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TMI Blog1924 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants and refused to convey the properties to him. Defendant No. 1 pleaded that she was hard pressed to satisfy her debts and the plaintiff delayed the completion of the transaction and so on the advice of the husband of defendant No. 2, she sold her interest partly to defendant No. 2 and partly to another lady-defendant No. 3, a certain amount being kept back out of the purchase price to compensate the plaintiff for the breach of contract. 2. Both defendants Nos. 2 and 3 denied the genuineness of the baina patra of the plaintiff and claimed they were bond fide purchasers without notice. 3. The first Court found that the baina patra was genuine and that the defendants Nos. 2 and 3 were not bond fide purchasers without notice and decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract being proved or admitted, the plaintiff should succeed as it is binding on the contracting party and every person deriving any interest from him since the contract. There is no direct authority in this Court but the view that we have adopted has found favour with the Bombay High Court in the case of Himat Lal v. Vasudev I. L. R.(1912) 36 Bom 446., with the Madras High Court in S. Tiru Venkata Chariar v. Venkata Ohariar and Ors. (1911) 26 Mad. L. J. 218., with the Allahabad High Court in Naubat Rai v. Dhaunkul Singh (1916) I. L. B. 38 All. 184., and with the Patna High Court, in Dharamdeo Singh v. Ham Prasad Sah (1918) 44 I. C. 470. The respondent in answer contends first, that the question-of burden of proof loses its importance wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set up by him and this includes that he must prove that the defendants had notice of the agreement with him. This, in our opinion, is not a correct statement of the position in this case. This is a suit for specific performance of an agreement for sale. The plaintiff's right to recover possession from the defendants will accrue after he has secured performance of the contract and a conveyance in pursuance thereof. 7. It is lastly argued that the view taken by the learned Subordinate Judge placing the onus upon the plaintiff is correct and reliance has been placed on the case of Lalubhai Surchand v. Bai Amrit I. L. R. (1877) 2 Bom. 299. This case has been considered and distinguished with disapproval in Himat Lal v. Basudev I. L. R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the learned Subordinate Judge's judgment is defective. The positions of defendants Nos. 2 and 3 are not exactly similar. Defendant No. 2 is a connection of the plaintiff and defendant No. 1, while defendant No. 3 appears to be an outsider. In her written statement defendant No. 1 asserted that Defendant No. 2's husband knew all about the baina patra and further if her statement is to be believed, both of the defendants were well aware of it, as otherwise there would have been no such arrangement as that part of the purchase money was to be kept back to compensate the plaintiff for the breach of contract. On the truth or otherwise of these two assertions (which must be kept distinct) the Subordinate Judge has come to no finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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