P L D 1969 Dacca 214 (PLP)

M. R. KHAN, J.‑These three first appeals arise out of Title Suit No. 4 of 1957 of the Third Court of the Subordinate Judge, Dacca, which, on transfer to the Fifth Court of the Subordinate Judge, Dacca, was renumbered as Title Suit No. 105 of 1959. The suit was one for specific performance of a contract of sale in respect of 1 tone and a half) bighas of agricultural land equivalent to 49 acres of land out of C. S. Plots kilos. 163 and 232 of Mouza Kakrail under Police Station Lalbag, Dacca. The land in suit as described in the Schedule of the plaint, though appertains to two different C. S. plots as aforesaid, is in one consolidated block within defined boundaries. There are as many as 7 defendants in the suit. Of them, the defendants 1, 2 arid 3 are step‑brothers, the defendant No. 4 is the step‑mother of the defendants 1 to 3, and the defendant No. 5 is the wife of the defendant No.

1. The defendants 1‑4 are said to have inherited the suit land, among other lands, from their predecessor late Abdul Bepari, and the defendant No. 5 is said to have purchased the share of one of the three daughters of late Abdul Bepari. The plaintiff's case, as made out in the plaint, is as follows: ‑ The defendants 1 to 5 entered into a written agreement on 6‑9‑1955 with the plaintiff on the active negotiation through defendants 1 to 3 for the sale of the suit land of 13 bighas to the plaintiff for a total consideration of Rs. 34,500 at the rate of Rs. 23,000 per bigha. On the date of execution of the agreement for sale, the defendants 1 to 5 received from the plaintiff Rs. 3,000 as earnest money and stipulated, among others, that on receipt of the balance of consideration of Rs. 31,500 they would execute a deed of conveyance in favour of the plaintiff and get it registered within six months from the date of the agreement. After the execution of the agreement for sale, the plaintiff was always ready to have a deed of conveyance executed and registered on payment of the entire balance consideration to the defendants 1 to

5. The plaintiff repeatedly asked the said defendants to complete the transaction on receipt of the balance consideration, but this was of no avail. When the plaintiff's repeated requests proved abortive, he got a registered notice served on the defendants 1 to 5 on 14‑2‑1956 demanding execution and registration of a deed of conveyance in respect of the land in suit on receipt of the balance consideration. Instead of fulfilling their part of the contract, the denfendants 1 to 5 sent a reply on 16‑3‑1956 which was couched in a language of camouflage tantamounting to rescission of the agreement for sale. The defendants 1 to 5, though legally bound to execute a deed of sale in favour of the plaintiff and get it registered in terms of the agreement for sale, began to negotiate a sale of the self‑same land to Dewan Naimul Huq, the defendant No.

7. Having come to know of this design of the defendants 1 to 5, the plaintiff sent to Dewan Naimul Huq a note on 2‑1‑1957 intimating him about the pre‑existing contract with the plaintiff for sale of the land in suit, but Dewan Naimul Huq, in disregard of the said note, got a deed of conveyance from the defendants 1 to 5 in respect of the suit land in the benami of his wife Alhamra Begum, the defendant No.

6. The defendant No. 6 is a mala fide purchaser without consideration with clear notice of the contract of sale between the plaintiff and the defendants 1 to 5 and as such she is bound by the said contract. On these allegations, the plaintiff brought the suit for specific performance of the contract of sale in respect of the suit land on his paying the balance consideration money. The plaintiff, however, made an alternative prayer for the recovery of the earnest money with compensation at the rate of Rs. 12 percent in the event of his failure to get a decree for specific performance. Three separate written statements were filed in this case‑one jointly by the defendants 1 to 3, another jointly by the defendant 4 and 5, and the third jointly by the defendants 6 and

7. The defendants 1 to 3 admitted the agreement for sale, dated 6‑9‑1955 in respect of the suit land as alleged in the plaint. But they contended that the defendants 4 and 5 are not bound by that agreement as they did not authorise them (defendants 1 to 3) to enter a contract of sale on their behalf. The case of the defendants 1 to 3 is that they negotiated the sale of the suit land with the plaintiff and made an agreement for themselves and for the defendants 4 and 5 as well without their knowledge and authority on the bona fide belief that the defendants 4 and 5 would agree to sell their shares in the suit land along with them. The defendants 1 to 3 tried in vain to prevail upon the defendants 4 and 5 to sell their shares in the suit land and to join them in executing and registering a deed of conveyance in favour of the plaintiff. These defendants intimated the plaintiff about their failure to persuade the defendants 4 and 5 to sell their shares and requested the plaintiff more than once to take from them a deed of conveyance only in respect of their shares in the contracted land on payment of the balance con sideration money, but the plaintiff refused to purchase the shares of the defendants 1 to 3 only. These defendants also offered the plaintiff in the alternative to take back the earnest money. In this state of affairs, the defendants 1 to 3, received a notice, dated 14.2‑1956 from the lawyer of the plaintiff demanding of them and the defendants 4 and 5 to execute a deed of conveyance in respect of the suit land and get it registered. In reply to the said notice, the defendants 1 to 3 gave a notice through their lawyer to the plaintiff on 16‑3‑1956, demanding of him to take a deed of conveyance from them in respect of their shares in the contracted land or to take back the earnest money of Rs. 3,000 within a fortnight of the said notice. In the said notice, it was also intimated that on the plaintiff's failure to comply with that notice within a fortnight thereof, the defendants 1 to 3 would treat the agreement for sale as rescinded and that the earnest money would be forfeited. The period of six months stipulated in the agreement for sale, according to the defendants I to 3, was of the essence of the contract. As the said period expired and as the plaintiff did not agree to accept a deed of conveyance from the defendants 1 to 3 within a fortnight of their notice dated 16‑3‑1956, the agreement for sale stood rescinded and as such the contract is no more enforceable. After the rescission of the agreement for sale in the above manner, the defendants 1 to 3 sold for valuable consideration a part of the contracted land to the defendant No. 6 who is bona fide purchaser for value. The defendants 4 and 5 made a general denial of the averments made in the plaint and contended that the plaintiff has no cause of action against them as they did not enter into any agreement with the plaintiff for the sale of any land and are not parties to the agreement for sale alleged in the plaint. They further contended that they were not aware of any nego tiation of the sale of the suit land to the plaintiff and did not authorise anybody to negotiate the sale with the plaintiff and to enter into any agreement with him. They denied to have received any sum out of the alleged earnest money of Rs. 3,

000. Accordingly, they maintained that they are not bound by any promise made by the defendants 1 to 3 or any of them and that the agreement for sale of the suit land to the plaintiff made by the defendants 1 to 3 is not binding on them and is not enforceable against them. The defendants 4 and 5 alleged that they came to know of the agreement for sale with the plaintiff from the defendant No. 1 when he offered them some money alleged to be due in their shares out of the earnest money said to have been paid by the plaintiff and requested them to join the defendants 1 to 3 to execute and register a deed of conveyance. The defendants 6 and 7 also made a general denial of the averments in the plaint and contended that they were quite unaware of any agreement for sale with the plaintiff in respect of the land in suit. They specifically denied that the plaintiff sent a note to the defendant No. 7 on 2‑1‑1957 intimating his alleged contract of sale with the defendants 1 to 5 in respect of the suit land. Their case is that the defendant No. 6 purchased 26 acres of land from the defendants 1 to 5 on 3‑1‑1957 for a consideration of Rs. 27,871 without any knowledge of the alleged contract of sale with the plaintiff and has been in actual possession of that land since the date of her purchase. In other words, the defendant No. 6 claims to be a bona fide purchaser of the said quantity of land ('26 acres) for valuable consideration without any knowledge of the contract of sale as alleged in the plaint. They also denied the plaintiff's allegation that the defendant No. 6 is a benamdar of the defendant No. 7 in respect of the said 26 acres of land. The defendants 1‑3 and the defendants 4 and 5 filed their respective written statements on 3‑7‑1957. Before the filing of their written statements, i.e. on 26‑6‑1957, the plaintiff prayed for an amendment of the plaint by inser tion of a new paragraph in the plaint, namely, paragraph 4(a). This amendment was allowed by the Court. It was stated in the new paragraph 4(a) that in the evening of the 16th March 1956 the defendant No. 3 received a further sum of Rs. 800 from the plaintiff as further earnest money in his share in the suit land by granting a receipt therefore and informed the plaintiff that the defendants 1‑‑5 would amicably execute the stipulated deed of conveyance as soon as certain difficulties were over. The receipt for the said sum of Rs. 800 was filed in Court along with the application for amendment of the plaint. In the application for amendment, the plaintiff offered an explanation that the fact of payment of Rs. 800 could not be stated in the plaint as the receipt granted by the defendant No. 3 was mislaid and could not be found. After the amendment had been allowed, the defendants 1 to 3, 4 to 5 and 6 to 7 filed separate additional written statements on 22‑7‑1957, In all these additional written statements the alleged further payment of Rs. 800 to the defendant No. 3 on 16‑3‑1956 was denied and the receipt for that sum was alleged to be not genuine. On 3‑8‑1957, the plaintiff made another application for amendment of the plaint by insertion of paragraph 5(a) in the plaint. This amendment was also allowed. By this amend ment, the plaintiff gave a detailed account of the manner in which the note, dated 2‑1‑1957 regarding the plaintiff's agreement for sale was intimated to Dewan Naimul Huq, the defendant No.

7. After this amendment had been allowed, the defendants 6 and 7 filed another additional written state ment on 10‑8‑57 stating that the plaintiff never sent any note to the defendant No. 7 and that the defendant No. 7 never accepted any note as alleged in the amended para. 5(a) of the plaint. On the pleadings, the trial Court framed the following issues in the suit: ‑ "(1) Was there any contract of sale of land in suit as alleged by the plaintiff ? If so, was the contract subsisting at the date of purchase by defendant No. 6 ? (2) Was there any payment of earnest money as alleged in the plaint and in the petition for amendment of the plaint ? (3) Was the deed of agreement for sale dated 6‑9‑55 executed by the defendants 4 and 5 ? If not, are the said defendants bound by the sale ? (4) Was the time stipulated for the performance in the deed of agreement for sale dated 6‑9‑55, the essence of the contract ? If not, has the same been lawfully and effectively revoked by the defendants 1‑3 or by any of them ? (5) Is the deed of agreement for sale dated 6‑9‑55 enforceable ? If so, to what extent ? (6) Should the Court pass a decree for specific performance in the facts and circumstances of the case ? (7) Is the defendant No. 6 a bona fide purchaser for valuable consideration with any notice of the alleged contract for sale ? Was any notice served on defendant No. 7 as alleged ? (8) Is the plaintiff entitled to refund of the earnest money with or without compensation ? (9) Is the defendant No. 6 benamdar of defendant No. 7? (10) To what relief, if any, is the plaintiff entitled?" In this case, the parties adduced evidence, oral and documentary. On his own appreciation of the evidence, the learned trial Judge held that there was a contract of sale between the plaintiff and the defendants 1‑5 in respect of the suit land and that the plaintiff paid them earnest money of Rs. 3,000, but he disbelieved the alleged payment of Rs. 800 to the, defendant No. 3 on 16‑3‑1956. He further held that the time stipulated in the deed of agreement, dated 6‑9‑1955 was not of the essence of the contract and that the agreement for sale was subsisting. The further finding of the learned trial Judge is that the defendant No. 6 is a bona fide purchaser of 261 acres of land out of the suit land for valuable consideration without any notice of the plaintiff's contract of sale. With regard to the question as to the defendant No. 6's being a benamdar of the defendant No. 7, he held that it was not necessary to decide that question finally, but, for the purpose of this suit, he found the defendant No. 6 not to be a benamdar of the defendant No.

7. On these findings, the learned trial Judge held that the plaintiff is entitled to a decree in respect of the land in suit bearing an area of '49 acres less '26 acres purchased by the defendant No. 6.‑ Accordingly, he passed a decree for specific performance of the contract of sale in respect of '23 acres of land out of the suit land on the plaintiff's payment of Rs. 13,205 which is the balance price of the said quantity of land at the stipulated rate of Rs. 23,000 per bigha. Against this decree, three separate appeals have been preferred. The plaintiff has preferred First Appeal No. 132 of 1960, the defendants 1‑3 have preferred First Appeal No. 186 of 1960, and the appeal of the defendants 4 and 5 is First Appeal No. 147 of 1960. The material issues framed in the suit arise also for determination in these appeals. The deed of agreement for sale on which the plaintiff has based his claim is Exh.

2. It is dated the 6th September 1955. All the defendants 1‑5 are apparently the executants of this deed. By this deed of agreement, its executants stipulated to sell to the plaintiff the suit land having an area of 1i bighas at the rate of Rs. 23,000 per bigha within 6 months. The total price of the land at this rate comes to Rs. 34,

500. The agreement shows that its executants received Rs. 3,000 from the plaintiff as earnest money and agreed to execute a deed of conveyance in favour of the plaintiff or his nominee and get it registered within six months from the date of the agreement on receipt of the balance consideration money. This agreement for sale is admitted by the defendants 1‑3 but the defendants 4 and 5 denied to be the executants of this agreement and claimed to be not bound by it. Therefore, the first question that arises for consideration is whether the defendants 4 and 5 executed the deed of agreement along with the defendants 1‑3 and whether the agreement is also binding on them. The agreement for sale Exh. 2 was written in Bengali by Mr. Md. Jani Alam, the then Assistant Government Pleader, High Court, Dacca. This, according to the plaintiff (P. W. 3), was written at the residence of Mr. Jani Alam and the act of writing and signing was completed in one sitting. Mr. Jani Alam, as P. W. 6, stated that he wrote this agreement for sale under the instructions of the plaintiff and the defendants 1‑‑3, but the female executants, namely, the defendants 4 and 5 did not come to him. On his query, the defendants 1‑3 told this witness that the defendants 4 and 5 had authorised them and accordingly the defendants 1‑3 acted on behalf of the defendants 4 and

5. Nasrat Ali Qureshi (P. W. 4), a brother‑in‑law of the plaintiff who was one of the two attesting witnesses to the deed of agreement stated that the agreement for sale was written by Mr. Jani Alam and that the defendants 4 and 5 were not present when the agreement was written and executed. He further stated that the agreement was written as per talk between the plaintiff and the defen dants 1‑

3. His further evidence is that Yakub Ali (defendant No. 3) signed the agreement on behalf of the defendants 4 and 5, but he could not remember at whose instance Yakub signed the agreement on behalf of those two defendants. Mr. Yakub Ali (defendant No. 3), as D. W. 5, stated that he himself wrote the names of the defendants 4 and 5 in the agreement for sale. Also the plaintiff himself, as P. W. 3, stated that Yakub wrote the names of the two women executants, namely, the defendants 4 and

5. The evidence of these witnesses clearly establishes the said fact that the defendants 4 and 5 were not present at the time of preparation and execution of the deed of agreement for sale at the residence of Mr. Jani Alam and that their names were written in that deed by Yakub in their absence. Execution consists in signing a document written out. To be executed, a document must be in existence ; where there is no document in existence, there can be no execution. As the agreement for sale was written out and the names of the defendants 4 and 5 were written therein by Yakub in their absence, it can be safely said that the defendants 4 and 5, though their names appear in the agreement as executants, were not themselves the executants of that agreement. The definite case, as made out in the plaint, is that all the defendants 1‑5 entered into a written agreement with the plaintiff on 6‑9‑1955 and received the earnest money of Rs. 3,000, though negotiation for the sale was made by the defendants 1‑

3. But it is nowhere stated in the plaint that the defendants 4 and 5 authorised the defendants 1‑3 to make a verbal or witness contract of sale with the plaintiff on their behalf or to put their names in any such written contract. Nor is it stated In the plaint if the defendants 4 and 5 contented to be parties to such contract of sale. During the trial, however, evidence was led on behalf of the plaintiff to prove that the defendants 4 and 5 consented to sell the suit land to the plaintiff and authorised the defendants 1‑3 to enter into a contract on their behalf as well. It is significant that nothing about the alleged consent and authority of the defendants 4 and 5 was stated by the plaintiff (P. W. 3) in his examination- in‑chief. It was only in course of cross‑examination that the plaintiff stated: - "Myself negotiated the matter with the defendants 1‑5 .It was necessary for the defendants 4 and 5 to sign the agreement because I felt that since defendants 1‑3 had authority from their step‑mother and defendant No. 1's wife in my presence. They could act as their agents and as also the lawyer Mr. Jani Alam agreed to prepare the agreement without signatures of defendants 4 and 5 . . . . . . . . The authority was given 3 or 4 days before the date of agreement, I asked the defendants 1‑3 to take oral authority from defendants 4 and 5 in my presence and accordingly they did so. I told Mr. Jani Alam about the authority before he wrote out the agreement. The authority was given at defendant No. 1's house. Mr. Qureshi and Mr. Rizvi were present when the authority was taken. Defendants 1‑3 were also then there. Mr. Qureshi and Mr. Rizvi were taken by me to the house of defendant No.

1. We did not see the face of the women executants. I heard the voice of defendant No. 1's wife that she authorised the defendants 1‑3 and I also heard the voice of their step mother saying that she also authorised to sell the suit land to me. This is the first and last that I heard the voices of these women." Further down, the plaintiff stated "Defendants 4 and 5 are pardahnashin ladies. I have no relationship with them. I have no personal acquaintance with them . . . . I had no personal talk with the defendants 4 and 5 regarding agreement for sale." These statements made by the plaintiff only in his cross‑examination are of little evidentiary value, and these can hardly prove that the defendants 4 and 5, the two pardhanashin ladies, whom the plaintiff never saw or with whom he had no personal talk, bad given consent to the sale of the suit land or authorised the defendants 1‑3 to make an agreement for sale on their behalf. On this point, Nasrat Ali Qureshi (P. W. 4) stated: - "Mr. Eskandar (plaintiff) went to defendants 1‑3's house to be sure as to whether the defendants 4 and 5 were aware of the contract. I was also there. Mr. Rizvi had also been there." But this witness did not say if the defendants 4 and 5 authorised the defendants 1‑3 in his presence to make a contract of sale with the plaintiff on their behalf. Mr. S. M. H. Rizvi (P. W. 8) who was examined to prove the same fact, stated: "I went along with the plaintiff to the residence of Mr. Yakub Ali where I also met another defendant named Md. Julfikar Ali. They called ladies whom I did not see but there the ladies authorised the defendants Md. Yakub Ali and Md. Julfikar Ali to sell the lands." This witness, on his own admission, did not see the pardahnashin defendants 4 and

5. Moreover, he admitted in cross‑examination that he met Yakub Ali for the first time in March/April 1956 in Gulistan where a friend of his introduced him to Yakub Ali. That being so, it is difficult to understand how he could be a witness to the alleged giving of authority to Yakub Ali by the defendants 4 and,5 in September 1955, when the agreement for sale Exh. 2 was executed. The defend ants 4 and 5 have deposed in this case as D. Ws. 2 and 3, respectively. Both these defendants denied to have contracted to sell their share of the land to the plaintiff. They further denied to have authorised the defend ants 1‑3 to enter into a contract of sale on their behalf. Without taking into consideration the evidence of the P. Ws. 3, 4 and 8 as analysed above and also without examining the evidence of the defendants 4 and 5, the learned trial Judge, relying mainly on the evidence of the defendant No. 1 Md. Julfikar (D. W. 6) and that of the defendant No. 3 Md. Yakub Ali (D. W. 5) formed the opinion: "I am inclined to hold that the defendants 1‑5 entered into an agreement to sell the disputed land." Having formed that opinion, he ultimately arrived at the following definite finding: "I further hold that the deed of agreement for sale dated 6‑9‑1955 was executed by the defendants 4 and 5 as well and as a result they are also bound by the same." In arriving at the definite finding with regard to execution of the agreement by the defendants 4 and 5 as well, the learned trial Judge overlooked the admitted fact that the agreement for sale was written by Mr. Jani Alam (P. W. 6) at his residence and that it was completed there in one sitting in the absence of the defendants 4 and

5. Hence the finding that the defen dants 4 and 5 also executed the agreement is not factually correct. Md. Yakub Ali (D. W. 5) no doubt stated that all transactions regarding contract with the plaintiff were conducted by his eldest brother Zulfikar (defendant No. 1) on behalf of himself and also on behalf of the defendants 2‑5 and that all the defendants including the defendants 4 and 5 contracted to sell the land in suit according to the shares inherited by them. But he stated at the same time that the defendants 4 and 5 did not authorise him or his brother Julfikar to enter into an agreement for sale of the suit land on their behalf and that the defendants 4 and 5 came to know of the contract of sale with the plaintiff at the time when they offered them money 1n their share out of the earnest money paid by the plaintiff. Similarly, Julfikar (D. W. 6) stated that the defendants 4 and 5 did not give him authority to enter into any contract with the plaintiff and that the said defendants came to know of the contract when they were offered their share of the earnest money. Both Yakub Ali and Julfikar, however unanimously stated that the defendants 4 and 5 refused to accept the money offered to them. The defendant No. 4, a step‑mother of the defendants 1‑3 resides in the same house with her step‑sons but in different mess. Her evidence clearly shows that she was virtually dependent on the defendants 1‑3 and that, in the matter of disposal of properties, she simply acted as they liked. Similar was the case with the defendant No. 5 who is the wife of the defendant No.

1. Considering the evidence of P. Ws. 3, 4 and 9 on the plaintiffs side and that of the D.Ws. 2, 3, 5 and 6 on the side of the defence and pertinent fact that the illiterate pardahnashin defendants 4 and 5 were dependent on the adult male defendants 1‑3, we have reason to believe that prior consent or authority of the defendants 4 and 5 for sale of the suit land to the plaintiff was not asked for and obtained, and that the defendants 1‑3 negotiated the sale with the plaintiff and they themselves entered into a contract of sale of the suit land with the plaintiff on the terms and condition embodied in the agreement for sale on the bona fide belief and in absolute confidence that the defendants 4 and 5, situated in a position as they are, could be made to agree to join them (defendants 1‑3) in the sale of the suit land to the plaintiff, but ultimately the defendants 4 and 5 could not be persuaded to agree to be parties to the transaction. Accordingly, the defendants 4 and 5 are not bound by the agreement for sale, for they neither executed that agreement, nor authorised the defen dants 1‑3 to enter into an agreement for sale with the plaintiff. It was most likely that the defendants 4 and 5 were aware of the negotiation or even of the contract of sale between the plaintiff and the defendants 1‑3, but they are not bound by the contract of sale for the reasons already stated. Although the defendants 4 and 5 are not bound by the contract of sale, it cannot be gainsaid that the defendants 1‑3 gave out an assurance to the plaintiff that the women‑defendants were consenting parties to it. In para. 8 of their original written statement, the defendants 1‑3 categorically stated that they `negotiated the sale and entered into the agreement for themselves and for the defendants 4 and 5 as well. In fact, the defendant No. 3 Yakub admittedly wrote the names of the defendants 4 and 5 in the agreement for sale as if they were also the executants thereof. Again, the defendants 1‑‑3 offered the defendants 4 and 5 earnest money in their shares. Further more, the defendants 1‑3, as the evidence of the most dependable witness Mr. Jani Alam 1P. W. 6) shows, told him that they acted on the authority of the defendants 4 and 5 and received earnest money on their behalf. These facts clearly indicate that the defendants 1‑3 gave an assurance to the plaintiff that the defendants 4 and 5 were consenting parties to the contract of sale. However, such an assurance by the defen dants 1‑3 cannot bind the defendants 4 and

5. The next point that arises for consideration is whether the alleged payment of Rs.800 by the plaintiff to the defendant No. 3 Md. Yakub Ali as further earnest money in his share is true. As stated in the earlier part of this judgment the plaintiff in an amendment of the plaint on 26‑6‑67, stated that he had paid Rs. 800 to Md. Yakub Ali on 16‑3.56 and got receipt therefore. This receipt is marked Exh.

3. In their additional written statement dated 22‑7‑1957, the defendants 1‑3 denied the alleged payment of Rs. 800 and challenged the genuineness of the receipt. Yakub, as D. W. 5, denied to have received the said sum of Rs. 800 and further denied to have granted the receipt Exh.

3. In his appli cation for amendment of the plaint, the plaintiff gave and explanation that the alleged payment of Rs. 800 was not mentioned in the original plaint as the receipt for that sum had been mislaid. However, the application for amendment regarding the alleged payment was made before the filing of the original written statement by the defendants 1‑3, and the receipt itself was filed in Court simultaneously with the filing of the application for amendment. It appears from the order -sheet of the trial Court that the plaintiff made an application to that Court on 3‑8‑1957 for examination of the writing and signature in the receipt Exh. 3 by a handwriting expert. This prayer was subsequently modified on 19‑8‑1957 on which date the plaintiff prayed for examination of only the signature in the receipt by an expert, because the plaintiff, by then, was sure that the body of the receipt was written by Mr. Rizvi (P. W. 8). This prayer of the plaintiff was allowed by the trial Court. Accordingly the speci men signatures of Md. Yakub Ali (defendant No. 3) taken in Court and the disputed receipt Exh. 3 were sent to the D. I.‑G., C. I. D., East Pakistan for examination and comparison. The signature in the receipt and the specimen signatures were examined and com pared by Mr. Abdul Waheed Talukdar (P. W. 2) a handwriting expert attached to the C.

1. D., Dacca. He took enlarged photo graphs of the disputed signatures and the specimen signatures and after necessary examination and comparison, submitted his report (Exh. 10) in due course which was received by the Court on 19‑9‑1957. The report of this handwriting expert which was sent in a sealed cover was opened in Court on 21‑9‑1957 in the presence of the lawyers of both parties. Having seen the report, the defendant No. 3 Md. Yakub Ali filed an application praying for examination of the signature in the receipt by another handwriting expert. This prayer was allowed, and a private handwriting expert of the defendants' choice, namely, Mr. A. N. M. Tabib was appointed. This expert sent his report to the Court and also deposed as D. W.

4. Of the two experts, the handwriting expert attached to the C. I. D., Dacca, gave the opinion that the specimen signatures of Md. Yakub Ali, though appeared to be conscious and distorted product of the writer, the signature in the receipt‑Exh. 3 agreed with the specimen signa tures of the defendant No. 3 Md. Yakub Ali. He. as P. W. 2, also deposed that the signature in the receipt and the specimen signatures were of the same hand. The report of the private handwriting expert Mr. Tabib (D. W. 4) and his evidence is, however, to the contrary. Considering the reports of these two experts and their evidence in the light of the other oral materials on record, the learned trial Judge preferred to accept the report of the private handwriting expert and accordingly disbelieved the payment of Rs. 800 as alleged by the plaintiff. It appears that the learned trial Judge was much influenced by the fact that the alleged payment of R s. 800 was not mentioned in the original plaint itself. It is true that the alleged payment of Rs. 800 was not stated in the original plaint, but the fact remains that the appli cation for amendment of the plaint with regard to such payment had been made by the plaintiff before the filing of the written statement by the defendants 1‑

3. Not only that, the receipt itself was filed in Court on the very date of the filing of the application for amendment of the plaint and, that too, before the filing of any written statements by the defendants 1‑

3. In the amendment application, the plaintiff offered an explanation that as the receipt had been mislaid, the alleged payment was not mentioned in the original plaint. It was not perhaps unnatural for the plaintiff not to take a plea of payment in the original plaint in the absence of the receipt itself. However, the question of genuineness or otherwise of the receipt will have to be decided having regard to the entire evidence with regard there to and the attending circumstances of the case. The receipt Exh. 3, dated 16‑3‑1956 runs thus; "Received Rs. 800 (Rupees eight hundred) only from Mr. Eskandar 12, Topekhana Road, in part payment of my share of the consideration for the land together with my two brothers contracted to sell to him. At the time of final payment the said amount of Rs. 800 would be deducted from my share. Md. Yakub Ali." It is significant that this receipt expressly recites that the disputed contract of sale with Md. Yakub Ali and his two brothers, i.e. the defendants 1‑3 alone. This recital is detrimental to the interest of the plaintiff inasmuch as it clearly goes against the plaintiff's own case that the contract of sale was not only with Yakub Ali and his two brothers but also with the defendants 4 and

5. When the above recital in the receipt is harmful to the plaintiff's case as made out in the plaint, it is difficult to believe that the plaintiff, a prudent man purposely created the receipt only to get a credit for a small sum of Rs. 800 out of the con sideration of' as much as Rs. 34,

500. It appears from the record that Md. Yakub Ali, the defendant No. 3 signed the original written statement and the vakalatnama in Bengali. It was only during the hearing of these appeals that it came to our notice that Md. Yakub Ali signed and verified their additional written state ment in English. This signature of Md. Yakub Ali in English in their additional written statement was shown to all the learned Advocates appearing in this case, and they also saw that signature in English for the first time. Yakub Ali, as D. W. 5, stated that he read up to class III or IV and can sign his name in English. There is no dispute about the genuineness of the signature of Md. Yakub Ali in English in their additional written statement. As already stated, the trial Court took the specimen signatures of Md. Yakub Ali and sent the same to the handwriting experts for their comparison with the signature in the receipt‑Exh.

3. This was done much long after the filing of the additional written statement by the defendants 2‑

3. When the signatures of a Md. Yakub Ali In English were there in the additional' written statement, it was not really necessary to take his specimen signatures for being sent to the handwriting expert for their comparison with the signature in the receipt. It, therefore, seems that the signature of Md. Yakub Ali in English in the additional written statement did not come to the notice of the trial Court and the lawyers conducting the suit. In these circumstances, we think that we shall not be wrong if we ourselves compare the English signatures of Md. Yakub Ali in the additional written statement with the signature in the receipt, under section 73 of the Evidence Act, However, we shall revert to this matter hereinafter. Another significant fact relating to this receipt is that the body of the receipt, as stated by Mr. Rizvi (P. W. 8), was written by him at the instance of Md. Yakub Ali himself. The receipt shows that it was sent to the D.

1. G. C. I. D. on 26‑8‑1957. Thus the receipt was the custody of the Court or of the handwriting experts since 26‑6‑1957. Mr. Rizvi is not a man of East Pakistan and he, as told by him, had been to East Pakistan for a temporary period from February 1955 to July 1956. By the date the receipt was flied in Court on 26‑6‑1957, Mr. Rizvi was no more in East Pakistan. He came to East Pakistan again to depose in this case on 25‑6‑1959. Hence the receipt, in view of the above facts, could not have been written by Mr. Rizvi at about the time of its filing in Court on 26‑6‑1957 ; it must have been written by him during his stay in East Pakistan in 1955‑

56. This is yet another circumstance indicating the genuineness of the receipt. In this connection, Mr. Rizvi deposed that he went to the house of the plaintiff one day and was sitting in his drawing room and talking with Nasrat Ali Quraishi. In the meantime, Md. Yakub Ali came and asked him to write a receipt for him. He then wrote the receipt according to Yakub Ali's instruction. Yakub Ali then went upstairs with the receipt. Mr. Rizvi, however, stated that the receipt was not signed by Yakub Ali in his presence. The only evidence with regard to the signing of the receipt by Yakub Ali is that of the plaintiff who stated that he paid Rs. 800 to Yakub Ali on 16‑3‑1956 and that Yakub Ali himself signed a receipt for that sum. Of the two handwriting experts, P. W. 2 Abdul Wahed Talukdar is a handwriting expert attached to the D. I. G., Dacca since the middle of 1950, whereas the private handwriting expert Mr. Tabib was in the C. I. D. Department only for one year or so. Thus P. W. 2 is definitely a more experienced hand writing expert. However, the learned trial Judge appeared to have rejected his opinion and evidence mainly on the ground that he considered only the similarities between the specimen signatures of Md. Yakub Ali and the signature in the receipt, but not the dissimilarities between them. The expert (P. W. 2), no doubt, stated in cross‑examination that in his report he discussed and relied upon the similarities and not upon the dissimilarities. But an examination of his report shows that this is a confused mistaken statement of this witness inasmuch as his report Exh. 10 clearly shows that in forming his opinion, he took into consideration not only the similarities but also the dissimilarities between the specimen signatures and the signature in the receipt. This expert (P. W. 2) also examined a note Exh. 3 (a) sent to him at the instance of the plaintiff. But he did not hesitate to give an opinion unfavourable to the plaintiff with regard to that Note. Thus it appears that P. W. 2, whether his opinion is acceptable or not, was honest in his conviction. The learned trial Judge, no doubt, preferred to accept the opinion of the inexperienced private handwriting expert Mr. Tabib (D. W. 4), but in assessing the value of his evidence, he ignored the following vital statements of that expert : ‑‑ "I have not mentioned about "shading" and "spacing" in my report. I have not mentioned in my report about the specific places of the marked similarities of form or make of the signature Al and the specimen writings " Moreover, the lapses admitted by this private expert in his cross‑examination were not taken note of by the learned trial Judge. We are conscious that the science of the study of calligraphy is in‑exact and has not yet attained any degree of accuracy. Hence the opinion of handwriting expert should be received with great caution, and it is unsafe to base a decision purely on expert opinion without sufficient corroboration. In the present case, such corroboration appears to be all the more necessary inas much as the specimen signatures of Md. Yakub Ali were not compared with any of his admitted or undisputed signatures. Moreover, the specimen signatures of Md. Yakub Ali were taken in Court at a time when he must have been conscious to distort his signatures for obvious reasons. Had the undisputed signatures of Md. Yakub Ali in their additional written statement been sent to the experts for comparison with the signature in the receipt, a more definite and positive expert opinion could have been expected. In this situation we have looked into the signatures of Md. Yakub Ali in their additional written statement and compared the same with the signature in the receipt under section 73 of the Evidence Act. We are not unmindful that a comparison of handwriting or signature as a mode of proof is hazardous and inconclusive and, therefore, equally requires corroboration. Nevertheless, situations arise when Judges have sometimes to decide cases after comparison of signature, and the present case is one such case. In similar cases, namely, Manindra Chandra v. Mahalaxmi Bank (49 C W N 481 at p. 483) and Madhavayya v. Achamma (P L D 1949 P C 80 at p. 87) their Lordships of the Privy Council themselves compared the disputed handwritings and signatures in the circumstances obtain ing in those cases and were strongly impressed by such comparison. As a result of our comparing the undisputed signature of Md. Yaqub Ali in the additional written statement with the signature in the receipt, we find that the similarities between them in every respect are so glaring and palpable that it at once strikes the mind that they are of the same band. We are strongly impressed by the obvious similarity between them. There is no evidence to show if it was known to the plaintiff that Yakub could sign his name in English. The only signature of Yakub that was known to, and in possession of, the plaintiff was Yakub's signature in Bengali in the agreement for sale Exh.

2. That being so, the plaintiff would have naturally put Yakub's Bengali signature in the receipt if it was a manufactured one instead of hazarding a risk by blindly putting Yakub's English signature about which he had no idea. This circumstance coupled with the glaring similarity between the signature in the receipt and the undisputed signature of Yakub Ali in the additional written statement strongly weighs in favour of genuineness of the receipt. In this connection, the evidence of Md. Yakub Ali (D. W. 5) calls for consideration. It is true that he denied to have received from the plaintiff Rs. 800 and granted the receipt. But a careful scrutiny of his evidence reveals that he is not a truthful witness. Mr. Quraishi (P. W. 4) was one of the attesting witnesses to the agreement for sale Exh. 2 of which Yakub Ali is admittedly one of the executants. Even then, Md. Yakub Ali deposed that he did not know Mr. Quraishi and that he saw him for the first time when he came to depose in Court. It is the case of the defendants 1‑3 that they sent a counter notice, Exh. 5 (a) in reply to the plaintiff's notice Exh.

5. In spite of this, Yakub Ali stated that he did not receive any notice from the plaintiff: Yakub flatly denied to have received any money from the plaintiff or the sum of Rs. 800, although it is their case that they had received earnest money of Rs. 3,

000. Yakub and his co‑sharers executed a deed of partition Exh. 7 and got it registered, and this partition deed was mentioned in the kabala Exh. B executed by them in favour of the defendant No.

6. When asked about this partition deed, Yakub again flatly denied to have executed the same. However, being confronted with these deeds, he at last admitted that the partition deed was executed by all of them. He was then asked about the alleged payment of Rs. 800 to him by the plaintiff. No doubt, he denied this payment, but the learned trial Judge recorded his demeanour as "very suspicious". When asked if he got a receipt written by Mr. Rizvi, he replied: ‑ "It is not a fact that I got the receipt written by him." When further questioned about the receipt, Yakub Ali replied in an unguarded moment: - "We all along told the plaintiff that we would execute kabala before giving receipt." By this answer of Yakub Ali in cross‑examination, the receipt with reference to which he was cross‑examined, was impliedly admitted by him, though in an unguarded moment. Yakub indeed tried to suppress the truth, but, having regard to the foregoing facts and circumstances supporting the genuineness of the receipt, we are prepared to believe the plaintiff 'a evidence that he paid Rs. 800 to Md. Yakub Ali on 16‑3‑1956 and got the receipt Exh. 3 therefore. In this connection, it may be mentioned that the two adhesive stamps (Revenue Stamps) of one anna each affixed to the receipt were not cancelled. Hence, the receipt, in view of section 12 of the Negotiable Instruments Act, 1881, should have been treated as unstamped, and the same was liable to be impounded under section 35 of the Stamp Act, 1899 before admitting it into evidence. The trial Court however, admitted the receipt into evidence without impounding it and marked it Exh.

3. When the receipt, in spite of its not being duly stamped, was already admitted into evidence, such admission, in view of section 36 of the Stamp Act, can no more be called in question except as provided in section 61 of that Act. We have, however, impound ed the receipt in pursuance of the said section

61. This settles at best the question; of admissibility of the receipt into evidence. The third point we are called upon to consider is whether the time fixed in the agreement for sale was of the essence of the contract. Mr. D. C. Bhattacharya, the learned Advocate for the appellants of First Appeal No. 186 of 1960 (i.e. defendants 1‑3) submits that the agreement for sale between the plaintiff and the defendants 1‑3. by the very terms thereof, was required to be performed within the fixed period of six months from the date of the agreement and that the defendants were always willing to execute a deed of conveyance on receipt of the balance considera tion, but the plaintiff having failed to perform his part of the contract within the stipulated period of six months, the agreement for sale ceased to be operative. The provisions with regard to the time being or not being of the essence of the contract are contained in section 55 of the Contract Act and these are as follows: ‑ "When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specific times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable, at the option of the pro misee, if the intention of the parties was that time should be of the essence of the contract. If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the speci fied time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure." The question whether the time mentioned in an agreement is or is not of the essence of the contract depends upon the intention of the parties to the agreement, which is to be gathered from the facts and circumstances of the case. The mere fact that certain time is mentioned in the agreement for the performance of an act would not necessarily lead to the conclusion that the time specified was of the essence of the contract. The real intention of the parties to the agreement is the determining factor, and it is to be deduced from all the surrounding circum stances of the case. The intention of the parties can be beat ascertained from the agreements itself. On this point in the case reported in P L D 1962 S C 1 their Lordships of the Supreme Court quoted with approval the following observations of the Judicial Committee of the Privy Council in Jamshed Khodaram v. Burjorji Dhunjibhai (A I R 1915 P C 83). "An intention to make time of the essence of the contract must be expressed in unmistakable language; it may be inferred from what passed between the parties before, but not after, the contract is made . . . . . . . . . . . . . . . . . . . . . . . . . Equity . . . looks not at the letter but at the substance of the agreement in order to ascertain whether the parties not withstanding that they named a specific time within which completion was to take place, really and in substance intended more than that it should take place within a reason able time. , But to have this effect (time being essence of the contract) the language of the stipulation must show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable." In this case, the agreement for sale stipulates the sale of the suit land to the plaintiff at the rate of Rs. 23,000 per bigha. Having received the earnest money of Rs. 3,000 the executants of the agreement (defendants 1 to 3) stipulated and bound themselves to execute a kabala in favour of the plaintiff or his nominee and get it registered within six months from the date of the agreement on receipt of the balance consideration money. They further promised to hand over their documents of title to the plaintiff in the meantime, and a condition was to the effect that the plaintiff would get the sale deed executed on being satisfied about the vendor's good title. The further stipu lation in the agreement is that if after the establishment of the vendor's good title, they failed to sell the land to the plaintiff on receipt of the balance price, then, the plaintiff would be enti tled to enforce specific performance of the contract of sale by a suit and make them liable for the costs of the litigation. The last stipulation of the agreement, which is more pertinent is as follows: ‑ "If after establishment of our good title you do not within the stipulated period pay the balance of consideration money and get the kabala executed by us, then only the earnest money paid to day will be forfeited and the bainapatra will be null and void." Thus the defendants 1‑3 undertook to establish their good title and to hand over their documents of title to the plaintiff within the stipulated period of six months. The forfeiture of the earnest money was contingent upon the establishment of the good title of the defendants 1 to 3 within the said stipulated period. Under this agreement for sale, the plaintiff had nothing to do except to offer the defendants 1 to 3 the balance consideration money which he, in fact, offered in the notice Exh. 5 issued to those defendants within the stipulated period of six months, but the defendants 1‑3 who undertook to get their title established and to deliver their documents of title the plaintiff within the said period of six months defaulted in performing this part of their contract, that is to say, they did not prove their title to the satisfaction of the plaintiff and deliver to him their documents of title within the stipulated period of six months. The defendant No. 1 Julfikar (D. W 6) stated that they supplied the C. S. Khatian and map to Mr. Jani Alam for writing out the agreement and that plaintiff took away the S. C. Khatian and the map. The S. C. Khatian and the map having been made over to the plaintiff at the time of making the agreement for sale, the title‑deeds of the defendants 1 to 3 promised in the agreement must be documents of title other than the said C. S. Khatian and the map. But there is nothing to show if any document or paper concerning the title of the defendants 1‑3 was ever supplied or shown to the plaintiff. The plaintiffs as P. W. 3, stated that the defendants 1‑3 did not produce their title‑deeds in accordance with their promise. Julfikar (D. W. 6), however, stated that they had no document other than the C. S. Khatian and the C. S. map and denied to have promised to deliver any title‑deed to the plaintiff. This denial is clearly contrary to the express promise made by the defendants I to 3 in the agreement for sale. This Julfikar admitted in his cross‑examination that the defendants I to 3 themselves purchased the share of Safurannessa, one of their sister:. The kabala obtained by these defendants from Safurannessa must be with them. Zulfikar further admitted that they paid rent for their lands and have dakhilas in their possession. In fact, he showed dakhilas to Mr. D. N. Huq, the husband of the defendant No. 6, in connection with her purchase from the defendants I to

5. The defendants 1 to 3 were thus in a position to show to the plaintiff at least their kabala obtained from Safurannessa and the dakhilas received by them on payment of rent. Moreover, they could have produced receipts for union rate paid by them in respect of their lands. But none of these was ever produced before the plaintiff. According to P. W. 6 Zulfikar, they inherited about 14 bighas of land fro)~i their predecessor Abdul Bepari out of which they had already sold 8 or 9 bighas to different persons including the defendant No.

5. The defendants 1 to 3 could have obtained copies of the sale‑deeds in favour of different persons to prove that their title to the specific land In suit remained unaffected by those sales. But this was not done. Thus, the defendants 1‑3 neglected to perform their parts of the contract as promised. As the time specified in the agreement for sale was subject to more than one condition, it cannot be said that the parties thereto intended the time mentioned therein to be of the essence of the contract. At any rate, the defendants 1 to 3 not having discharged their contractual obligation within the given time limit cannot turn round and say that the time was of the essence of the contract. In this connection, it is pertinent to note that within the stipulated period of six months the plaintiff sent a lawyer's notice to the defendants (Exh. 5) on 14‑2‑56 calling upon them to hand over their documents of title in respect of the suit a land and to accept the balance consideration money and get the deed of conveyance registered within 7 days. Thus the plaintiff expressed his willingness to perform his part of the contract within the stipulated period of six months. We are, therefore, of the view that the time was not of the essence of the contract in this case. The further point raised by Mr.. D C Bhattacharya on behalf of the appellants of F. A. No. 186 of 1960 (defendants I to 3) is that even if time was not of the essence of the contract, the agreement for sale stood rescinded on account of the Plaintiff's own laches. As already stated, the plaintiff sent a lawyer's notice Exh. 5 to the defendants I to 5.requiring them to produce within 7 days their documents in proof of their title and to execute a deed of conveyance on receipt of the balance consideration money. This notice was issued on the 14th February 1956 which was within the stipulated period of six months. In reply to this, the defendants I to 3 sent a notice Exh. 5 (a) to the plaintiff on 16‑3‑1956 (this was beyond the stipulated period of six months which ended on 6‑3‑56 stating that they failed to persuade their co‑sharers to convey their shares in the suit land and asked the plaintiff to take a deed of conveyance from them alone on payment of the balance consideration money within a fortnight of the notice or to take refund of the earnest money within a fortnight. In the notice Exh. 5 (A), it was held out that on the plaintiff's failure to comply with it, the defendants 1‑‑3 would be constrained to treat the agreement for sale as rescinded and would no longer remain under any obligation under the agreement. Mr. Bhattacharya submits that the plaintiff having neglected to obtain a deed of conveyance from the defendants 1 to 3 on payment of the balance consideration within a fortnight of the said notice, the agreement for sale came to an end and as such it can no more be enforced. The learned Advocate has cited the case reported in A I R 1915 P C 83 and A I R 1925 P C 124 in support of his contention that where time is not of the essence of the contract, one party to it may give the other party notice fixing a reasonable time after the expiration of which the contract shall be treated as rescinded. It is not necessary to examine here the said cited cases for the reason that the decisions of the Privy Council in those cases were considered by our Supreme Court in the case of Abdul Hamid v. Abbas Bhai Abdul Hussain (P L D 1962 S C 1). The majority view taken in that case after a review of a number of judicial decisions appears to be that if time is not originally made of the essence of a contract for sale of land, one of the parties to it is not entitled afterwards, by notice, to make it of the essence, unless there has been some default, improper conduct or un reasonable delay on the part of the other party. In this case, the plaintiff, by his notice dated 14‑2‑1956 Exh. 5, expressed his willingness to pay the balance consideration money within the period stipulated in the contract and called upon the defendants to fix a date for execution and registration of a deed of conveyance and to hand over their title‑deeds, in the mean time. This shows that the plaintiff was diligent and was not at fault. The stipulated period of six months expired on 6‑3‑56, but the defendants did not respond to the plaintiff's notice till that date. It was only after the expiry of the stipulated period of six months, i.e. on the 16th March 1956 that the defendants 1‑3 sent to the plaintiff a counter‑notice Exh. 5 (A) fixing a time‑limit of 14 days for obtaining from them a deed of conveyance on payment of the balance consideration money, but in that counter‑notice nothing was stated about their documents of title earlier demand by the plaintiff: Having regard to these facts, it cannot be said that the conduct of the plaintiff was such as to entitle the defendants to fix a time‑limit for performance of the plaintiff's obligation and to treat the contract as rescinded after the time so fixed. In the circumstances, the agreement for sale did not come to an end. The next point that calls for consideration is whether Alhamra Begum, the defendant No. 6 was a bona fide purchaser of a part of the suit land for valuable consideration without notice of the plaintiff's contract of sale. It appears from the registered kabala, dated 3‑1‑1957 Exh. B, that the defendant No. 6 purchased from the defendants Nos. 1‑5 26 acres of land out of C. S. Plots 163, 232 and 165 of mouja Kakrail for Rs. 27,871 it further appears that out of the said '26 ; acre, ' 1‑4/3rd acre was taken from C. S. Plot No. 165, but no part of this plot is covered by the plaintiff's contract of sale, nor any part thereof is included in the plaint either. Deducting '1‑4/3 acre from '26 acres, there remains a balance of '24 acres. Thus, the kabala of the defendant No. 6 includes only '24 acres out of the suit land. In this connec tion, it may be mentioned here that the trial Court wrongly took that '1‑4/3 acres out of C. S. Plot No. 165 is also a part of the suit land and accordingly held that the defendant No. 6 purchased 261 acres in all out of the land in suit and proceeded to pass a decree on that basis. However, it is undisputed that the defendant No. 6's Kabala relates to '24 acres only out of the land in suit. Therefore, it is to be seen if the defendant No. 6 is a bona fide purchaser of this '24‑1 acres out of the suit land for valuable consideration. The boundaries given in the agreement for sale Exh. 2 and those mentioned in the kabala Exh. B of the defendant No. 6 substantially agree. It is stated in para. 6 of the original written statement of the defendants 1‑3 that they sold a specified part of the suit land to the defendant No.

6. Mr. D. N. Huq (D. W. 1) who did everything on behalf of his wife, the defendant No. 6 deposed that his wife purchased '24 acres of land out of the suit land. To the same effect is the evidence of Yakub (D. W. 5), the defendant No.

3. Thus, it stands established that the defendant No. 6 purchased '24 acres of land out of the suit land of '491 acres which is undisputedly in one consolidated block. Mr. D. N. Huq (D. W. 1) stated that he negotiated the sale on behalf of his wife and made necessary inquiries about the existence of incumbrance and that his wife paid the purchase price of Rs. 27,671 which amount was handed over by him to the vendors. He further stated that neither he, nor his wife was ever aware of the plaintiff's contract of sale and that they came to know of that contract only on receipt of an order of injunction made in the suit. According to this witness, the negotiation for sale to his wife commenced in July or August 1956. This appears to be supported by the fact that the stamps for the kabala of the defendant No. 6 were purchased on 22‑10‑1956. 1t appears from the evidence of D. W. 7, a surveyor that the land purchased by the defendant No. 6 was got surveyed and measured before obtain ing the kabala by her. Moreover, a registered deed of partition Exh. 7 was secured apparently to ensure the full title of the vendors of the defendant No. 6, and this deed of partition was specifically mentioned in the kabala. Thus, it appears that Mr. D. N. Huq through whose assistance the defendant No. 6 made the purchase acted like a prudent buyer. It is true that the defen d4nt No. 6 herself did not come to the witness box to deny her knowledge of the plaintiff's contract of sale. But the fact remains that everything from the beginning to the end in connection with purchase of defendant No. 6 was made by her husband Mr. D. N. Huq. Hence the statement of Mr. D. N. Huq that he and his wife were not aware of the plaintiff's contract of sale until the issue of the injunction order in the suit, in the, attending circumstances, was sufficient to discharge the initial onus that lay on the defendant No. 6 with regard to her want of knowledge of the plaintiff's contract of sale. It is alleged in para. 5 of the plaint that having come to know of the negotiation between the defendants 1‑5 and Mr. D. N. Huq for the sale of the very suit land to the latter, the plaintiff sent a written note to Mr. D. N. Huq on 2‑1‑1957 intimating him about his contract of sale in respect of the same land. In his application dated 3‑8‑1957 for amendment of the plaint, the plaintiff gave a detailed account as to the manner in which the said note, dated 2‑1‑1957 was delivered to Mr. D. N. Huq. 1t is stated in that application that the said note which is marked Exh. 6 was sent by the plaintiff through Mr. Nasrat Ali Quraishi (P. W. 4) in the morning of the 2nd January 1957, for its delivery to Mr. D. N.‑ Huq and that Mr. D. N. Huq having come to learn from Nasrat Ali Quraishi that the note had been sent by the plaintiff, appeared disturbed, threw away the note on a chair nearby and asked another man present there to sign the typed acknowledgement receipt which was also taken by Nasrat Ali Quraishi with him. Accordingly, that man, it is alleged put his signature in the typed acknowledgement receipt, and it transpired subsequently that the man signing the acknowledgement receipt was one Anisur Rahman, a co‑villager of Mr. D. N. Huq. On these allegations, it was asserted by the plaintiff that Mr. D. N. Huq and his wife had come to know of his contract of sale prior to their purchase of a part of the suit land on 3‑1‑1957. Exh. 6 which is said to be a true copy of the note, dated 2‑1‑1957 runs thus. "Eskander Ali. 12, Topekhana Road, Dacca. To Telephone: 3939 Mr. D. N. Haq, 2‑1‑1957. 39, Purana Paltan, Dacca. Dear Sir, It is reported that you have contracted or contracting to, buy Plots Nos. 163 and 232 of Mouja Kakrail from one Md. Zulfikar and his co‑sharers of Mouja Iskaton. If this informa tion is true kindly take notice that Zulfikar and his co‑sharers have already contracted to sell one and a half bighas of land from the said plots to me by executing a deed of contract in my favour and have taken rupees three thousand from me as a con sideration for the contract. Zulfikar and his co‑sharers having failed to perform their part of the said contract I am reparing to institute a suit against Zulfikar and his co‑sharers ('or specific performance of the said contract, it is up to you to decide your course of action. But I thought it proper to give you these facts as I do not like to be involved in litigation with you. Faithfully. Eskander Ali." The acknowledgement receipt Exh. 3 (A) said to have been sent along with the said note for the signature of Mr. D. N. Huq is as follows: ‑ "Received one letter from Mr. Eskander Ali of 12, Tope Khana Road, Dacca, addressed to Mr. D. N. Huq. (Sd.) Illegible." In their second Additional written statement, dated 10‑8‑57, the defendants 6 and 7 denied all the averments by the plaintiff in his amendment petition, dated 3‑8‑1957. In particular, they denied the alleged delivery of any note to Mr. D. N. Huq on the morning of the 2nd January 1957 or at any time. They further denied that Nasrat Ali Quraishi had been to the residence of Mr. D. N. Huq and offered a note to him and that it was accepted by some one on behalf of Mr. D. N. Huq at his instance. Mr. D. N. Huq as D. W. 1, denied all the plaintiff's allegations with regard to the said note and pleaded his complete ignorance about it. Let us now see how far the plaintiff succeeded in proving the delivery of the said note to Mr. D. N. Huq. Mr. T. Ali (P. W. 7) who is the plaintiff's brother and Advocate in this case stated that the note was dictated by him and that it was sent to Mr. D. N. Huq through P. W. 4 Nasrat Ali Quraishy and that a typed acknowledgement receipt Exh. 3(A) was also sent through Quraishy for getting it signed by Mr. D. N. Huq. Having regard to the status of Mr. T. Ali, his evidence cannot be discredi ted merely because he happens to be a brother of the plaintiff. However, his evidence is not on the point of actual delivery of the note to Mr. D. N. Huq. The only evidence with regard to the alleged delivery of the note to Mr. D. N. Huq is that of Nasarat Ali Quraishy (P. W. 4). This witness, no doubt, stated that he handed over a letter to Mr. D. N. Huq on 2‑1‑57 and that a receipt therefore was signed on behalf of Mr. D. N. Huq by a man whom he did not know at that time and that he subsequently came to learn that the men signing the receipt was one Anisur Rahman. But this witness did not say if the receipt was signed by that man at the instance of Mr. D. N. Huq, nor did he say that Mr. D. N. Huq threw away the note on a nearby chair as alleged in the plaint. In his cross‑examination, P. W. 4 Quraishy stated that the plaintiff sent him to the residence of Mr. D. N. Huq in May, 1957 in search of Anisur Rahman. But there is no evidence whatever to show how the plaintiff could come to know that the man signing the acknowledgement receipt was Anisur Rahman. However, this Anisur Rahman was examined by the plaintiff as P. W.

1. He denied his signature and writing in the receipt Exh. 3 (A). Thereupon, he was declared hostile and cross‑exa mined by the plaintiff. In his cross‑examination, he admitted to have sworn an affidavit on 7‑5‑1957 and another affidavit the next day. In the first affidavit, he admitted to have signed the receipt Exh. 3 (A) on behalf of Mr. D. N. Huq at his instance. But In the affidavit made by him the next day, he disowned the statements made by him in the earlier affidavit and stated that he did not sign the receipt on behalf of Mr. D. N. Huq at his behest. The attention of this witness to the material contents of these two contradictory affidavits was drawn, and both the affidavits were put in under section 145 of the Evidence Act. This Anisur Rahman is, no doubt, acquainted with Mr. D. N. Huq from his infancy and at times, visits his residence. But this fact by itself is not sufficient to prove that Anisur Rahman was at the residence of Mr. D. N. Huq on 2‑1‑57 and that the acknowledgement receipt was signed by him for Mr. D. N. Huq on the said date at his instance. The conduct of Anisur Rahman in swearing the two contradictory affidavits on two successive days is reprehensive, and we are at one with the learned trial Judge that no reliance can be placed on his statements. Being confronted with the contradictory second affidavit the plaintiff, prayed for examination of the signature of Anisur Rahman in the acknowledgement receipt Exh. 3 A) by a hand writing expert. This prayer was allowed, and the said receipt was examined by the same expert Mr. A. W. Talukdar (P. W. 2) who examined the defendant No. 3 Yakub's signature in the receipt for Rs.

800. But the evidence and report of this expert are of no assistance to the plaintiff as he categorically stated that he could not arrive at a definite conclusion. P. W. 6 Zulfikar stated that he suppressed from Mr. D. N. Huq the plaintiff's contract of sale. In view of the evidence discussed above and the circumstances surrounding the acknowledgement receipt, it cannot be said that it has been established that the note Exh. 6 was delivered to Mr. D. N. Huq on 2‑1‑1957 as alleged in the plaint. Agreeing with the learned trial Judge, we are, therefore, of the view that the defendants 6 and 7 had no knowledge of the plaintiff's contract of sale prior to the purchase of a part of the said land by the defendant No. 6, 3‑1‑57 as per kabala Exh. B. The defendant No. 6 is thus a bona fide purchaser in respect of '24 acres of land out of the suit land for valuable consideration without notice of the plaintiff's contract of sale. The question then arises as to what relief, if any, is the plaintiff entitled. The total area of the suit land is '491 acres. Deducting the area of '241 acres from the suit land, there remains a balance of '25 acres. This being a part of the contracted land, the question of the plaintiffs right to get any relief will have to be decided having regard to the provision of section 17 of the Specific Relief Act which runs thus: ‑ "The Court shall not direct the specific performance of a part of contract except in cases coming under one or other of the three last preceding sections." Section 15 which is one of the three sections referred to in section 17, permits specific performance of a part of contract provided that the plaintiff relinquishes all claims to further performance, and all right to compensation either for the deficiency, or for the loss or damage (damage sustained by him through the default of the defendants. That the proviso to section 15 is applicable in the facts and circumstances of the case, finds support from the observations of their Lordships of the Privy Council in the cases of William Graham v. Krishna Chandra Dey (A I R 1925 P C 45) and Promoda Nath Mitra v. Gostha Behari Sen (A I R 1932 P C 43). The price of the undisposed of '25 acres of land out of the suit land at the stipulated rate of Rs. 23,000 per bigha comes to Rs. 17,424 in round figure. The plaintiff already paid Rs. 3,000 as earnest money and a further sum of Rs. 800 that is, Rs. 3,800 in all. Deducting it from the sum of Rs. 17,424 the proportionate price of '25 acres of land comes to Rs. 13,624 which the plaintiff will be required to pay if he wants specific performance of the contract in respect of 25 acres of land out of the suit land and, that too, on his relinquishing all claims for compensation in pursuance of the Proviso to section 15 of the Specific Relief Act. In the result, the First Appeal No. 186 of 1950 of the defendants I to 3 is dismissed and the First Appeal No. 147 of 1960 of the defendants 4 and 5 is allowed. The trial Court's decree, in so far as it granted specific performance of the contract of sale against the defendants 4 and 5, is set aside. As regards the First Appeal No. 132 of 1960 of the plaintiff we allow it in part, but in modification of the trial Court's decree in favour of the plaintiff, we make the following decree. The suit be decreed in part against the defendants 1 to 3 and dismissed against the defendants 4 to

7. On the plaintiff's relinquishing in writing before the trial Court all his claims for compensation against the defendants 1 to 3 on account of their default and on his depositing the sum of Rs. 13,624 in that Court within one month from this date, the defendants 1‑3 shall execute a deed of conveyance in favour of the plaintiff in respect of '25 acres of land out of the suit land, that is, the suit land measuring '491 acres leas '241 acres already sold to the defendant No. 6 as per kabala, dated the 3rd January 1957, Exh. B. If after the plaintiff has duly complied with the above directions, the defendants 1 to 3 do not execute a deed of conveyance in respect of the land as aforesaid in favour of the plaintiff, the plaintiff shall have a right to get such a deed of conveyance executed and registered in his favour through Court. In the event of the plaintiff's failure to relinquish in writing his claims for compensation and to deposit the aforesaid sum of Rs. 13,624 within a period of one month from this day as directed his claim for specific performance of the contract of sale shall stand dismissed in which case the plaintiff shall be entitled to recover from the defendants 1 to 3 a sum of Rs. 3, 8 00 only. In the attending circumstances of the case, we leave the parties to bear their own costs. MAKSUM‑UL‑HAKIM, J. ‑I agree. Order accordingly.