit, then it seems strange as to how the plaintiff came to know about the date of the refusal at the time of the filing of the plaint. There can be no doubt that some later notice- whatsoever it may be was probably sent to. defendant No. 2 through . this envelope, but the facts and the circumstances which I have stated above, go to show that this notice (Ext. 3) which has been produced in this case was not that notice which was put in the envelope and sent on 21-10-1957. It may also be mentioned here that the copy of the notice was also not filed which ordinarily would have burn maintained in -the office of the pleader. These are some very important circumstances and. I am inclined to be of opinion that some notice was sent, but it was not this notice (Ext. 3) and presumably that notice contains some recitals which did not suit. the. plaintiffs case and, therefore, this notice (Ext. 3) was replaced therein.
19. Now I may revert back to the letter Ext. 1(c) dated 17-10-1957 which was from defendant No. 2 to the plaintiff’s “brother. From this letter, it appears that defendant No. 2 wrote to the plaintiff’s brother in which he made a request to make an enquiry from the plaintiff and write to him as to when he would be able to come to Chapra. There was also a mention of the fact that 22nd was the Diwali day and there would be only one day, that is Monday and so the plaintiff should go there oh Sunday and they will have time on Monday. In the end. there was a request to the plaintiff’s brother that defendant No. 2 may be informed us to when plain-till would be going to Chapra so that Ire may meet him at the station. This letter has also been relied upon by the plaintiff to show that defendant No. 2 was asking him to go to Chapra because of the suggestion for the inclusion of land of- Chapra for registration at that place. According to the plaintiff after the receipt of this letter which was after the pleader’s notice as sent, the plaintiff again sent ‘Sat Narain Chaudhary to defendant No. 2. This letter (Ext. 1/c), in my opinion, also does not show that there was any concluded and completed agreement, but only shows that negotiation was going on. The plaintiff had already sent a pleader’s notice and after the receipt of the post card it was expected that some oilier notice or reply should have been sent, but this was not done and then there was the oral evidence only that Sat Narain Chaudhary was again sent to Chapra.
20. Now having: dealt at the post cards which are important documents. I will now refer to the other events which reliance has been placed on behalf of the plaintiff with a view to show that there was a concluded arid completed agreement. According to the plaintiff there was a search in the. Index Register of the Registration Office and a witness on this point (P.W. 6) was also examined on behalf of the plaintiff. But the learned-Additional Subordinate Judge did not believe Ext. 4 which has been proved by this witness. Now irrespective of that even if there was search in the Index Register and taking case of the plaintiff to be true in this respect this can only show that there was a negotiation going on and the process of the negotiation before completion such steps are generally taken by the buyers to satisfy themselves if there is an encumbrance on the property or not.
21. Great reliance has also been placed on behalf of the plaintiff on the fact that defendant No. 2 accompanied with him consulted the lawyers such as Shri Nageshwar Missir: Advocate of Darbhanga who is P.W. 3 in the case and also Late Shri Kamla Kant Jha about the execution of the document.. In my. opinion the mere fact of consultation with the lawyers and -seeking their advice would also not prove that there was any concluded and completed agreement, but this would only lend support to this fact that the matter was in the process of negotiation. Reliance, of course, has been placed on sonic statements made by Shri Nageshwar Missir regarding the finalisation of the agreement for sale; I may refer here now to the evidence of Shri Nageshwar Missir (P.W. 3). It appears from his evidence that defendant No. 2 accompanied with plaintiff went to his place and they solicited his advice on the point as to who should be the executant of the sale deed. According to the plaintiff, as specifically stated in the plaint defendant No. 2 under the power or attorney, had full power to enter Mb a contract for sale, It will be an. important question for consideration whether, the power of attorney did actually confer any such power or not and in my opinion, the power of attorney did not confer any such power. I will be dealing with this aspect of the matter separately when I take up that question. Now if. -defendant No. 2 was fully competent; to enter into a contract for sale, then it would also mean that he was fully empowered to make a sale and the power of attorney; admittedly, conferred power on him to sign on behalf of defendant No. 1 and. also admit execution before the Registrar. So in such circumstance, there should not have been any necessity of getting defendant No. 1 for the execution of the document. It appears to me that in the process of the negotiation when talks were going on doubts were arising in the mind about the competency of defendant No. 2 to enter into such a contract for sale and also to execute the document. This view of mine finds full support from the statement of Shri Nageshwar Missir (P.W. 3). As stated above, unless there were doubts in the mind they would not have gone to consult him and seek his advice as to who should be the executant of the document. . It may again be mentioned here at this stage that the agreement, if any was between defendant No. 2 and the plaintiff and defendant No. 1 was not present at any occasion at that time, Shri Nageshwar Missir (P.W. 3) also made a statement to the effect that they (obviously meaning defendant No. 2 .and the plaintiff) told him that the terms of the sale deed had been finalised and the only thing which remained was as to who should be the executant. In my opinion, this statement clearly shows that the contract for sale was hot yet completed and finalised because yet the very important ingredient of such a transaction had not yet been decided as to who should be the executant of the deed. It also appears from the evidence of P.W. 3 that the Mokhtearnama, that is, the power of attorney executed by defendant No. 1 in favour of defendant No. 2 was not shown to him. The evidence of P.W. 22, the plaintiff shows that the. Mokhtearnama was shown to him by defendant No. 2 and if that be so, it seems very strange indeed that the Mokhtearnama which was an important document was not shown to Shri Nageshwar Missir at the time his advice was sought. Shri Nageshwar Missir advised execution of the document by defendant No. 1 and the sons also. He also made a note which is Ext. 2. Now this note only shows that he mentioned there in the names of the executants, that is, defendant No. 1 and her sons and also made a note about the indemnity clause to be incorporated in the document. The indemnity clause such as advised by him would also not show that there was any concluded agreement because such clauses are very often found in documents of transfer. It may be also mentioned here that defendant No. 2 in his written statement has denied the allegations etc., but of course he did not examine himself in the suit.
22. According to the plaintiff there was also a consultation with late Shri Kamla Kant Jha, pleader at Darbhanga and I may refer here in this connection to the evidence of P.W. 15. His evidence is to the effect that Late Shri Kamla Kant Jha was a full brother of his father-in-law and this witness used to attend his office. He has stated that the plaintiff and defendant No. 2 had approached Shri Kamla Kant Jha for preparing a draft sale deed and Shri Kamla Kant Jha on the instructions given by the plaintiff and defendant No. 2 got a draft prepared which was written by Bihari Lal who is P.W. 25 at the dictation of Shri Kamla Kant Jha. This draft sale deed is Ext. 6 in the case. The evidence of this witness also does not show that there was a concluded and completed agreement and his evidence only shows that draft sale deed was prepared. According to the evidence led on behalf of the plaintiff it appears that a draft sale deed was prepared and thereafter when the stamp paper was purchased, then the sale deed itself was written out on that paper. It is important here now to see the sale deed which was prepared at. that time, and Ext. 5 is the sale deed which was actually written out on the stamp paper. Ext. 5 shows that the executants of the document were Binda Devi, that is, defendant No. 1 and defendant No. 2 Raj Narain Singh. The document, therefore, was to be executed by the lady defendant No. 1 also, but as already stated above, there was no negotiation directly with the lady and no contract with her. The evidence also does not show that the negotiation which was being carried on by defendant No. 2 was with the permission or consent of defendant No. 1. In this document there was a recital to the effect as follows:
I executant No. 2 alone am competent enough to execute this sale deed under the said Mokhtearnama, But for the sake of satisfaction of the said vendee I, executant No. 1 also become a party in this deed.
This recital further strengthens my opinion on the point that at the time of the negotiation genuine and valid doubts were arising in the mind of the plaintiff about the competency of defendant No. 2 to enter into a contract for sale and sell the property, and, therefore, it was left necessary that defendant No. 1 should also be made an executant of the document. There was another important recital in the body of this document which is as follows:
Hence with the consent of me, executant No. 1, I, executant No. 2 on behalf of executant No. 1 did, as has already been stated above, negotiate for sale of all the lands entered in column No. 5 for a consideration of Rs. 19,565/- with Jagannath Ghaudhary resident of Nehra….
In this document there was an introduction of a new feature viz., the consent of defendant No. 1 to the negotiation, but neither the pleading nor the evidence led on behalf of the plaintiff shows that this negotiation was being carried on by defendant No. 2 with the plaintiff with the consent of defendant No. 1. This recital, therefore, further lends support to an inference which I have drawn from the circumstances that the parties were realising the difficulty in defendant No. 2 himself directly entering into any contract with the plaintiff.
23. It may be also mentioned here that although so much trouble had been taken in not only getting the sale deed drafted, faired out and then copied on the stamp paper, but neither in the draft nor in the sale deed itself there is any signature of defendant No. 2. If the plaintiff’s case be correct that defendant No. 2 was fully authorised under the power of attorney to enter into a contract for sale and also ; execute the sale deed, then there should have been no difficulty in getting the sale deed signed and executed by defendant No. 2 without bringing defendant No. 1 into the picture. It seems rather also strange as to how and why no signature whatsoever was taken of defendant No; 2 on this document, that is, either the draft or the sale deed itself. I may refer in this connection to the evidence of the plaintiff himself who is P.W. 22 and he in his cross-examination was questioned if he had asked defendant No. 2 to affix his signature on the document, P.W. 22 stated that he did not ask Raj Narain Singh, that is, defendant No. 2 to sign the sale deed and that the scribe after scribing the sale deed grave! it to him and he kept the sale deed in his custody. During the course of the cross-examination in the earlier part! of his evidence he also stated that he had told Raj Narain Singh that if his wife had not come then there was no use for fairing out the sale deed on stamp and Raj Narain told him that it would be better to have the sale deed faired out as he would bring his wife at the time of registration. These facts also go to show that both the parties felt that in law the position would not have been improved by mere getting the signature of defendant No. 2 on the document.
24. It was also the case of the plaintiff that stamps worth Rs. 12/- had been purchased but from the endorsement en the stamp paper as well as the evidence of P.W. 22 it is quite clear that the purchase of the stamp was in the name of defendant No. 1 and defendant No. 2 was not present at the time of the purchase and his name also does not appear anywhere. The explanation, of course, on behalf of the plaintiff (P.W. 22) in this respect is that he and defendant No. 2 reached Laheriasarai on 8-7-1957 in the after-noon for purchasing stamp, but as they arrived late at Laheriasarai and the money had to be deposited in the treasury, so it could not be deposited on that day and that on 11-7-1957 he deposited the money for the stamp from his own pocket as defendant No. 2 was again late on that day in arriving there for purchasing stamp. The contention of the defendants with regard to the purchase of the stamp was that this purchase as well as the drawing up of the sale deed were all acts done on behalf of the plaintiff to prop up a case in support of these being a contract for sale. The facts, however, which I have mentioned above clearly show that neither the money was paid nor deposited by defendant No. 2 and he was also not present at the time of the purchase of the stamp.
25. I have discussed the documents and the circumstances relied upon by the plaintiff in support of the case that there was an agreement for sale and in this connection I have also referred to the oral evidence adduced in the case. I may also briefly refer specifically to the oral evidence led on behalf of the plaintiff in this connection. The witnesses in connection with the alleged agreement for sale are P. Ws. 3, 5, 8, 9, 15 19, 22, 24 and 25. P.W. 3 is Shri Nageshwar Misra, Advocate who was consulted with regard to the sale deed and I have already discussed his evidence. P.W. 5 is the lawyer who sent the pleader’s notice and I have already discussed his evidence and the circumstances about that notice. P.W. 8 deposed about the negotiation for the sale and it appears from his evidence that he Was not only a relation of the plaintiff, but cannot also be said to be on good terms with defendant No. 5, because it appears from his evidence that Jaiya Babu, that is, the busband of defendant No. 5 had brought a money suit against him and got his land sold in execution of the decree passed in the suit. This witness of course volunteered to say that Jaiya Babu reconveyed the lands to him on receipt of consideration but it also appears from his evidence that he had litigated upto the High Court to set aside the sale, but he lost there. It also appears from his evidence that Chandra Sekhar Chaudhary who is the husband of defendant No. 6 had also deposed against him in that case. It would be thus not safe to place reliance on the evidence of such a witness who cannot be said to be an unbiased witness. P.W. 9 was the person who scribed the sale deed from the draft and he supported the case of the plaintiff on the point that the plaintiff paid Rs. 500/- to defendant No. 2 for meeting the expenses of bringing defendant. No. 2’s wife to Darbhanga. There was no receipt showing that any such sum of money had been paid by the plaintiff to defendant No. 2. It seems rather strange that such a large sum of money was paid without taking any receipt from defendant No. 2. I have already referred to this aspect of the matter that the sale deed which was written out did not contain any signature of defendant No. 2 and P.W. 9 also stated that the plaintiff asked Raj Narain Singh, that is, defendant No. 2 to put his signature on the sale deed which this witness had scribed, but Raj Narain said that both the executant (meaning himself and his wife, defendant No. 1) would do so at one time. It also appears that P.W. 9 was formerly a patwari of the plaintiff. P.W. 15 is Jagannath Jha who deposed about the consultation with late Kamla Kant Jha and I have already discussed his evidence. P.W. 19 was another witness on the point of the agreement for sale, but he was a nephew of the plaintiff and so he cannot also be said to be a disinterested witness. P.W. 22 was the plaintiff himself and I have already discussed the relevant portions of his evidence. P.W. 23 is the plaintiff’s brother Jata Shankar Chaudhary, who undoubtedly had played a very important part at the time of the negotiation, but his evidence also in the light of the other evidence and the circumstances discussed above does not show that there was a concluded and completed agreement for sale. P.W. 24 is Sat Narain Chaudhary who is said to have been sent by the plaintiff to defendant No. 2 at Chapra. There was a denial on behalf of the defendants about his being either a Manhundedar of defendant No. 1 or having been sent to Chapra. P.W. 25 is Birij Bihari Lal who wrote out the draft sale deed at the dictation of Shri Kamla Kant Jha.
26. Now after having discussed the evidence relating to the alleged agreement for sale, the next question which is very important and which arises for consideration and which is connected with the question for agreement for sale is whether defendant No. 2 under the power of attorney (Ext. 9) had the authority to enter into a contract for sale. I may first of all refer to the recital of the plaint in this respect, and in the plaint in paragraph 2 it was stated that defendant No. 1 has executed a general power of attorney by which he amongst other things has given the power to the defendant No. 2 even for selling and executing deed of conveyance in favour of others and admitting them to registration. Defendants 1 and 2 in their written statement denied such an authority having been conferred on the defendant No. 2. It may be also mentioned here that in view of the denial of defendants 1 and 2 about the authority a specific issue and very rightly indeed was framed by the learned Additional Subordinate Judge. In view of these facts, it is first of all necessary to examine the document, viz. the power of attorney which is Ext. 9 in this case. This document is dated the 22nd August, 1936. I may also mention here that the deed of surrender by which defendant No, 1 acquired this property is dated 30-6-1936, that is to say this power of attorney was executed soon after the property came in possession of defendant No. 1. This circumstance read along with the preamble of the Mokhtearnama (Ext. 9) clearly shows that the obvious intention and purpose for executing this document was that defendant No. 1 being a perdanashin lady may be relieved of the inconvenience and difficulty of managing the property and going to the registration office and other places and so defendant No. 1 had executed this power of attorney in favour of her husband. The preamble and the object which is disclosed after reading the entire document do not show that there was any! intention either express or implied that defendant No. 1 would have also the power and authority for entering into contracts for sale. In my opinion, such an intention also could not have existed at that time because the document had been executed soon after the surrender in favour of defendant No, 1 and at that time the lady must have been primarily concerned with the management of the properties and could not have had the intention of disposing it, of. We are here in this case concerned really with the recital in paragraph 7 of this document which relates to the signing on behalf of the lady and presenting it for registration. The recital of paragraph 7 is as follows:
The said Mokhtearnama will, on behalf of me the executant, put his signature on all kinds of documents Pattas, Kabuliat, simple bond, mortgage bond, zerpeshgi deed, sale deed, mokarari deed etc. He will file the documents in the court of the Sub-Registrar or the District Registrar in Darbhanga district, make admission, get the same registered, withdraw the registration receipt and give the same to the claimants and take the same.” The aforesaid recital clearly shows that the powers which had been conferred by the Mokhtearnama on defendant No. 2 were firstly that he could put his signature on all kinds of documents and secondly that he could file the documents in the court of the Sub-Registrar or the District Registrar in Darbhanga district and make admission, that is to say, present the documents for registration. There was nothing either in this aforesaid paragraph or anywhere else in the entire body of the power of attorney showing that defendant No. 2 had also been given the power to execute the documents and enter into a contract for sale. The learned Additional Subordinate Judge was of opinion that the recitals taken together mean that defendant No. 2 was empowered to execute deeds on behalf of defendant No. 1. This view so taken by him does not appear to me to be correct because a document such as the power of attorney, as has been held several decisions, should be interpreted strictly. I may in this connection refer to some decision and some of which have also been referred to in the judgment of the learned Additional Subordinate Judge. In the case of Roy Radha Kissen and Ors. v. Nauratan Lal 6 C.L.J. 490, is was held that where an act, purporting to be done under a power of attorney, is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair consideration of the whole instruments, the authority in question is to be found within its four corners, either in express terms or by necessary implication. In the aforesaid case the power of attorney provided that the person so appointed was the general agent and he could sign for his principal, in his own pen, all deeds of mortgage and simple bonds and that he could get the same attested by witnesses on his own admission and it was held that the only authority conferred on the agent was that he should be in a position to sign for the principal the mortgage and simple bonds and it did not authorise the agent to enter into a mortgage, transaction without the knowledge of the principal. There is another ruling reported in Bank of Bengal v. Ramanathan Chetty and Ors. 43 I.A. 48 where also a similar question came up for consideration regarding the power of attorney but I think it would not be applicable to the present facts of the case because the case reported in that ruling was in respect of mercantile transactions.
27. In the case of Malukchand Bin Gyanmal v. Shan Moghan Vardra J. I.L.R. XIV Bom. 590 the power of attorney contained a recital to the effect which is as follows:
dispose of my bungalows in any way he thinks fit.
A question arose for consideration whether these words also conferred authority for mortgaging the property and it was held that the word “dispose” was not used in any technical sense and that the holder of such power had no authority to mortgage the property and that a power of attorney must be construed strictly. In the case of Ram Lal Singh and Ors. v. Musammat Bibi Shahrunnissa and Ors. 3 P.L.T. 442, the recital in the power of attorney by the. lady in favour of her husband was as follows:
to execute and admit its execution before the registering officer all sorts of deeds as sale, mortgage, lease, bonds etc. etc. and do the needful in the registration office.
And there it was held that the power to execute a document carries with it the necessary powers to enter into the transaction itself. In a later decision of our own High Court in the case of Loknath Prosad Singh and Anr. v. Shah Wahib Hussain and Ors. A.I.R. 1930 Pat. .181: 127 I.C. 457 a power of attorney had been executed by a pardanashin lady in which the various acts relating to the management of the property and to litigation etc. had been set out, but it did not make any mention in explicit terms whether there was any authority to sell, mortgage and lease. The relevant recital in that document was as follows:
The said general attorney shall either as (or through) attorney on his own behalf or personally on my behalf by his pen sign and acknowledge and get attested (these instruments) and, present them before the Registrar and admit execution and get them registered.
It was held in that case that the husband had no authority to enter into the contract of sale. Reliance in this present appeal on behalf of the respondent has been placed on the decision reported in 3 P.L.T. 442, but that case is distinguishable from the present one because the words “to execute” do not find place in Ext. 9, that is, the power of attorney in this case. The case reported in 3 P.L.T. 442 was also considered in A.I.R. 1930 Pat. .181: 127 I.C. 457 and it was also pointed out that it was distinguishable because the case in 3 P.L.T. 442 was for the enforcement of mortgage bond whereas the case in A.I.R. 1930 Pat. .181: 127 I.C. 457 was for the specific performance of contract as in the present case. The case where there is an executed conveyance would be on a different footing and different considerations will arise in such a case.
28. On a consideration of all the facts and the circumstances and on strict interpretation of the power of attorney, it clearly appears that the power of attorney did not confer the authority on defendant No. 2 to enter into a contract for sale. His powers were limited to only signing on behalf of defendant No. 1, presenting the document for registration and admitting the same at the time of registration. The words “to put his signature” as occurring in Ext. 9 are very important indeed and if the lady intended that such wide power should also be conferred then there would have been a recital to that effect. Taking the document as a whole also, in my opinion, the document did not confer such a power and this case is very much similar to the one reported in A.I.R. 1930 Pat. 181: 127 I.C. 457.
29. It has also been urged on behalf of the respondent that there are certain surrounding and attending circumstances which would show that such a power, viz., to enter into the contract for sale had also been conferred on defendant No. 2 in this connection, reference has also been made to the recitals in the written statement. In paragraph 9 of the written statement of defendant No. 6 it was stated that defendant No. 2 in May, 1957 started negotiation for the sale with Fudi Dhanuk and Dukhharan Dhanuk and some gharari lands were sold and then plaintiff began to create evidence. There were similar recitals in the written statement filed by defendant No. 5 also and it was contended that these facts clearly showed that this power had also been conferred and that there was at least implied authority. It has also been urged that sale deeds (Ext. s. B series) in favour of the defendants were also executed by defendant No. 2 on the strength of the power of attorney. The belief or any impression created in the mind of the. defendants and the fact of they had condescended to take a document from the defendant No. 2 would not alter the legal position. It was also urged that some lands prior to the alleged agreement for sale with the plaintiff had also been sold by defendant No. 2 and it appears that some gharari lands had no doubt been sold, but that was only in May. 1957, that is, nearabout the same time when the negotiation for sale of this land also began. Now in all these transactions defendant No. 2 was that party and defendant No. 1 did not figure any where. So the conduct of defendant No. 2, in my opinion, cannot bind defendant No. 1 and his action without authority during that short period would not mean that defendant No. 1 conferred that power. It was also suggested that there may have been oral delegation of power, but that question does not arise when there is a written document and there was also no evidence to show that there was such an oral delegation of power by defendant No. 1 to defendant No. 2.
30. Section 54 of the Transfer of Property Act deals with sales of immovable property, that is to say, sale deeds and contract for sale. Under this section a contract for the sale of immovable property is a contract that a sale of such property shall take place “on terms settled between the parties”. Under Section 4 of the Transfer of Property Act this contract of sale would also be subject to the general rules applicable to all contracts. Therefore, as in contracts, there must be the presence of mutuality in the contract. I may refer here to Fry’s Law of Specific Performance of Contract, 6th Edition, page 219 where it has been stated that “a contract to be specifically enforced by the court must, as a general rule, be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them.” Here in this case according to the plaintiff the agreement for sale was between himself and defendant No. 2. So it has to be seen whether there was the presence of a mutuality of the contract between them. The test of mutuality lies in finding out whether it can be enforceable by either party. Here in this case the plaintiff has made a prayer for the execution of the document both by defendant Nos. 1 and 2 and he was not satisfied and he would not be satisfied in. getting the document of sale executed only by defendant No. 2. Supposing that defendant No. 2 only was agreeable, the plaintiff would not agree to perform his part of the contract and, therefore, there was the complete absence of mutuality.
31. The second necessary condition for the enforcement of a contract is that it should be a concluded and completed agreement. I may again refer to Fry’s Law on Specific Performance at page 129 where it has been stated that “no proceedings in specific performance can, of course, be had unless of contract has actually been concluded, i.e., unless two persons have agreed on the same terms, and mutually signified to one another their assent to them. If what passed between them was but treaty or negotiation, or an expectation of contract, or an arrangement between them of an honorary nature, no specific performance can be had. The burden of proving this concluded contract is, of course, on the plaintiff” I have discussed the various aspects of the matter and the evidence and to my mind there was no concluded or completed agreement between the plaintiff and defendant No. 2 and it was only in the stage of negotiation.
32. The learned Counsel for the respondent has also relied on the provisions of Section 237 of the Indian Contract Act. This section is as follows:
When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent’s authority. Under this section the principal can be bound only if he has by his words or conduct induced such third persons to believe that such acts and. obligations were within the scope of the agent’s authority. Here in this case there is nothing on record to show that there was any such conduct of defendant No. 1. This section will not be applicable to this case.
33. It was also urged on behalf of the defendants that the suit was barred by limitation and there was a delay in the filing of the suit tantamounting to an abandonment by the plaintiff. The learned Additional Subordinate Judge has rightly taken the view that the suit was not barred by limitation, and as regards the delay in the institution of the suit, he was of opinion that it did not matter because it was within the period of limitation. As already stated above, the agreement was according to the plaintiff in the first week of July, 1957 and there was some correspondence going on as evidenced by the post cards which I have discussed above, such as the post cards dated 27-8-1957 and there was a letter of some date in third week of September, 1957 which was not produced by the plaintiff and according to the plaintiff a pleader’s notice was sent on 21-10-1957. I have already discussed and expressed my doubts about the genuineness of that notice which was produced in court and it rather appears that some kind of notice was sent, but it was not this notice which was produced in court. In this view of the matter, there was no further action on the part of the plaintiff after the receipt of the post cards referred above, until the institution of the suit on 19-9-1960. Admittedly the plaintiff came to know of the sale deeds in favour of the defendants in October, 1958. It may also be mentioned here, as I have already referred above to this fact also that the plaintiff had taken a plea to the effect that he was ill and so he could not file the suit, but that has been produced on behalf of the defendants controverting this statement about the illness and it was held that he was not so ill as not to be in a position to file the suit. Delay by itself would not defeat the claim of the plaintiff in a suit for specific performance of contract. I may refer here to paragraph 470, page 324 of the Halsbury’s Laws of England, Third Edition, Volume 36 where it has been laid down as follows:
Where time is not originally of the essence of the contract, and has not been made so by due notice, delay by a party in performing his part of the contract, or in commencing or prosecuting the enforcement of his rights, may constitute such laches or acquiescence as will debar him from obtaining specific performance. The extent of delay which has this effect varies with circumstances, but as a rule must be capable of being construed as amounting to an abandonment of the contract. A much shorter period of delay, however, suffices, if it is delay in declaring an opinion or exercising any other unilateral right; and if the other party has already given notice that he does not intend to perform the contract, the party aggrieved must take proceedings promptly if he desires to obtain specific performance.
It has been urged by the learned Counsel appearing for the respondent that the recitals in the written statement do not show that abandonment had been specifically pleaded and that it was for the defendants to prove that there was such an abandonment and that even if there was delay it was hot of such a nature as would tantamount to abandonment of the right. In a recent decision of the Supreme Court in the case of Gomalhinayagam Pillai and Ors. v. Palaniswami Nadar it has been held as follows:
Mere delay, short of waiver or abandonment of the contract is no ground for refusing relief, nor is it evidence of lack of readiness and willingness.
The inaction on the part of the plaintiff, in the circumstances, stated above, also lends a support to the conclusion that there was no concluded and completed agreement. Though there are not such materials on record as would prove that there was an abandonment of the claim but the suit of the plaintiff has to fail on the main question whether there was a final completed and concluded agreement such as would entitle him to enforce in a suit for specific performance of contract.
34. There were undoubtedly the sale deeds in favour of the defendants 3rd party and those had also been challenged on the ground of non-passing of consideration and the court has very rightly held on the basis of the evidence that those documents were for consideration. The defendants also pleaded that they were bona fide purchasers for value without notice. In view of my findings above, it is not necessary to go into the question whether the defendants had notice or not because that question does not arise since there was no completed and concluded agreement. But however, I may just refer to the evidence in that connection also. The defendants and their husbands denied any knowledge or notice of any such agreement and it was asserted on behalf of the plaintiff that the defendants had also knowledge and notice. The plaintiff in support of his case examined witnesses, such as P.Ws. 8, 16, 17, 19 and the plaintiff himself who is P.W. 22, P.Ws. 8 and 17 were rightly disbelieved by the court, and it appears that the court believed the evidence of P.. W. 19 but he was no other person than a nephew of the plaintiff. In view of the evidence also and taking into consideration all the aspects of the matter, I am of opinion, that the defendants did not have any notice of any such alleged agreement and there could not have been any occasion of such a notice because the agreement itself was not a concluded and completed one and even if they had knowledge that there were negotiations going on that would not mean such notice as to entitle the plaintiff to a decree in the suit.
35. On a consideration of all these facts, the plaintiff was not entitled to any relief in the suit and, therefore, the appeal is allowed with costs. The judgment and decree of the learned Additional Subordinate Judge are set aside and the suit is dismissed with costs.
N.L. Untwalia, J.
36. I agree.