JUDGMENT Kendall, J.
1. This is a defendant's appeal against a decree and order of the Subordinate Judge of Budaun reversing the decision of the trial Court. The plaintiff's suit was one for recovery of a sum of money in the following circumstances : In 1919 the plaintiff sold some property to the defendant for Rs. 400 executing a sale deed in his favour to which I shall refer later. Out of the sale consideration a sum of Rs. 282-8-0 was left in the hands of the vendee to be paid to a creditor of the vendor's named Bishan Dial. The money was not paid to Bishan Dial and the plaintiff-respondent had to pay a sum of Rs. 657 odd in consequence of the failure of the appellant vendee to fulfil the terms of the contract contained in the sale deed. The present suit therefore was one to recover this sum as damages from the vendee-appellant.
2. The reason given by the appellant for failure to carry out the terms of the contract was that he was not put in possession of the property which had been sold to him. According to the sale deed the property sold was a plot No. 458 amounting to 3 bighas 4 his. in area. It appears that this plot was part of the sir of the co-sharers in the mahal, and the vendor had intended to obtain the permission of the other co-sharers to transfer the plot to the vendee, but the co sharers refused to agree to this, and the consequence was that the plot itself was no transferred. The vendee, however, succeeded in getting the whole of the zamindari share of the vendor transferred to his name and he further obtained an assessment of rent in his favour in a proportion of the plot 19 biswas. The facts therefore are that the vendor was unable to secure the transfer of this plot to his vendee. According to the sale deed however, what was transferred was described not only as plot No. 558 but at the one biswansi, 7 kachwansi of the haqiat which was owned by the vendor and there is no doubt that this was actually transferred to the vendee. In these circumstances the Courts were called upon to decide whether the appellant, viz., the vendee in this transaction was justified in refusing to pay the consideration for the sale deed. Under Clause (f) of Sub-section 1 of Section 55, T.P. Act, the seller is bound to give on being so required to the buyer...such possession of the property as its nature admits.
and the evidence shows that the vendor, so far as he was able, did give the vendee such possession as the nature of the property admitted. Under Section 39, Contract Act, if that can be held to apply, the vendee might have put an end to the contract on the ground that the vendor had refused to perform or disabled him' self from performing his promise in its entirety. As the lower appellate Court has pointed out, however he did nothing of the kind. He obtained mutation of his name to the extent of the whole of the zamindari share of the vendor which is described in the sale deed as being equivalent to the plot which he desired to obtain. It does not appear therefore that he had any intention of putting an end to the contract, and in failing to fulfil his obligation under the sale deed he apparently-tried to gain two advantages. He secured an equivalent to the property which it was intended to transfer and at the same time he withheld the consideration which he was bound to hand over to the vendor under the terms of the deed. It has been suggested in argument that there was really in practice a notation of contract between the parties, the vendee agreeing to accept the substituted property on condition that the sale consideration was reduced by the amount which had to be paid to Bishan Dial. There is, however, no evidence whatever that there was any agreement between the parties that there should be a fresh contract of this nature, but on the other hand it appears that both parties considered themselves to be bound by the terms of the original contract. The vendee accepted the zamindari share which was capable of being transferred to him and which was described in the sale-deed as being equivalent to the specified plot in lieu of the sale consideration named in the deed. I consider therefore that the decision of the lower appellate Court is perfectly correct and the appeal is dismissed with costs.