TMI Blog1922 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ised to execute the sale-deed on 5th January 1925, but notwithstanding the said contract defendant 1 sold 17 gandas share to defendants 2 and 3 for a sum of Rs. 2,700 on 12th January 1925. 3. The suit was contested by all the defendants. The case put forward by the defendants was that, prior to the agreement alleged by the plaintiff, defendant 1 had on 17th November 1924 agreed to sell his 1 anna 7 ganda and odd share to defendants 2 and 3, and that the plaintiff had knowledge of the said agreement. The defendants alleged that the sale of 12th January 1925 was in pursuance of the agreement dated 17th November 1924, that was prior in date to the agreement alleged by the plaintiff, and, as such, the plaintiff was not competent to assail t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en plaintiff and defendant 1 and other evidence in the case, the Courts below have come to the conclusion that defendant 1 entered into a contract with defendant 3 to sell his 1 anna 7 ganda share in November 1924 and that the plaintiff was fully aware of that agreement when he entered into the contract of sale on 26th December 1924. 9. It was maintained by the defendants that by the contract of November 1924 defendant 1 had agreed to sell his share to both Mahabir and Mukh Ram Singh defendants 2 and 3, and as the contract with those defendants was prior in date to the contract of sale entered into between the plaintiff and defendant 1, the sale-deed dated 12th January 1925 could not be assailed by the plaintiff. 10. The Courts below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of and in conformity with the agreement of November 1924. It is urged that the defendants having given a go by to the agreement of November 1924, the plaintiff is entitled to a decree for specific performance of the agreement, dated 26th December 1924. 12. The learned advocate for the defendant-respondents supports the decree of the Courts below on the ground that a contract of sale may be assigned and the assignee can enforce specific performance of it, and that it must be deemed that when Mukh Ram Singh joined Mahabir with him as a purchaser, he did no more than assign his rights under the agreement of November 1924 to Mahabir to the extent of the share sold to him. He maintains that the mere fact that the sale to defendants 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract of November 1924. In other words he could insist on the sale of the entire 1 anna 7 gandas share to him. That being so, he was fully competent to waive his right with respect to a portion of that share and by mutual agreement with defendant 1 to agree to purchase the lesser share. Equally so it was open to defendant 1 and to Mukh Ram Singh to vary the terms of the agreement of November 1924 regards consideration. The decisive factor in such cases must be the priority in date of the agreement and not the terms of that agreement. In our judgment the purchase of 8 gandas by Mukh Ram Singh must be deemed to be in pursuance of the agreement of November 1924 and the plaintiff's suit with respect to that share must fail. 15. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of such a contract can be assigned: vide Fry on Specific Performance, Edn. 6, para. 222 and C Muniswami Nayudu v. Sagalaguna Nayudu A.I.R. 1923 Mad. 699. 16. But we are unable to agree with the learned advocate for the respondents that Mukh Ram Singh must be deemed to have assigned the benefit of the contract of November 1924 in favour of Mahabir to the extent of the share purchased by him. The case of assignment was not put forward in the written statement. In both the Courts below it was maintained by the defendants that Mahabir was a party to the contract of November 1924. This contention of the defendants has failed. In our judgment it is not open to the defendants to put forward a case of assignment for the first time i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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