Pandit Janki Nath Zutshi v. Ghulam Qadir Mir

1. This is a suit for recovery of Rs. 21,400/- including interest representing the balance of the purchase money for which the defendants have purchased the property in question from the plaintiffs. me plaintiffs' case was that on 26th June there was an agreement between the plaintiffs and the defendants by which the plaintiffs agreed to sell a nous situated at Residency Road and which 13 described in two plaint for a total consideration of Rs. 85,000/- as mentioned in the various sale deeds. The plaintiffs' case runner was that the real consideration settled between the parties was Rs. 78,000/- out of which the partners received only Rs. 58,000/- leaving a balance on Rs. 20,000/- At the time of arguments however, the learned counsel for the plaintiffs abandoned this pisa and concerned may the suit may be decided on the tooting that me consideration fixed was Rs. 80,000/- out of which the had got Rs. 65,000/- leaving a balance of Rs. 20,000/-. the reason for this concession was that the got the consideration between the parties, there was no dispute that a sum of Rs. 20,000/- out of the entire consideration money was not paid to the plaintiffs in mew of these circumstances, therefore, I can take it that the real consideration of the sale deed was as mentioned the various sale deeds that is to say Rs. 85,000/- out of which the plaintiff had received Rs. 65,000/-.

2. According to the terms of the agreement dated 20-6-1961 the plaintiffs were to deliver vacant possession to the defendants within a period of tout months from that date might mention that at the time when the agreement to sell was executed, the property in question was in possession of the Income lax department as a tenant which was paying a rent of Rs. 350/- per month it was also stipulated in the agreement that after the execution of the sale deed, the purchaser would be entitled to the rent paid by the tenant. In tact, the mam controversy between the parties centres round the interpretation of that part of the agreement which relates to nanoing over vacant possession to the defendants within the stipulated period.

3. The case of the plaintiffs further was, that they in fulfilment of their duties, gave a notice to the income lax department for vacating the premises but as the defendants accepted rent from the tenants without the Knowledge the plaintiffs and thus established direct contact with the tenant, they waived the condition regarding handing over of vacant possession, it was further pleaded that the agreement in so far as if related to the handing over 67 vacant possession to the defendants within a period tour months was an Impossible agreement and was, therefore, void. Finally, it was averred that even if the agreement regarding handing over vacant possession to the defendants was valid, it amounted to a penalty for which the court could grant relief to the plaintiffs by fixing only a reasonable compensation for the breach of the terms.

4. The case of the defendants mainly was that under the agreement the plaintiffs had undertaken to give vacant possession of the property to them, failing which a sum of Rs. 20,000/- was to be forfeited and since me plaintiffs did not perform their part of the contract, they were not entitled to the balance of Rs. 20,000/- dim stood forfeited. In other words, the defendants main plea Page: 28was that the handing over of vacant possession was an internal part of the contract failing which the parties had agreed of fix preestimated damages at Rs. 20,000/- and since the plaintiffs had committed a breach of the agreement, they were not entitled to recover this amount from the defendant. The defendants further contended that they are non contact the Income-tax department directly nor did sallary act as owners in effecting repairs to the property ??? expiry of the period fixed in the agreement the defendants, however, admitted to have received rent with the period stipulated and the explanation given by them was that under the agreement they were entitled to take the rent from the tenants after having purchased the property.

5. On the pleadings of the parties, the following issues were framed:—

1. Whether in view of the terms and recitals of the agreement to sell relied upon by both the parties, the plaintiff is entitled to a decree of Rs. 20,000/-? O.P.P

2. Has the defendant committed any breach of ins terms of the agreement so for he is concerned? it so in what manner and with what effect? O.J.P

3. Is the provision in the agreement relating to relinquishment of Rs. 20,000/- by the plaintiff a penal one so as to be unenforceable? O.P.P

4. Did the agreement between the parties become impossible of performance and as such void? o. P.P

5. Did the defendants forfeit their remedy by entering in collusion with the income tax department regarding properties sought to be sold? 0.P.P

6. To what relief, if any, is the plaintiff entitled? O.P.P

6. Issue Nos. 1 to 5 are inter-connected and I propose to decide their together. The main dispute between the parties is confined to two matters:— In the first place, the question is as to whether or not the agreement relating to handing over of the possession to the defendants, failing which the defendants were to forfeit a sum of Rs. 20,000/- is void as being an impossible agreement. Secondly, whether the forfeiture clause of Rs. 20,000/- is a penalty within the meaning of section/4 on the Contract Act so as to enable the plaintiffs to get reffer from the Court.

7. I would take up the first point, regarding the Impossibility of the contract.

8. The agreement is Ext PW 4.A and the relevant portion of the agreement may be quoted thus:

9. A perusal of this agreement shows that under this agreement the plaintiffs had to give physical possession of the property to the defendants within a period of the months from the date of the agreement and that the responsibility for doing so was entirely on the ??? it was further provided that the plaintiffs were entitled to the balance of the consideration of Rs. 20,000/- only if they fulfilled this condition. It was contended by the learned counsel for the plaintiffs that it was impossible for the plaintiffs to have given vacant possession to the defendants within such a short time particularly when the parties were aware that the property in question was in possession of the Income Tax department as a tenant and no suit court have been decided against the tenant in such a short time. The argument appears to be Impressive, but on a closer scrutiny, it is not tenable. It is true that the plaints gave a notice to the Income Tax department on 15-7-1961 for vacating the premises. This notice is Ex. PW 2/1 and in reply to this notice the Income Tax department gave a notice which is Ex. PW2/1(a) dated 2-8-1961 by which it refused to vacate the premises on the ground that the plaintiffs having transferred the property to the defendants, had no locus standi to eject them. Thereafter, the plaintiffs did not take any action. They could have easily true a suit to eject the tenant and also joined the defendant as co-plaintiffs with them in that suit or they could have impleaded them as pro form defendants.

10. It will be very difficult to fix any particular period within which a suit can be disposed of it all depends on the nature of the suit, nature of the evidence that the parties have to adduce and other considerations, it cannot, however, be said that it is impossible to get a suit of the nature disposed of within a period of four months. It was, no doubt, very difficult to do so, but that does not by itself show that the contract was for doing an impossible act. Another contention raised by the learned counsel for the plaintiffs was that since the plaintiffs had already parted with their title in favour of the defendants, it was impossible for them to have brought a suit for ejectment against the tenant I cannot agree with this contention, under the deed of agreement, which has been endorsed by the various sale deeds, the plaintiffs were given a clear authority to acquire vacant possession of the property. This was a sufficient title for them to bring a suit for ejectment as I have already indicated above, the difficulty about absence of title could have been met by joining the defendants as co-plaintiffs or making them as pro forma defendants.

11. Indeed, the plaintiffs should have at least attempted this and if they failed to make any such attempt in tiling me suit against the defendant they cannot be heard to say that the agreement itself was an impossible one would, therefore, hold that the agreement between the parties was valid and cannot be void on the ground of impossibility, was next contended by the learned counsel for the plaintiffs that the defendants have waived their right to get vacant possession from the plaintiffs by their subsequent conduct in this connection, evidence was adduced before me by the plaintiffs to show that there was an oral agreement Between the parties at the time when the agreement to sell was executed to the effect that as long as vacant possession of the property was not delivered to the defendants, they would not realize rent from the tenant directly, me only witness to prove this fact was one of the plaintiffs Janki Hath Zutshl. This witness admits in his cross examination that this fact was not mentioned in the agreement. A perusal of the agreement clearly shows that after are sale the defendants would be entitled to the rent of the property. There is no mention about this oral agreement between the parties either in the agreement Ex. PW 4.A or in the sale deeds Ex. DW 1.A, Ex. DW 1.A1 and Ex. DW 1.A2 and the other hand, there is the evidence of the defendant consisting of D.W No. 2 that no such agreement was arrived at between the parties.

12. In these circumstances, therefore, I am not in a position to hold that there was any such agreement between the parties that the defendants were to receive the rent from the tenant directly, it appears from the evidence or P.W 1 Dharam Singh a clerk in the Income lax department that the defendants accepted the first installment or rent on 20-9-1961 and before that the plaintiffs had seen receiving the rent, the witness explained that he had sent for the defendants and asked them to take the rent since they had purchased the property. It is true that on the date I when the defendants received the rent from the tenant, was within four months of the stipulated period in the agreement. But as I have already held that there was nothing in the agreement or the sale deeds to debar the defendants from 1 accepting the rent from the tenant, this conduct on the part cannot amount to a waiver of their rights.

13. It was further contended by the learned counsel for the plaintiffs that the defendants started making repairs to the property in question and this amounts to waiver of their rights under the agreement, it appears, however, from the evidence adduced by the plaintiffs themselves that the defendants did not take any step to cause repairs to the property in question within the stipulated period (four month from 26-6-1961). P.W 3 the Income Tax Officer was stated that the defendants started repairs to the During after 15-11-1961 because it was on 15-11-1961 that he had sent a letter to the defendants Ex. PW3.B requesting them to effect the necessary repairs to the building, the period of four months mentioned in the agreement expired on 26-10-1961 it is, therefore, clear that any repairs which the defendants made to the property in question were after the expiry of this period. Moreover, Ex. PW 1/1 which is the order of the Secretary, Municipality granting permission to effect the repairs was passed as late as 9-12-1901 and it also refers to the application given by the defendants on 25-11-1951. Similarly Ex. PW 1.A1 is a upon of the Overseer regarding the repairs anti this report is also dated 25-11-1961. Thus if any step towards making repairs to the property was taken by the defendants, it was taken after the expiry of the period of four months mentioned in the agreement to sell Ex. PW 4.A.

14. It is obvious that if the plaintiffs were unable to fulfil their part of the contract in giving vacant possession to the defendants within the period of four months, that is to say till 26-10-1961, the defendants were fully within their rights to take charge of the property and to get it repaired when they were asked to do so by their tenants. This conduct on their part, therefore, could not constitute a waiver of their rights under the agreement particularly when the period fixed in the agreement had already expired, this is the only evidence adduced by the plaintiffs to show that there was a waiver on the part of the defendants of their rights in the agreement. On a consideration of the evidence, I am, therefore, clearly of the opinion that the defendants did not waive their rights in the agreement so as to absolve the plaintiffs of their responsibility to give vacant possession to the defendants.

15. issue Nos. 2, 4 and 5 are, therefore, decided in favour of the defendants and against the plaintiffs.

16. I would now take up the question as to whether the agreement regarding forfeiture of Rs. 20,000/- can be held to be a penalty within the meaning of Section 74 of the Contract Act. The question is the subject matter of issues Nos. 1 and 3.

17. It is well settled that after the amendment or 1899 in Section 74 of the Contract Act in India the Legislature abolished the distinction between penalty and liquidated damages. Section 74 of the Contract Act runs as follows:—

“When a contract has teen broken, if a sum is name in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is era titled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party why has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for”.

18. A perusal of this Section clearly snows that even though the parties may by an agreement settle a fixed sum as damages for the breach of the contract, the court is not powerless to grant relief to the party committing default, if it is held that the amount of damages fixed by the parties is unconscionable or penal. Once the court comes to was finding, it is open to it to grant such reasonable compensation as the court may in the circumstances determine. In Bhai Panna Singh v. Arjun Singh, AIR 1929 PC 179 their Lordships of the Privy Council while considering the scope and effect of Section 74 observed as follows:

“The effect of Section 74 of the Contract Act of 1872, is to disentitle the plaintiffs to recover simplicater the sum on Rs. 10,000/- whether penalty or liquidated damages, me plaintiffs must prove the damages they have sufferred”.

19. In a later case, Michel Habib v. Sulaiman Taji, AIR 1941 PC 101 the same principle was enunciated and it was held that the amount fixed by the parties in the contract would not include a sum fixed in terrorem covering breaches of contract of varying degrees, their Lordships further held that the agreed liquidated damages in order to be enforced must be the result of a genuine preestimate of damages, in this connection, their Lordshimps observed as follows:—

“Agreed liquidated damages, if to be enforced must os the result of a “genuine pre-estimate of damages” to use the illuminating phrase of Lord Duneommey act not include a sum fixed in terrorem covering breaches on contract of many varying degrees of importance the possible damages from which bear no relation to the fixed sum, and which obviously have at no time been estimated by the contracting parties. It seems right therefore, to conclude that now when the code is applied to contracts, “damages” will be taken to mean actual damages, and the article win only apply to an agreement which represents “a genuine pre-estimate of damages”. Where there is such an agrees sum “no more and no less” can be awarded. But if the court applying well known rules has to conclude that the sum agreed was a penalty, whatever it may be called in the agreement, then the penal stipulation will not be enforced”.

20. It seems to me that where the clause relating to the award of damages as consequence of the breach of the contract is an integral part of the contract and has been added as a guarantee for the performance of the contract, and ins sum fixed is pre-estimate of damages, agreed to by the parties, the courts should normally carry out the terms on the contract and grant damages as agreed to between the parties. I am supported in this view by a decision of the Nagpur High Court reported in Champat Rao Mahadeo v. Mahadeo Bajirao, AIR 1937 Nag 143, and also Vaithinatha Iyer v. Govindaswami Odayar, AIR 1922 Mad 67. The question as to whether or not the amount fixed in me contract is pre-estimate of damages or is a penalty will have-to be determined according to the facts of each case, in 1 the instant case, we have to find out as to whether the clause relating to withholding of the balance of the Page: 30consideration money of Rs. 20,000/- was a penalty or was really a pre-estimate damage as agreed to between the partiess.

21. In order to come to this conclusion, various courts in India have laid down a number of tests. The most important test to determine whether the stipulation amounts to penalty or not, is the question as to whether or not the pay-I merit of money was in terrorem i.e it was meant as a punishment to be inflicted on the party committing default this, therefore, envisages that there must be two agreements, the primary agreement and the substalary agreement Another test to determine whether a particular S. clause is penal or not would be the fact as to whether the damages fixed are much more in proportion to the actual I breach caused. Another test that has to be applied is as to whether if the parties are placed in the same position as they were the party committing default, is put in a worse position or not. These tests tray not be conclusive one Sway or the other but they may give the court a general idea ??? a particular case to determine whether the clause in dispute amounts to penalty or not. A Division Bench of the Rajasthan High court after consideration of various authorities in India has very clearly enunciated the principles by which the courts are to be governed in holding whether a particular clause amounts to a penalty or not.

22. In Badhava Singh v. Charan Singh, (S) AIR 1955 Raj 87, their Lordships of the Rajasthan High Court made the following observations:—

“On review of the authorities cited above, we are of opinion that the true effect of Section 74 may be summarized somewhat as follows:—

1. Where a sum is named in the agreement as payable on breach thereof, the plaintiff cannot be entitled to me entire sum so named “simpiicater” that is, merely because such a sum may be mentioned in the agreement to be so payable.

2. All that the plaintiff would be entitled to is a “reasonable compensation” subject to the amount name therein being maximum.

3. What is “reasonable compensation” would depend upon and must be determined by the circumstances of each case.

4. The aforesaid result must hold good regardless of the consideration that the sum named in the agreement is what under the English Law is termed “liquidated damages” or is in nature of a “penalty”. The effect of the Indian law as embodied in Section 74 is to do away with the distinction between “penalty” and ??? damages” under the English Law which has been a prolific force of case law and which has sometimes given rise to not a little confusion.

5. It must be for the plaintiff to prove the damage suffered by him, but such proof may be direct or circumstantial, and need not possess the quality of arithmetical exactitude.

6. If the plaintiff succeeds in establishing that the sum named in the agreement is a genuine pre-estimate on damages, or would otherwise be a reasonable compensation for the breach, the court may grant the entire sum named in the breach as such compensation. If on the other hand, the court comes to the conclusion that the amount as fixeo was “in terrorem” or unconscionable and extravagant, II would be open to it to award such sum as may appear to of treasonable.

7. In deciding whether the amount fixed is a genuine pre-estimate or reasonable compensation or not, it would be a factor for consideration whether the sum named in the agreement is not disproportionate to the injury caused and whether the burden evenly and equitably falls on both parties to the contract”.

23. Moreover the view taken by me, that is to say, that the essence of penalty is a payment of money in terrorem, is supported by the following authorities:—

Mt. Asa Devi v. Ms. Champa Devi, AIR 1953 All 559. Kanak Kumari Sahiba v. Chanoan Lall, (S) AIR 1955 Pat 215; Ramlmga v. Meenakshi Sunaaram, AIR 1925 Mad 111 in and K. Rama Krishnayya v. Venkata somayajuiu, AIR 1934 Mad 31 (2).

24. Applying these tests, therefore, I would try to find out whether or not the clause by which the defendants were entitled to withhold the consideration of Rs. 20,000/- is a penal one and amounts to payment of money in terrorem. To begin with, it is clear from the agreement to sen Ex. DW1 and the sale deed Ex. DW1.A, Ex. DW1.A and Ex. DW1.A2 that the withholding of the cons deration does not appear to be an integral part of the contract. It I is nowhere stipulated that if vacant possession is not delivered to the defendants, the contract will become void and so as to relegate the parties to their original position the breach of this clause, thereon, according to the agreement between the parties did not attecitng title of the defendants at all. Having regard to this cumstance therefore, it is difficult to hold that the penal clause was an integral part of the contract.

25. Moreover, from this agreement another important fact, which is one of the tests to determine whether on not we payment is in terrorem, is established. The title of the defendants was not affected if the plaintiffs commuted a breach of the agreement, and since the contract was not to become void if vacant possession was not given to the defendants, it follows that if the parties are relegated to their original position, the plaintiffs would be adversely affected because they would lose a part of the cons aeration money and yet not be able to avoid the contract. Thus the position of the plaintiffs would become worse if the parties are relegated to their original positions in my opinion, is an important circumstance, which snows that the clause was meant not as genuine pre-estimate of damage but as a payment in terrorem, that is to say, a stipulation Incorporated in order to punish the plaintiff for their breach. Secondly, both the parties were fully aware that the property in question was in possession of a tenary and vacant possession could not be made easily avaname to the purchasers without filing a suit. In spite of this a very short period of four months was fixed which mane the task of the plaintiffs both oppressive and onerous it may not have been impossible for the plaintiffs to have achieves this task but all the same it was difficult and burdensome. This is yet another circumstance that shows that the clause by which the sum of Rs. 20,000/- was to be withheld amounts to a penalty.

26. From a perusal of the sale deeds Ex. DW1/1A, Ex. DW 1/ and Ex. DW 1.A2 it seems that the total consideration between the parties was Rs. 85,000/- out or which the plaintiffs got Rs. 65,000/-, Rs. 10500/- by virtue of the sale deed Ex. DW/A, Rs. 10500/- virtue of Ex. DW1.A1 and Rs. 64,000/- by virtue of Ex. DW1.A2 leaving a balance of Rs. 20,000/-. it is, therefore, clear that what was withheld was not earnest money but a part of the consideration agreed between parties. This also shows that the clause relating to with holding of Rs. 20,000/- would not amount to a pre-estimate of damage but a penalty.

27. The Advocate General appearing for the defendant ffimiratted that once an amount is fixed in a contract for a rejeact, the Court has no right to interfere end has got to carry out the terms of the contract support of his argument he has placed reliance on a decision of the Supreme Court reported in Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 S.C 1314. I have gone through that case and I think that it is of no assistance to the Defendants. In that case the question of penalty was not only not raised out there was a finding of tact of the High Court that the amount was a reasonable one. Referring to this finding, their Lordships ob-Served as follows:

“In our opinion these words, as rightly pointed out try the High Court, were intended only to empnasise the fact that compensation will be computable at an amount from more than Rs. 6000/- p.m Apparently they brought desirable to empnasise the point that the amount or 6000/- p.m was regarded by them as reasonable and intended that it should not be reduced by the court in its discretion”.

28. The question in that case was really whether or not the plaintiffs were entitled to an amount more than the one fixed in the contract which is not the question here. I have already indicated above, there was a finding by the High Court that the amount fixed was reasonable and the question of penalty could not possibly have arisen. In fact the object of Section 74 of the Contract Act is that where the parties fix an amount as damages the court cannot grant a sum in excess of the amount in the contract but it does not fetter the discretion of the court to because the amount where it finds that the sum fixed Amounts to a penalty.

29. The Advocate General again placed reliance on a decision of the Andnra Pradesh High Court reported in Hindustan Shipyard Private Ltd., Visakhapatnam v. Atill Apsspaiaswami, AIR 1963 Andh Pra 71 this case relates to a deposit and not to with holding of consideration, in the present case it cannot be said with any snow of force the eaither holding of the portion of the consideration settled between parties would amount a deposit, this case also my opinion, does not support the Advocate General. Moreover although in the agreement period of tour months for delivery of vacant possession is specified, yet in the sale deeds it is only mentioned that the amount of Rs. 20,000/- will be paid when the plaintiffs deliver possession to the defendants. No date or period has been specified in the sale deeds at all. This is yet another circumstance to show that the stipulation in the agreement Ex. PW4 is not an integral part of the contract of ??? Again it seems to me that the amount of Rs. 50,000/- appears to be excessive and unreasonable in proportion to the name which may be caused to the defendants it the plaintiffs committed a breach of this contract. The I defendants were already getting a substantial fair rent of the property in question and even if they did not get actual I possession they could have done so by tiling a suit for possession after giving notice to the tenant. The tenant ??? the Income Tax department having an income of more than Rs. 50,000/- a year as deposed to by the income Tax Officer IVI Mehra P.W 3 the Divisions of the Houses and Shops Rent Control Act, 2009 did not apply. In these circumstances, therefore, with holding of a substantial (sic portion?) of the consideration of the sale appears to be both unconscionable, spores save and unreasonable.

30. in (S) AIR 1955 Pat 215, a case which appeal to be on all fours with the facts of the present case, an identical stipulation was held to be a payment in terrorea and therefore a penalty. In that case, it appears that the plaintiff had entered into an agreement with two defendants for the purchase of net weaving and hosiery machine and had fixed a price of rupee one lac under this agreement out of the total consideration a balance of Rs. 20,000/- was payable when the machines were ta be installed at Dumraon and put in working order, it appears that we machines could not be installed within the period by the agreement and consequently a suit for damages was filed by the plaintiff against the defendants, there Lordships held that the balance of Rs. 20,000/- was penalty and the Court could only grant a reasonable compensation.

31. In this connection, their Lordships observed as follows:

“Section 74, as is evident from its terms, is not limited to the case of liquidated damage or pre-statement damage only. It covers the case of penalty as wen in ans case of liquidated damage or what is known as pre-estimate damage settled at the time of making the contract came to on decreed is generally the figure settled by the parties though in the case of penalty the Court is not ta act on that figure but has to come to its own conclusion account the actual damage suffered by the plaintiff as & result of breach of warranty.

Under a contract the parties may agree that a particular sum shall be payable for the breach of the contract, the sum so fixed may be either in the nature of liquidated damages i.e a sum payable as damages the amount an which instead of being left to the determination of me Court is previously determined by the agreement of tbs parties or in the nature a penalty for breach of was agreement, me distinction between liquidated damages and penalty is to be found in this, that the essence of a penalty is a payment of money stipulated as “in terrorem” of ms offending party; the essence of liquidated damages is 8 genuine covenanted pre-estimate of damage.”

32. In the present case, I am unable to hold that the amount of Rs. 20,000/- was a genuine pre-estimate damages, agreed to between the parties. There can be do doubt that the basic idea under the contract was not pre-estimate of damage arising out of the breach commence by a defaulting party but it was meant to be a security or a guarantee to discharge the obligation resting on the plaintiffs and that too under such oppressive circumstances. On a consideration of the entire evidence and circumstances, I hold that the amount of Rs. 20,000/- was a penalty ??? the meaning of Section 4 of the Contract Act and plaintiffs are, therefore, entitled to get relief from the court.

33. The next question is as to the amount of reasonable compensation that should be allowed to the defendants because of the breach committed by the plaintiffs with respect to the clause of agreement in question, in my opinion, a sum of Rs. 5000/- (Rupees five thousand) would be reasonable amount to cover the incidental expenses which may have been incurred by the defendants and the meat worry caused to them for getting the vacant possession in the premises. Thus the plaintiffs are entitled to recover Rs. 15,000/- after giving credit for the compensation to whom the defendants would be reasonably entitled.

34. Issue nos. 1, 2 and 3 are therefore, decided accoroingly. As, however, the plaintiffs entered into the agreement with open eyes, they cannot be allowed to recover Interest prior to the suit, on the amount for which was are entitled to be given relief by this Court They were Page: 32defaulting party and at the most the Court can only relleave them of such part of the damages as is considered reasonable. I would, therefore, disallow the Interest charged by the plaintiffs. The plaintiffs will, however, be entitled to interest from the date of the decree to the date of realization at 6% per annum.

35. There is yet another question on which the defendants have led some evidence. The defendants have adduced evidence to prove that they had spent an amount of Rs. 29,080/- on the repairs of the house sold to them. In support of their claim they have relied on Ex. DW3.A, Ex. DW3.A1, Ex. DW5.A and Ex. DW5.A1. It is not necessary for me to go into this question because this is money irrelevant to the issues which have to be decided in this case. It is the case of neither party that the entire contract for sale of the property is void so as to enable the defendants to be reimbursed for what they had spent on the property. On the other hand, since the defendants got indefeasible title to this property by virtue of the sare deeds they were fully within their rights to spend anything they liked. The Advocate General also conceded that a finding on this point is not germane to the questions involved in this case.

36. The plaintiffs' suit is, therefore, decreed in part to the extent of Rs. 15,000/- with interest at 6% per annum from the date of the decree to the date of realization and a decree for this amount is hereby passed. The plaintiffs are also entitled to the proportionate costs of this suit.

JG/D.H.Z

37. Suit partly decreed.