1. This second appeal arises out of a suit brought by the plaintiff to recover a sum of money paid to the defendant No. 1 for granting a certain lease which the defendant agreed to execute in favour of the plaintiff and the pro forma defendant in respect of certain premises known as 46, 46-1 to 46-12, Bentinck Street, in the town of Calcutta. The premises in question were part of an estate which was wakf property and the defendant No. 1 is the mutwalli of that property. In view of the contentions that have been raised before us, it is necessary to state that the plaintiff had been a tenant of this mutawalli for many many years and, therefore, presumably must have known that the property was wakf property. The salami was fixed at 20 thousand rupees, but the plaintiff states that two thousand rupees was paid as earnest money for the execution of the bima-patra which is called an agreement of sale in the plaint, and the same expression 'earnest money' occurs in the agreement which is upon the record. A further two thousand rupees was to be paid within a week, and these two items of 'guarantee so to speak were also to be taken as part of the salami of 20 thousand rupees, so that we must hold that this four thousand rupees was not only a mere part of the consideration for the lease but was specifically the guarantee for the performance of the contract on the part of the plaintiff. Under such circumstances the defendant could not seek to recover this sum unless there was some default on the part of the lessor in refusing to carry out the contract to the extent to which he is capable of carrying it out.
2. It is clear that the plaintiff, although he entered into the bargain with full knowledge that defendant No. 1 was a mutwalli, is equitably entitled to insist upon defendant No. 1 doing all that is necessary and that he is capable of doing to give him a good title. He has refused to take this lease because the Muhammadan Law, according to his contention, necessitates the leave of the Kazi when a building, which Baillie describes as a mansion, which later authorities describe as houses, is leased by the mutwalli for a longer term than one year. The learned Subordinate Judge found that the balance of authority seems to be in favour of the view that sanction of the Court was necessary to validate a lease of wakf house property for more than a year. He does not state where he gets the contrary opinion. We can find no contrary authority at all. It does not appear to be a question of balance of authority, but a question of all the authorities which seem to lay down that sanction of the Kazi is necessary for such a lease. No doubt when such a lease has been made improperly and many years afterwards it is impugned before the Court, this Court has held in Nemai Chand Adhya v. Mir Golam Hossein 3 Ind. Cas. 353; 37 C. 179; 11 C.L.J. 317; 14 C.W.N. 535 that factum valet, and that it would not disturb the arrangement which was made in the ordinary course of management of an estate for the benefit of the beneficiaries. But that does not in any way debar the plaintiff from seeking at the outset of the negotiation to obtain the best title which the transferor is now capable of giving him, and there is no doubt that the transferor is capable of giving him a good title and that his title cannot be considered to have passed without this action of going to the Kazi and getting sanction of the transfer. They who seek equity must do equity, and we are of opinion that defendant No. 1 cannot seek to retain this money unless he is willing to do this very simple act, which he is bound to do under Section 8 of the Transfer of Property Act. It has been contended before us that this is not the point on which the case was decided in the lower Court, and that the Judge raised some new issues. We do not see that there is any force in these contentions. In both the lower Courts the question of Muhammadan Law was distinctly raised. The Court of first instance found in favour of the plaintiff on that point. The Court of appeal below says that it is immaterial and decides the appeal on other grounds. The respondent is undoubtedly entitled to uphold the judgment and decree of the lower Appellate Court on grounds of Muhammadan Law which have been fully discussed and upon which the decree can be supported and it is in no way necessary to bring a counter-case. There is, moreover, no new question raised. It is not necessary to go into the question of fact whether the plaintiff entered into the bargain with his eyes open and, therefore, cannot ask the defendant to do anything more than was specifically set forth in the bargain. The matter is purely one of law and the plaintiff can ask that the defendant should do, as we have pointed out, anything that is necessary under Section 8 of the Transfer of Property Act.
3. We do not agree with the learned Judge that whether there was any default on the part of the plaintiff or the defendant is immaterial. His view was that if the lease was net carried out the defendant was bound to refund the money, because it was simply a part of the consideration and not a guarantee for performance. We have already said that we think it was a partial guarantee for performance and that if there had been any default on the part of the plaintiff and no default on the part of the defendant the plaintiff could not recover the money. But there has been this obvious and serious default on the part of the defendant, and the plaintiff is, therefore, entitled to recover the money.
4. The result is that the judgment and decree of the learned Additional District Judge is affirmed and the appeal dismissed with costs, though for different reasons than those given by the learned Judge.