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Tribhovandas Varjivandas Vs. Balmukundas Kishoredas - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case NumberFirst Appeal No. 210 of 1920
Judge
Reported inAIR1923Bom15; (1922)24BOMLR434; 67Ind.Cas.864
AppellantTribhovandas Varjivandas
RespondentBalmukundas Kishoredas
DispositionAppeal dismissed
Excerpt:
.....to specific performance even though there had been no actual tender by him of the money to the defendants.;in a suit for specific performance, the strict law as to tender is not applicable. considering the negotiations which went on for several months the fact that the suit was filed before the three years had expired, and the fact that the defendants had been in possession of the village when they undertook to reconvey to the vendor, there was no reason why justice should not be done by directing the defendants to reconvey on payment of the consideration money. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute..........side of the village with a moiety of the village site to the defendants for rs. 20,000 by a sale-deed, exh. 44. on the same date devpuri conveyed to the defendants the remaining portion of the village on the eastern side with the remaining moiety of the village site for rs. 10,000 by a deed, exh. 45. but by this sale-deed it was agreed that the vendor devpuri was at liberty to purchase that portion back within three years on payment of rs. 10,000.2. on the 7th june 1918, the plaintiff purchased from devpuri his right to have the property comprised in the sale-deed, exh. 45, reconveyed to him.3. on the 24th july 1918, the plaintiff gave notice to the defendants that he had purchased the rights of devpuri and asked the defendants to hand over to him all the laud including the.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sued to recover by partition the eastern moiety of the plaint village site and agricultural land of the village of Lahna from the defendants on payment to them of the sum of Rs. 9500, and to have a deed of conveyance relating to the said eastern moiety from the defendants. There is no dispute with regard to certain facts. On the 29th March 1916, Mahant Devpuri Sukhdevpuri, who was the owner of the village, sold 1110 bighas of the agricultural land on the western side of the village with a moiety of the village site to the defendants for Rs. 20,000 by a sale-deed, Exh. 44. On the same date Devpuri conveyed to the defendants the remaining portion of the village on the eastern side with the remaining moiety of the village site for Rs. 10,000 by a deed, Exh. 45. But by this sale-deed it was agreed that the vendor Devpuri was at liberty to purchase that portion back within three years on payment of Rs. 10,000.

2. On the 7th June 1918, the plaintiff purchased from Devpuri his right to have the property comprised in the sale-deed, Exh. 45, reconveyed to him.

3. On the 24th July 1918, the plaintiff gave notice to the defendants that he had purchased the rights of Devpuri and asked the defendants to hand over to him all the laud including the village site, excepting the 1100 bighas to the west of the said village, on receipt of Rs 10,000.

4. Correspondence ensued from which it appears that disputes arose between the parties with regard to what passed by the sale-deed Exh. 44 to the defendants, and what remained to be reconveyed to the plaintiff on payment of Rs. 10,000; and eventually before the three years had expired the plaintiff filed this suit. The only defence to the suit that could possibly avail the defendants was the contention that the plaintiff was not entitled to sue unless he had paid Rs. 10,000, and that an unconditional tender of the money was necessary to support the claim. As the Judge decreed the plaintiff's claim he directed him to pay Rs. 9800 into Court, Rs. 200 being deducted for the value of trees cut down by the defendants. The plaintiff says that previous to the institution of the suit he called upon the defendants to reconvey to him the property comprised in the deed Exh. 45. The defendants replied to the plaintiff's notices with notices of a general character, and hence the plaintiff filed this suit. It would have been better if the plaintiff had brought the money into Court. But in a suit of this nature, which is really a suit for specific performance, we do not think that the strict law as to tenders is applicable, and considering the negotiations which went on for several months, and the fact that the suit was filed before the three years had expired, and also the fact that the defendants had been in possession of a portion of the vilage when they undertook to reconvey to the plaintiff, we see no reason why justice should not be done by directing the defendants to reconvey on payment of the consideration money. The decree does not limit any time within which the consideration should be paid. But the plaintiff must tender Rs. 9800 within a month after the proceedings are returned to the lower Court. This direction should be entered in the decree. Otherwise the appeal is dismissed with costs.


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