Jitendra Nath Roy vs Sm. Maheswari Bose

Datta, J.—This is a suit filed by one Jitendra Nath Ray against Sm. Maheshwari Bose for specific performance of the agreement for sale, dated December 15, 1954; Its. 3,150 as damages under para. 8 of the plaint, injunction, Receiver and costs. The suit arises in the following circumstances. In or about December, 1954, Sm. Maheswari Bose, the owner of 34A and 34B Amherst Row, authorised one Atul Chandra Ghosal, a broker, for the sale of the said premises at and for the price of Rs. 32,000 only free from all encumbrances.

On December 8, 1954, Mr. Anil Ghosh, Solicitor for the Plaintiff, Jitendra Nath Roy, accepted the offer by a letter of even date written to Anil Chandra Dutt, Solicitor for Sm. Maheswari Bose.

On December 9, 1954, Mr. A.C. Dutt, Solicitor for Sm. Maheswari Bose wrote a letter to Mr. Anil Kumar Ghose, Solicitor the Plaintiff, setting out the important terms and conditions of sale. One of the terms, namely, Clause 7, was as follows:

The property is being sold by the vendor as a Hindu widow for her maintenance, medical and pilgrimage expenses.

On December 9, 1954, Anil Ghosh sent a draft agreement for sale for approval of Mr. Anil Chandra Dutt. On December 13, 1954, Mr. Anil Chandra Dutt wrote a letter to Mr. Anil Ghosh wherein he stated inter alia as follows:

Please engross the final draft agreement for sale in duplicate.

On December 15, 1954, Anil Ghosh sent the original agreement for sale (in duplicate) along with a cheque for Rs. 501 being the earnest money. In the post-script of the letter Anil Ghosh wrote further as follows:

I undertake to have the same (meaning the agreement in duplicate) executed by my client immediately on receiving same back from you after execution of your client.

On December 15, 1954, the agreement was admittedly made between the parties. On December 16, 1954. Mr. Anil Chandra Dutt wrote a letter to Mr. Anil Ghosh wherein he stated inter alia as follows:

I am returning them duly executed by my client and attested. Please return me the duplicate copy after they are executed by your client and attested by your good self.

On December 21, 1954, Mr. Anil Chandra Dutt, Solicitor for Sm. Maheswari Bose, wrote to Mr. Anil Ghosh, Solicitor for the Plaintiff Jitendra Nath Roy, inter alia as follows:

I regret, you have not yet returned me the duplicate agreement duly executed by your client though you undertook to do so by your letter of the 15th instant.

Please do so immediately.

On hearing from you, I shall arrange to deliver the titles deeds on your accountable receipt for inspection.

On or about December 28, 1954, the Plaintiff Jitendra Nath Ray executed a document whereby he purported to assign his right, title and interest in the agreement to one Sm. Saraswati Devi, a tenant of the said premises No. 34A and 34B, Amherst Row.

On or about January 1, 1955, Mr. A.C. Dutt fell ill and he was confined to his house for some time. There is controversy before me as to the nature of his illness and the time when he assumed his normal work as a Solicitor. On June 15, 1955, Mr. A.C. Dutt wrote a letter to Mr. Ghosh, Solicitor for the Plaintiff, wherein he stated inter alia as follows:

It appears that during the 6th months your client has not taken any steps whatsoever to complete the sale. Evidently, he is nor in a position to do so. He, therefore, states that his client is now entitled to cancel the agreement. In the second paragraph Mr. Dutt without prejudice to his client''s right called upon, the Plaintiff to send the draft conveyance for Mr. Dutt''s approval within 3 days from the date of the letter and to pay the entire purchase price within 7 days from June 15, 1955. Mr. Dutt also added that in default thereof his client will treat the above agreement for sale as cancelled and will be at liberty to deal with the above property as she pleased without any further reference to him cr to his client. On June 16, Mr. Ghosh stated that he stayed his hands in the matter owing to the unfortunate illness of Mr. Dutt and that now that he was fit again to resume his duties, he (Mr. Ghose) asked Mr. Dutt to arrange for the production of sufficient evidence as to his client''s legal necessity for selling the properties. He added that his client was always and is still now ready and willing to complete the deal on his clients producing such satisfactory evidence. On June 17, Mr. Dutt said that the explanation given by him for not completing the sale so long does not improve the matter, and without prejudice to his rights called Mr. Ghosh at his residence on June 18, 1955, to make such enquiries as he may think fit to satisfy himself about the legal necessity. There was no reply to this letter of the 17th June, 1955, written by Mr. Dutt. On June 27, 1955, Mr. Dutt by a letter written to Mr. Anil Ghosh stated that Jitendra Nath Roy did not carry out his part of the agreement to complete the purchase and in the circumstances his client (Sm. Maheswari Bose) cancelled and sit is no longer binding on his client. On June 29, 1955, after the cancellation Mr. Anil Ghosh wrote a letter to Mr. A. C. Dutt complaining that Mr. Dutt and/or his client did not produce satisfactory evidence as to the existence of legal necessity in spite of reminders, that his client (Sm. Maheswari Bose) has no right to cancel the agreement at her sweet will and particularly when she was the defaulting party, and lastly he called upon the seller to establish to his satisfaction the existence of legal necessity. On July 1, 1955, Mr. Dutt wrote a letter to Mr. Ghose wherein he recited his client''s version of the matter and observed that it was clear that Mr. Ghosh''s client had no funds to complete the sale and so nothing was being done by Mr. Ghosh on behalf of his client to complete the sale. Mr. Dutt also stated that he attended the office during the whole of December, 1954 but nothing was done by Mr. Ghosh or his client and that even thereafter his office was not closed and he was carrying on all his professional works as usual. In fact Several transactions were completed by him during this period and if Mr. Ghosh''s client had been diligent and made enquiries there would have been no difficulty in completing the sale within the prescribed time and in the circumstances his client had no alternative but to cancel the agreement for sale with his client. On July, 6, 1955 Mr. Anil Ghosh wrote a letter to Mr. A.C. Dutt denying all allegations contained in the letter of Mr. Dutt dated the 1st July, 1955 and ending with a demand to complete the deal by placing satisfactory evidence as to legal necessity of the sale before him. On July 8, 1955 Mr. Dutt wrote a letter to Mr. Ghosh wherein he stated inter alia that before the agreement was entered into Mr. Ghosh was told that Mr. Maheswari Bose was selling the property for the purpose of meeting the expenses for her maintenance and medical expenses, etc., and that a statement was also shown of her income and expenses to him for the last few years. He further stated that under the agreement Mr. Ghosh''s client was under an obligation to intimate in writing by January 24, 1955 Mr. Ghosh''s approval of the title, but he had not intimated yet and therefore in view of the default clause he was entitled to cancel the agreement. On July 12, 1955 Mr. A.C. Dutt wrote a letter to Shri Anil Ghosh requesting him to return the duplicate copy of the agreement for sale signed by his client which was sent to him on December 16, 1954 for execution by his client.

There was no correspondence between the parties for more than a year after July 12. 1955. On August 22, 1956 Shri Anil Ghose wrote a letter to Mr. Dutt wherein the Defendant charged the Defendant Sm. Maheswari Bose with breach on her part on account of her failure to produce the title deeds before him forthwith on his accountable receipt in order to enable him to investigate into the title thereof and called upon Mr. Dutt''s client; to send him such documents within three days from the receipt of the letter. On August 28, 1956 Mr. Dutt reiterated that the agreement for sale had been cancelled long ago as would appear from his previous letters to him last year. On December 7, 1956 Mr. Anil Ghose wrote to Sm. Maheswari Bose direct that his client was eager to complete the purchase as soon as possible, "please treat this as urgent". On December 17, 1956 Mr. A. C. Dutt wrote a letter in reply to Mr. Ghose''s letter, dated December 7, 1956, reiterating that his client had cancelled the agreement. On January 19, 1957 Mr. Anil Ghose wrote a letter again to Sm. Maheswari Bose direct finally calling upon her to execute the conveyance in favour of his client in terms of the agreement for sale within three days from receipt thereof and threatened that in default his client would sue for specific performance without further reference. On January 29, 1957 Mr. Anil Ghose again gave a final notice for making an appointment for the execution of the conveyance in favour of his client within three days from receipt thereof and in default thereof his client would file a suit for specific performance. On January 31 1957 Mr. A.C. Dutt, Solicitor for Sm. Maheswari Bose wrote a letter to Mr. Anil Ghose, Solicitor for the Plaintiff whereby he took exception to the letter to Mr. Ghose writing to his client direct and stated that he had already stated that the agreement for sale had been cancelled and that if in spite of this his client want to rush to the court he can do so at his own risk as to costs and expenses. On May 21, 1957 this suit was filed by Jitendra Nath Roy against the Defendant Sm. Maheswari Bose. On August 9, 1958 Sm. Sarasti Devi made an application for her substitution in the place of Jitendra Nath Roy. On September 11, 1958 Sm. Saraswati Devi''s application for substitution was dismissed with costs, on the ground I am told that the assignment if any was made prior to the filing of the suit and hence no question of substitution arose. The Plaintiff in her plaint stated after referring to the agreement and portions of Clause 2 and 3 thereof as follows:

The Defendant in spite of demands however failed and neglected to produce the relevant documents of title before the Plaintiff''s Solicitor and/or to establish her title to the property.

That on the face of the refusal and/or failure of the Defendant to observe and perform her part of the duties under the agreement as stated in para. 4 hereof, the Plaintiff by his own labour and exertion was ultimately on or about December 23, 1956 able to complete the investigation of the title of the Defendant to the property and was satisfied therewith.

The Plaintiff thereupon called upon the Defendant on or about January 29, 1957 to complete the sale but the Defendant refused to do so.

The Plaintiff has been and still is ready and willing to perform his part of the agreement.

In the prayers he claims inter alia the specific performance of the said agreement for sale, dated December 15, 1954.

In the written statement after referring to the agreement and some of the terms of the agreement and denying para. 4 of the plaint and referring to the letter dated June 15, 1955 the Defendant stated as follows:

As no step was taken to complete the purchase as mentioned in the said notice dated the 15th June, 1955 the Defendant on or about June 27, 1955 cancelled the said agreement dated December 15, 1954.

The Defendant also denied that the Plaintiff has been. and is still ready and willing to perform his part of the agreement. At the hearing of the suit before the issues were raised Mr. R.N. Mitter, Learned Counsel appearing for Sm. Maheswari Bose sought to raise an issue on the maintainability of the suit by reason of the assignment which took place on December 28, 1054. This was objected to by Mr. Bose, Learned Counsel appearing for the Plaintiff. Thereupon I indicated to Mr. Mitter that I was not inclined to allow him to raise an issue on such a vital matter unless his client chose to amend the written statement and if Mr. Mitter is so instructed to apply I will adjourn the suit in order to enable his client to avail of the opportunity.

In these circumstances, the following issues were settled:

Was the agreement duly cancelled by the Defendant as stated in para. 6 of the written statement?

"Was the Plaintiff ready and willing to perform the part of the agreement at all relevant times?

To what relief, if any, is the Plaintiff entitled?

The Plaintiff himself gave evidence before me. The Plaintiff also called his Solicitor Mr. Anil Ghosh, his nominee Sm. Saraswati Debi, his friend Mata Prasad, son-in-law of Sm. Saraswati Debi, to support his case. The Plaintiff also examined one Mr. Atul Chandra Ghoshal a broker dealing in sales and purchases of houses.

The Defendant gave evidence before me. The Defendant called one Mr. Ashim Chandra Dutt, brother of his deceased Solicitor and nephew of the Defendant and one Mr. Phanindra Nath (Bose, Clerk of B.N. Basu and Company, who also worked for Mr. D.C. Dutt in respect of his personal professional matters.

The parties relied on some documents. They were more or less common documents.

The first primary question is whether the Defendant committed default in carrying out his obligation under Clause (3) and thereby disabled the Plaintiff to perform his posterior obligations under the contract.

Clause (3) of the agreement, dated December 15, 1954, provides, inter alia, as follows:

The vendor shall forthwith deliver the title deeds which are in the possession of the vendor to the purchaser''s attorney on his accountable receipt for his inspection.

The first point for consideration is whether a request by the purchaser or his attorney for the delivery of the title deeds to him or them or either of them is necessary.

Section 55 of the Transfer of Property Act provides, inter alia that in the absence of the contract to the contrary the seller is bound to produce to the buyer on his request for examinations all documents of title relating to the property which are in the seller''s possession or power.

Therefore Section 55 makes it abundantly clear that the request must come from the buyer to the seller before the seller is under an obligation to produce the title deeds.

The next question for consideration is whether there is a contract to the contrary, meaning contrary to the provision of Section 55 of the Transfer of Property Act, which obliges the buyer to make a request to the seller for the delivery of the title deeds before the seller is obliged to produce the title deeds.

It may be noticed at this stage that the name of Mr. Anil Ghosh the person to whom the title deeds have to be delivered is mentioned in the clause itself. Consequently the place at which the title deeds are to be delivered is impliedly mentioned for the office address of Mr. Anil Ghosh, a Solicitor, can be presumed to be known and the manner in which the title deeds are to be given to Mr. Anil Ghosh is also specified namely against accountable receipt. Therefore, there was no necessity on the part of the Defendant or her Solicitor to enquire or find out to whom the purchaser or his Solicitor or to what address the title deeds should be sent.

Mr. Bose, Learned Counsel for the Plaintiff firstly submitted that the word "forthwith" in Clause 3 makes it clear beyond doubt that the obligation of the Defendant to deliver, the title deeds arose the moment the agreement was executed and was to be performed at the latest on the same day that is the 15th December 1954 and as such there was no room for a request by the Plaintiff''s Solicitor to the Defendants'' Solicitor or in other words there was a contract to the contrary within the meaning of Section 55 of the Transfer of Property Act.

In this view of Clause (3) it is necessary to find out the meaning of "forthwith".

In case under Sales of Goods, where time is the essence of the contract unlike in the case of a sale of land, "forthwith" has been interpreted as summarised by Benjamin on Sale 8th Edition, p. 696 as follows:

Where the contract was to deliver goods "forthwith" the price being made payable within fourteen days after the contract, it was held manifest that the goods were intended to be delivered within the fourteen days. And generally the construction of the contract may "show" that "forthwith" means no more than "with-"out delay or loss of time" it being a less strict term than "immediately".

In Stroud''s Judicial Dictionary, 3rd Edition, Vol. 2, pp. 1147/1148 it is stated inter alia as follows:

In a contract, and the ordinary transactions of life, "forthwith" does not usually mean immediately (Roberts v. Brett 34 L.J.C.P. 11 H.C.G. 337 : 20 C.B.N.S. 148) but means "with all reasonable "celerity" (per Tindal, C.J. Burgess v. Boetepear 7 M and G 494), or in other words "as soon as reasonably "possible" (Kenney v. Hutchinson 6 M and W 134; Hyde v. Watts 13 L.J. En. 41; Simpson v. Henderson Moo and M 300 see hereon Re: Sullivan 36 L.J.).

Therefore, the word "forthwith" does not mean in a contract as judicially interpreted the very moment or the day. It means within reasonable time having regard to all the circumstances and the facts of the particular case.

In this case, the agreement was sent on December 15, 1954 by Mr. Anil Ghosh together with a duplicate for the execution of the same by the Defendant with an undertaking to have the same executed by his client immediately on receiving the same back from him after execution by the Defendant. On December 16'', 1954, Mr. A.C. Dutt returned the agreement duly executed to Mr. Anil Ghosh and asked for the return of the duplicate copy after they were executed by his client and attested by Mr. Anil Ghosh. The duplicate was not sent by Mr. Anil Ghosh to Mr. Dutt.

Therefore all the formalities agreed by the parties were not completed on December 15, 1954, the date of the agreement.

The stamped agreement was not even executed by both parties on that day. The duplicate had not even come on December 16, 1954.

The Solicitor of the parties did no! mention anything about the title deeds in their letters even in the letters between December 15 and 21, 1954. Mr. Ghosh did not mention in his letter, dated December 15, 1954, to Mr. Dutt. Mr. Ghosh did not ask for the title deeds even by December 21, 1954.

The parties, if they meant that the title deeds were to be given on that very day that is December 15, 1954, could have no difficulty in making over or taking delivery on December 15, 1954

The contract, dated December 15, 1954, provided inter alia that the purchaser''s attorney shall intimate to the vendor''s attorney Mr. A.C. Dutt in writing by January 29, 1955 his approval of the vendor''s title and power to sell. The period was more than a month. The Plaintiff''s Solicitor according to my finding, hereafter mentioned, had informal inspection of some document before December 15, 1954.

Therefore it is clear that the Defendant was not bound to deliver the title deeds on December 15, 1954 but was bound to deliver within a reasonable time after the December 15, 1954 after a request from the Plaintiff.

In these circumstances, I am unable to accept the contention of Mr. Bose on this point which proceeds on the basis that the obligation to deliver the title deeds was to be performed on December 15, 1954.

Mr. Bose secondly contended in the alternative that the request, if necessary, was contained in the word "shall" in the beginning of Clause 3 by necessary implication.

Section 55 of the Transfer of Property Act, notwithstanding that it provides that the seller is bound to produce the title deeds yet it stipulates that there should be a prior request before the obligation of the seller becomes operative.

The word "shall" is more or less equivalent to "is bottnd" in the section itself. At the most the words "the vendor shall" only emphasise the sellers ordinary obligation u/s 55 and no more. Consequently the word "shall" does not impliedly do away with the necessity of a request.

Therefore, I am unable to accept this contention advanced on behalf of the Plaintiff. Ms. Bose contended thirdly in the further alternative that the offer contained in the letter, dated December 21, 1954, cannot be an offer in terms of Clause 2 of the agreement, if wag at best a conditional offer.

In order to appreciate this point it is necessary to refer to the relevant portions of the letters before me. On December 13, 1954 that is, even before the agreement for sale Mr. Dutt requested Mr. Anil Ghosh, Solicitor for the Plaintiff as follows:

Please engross the final draft agreement for sale in duplicate for expediting the completion of the sale. On December 15, 1954, that is, on the very day of the agreement Mr. Anil Ghosh sent the original stamped agreement for ale (in duplicate) and noted in the post script of that letter that he undertakes to have the same executed by his client immediately on receiving same back from Mr. Dutt after execution by Mr. Dutt''s client. On December 16, 1954 Mr. Dutt wrote to Mr. Anil Ghosh returning the original stamped agreement in duplicate after due execution by his client and requested Mr. Ghose to return the duplicate copy after they are executed by Mr. Ghose''s client and attested by his good self (meaning Mr. Ghose). On December 21, 1954 Mr. Dutt complained that Mr. Ghose''s client had not yet returned the duplicate agreement duly executed by his client though he undertook to do the same by his letter, dated December 15, 1954. Lastly, Mr. Dutt stated in the letter, dated December 21, 1954, as follows in the ultimate para.

On hearing from you I shall arrange to deliver the title deeds on your accountable receipt for inspection.

Mr. Ghose was referring to this last paragraph of the letter when lie said that the offer was conditional. It is clear from the correspondence that there was an agreement between the Solicitors inter alia that Mr. Ghose will return the duplicate copy after the original and the duplicate are executed by his client. There was non-compliance with the same even after a lapse of about 5 days, Hence the letter of December 21, 1954. The omission on the part of Mr. Ghose''s client showed that at the initial stage his client was not prepared to follow the subsidiary agreement in writing arrived at between the Solicitors. The application under Clause 2 however was not tacked in the formal agreement or the agreement arrived at by the letters between the Solicitors of the parties. Therefore, it can be said that the first Defendant''s offer was conditional. The Defendant in my opinion was not however bound in law to make an unconditional or conditional offer to deliver the title deeds without request from the Plaintiff or his Solicitor. When however a conditional offer was made in fact by the Defendant the Plaintiff could have accepted the conditional offer and/or refused it. Moreover, the Plaintiff could have asked for the delivery of the title deeds in terms of Clause (3) without any condition attached thereto.

Therefore the success on this point does not advance the case of the Plaintiff.

Mr. Mitter submitted that the cancellation of the agreement by his client on June 27, 1955 was rightful. The circumstances under which the cancellation was made are shortly as follows: In Mr. Dutt''s letter of June 15, 1955 he stated that in view of the inaction of the Plaintiff for six months, his client was entitled to cancel the agreement and called upon the Plaintiff without prejudice to his right to send the draft for Mr. Dutt''s approval within three days and to pay the balance purchase money within seven days from June 15. 1954. On June 16, 1955 Mr. Ghose requested that Mr. Dutt''s client should produce satisfactory evidence as to his client''s legal necessity for selling the properties. On June 17, 1955 Mr. Dutt requested Mr. Ghose to make such enquiries as he might think fit to satisfy himself about the legal necessity at the residence of Mr. Dutt. There was no reply to this. Thereupon on June 27, 1955 the Defendant cancelled the agreement.

There is evidence before me that Mr. Dutt was seriously ill. There is further evidence before me that Mr. Dutt did not attend his office until the beginning or middle of April, 1955. There is further evidence before me that the parties proceeded oil the basis that the sale should not be proceeded with until Mr. Dutt recovered. There was however no agreement on that point.

I will at first proceed on the assumption that such a understanding was an agreement to extend time of completion of the sale.

It is clear even on this assumption that the agreement can not take the Plaintiff later than the 15th April for Mr. Dutt was attending office at any event from that date. The Plaintiff took no steps between April 15, and June 15, 1955 (that is to say above 2 months) when threats for cancellation were held out to his client. On June 16, Mr. Ghose in his letter laid a ground for explaining the delay.

This was immediately replied to on June 17. Nonetheless Mr. Ghose did not take any steps. Mr. Ghosh did not ask for the delivery of the title deeds to him. The Plaintiff was anxious to complete the sale and get the money as early as possible. This is evident from the prior correspondence as also the terms of the contract.

The agreement itself provided that the intimation as to the acceptance of the title should be made to Mr. Dutt in writing by January 24, 1955 and that the sale shall be completed by February 15, 1955, that is, within 2 months of the agreement. Mr. Ghose did not take any steps in that suit even after April 15, 1955.

Therefore, even on the assumption made, it is clear that the Plaintiff had failed and neglected to perform his obligation for more than reasonable time. Hence, the letter of June 15, 1955 is a proper notice. If the assumption is removed, it is still more patent that more than reasonable time had elapsed by June 15, 1955. The notice, dated June 15, 1955, did not mention that the time was the essence of that contract.

In this connection Mr. Mitter relied amongst others upon Mahomed Ikramull Hug v. Wilkie (1907) 6 C.L.J. 682, establish before me that if a notice is given after the expiry of reasonable time without expressly mentioning that time is the essence of the contract then the time mentioned in the notice is deemed to be the essence of (he contract. This proposition was not and cannot be disputed. The next question is whether the period of seven days mentioned in the notice is sufficient. The agreement further provided that the purchaser will give at least seven days'' notice in writing fixing the date for completing the purchase giving thereby a measure of the reasonable time.

The Defendant when she sought to cancel the agreement gave three days'' time by her letter, dated January 29, 1957 which again indicates what is reasonable notice according to Ms evidence.

Mr. Mitter also relied on the same authorities to establish the proposition that the notice period should be reasonable and that seven days was considered in a case as sufficient. There was no dispute on this statement of law.

Hence, in my opinion the period of seven days is reasonable.

It is not necessary to deal in detail with this contention as Mr. Bose did not press before me and in my opinion rightly, that the cancellation by the Defendant was wrongful if he did not succeed on his earlier contentions as to of. 3.

Mr. Mitter also contended that in any event, the Plaintiff cannot succeed as the condition subsequent provided in Clause 2 was not fulfilled for there is no evidence that the Plaintiff''s Solicitor did intimate to Mr. Dutt in writing that be accepted the title. This contention seems to be well-founded. In this connection reference may be made to Panem Venkanarayana Sastry and Others Vs. Rajupalli Chinna Yella Reddy, .

Mr. Bose, Learned Counsel for the Plaintiff, in order to meet the above contention, submitted that on the failure of the Defendant to deliver the Title Deeds under Clause (3) (i.e., on the assumption that his contentions as to Clause (3) are well-founded), his client was discharged from performing the obligations imposed upon him by the contract.

This would have been so, if the suit was for damages for breach of contract. n a suit for specific performance the Plaintiff has to perform such terms as are capable of being performed by the Plaintiff in spite of the breach of one or more terms of the contract by the Defendant and has to allege and prove as to the rest that he was ready and willing to perform his part of the contract. Clause (2) could have been performed by the Plaintiff as he proceeded on the basis of acceptance of title in spite of breach of Clause (3) by the Defendant. Hence I am unable to accept this contention advanced on behalf of the Plaintiff. The next material question is whether the Plaintiff was ready and willing to perform the contract from the financial point of view. In other words, whether the Plaintiff was ready and willing from the date of the agreement till the hearing.

The financial capacity is one of the essential matters which the purchaser has to prove in a suit for specific performance. by him.

The general law permits transfer of a benefit of a contract. Therefore, the vendee can transfer his right, title and interest or benefit in the contract. The agreement for assignment provided that the purchaser will include his assignee and/or nominee. Therefore, on assignment and nomination the purchaser can take benefit of the financial capacity of the nominee.

In Crosbie v. Tooke (1833) 1 M&K. 431, it was held that as correctly summarised in the headnote "It is not defence to a bill, filed "against a landlord for specific performance of an agreement for "a farming lease, by a person to whom the benefit of the agreement has been assigned, that the party with whom the landlord "contracted has become insolvent, provided the assignee is solvent, "and in a condition to enter into the usual covenants and there "is no evidence that the contract was entered into upon considerations personal to the assignor." The decision in Curtis Moffat Ltd. v. Wheeler (1929) 2 Ch. 224, is in the same view. The case of Rahimtulla Lowji Damani Vs. The Official Assignee of Bombay, , is also to the same effect.

Therefore, in this case in view of the general law and more so in view of the provision in the agreement of sale and the bar to contend that the assignment totally denuded Jitendra of his rights and benefits: The Plaintiff can succeed if he can establish his solvency and/or of Sm. Saraswati Devi from the date of assignment.

Jiten said that the purpose for which he was going to purchase that property in order to acquire a joint family residential house in Calcutta. He entered into the agreement in his own name at the direction of his brother.

He had four other brothers and nephews who are working at different places and the total income of the joint family is in the region of Rs. 8,000 to Rs. 3,500. These incomes are all brought "to the joint family till. Jiten said that he and his four brothers owned a house and some landed properties at their native place at Berhampore, District Murshidabad. The house stands on 13 cottahs. The income from the joint family properties at Murshidabad was about Rs. 2,000 or 2,500 a year. He had one-fifth share in the said properties. He has no document to prove that he is a co-sharer or that the income of the joint properties ranged between Rs. 2,000 and Rs. 2,500 annually. The documents according to the Plaintiff are in the possession of his elder brother who is the head of the family.

Jiten Roy was the manager of a Ration Shop since 1946. His starting salary was Rs. 125 per month. He left the Ration Shop in the beginning of 1955 when he was drawing a salary of Rs. 150 per month. Mr. Anil Ghosh, Solicitor introduced him to Mr. S.C. Palit. Mr. S.C. Palit has an office in the same room as Mr. Ghosh, Mr. S.C. Palit employed him as his managing clerk since middle of 1955 at a salary of Rs. 125 per month.

When he joined the Ration Shop he was married. He has mow four children. He paid Rs, 13 as rent when he was residing along in Calcutta. He saved from his income of Rs. 150: when the saving would amount to Rs. 200 or Rs. 400- he would keep it with him but when it accumulated to Rs. 1,000 or Rs. 1,500 he would make over to his eldest brother. He does not and did not maintain any account. Later, lie said that he handed over in the average Rs. 300 or Rs. 400 and so on in course of a year to his elder brother before 1954 and a sum of Rs. 100 or Rs. 150 per year as the average from 1954. He handed over Rs. 3,000 to his elder brother personally. Jiten handed over his savings personally to his eldest brother for he has to come frequently to Calcutta. His elder brother did not send the sum of Rs. 32,000 to him. His elder brother said that he should give him intimation 7 days in advance so that he might get ready with the money and bring it. He further said that he was ready and willing to purchase the property even today. Jiten''s story of an ideal joint family and his exemplary conduct as a member thereof does not prima facie appeal to me. He did not call his elder brother as a witness though the elder brother is the central figure in his story. Jiten''s story as to his own savings does not impress me. Jiten''s story of the assignment is far from convincing. Jiten did not support his story with any document at any stage.

Therefore, in my opinion, Jiten. was never in a position to pay the consideration money of Rs. 32,000 and hence was not ready and willing at any time.

Sm. Saraswati Debi is the assignee or nominee. Her husband''s family are living at premises Nos. 34A and 34B, Amherst Row for about 60/70 years. She has been married in this family for about 34 years.

There are about 21 rooms in the house. There are some tenants the rent varies between Rs. 10 to Rs. 15 per room. She could not give an approximate figure of the total amount of rent she gets from the house. She saved some money every month from the rents collected. She said that she saved more than Rs. 10 per month. She could not say how much she saved as she does not know how to make calculation. She however said in effect that she saved about Rs. 37,000 by 1954.

In December, 1954, she paid Rs. 5,000 to his Solicitor Mr. Anil Ghosh and retained the balance with her. Thereafter she paid out a sum of Rs. 3,000 out of the balance with her. She continued to hold about Rs. 32,000 until May 6, 1959 in her hands.

Sometime before May 6, 1959 she thought it was not safe to keep such a large sum of money at house. So she requested, a neighbour to help her in opening an account in a bank and accordingly an account was opened on May 6, 1959. She remembers that she deposited Rs. 500 and does not remember the'' amount deposited thereafter. She also said "that is so, I opened "my account with the sum of Rs. 500 and thereafter when the. "amount accumulated in my hands to a substantial figure, I "deposited the money with the bank. And that some of the money "represents according to her the surplus money she had when, she "made the deposit. Later on, when it was pointed to her that "a sum of Rs. 20,000 was deposited besides Rs. 500 in that "banking account and as to what happened to the balance sum "which she had in her hands, she said that her son-in-law "advised her not to deposit that amount with the bank, saying "that there was no certainty as to when the amount would be "required."

In the course of hearing, she caused the sum of Rs. 32,000 in cash to be produced in court. She said that this sum of Rs. 32,000 held to her. She said that the entire amount was lying in her Almirah in her house; she did not put this money in the bank as it was prudent to keep the money at home for the purpose for which it has been kept ready at home at any time. She said that she got the money front different sources. She appropriated the rents collected by her to her own use. She got some money from her monther-in-law. She got some money from her mother. She got money from others on representation that she would buy sarees etc. In other words the money represents, the result of small savings which she could effect during all these years. She said that she had with her Rs. 33,000 or Rs. 34,000 after paying Rs. 5,000 to Mr. Ghosh. She said that she kept the self same money in her Almirah all these years. Later on she said when it was pointed to her that one of the notes produced in Court bore the date of "July 27, 1959" in lead pencil, she said that she recently kept the money with her son-in-law apprehending a disturbance breaking out between Bengalees and non-Bengalees. It may be that her son-in-law spent some money out of it and replaced the currency note with some other currency notes in this bundle. The total amount nonetheless remained the same. She said that she deposited Rs. 5,000 with Mr. Anil Ghosh. Her son-in-law supported her. Anil Ghosh was not asked anything about it either in examination in chief or cross-examination. In answer to question put to him by court, he said inter alia that there was nothing about Rs. 5,000 in the day book.

No receipt or document was produced by Sm. Saraswati Devi to evidence it. Hence I am unable to accept the case of payment of Rs. 5,000. She agreed to pay a sum of Rs. 3,000 as profits to Jitendra Nath Roy in consideration of the assignment, dated December 28, 1954. Anil Ghosh said that Sm. Saraswati Debi told her that she was ready with funds and could take it from her any moment he liked. Anil Ghosh said that in January Sm. Saraswati Debi paid Rs. 100 he added that "this I am speaking from memory may bo "something less or more". Anil Ghosh did not say anything about the deposit of Rs. 5,000 with him by Saraswati Debi on December 28, 1954. Mr. Ghosh said that there is nothing about Rs. 3,000 or deposit of Rs. 5,000 in his day book. Jitendra said that he received Rs. 3,000 on November 21, 1956. Jiten said that Anil Babu paid in cash in the presence of Sm. Saraswati Debi. Jitendra said that he would have preferred to get his profit on the day of assignment. He agreed to take it afterwards at the request of Mata Prasad. Anil Babu also asked him not to hurry about it saying that the money would be held by him and his dues would be paid to him afterwards. Anil Babu said that he would make payments afterwards. He did not consult his brothers before agreeing to the postponement but he consulted them afterwards. Before receiving the money on November 21, 1956, he spoke to Mata Prasad once about it and then he approached Anil Babu. His brothers demanded the profit on one or two occasions after December 28, 1954. He paid this money to his eldest brother personally in Calcutta. Saraswati Debi said that it was settled inter alia that she would have to pay Rs. 3,000 to Jiten Babu. She does not! recollect then she paid Rs. 3,000. She said that she paid Rs. 3,000 to Jiten Babu by going to Anil Babu and altogether she paid Rs. 8,000. Jiten once approached her for the money.

Mata Prasad said that her mother in law put Rs. 5,000 in the hands of Anil Ghosh on that day meaning December 28'', 1954. Jiten Babu in good faith did not insist on any payment being made to him on that day but they assured Jiten Babu saying that they were depositing the sum of Rs. 5,000 with Mr Ghosh and that the payment would be made to him afterwards through Mr. Ghosh. As he is a friend of his, he executed that document because of his confidence in him. He later on suggested that he made the request for payment afterwards. There was no object in not paying the sum of Rs. 3,000 on the day of execution.

Later on he said that he was away for a few days after the day on which the Deed was executed and on my return I heard from Jiten Balra that the amount had been paid to him. He later on said that he was away for quite a long time for about a month or a little than a month and then again he came and again went out and in course of coming and going he had an occasion to meet Jiten when he asked him about his money and told him that he had not received the payment yet. Thereupon he asked Jiten Babu to go to his mother-in-law; he went there and his mother-in-law asked him to go to Jiten Babu. Then he said that Jiten Babu got the amount in 1956. He heard about the payment in December 1956 for the first time.

The. explanation for this deferred payment by Sm, Saraswati Debi to the Plaintiff is not satisfactory.

The oral evidence is indefinite, inconsistent and is unsupported by any document other than the endorsement.

In these circumstances, I am unable to hold that the sum of Rs. 3,000 was at all paid to Jiten Babu. Even, if it was paid in November, 1956 it demonstrates that she was not in a position to pay Rs. 3,000 between December 28, 1354 and November 21. 1966. Saraswati Debi relied on own ability and not that of her husband generally. In one or other place she may have made a suggestion of her husband''s capacity. His son-in-law could see difference between his father-in-law and mother-in-law for Saraswati Debi''s husband is a hardware merchant. There is no evidence as to his income from the business. Saraswati Debi said that he had taken on lease another house or plot of land from Ashit Babu. That premises yields rent. A room fetches Rs. 70 or thereabout.

Sm. Saraswati Debi''s story as to how she saved Rs. 37,000 is vague. It is difficult to understand how a saving of more than Rs. 10 per month will give the figure of Rs. 37,000. She appreciated the difficulty. Therefore, it seems to me that she brought the explanation of want of her knowledge to make calculation. She did not support her case by producing any receipts, etc, showing the total monthly income or rents.

The case of holding such a large sum of money in her custody for all these years is again not probable. Her conduct in not depositing the entire consideration money with her Solicitor on or about December 28, 1954 makes it still more improbable. The rejection of her story as to the payment of Rs. 5,000 and Rs. 3,000 goes to the root of her case. The non-deposit of the entire money in her hands in the Bank on May 6, 1959. also shakes her story considerably.

In these circumstances, I am unable to believe her story as to her preparedness to pay the consideration money at all times out of her savings.

The suit was filed on May 21, 1957.

It seems to me that she obtained some money from a source or sources other than her savings in May, 1959. This explains why the money was again withdrawn. The same source or sources supplied her with the money she produced in court and this again explains why the notes or one or more of them bare recent dates.

Hence, on the evidence before me, I am unable to hold that she was in a position to command Rs. 32,000 till May 6, 1959. At best she was in a position to raise, Rs. 32,000 from May 6, 1959.

Therefore, Sm. Saraswati Debi was not at all material times ready and willing to perform the contract. Consequently the suit also fails on this ground.

There, were several subsidiary controversies of facts, which to my mind, have little bearing in the suit before me. One of them was, whether there was an agreement to extend the time mentioned in the agreement during the period of illness of Mr. A.C. Dutt, the deceased Solicitor of the Defendant.

In my opinion, no agreement has been proved though it is clear that the parties rather the Solicitor of the parties proceeded on the basis that the matter will not be proceeded with till Mr. A.C. Dutt was well. This raises the further question as to how long Mr. A.C. Dutt was unwell.

In this connection there was great attempt on the part of the Defendant and her witnesses to minimise the nature of the illness of Mr. A.C. Dutt for an "attack of coronary thrombosis" would indicate that it took a long time before Mr. Dutt could attend to his work. This led unfortunately to incorrect statement by the Defendant and his witnesses.

It is clear that Mr. Dutt resumed his normal work in the middle of April, 1955 though he attended to some work from his house from February, 1955.

One other controversy was whether Mr. Ghosh had inspection of the title deeds and the account books of the Defendant relating to legal necessity before the agreement.

In the letter, dated December 9, 1954, from Mr. A.C. Dutt to Mr. Ghosh it was specifically mentioned that the property is being sold by the vendor as a Hindu widow for her maintenance, medical and pilgrimage expenses.

Sm. Maheswari Bose said that on two occasions she saw that title deeds brought by her were given inspection of to Mr. Ghosh in the house of Mr. A.C. Dutt. This was denied by Mr. Ghosh. On June 16, 1955 when Mr. Ghosh was pressed to complete the sale by his letter, dated June 18, 1955, Mr. Ghosh did not say anything about the title deeds specifically but requested Mr. Dutt to produce sufficient evidence as to Mr. Dutt''s client''s legal necessities for selling the property. On June 17, 1955, Mr. Dutt requested Mr. Ghosh to come to his house on the next day when he could make such enquiries as he liked. Mr. Ghosh did not reply to it. After the contract was cancelled, Mr. Ghosh again raised the question establishing the existence of legal necessity by his letter, dated June 27, 1955. Mr. Dutt in this letter did not mention that he satisfied Mr. Ghosh that there was legal necessity prior to the agreement. On July 0, 1955, Mr. Ghosh still persisted that Mr. Dutt should satisfy him as to the legal necessity. In the letter, dated July 8, 1955, Mr. Dutt for the first time said that when the agreement for sale was entered into he was shown a statement of her income and expenses for the last few years. Mr. Ghosh was silent till August 22, 1956 when he relied on Clause 3 of the agreement and called for the delivery of the documents forthwith.

Mr. Dutt by his letter, dated August 28, said that he has cancelled the contract and further correspondence was useless and unnecessary. Mr. Ghosh did not further press for the title deeds or. satisfaction as to legal necessity. On December 7, 1956 Mr. Ghosh makes a demand for completion of the sale. This demand was represented by Mr. Ghosh. The final deed was made on July 31, 1957.

On the evidence before me it is clear that Mr. A.C. Dutt showed Mr. Ghosh certain documents of accounts informally once only to Mr. Ghosh before entering into the agreement. That was evidently not considered sufficient by the Solicitor for the parties and hence the relative provision in the deed for the production, of the title deeds and the satisfaction of the Plaintiff''s Solicitor as to the title and the power to sell the premises.

Therefore the case of prior of inspection of title deeds and legal necessity does not alter the legal obligation provided in the agreement.

Mr. Mitter also submitted on the assumption that the cancellation was wrongful. That the suit was liable to be dismissed inasmuch as the suit was filed on May 21, 1957 though the Defendant cancelled the contract on or about June 27, 1955.

In my opinion, mere delay is not sufficient to disentitle the Plaintiff so. long as he files the suit within the time prescribed by the law of limitation.

Hence, the contention of Mr. Mitter should be rejected.

In the result, I answer the issues as follows:

Yes.

No.

The Plaintiff is not entitled to any relief and his suit.

will be dismissed with costs.