K.N Srivastava, J.:— The facts giving rise to this appeal are as follows:—

2. There is a Nazul land about which there was a lease deed in favour of Nathu Ram. Nathu Ram gifted his property including the right in this lease to Smt. Lilawati, wife of Bengali Mai. This lease deed was executed in favour of Nathu Ram on 11-1-1937 for a period of 30 years. Therefore, the term of the lease had expired on 11-1-1967. On 13-11-1967, there was an agreement of sale between Smt. Lilawati, wife of Bengali Mal and Smt. Lilawati, wife of Shiv Sarup about the sale of the lessee rights. The price settled was Rs. 8,250/- out of which Rs. 500/- was paid as earnest money. There was a condition in this agreement that the sale deed was to be executed after Smt. Lilawati, wife of Bengali Mal had got her name mutated over the property in dispute. Smt. Lilawati, wife of Bangali Mai, who shall hereinafter be called as ‘the vendor’, made an application for getting her name ???. It appears that till April, 1969, she not able to get her name mutated over disputed property. She then sent a ??? to Smt. Lilawati, wife of Shiv Sarup, ??? shall hereinafter be called ‘the plain that the vendor had not been able to her name mutated and that the plan either could take the sale as the prop stood or could get the refund of her nest money. To this, a reply was sent the plaintiff that the vendor was taking interest in getting the ??? fulfilled and Rs. 600/- was needed to her name mutated and in case she prepared to spend that amount, the pis tiff would get the name of the ??? mutated, but it was insisted in this re that the sale would be executed only accordance with the terms of the ???.

3. Thereafter the sale was taken Durga Prasad and Jalaluddin for Rs. 7,??? on 20-6-1969. Earlier two telegrams ??? sent by the plaintiff, one to the ??? and the other to one Nanhey that ??? was an agreement of sale in her favour.

4. After this sale, the plaintiff ??? the present suit for specific ??? of the contract. The suit was contest by the vendor as well as Durga ??? and Jalaluddin on various grounds a inter alia it was pleaded that the agreement for sale being a contingent agreement, it could not be specifically ??? and secondly that Jalaluddin and Dur Prasad were purchasers in good faith of value and without notice of the agreement of sale.

5. The defence found favour ??? the trial court and the trial court dismiss the suit for specific performance but ??? creed it for the refund of the earnest mow against the vendor.

6. On appeal by the plaintiff, ??? lower appellate court held that the agreement was not a contingent agreement that Durga Prasad and Jalaluddin has notice of this agreement and on this fining by allowing the appeal, the plaintiff suit was decreed in toto. Being ???, Durga Prasad and Jalaluddin ??? filed this appeal.

7. Only two points have been pressed this appeal by the learned counsel for appellants. The first is the point of ice, and the second is that the agreement of sale being contingent was not ??? as such.

8. So far as the question of notice is ???, the sale deed, as said above, in favour of two persons, namely, ??? Prasad and Jalaluddin. Accord to the plaintiff, two telegrams Exts. 2 ??? 3 were sent by her. One was sent the vendor, and the other was sent to Nanhey. Nanhey is not one of the ??? in this case. The contention of learned counsel for the respondent was to Nanhey was the own uncle of Jalaluddin and he ??? in the same house ??? Jalaluddin and was negotiating this and, therefore, it was through Nanhey, ??? Jalaluddin got knowledge of this ??? of sale. There is no dispute ??? from the evidence of Jalaluddin it is ??? that Nanhey was his uncle although Jalaluddin tried to suppress this fact by ??? that Nanhey was his distant ???.

9. The question is as to whether Jalaluddin got information about this ??? which was sent to Nanhey. There no evidence that Nanhey was negotiating sale. There is also no evidence that first the sale was settled in favour of Nanhey and then subsequently it was set ??? in the names of Durga Prasad and Jaluddin. Simply because Nanhey was own uncle of Jalaluddin and was living the same house it would be difficult to ??? that Jalaluddin had also knowledge this telegram. It appears that this ??? was also realised by the plaintiff-resident, and it was for this reason that ??? witnesses, namely, Shyam Sunder and ??? Shanker were examined. Shyam order stated that Jalaluddin and one ter person brought this telegram to him being read over and transtated to him. ??? statements of both these witnesses re disbelieved by the trial court. ??? of the judgment of the lower appel court would show that there is nothing it to show that the finding by the trial court that these witnesses were unreliable was upset by the lower appellate court. All that the lower appellate court held in its judgment was that Jalaluddin and Durga Prasad had constructive notice of the agreement for sale. If this evidence is disbelieved, there is nothing on record on which the constructive knowledge can be fastened on the shoulders of Jalaluddin and Durga Prasad.

10. Besides this, Durga Prasad was not residing with Jalaluddin or Nanhey. He being a Hindu had nothing to do with them and in order to show that he too had notice of the telegram and the agreement for sale it was contended on behalf of the respondent that Durga and Jalaluddin had joint cultivation and had friendly relations. If it was so, unless there was some evidence to connect Durga with this telegram it would be difficult to believe that Durga had any notice of this telegram or the agreement to sell, which was executed by the vendor in favour of the plaintiff. The only evidence about Durga having knowledge of this telegram was that of Hari Shanker. His evidence, as stated above, was disbelieved by the trial court. There is nothing in the judgment of the lower appellate court that the lower appellate court believed the statement of Hari Shanker. There is not a word in the judgment of the lower appellate court to show that the finding recorded by the trial court about Hari Shanker being unreliable was upset by it. In this view of the matter, the deductions drawn by the lower appellate court for importing knowledge on Durga are all based on conjectures and they cannot take the place of evidence. Thus, the finding of the lower appellate court that Durga had knowledge of this agreement for sale or the telegram is a perverse finding which cannot be maintained in this appeal.

11. Even assuming that Jalaluddin being a close relation of Nanhey had some knowledge of the telegram, it cannot be said that Durga too had knowledge of this telegram or the agreement for sale.

12. It was argued by the learned counsel for the respondent that the burden was on the appellants, who are the vendees, to prove that they were purchasers in good faith for value and without notice. It is true that the initial burden is always on the vendee to show that he had no knowledge of the agreement. But, the vendee has only to discharge this burden by leading a negative evidence. The negative evidence can only consist of his own statement denying the fact that he had knowledge of the same. As soon as the vendee denies knowledge of the notice, the burden is discharged and then the burden shifts on the vendor to prove that the vendee had the notice of the earlier agreement. In my opinion, this is a well settled principle of law and I do not think that any authority is needed in support of this proposition. However, Ramchander Singh v. Bibi Asghari Begum A.I.R 1957, Patna 224. and Kirtarath Rai v. Sripat Rai A.I.R 1928, All. 307. can be cited as authorities for this proposition.

13. Durga Prasad entered the witness box and denied on oath that he had any knowledge or notice of the earlier contract for sale. He, therefore, by this denial discharged the burden which initially lay on him. It was then for the plaintiff-respondent to prove by some evidence that Durga Prasad had notice of the telegram and the agreement for sale. This the plaintiff-respondent has miserably failed to prove, and, as observed above, her evidence on this point is not worthy of credence. When there are two or more than two persons who have purchased the property the person who had the earlier construct for sale in his favour must prove that which of the person who purchased the property in question had notice of the agreement for sale. If he is not able to prove this against one of “the vendees, his suit would not succeed. In view of this finding, I am, therefore, of the opinion that the plaintiff's suit for the specific performance also fails.

14. Sec. 19 of the Specific Relief Act lays down that specific performance of a contract may be enforced against a person claiming title arising out of a ??? contract, except in case of a transferee value who has paid the money in ??? faith and without notice of the ??? contract. In the instant case, Durga ??? had no notice of the contract for ???. There is no doubt that he is a ??? for value and has paid the sale ???. So far as the question of good ??? is concerned, the evidence on the ??? clearly goes to show that Durga ??? a was a purchaser for value in good ???. He had no notice of the earlier transact and, as such, even if Jalaluddin had ??? such notice that would not be of any ??? to the plaintiff and the plaintiff's suit specific performance of the contract cam succeed on this ground.

15. Learned counsel for the ???. argued that the contract being contingent contract it ??? not be forced. The original sale deed is Ex. P. It is dated 11-1-1937. It was for the years. The term of the lease, there ??? expired on 11-1-1967. Under Sec. 111 ??? of the Transfer of Property Act, a lease determined by efflux of time. There ??? after the expiry of thirty years the ??? expired. The agreement for ??? is dated 13-11-1967. At the time when ??? agreement for sale was made there was ??? lease, nor the name of the ??? was recorded over the lease property, was for this reason that a stipulation ??? made in the ??? Ext. 1 that the ??? deed shall be executed after the name the vendor was mutated. The name the vendor could not be mutated over to property unless the lease was renew. Therefore, the first attempt which had be made in this connection was to get to lease renewed and then to apply to be the name of the vendor mutated over. It was contended on behalf of the respect dent that there was a stipulation in ??? lease deed that the lease was to be renew for a total period of ninety years ??? therefore, the lessor was bound to ??? the lease.

16. There is another condition ??? this renewal for a total period of ??? years was subject to the condition that application for renewal was made within ??? months after the expiry of the contract of lease. There is nothing on record to low that any such application was made, he oral evidence was led to prove that ??? vendor made an application for ??? on of her name. Similar oral evidence has also adduced to prove that the lease as renewed. Khem Chand (P.W 1) a ??? Clerk was examined to prove that order was passed for the renewal of ??? and for mutation of the name of the ???. The vendor had served a notice on the plaintiff-respondent on 14-4-1969 his notice is Ex. A.3 It was mentioned ??? this notice that in spite of the best ??? the name of the vendor could not ??? mutated over the property and, there ???, the purchase, if he liked, could get lie sale deed executed as the property was ??? if he so liked, may get back his earnest ???. The reply of the plaintiff was ??? she would stick to the term of the agreement and the name of the vendor was ??? being mutated due to his own ??? This notice Ex. A-1 leaves no room Dr. doubt that till 17-4-1969 the name of lie vendor was not mutated nor any order 3rd renewal was passed. According to the ??? Clerk, the renewal order was passed ??? 1-6-1969. No copy of this renewal order or the order of mutation has been led. All that was stated by this Clerk as oral with reference to certain registers which he had brought in the trial court, the extracts of this register were not even ??? in the record of this case. The lower appellate court, therefore, had no occasion on see the entries of this register. Thus, he primary evidence about the order of ??? and the order of mutation was lot adduced. In the absence of the ??? evidence, that is, the written order of renewal and written order of mutation, he oral evidence of the Clerk could not ??? believed unless it was supported by come document. In this case there was nothing to show that the register was a ??? document or had been maintained on regular course of business. In this view of the matter, there is no reliable evidence ??? any order for renewal of the lease was passed or that any order for the mutation of the vendor's name was ever made.

17. Assuming for argument's sake that such an order was passed on 1-6-1969, would the order itself go to show that the lease was renewed. My reply to this question would be in the negative. Under Sec. 107 of the Transfer of Property Act, a lease of an immovable property from year to year or for a greater period must be by a registered deed. Unless there was a registered deed, legally there could not be a lease. The renewal order only would mean that it was directed that a lease be executed. The learned lower appellate court observed that the execution of the lease deed was only a ministerial matter. I do not think that this is the legal position, specially in a case when the property was an immovable property and where it was absolutely necessary to comply with the provisions of Sec. 107 of the Transfer of Property Act.

18. In this very connection, the learned counsel for the respondent relied on Sec. 116 of the Transfer of Property Act. But, Sec. 116 of the Transfer of Property Act does not apply to the facts of the present case because there is no evidence that any rent was accepted from the vendor or that the vendor was accepted to be a lessee on any date prior to 1-6-1969. In this view of the matter, there were two contingencies which had to be fulfilled before the agreement had to be enforced. The first contingency was about the renewal of the lease meaning thereby the execution of a fresh lease deed, as provided under Sec. 107 of the Transfer of Property Act. And, the second was regarding the mutation of the name of the vendor. The learned lower appellate court relied on a Supreme Court decision in Mrs. Chandnee Widya Vati Maddan v. Dr. G.L Katial A.I.R 1964 S.C 978.. In this reported case the vendor had to obtain permission of the Government before executing the sale deed. The title of the vendor in the property which was to be sold was there. It was, therefore, held that this condition of obtaining the permission mission from the Government was not a contingent condition. It should also be noted here that in the reported case the vendor had applied for permission but had subsequently withdrawn the application. A decree was, therefore, passed that the contract be specifically enforced and the vendor was directed to obtain the permission. In the instant case, the facts were quite different. There was no subsisting lease nor the property was in the name of the vendor. Unless the lease was renewed, there was no question of the property being mutated or entered in the name of the vendor.

19. In Mathura Datt v. Teg Singh A.I.R 1967 All. 541. the land was a protected land and, therefore, permission had to be taken. The facts of this case were similar to the facts of the case of the Supreme Court and are quite distinguishable from the facts of the present case.

20. In Salmond and Williams on Contracts, 2nd Edition at page 53, the following can be read with advantage:

“What, then does the expression conditional obligation really mean? The true answer would seem to be that a conditional obligation is not in truth a real obligation at all; it is merely the chance or possibility or potentiality of an obligation. The only real obligations are those which are absolute. But the chance or possibility or potentiality of an obligation is itself called an obligation by way of anticipation or prolepsis, and is distinguished from a genuine or absolute, obligation by the qualifying epithet ‘conditional’.”

21. Therefore, in the light of this, it has to be seen as to whether the condition in this, case was a contingent obligation which could not be legally enforced. The lease had expired. The vendor's name was not there. Unless the lease was renewed and the vendor's name was mutated, there could not be any absolute contract. Therefore, the contract depended on something which had to take place on a subsequent date. Consequently, it was not an absolute obligation but there was a potentiality ??? obligation. On the date on which the ??? was entered into, the ??? could not enter into an absolute contract and in this view of the matter, the ??? tract of sale being contingent, in my ??? it could not be enforced in law.

22. Similar view was taken in ??? Das ??? Mal v. Manager, ??? Estates A.I.R 1936 Sind 26. and Sain Bass Farangu Ram v. Ram Sayan Das Sharma Arth Trust A.I.R 1964 Punjab 481..

23. It was next contended by the learned counsel for the respondent the finding arrived at by the lower ??? court should not be disturbed in the appeal. In support of this ??? reliance was placed on Secy, of State v. Rameshwaram Devashanam A.I.R 1934 P.C 112.. In the ??? case, the finding about Durga Prasad having notice of the telegram is a find in based on no evidence but on surmise. All that was said in the Privy Council case was that even if a finding was ??? or vitiated by some error of law or was based on inferences drawn on document was a finding of fact. In the instant cast the finding is not covered by any of the categories mentioned in the Privy Council case.

24. So far as the amount of Rs. 500/- which was paid as earnest money, is concerned, there is no dispute that the plaintiff-respondent is entitled to this amount.

25. In the result, the appeal ???. It is hereby allowed with costs. The judgment and decree passed by the lower appellate court are set aside am those passed by the trial court are restored.

Appeal allowed.