TMI Blog1955 (12) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest acquired by him' in favour of Fazaladdin; but that in spite of repeated requests to pirn thereafter to convey the leasehold On accepting from him the sum of Rs. 50/-, Panchanan did not accept the money and did not execute the conveyance. The plaintiff asks for a decree for specific performance of contract to execute the conveyance. 2. The defence was twofold. First, it was pleaded that there was no such agreement at all and secondly that the alleged contract was without consideration., illegal and not enforceable in law.' 3. The learned Munsif, who tried the suit, believed the story of oral agreement as alleged by the plaintiff and also the plaintiff's case that he offered Es. 50/- to the defendant and that the defendant refused to accept it. He held also that there was nothing to show that the ekrarnama, that is, the written document. Ex. 1, in his written statement and that it was therefore valid and binding. On these findings, he gave the plaintiff a decree for specific performance. The defendant appealed. The main point urged in appeal appears to have been that there was no agreement as alleged. It was pointed out that the defendant had not challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant's prayer. It has to be remembered that the defendant made the prayer for the first time in the appellate court. At the trial, not only the plaintiff but also the scribe of the document deposed on oath that the defendant affixed the signature and thumb impression on this document. The cross-examination had elicited no circumstance that would justify the court in rejecting the, testimony of the scribe. Even then the defendant contented himself with his own denial on oath. The least he could have done was to ask at least at that stage for an opportunity to examine an expert. In my judgment, the learned Subordinate Judge was fully justified, in these circumstances, in rejecting the belated prayer made before him and in considering the evidence on record in coming to a conclusion whether the ekrarnama, Ex. 1, had in fact been executed. I think it proper to mention also that I am unable to agree with the view which found favour with Guha J., that the learned Judge was' wrong in comparing the signature on Ex. 1 with the admitted signature of the defendant on other documents. It is true, if there was no evidence before the court as regards the genuineness of the signature, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration that the plaintiff and his brothers had granted him a lease of the land. It is important to remember that the ekrarnama was executed on the very day on which the potta and the kabuliyat were executed. Mr. Mukherji tried to convince us that the language of the ekrarnama indicates that the promise to convey had no connection with the granting of the lease. The relevant portion of the ekrarnama can be translated thus; On this day you have registered in my favour a maurashi potta for the land described in the schedule on receipt of a selami of. Rs. 50/- and at a rent of Rs. 3/- and I have executed a corresponding kabuliyat. Now you having prayed to me for getting back the land, I have agreed to your prayer and promise and undertake by this ekrarnama that if within six years from, this day you pay Rs. 50/- to me, I shall register a saf kobala for the land in your favour. Mr. Mukherji has stressed the use of the word ^^,[[kwus**and the fact that the registration of the potta and kabuliyat was mentioned as complete transaction for holding that there was no connection between the granting of the lease and the promise made by the defendant. If it had not been known that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in the trial court within 45 days from this date, -- if not already deposited -- the defendant to execute a kobala of the suit property in favour of the plaintiff and get it registered within two months from this date, the costs of execution and registration being borne by the plaintiff. In default, provided the plaintiff makes the payment or deposit as above, the kobala will be executed and registered by the trial court for and on behalf of the defendant, the costs of execution and registration being borne by the plaintiff. 9. The appellant before us will get his costs, throughout. Bachawat, J. 10. On 26-5-1943, the plaintiff and his brothers executed a potta granting a maurashi lease of the land to the defendant on receipt of a selami and the defendant executed a kabuliyat undertaking to pay rent to the plaintiff and his brothers. On the same day, the defendant also executed an ekrarnama undertaking to convey and release the defendant's interest in the property to the plaintiff on payment of Rs. 50/- by the plaintiff within six years. 11. The plaintiff offered to pay the sum of Rs. 50/-, within six years from 26-5-1943. The defendant refused to accept the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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