1. The subject-matter of the litigation, which has givenrise to this appeal, is a one-half share of mauzah Alampur, mahal Mahthi, whichbears Tauzi No. 13996 on the Revenue Roll of the Collectorate of Darbhanga,This property formed part of a larger estate which bore No. 3103, but upon partitionthe land now in dispute was formed into a separate estate. The case for theplaintiff is that the proprietors made default in payment of GovernmentRevenue, which fell due on the 28th September 1901, and consequently, theestate was advertised to be sold at auction on the 7th January 1902. On the dayprevious to the sale, the plaintiff asserts, he entered into an agreement withRam Anugra Singh, now deceased, the father of the first defendant, that both ofthem would offer bids at the sale, and that he who might purchase the properlywould divide it equally between himself and his partner. The story of theplaintiff is that at the sale, held on the 7th January 1902, he himself waspresent and Ram Anugra was represented by his officer, one Fauzdar Singh. Therewas a brisk bidding, and finally the bid of Ram Anugra, offered through FauzdarSingh, was accepted for Rs. 6,800. On the same date, one-fourth of thepurchase-money was deposited in accordance with law in the name of FauzdarSingh, but the plaintiff maintains, that, pursuant to the agreement of theprevious day, one-half of this sum, Rs. 850, was provided by him. On the 5thFebruary 1902, when the plaintiff was ready to pay his half share of theremaining three-fourths of the purchase-money, he found that the whole amounthad been deposited by Fauzdar Singh. Since then the plaintiff has attempted toinduce Ram Anugra and Fauzdar to accept the money and to execute in his favoura conveyance in respect of a one-half share of the property, but they put himoff with various excuses. Shortly after this Ram Anugra died in January 1903,and Fauzdar died in August of the same year. On the 5th February 1905, theplaintiff commenced this action for specific performance of the allegedcontract of sale, and to compel the first defendant, the son of Ram AnugraSingh, and the second and third defendants, the representatives of FauzdarSingh, to execute the necessary conveyance and to deliver to him possession ofthe half share of the property. He also joined as defendant in the suit, oneMr. Stonewigg, the proprietor of the Gangauly Factory, in whose favour RamAnugra and Fauzdar, on the 25th September 1902, executed a lease under which abonus of Rs. 5,000 was paid and an annual rent of Rs. 370 reserved. The defendantsdenied the contract and urged that the suit was a device by the sold-outproprietor of the estate to recover possession of a half share of the property.The Subordinate Judge has held upon the evidence that the contract, of whichthe plaintiff seeks specific performance, has not been satisfactorilyestablished, and, in this view, he has dismissed the suit. The plaintiff hasappealed to this Court, and on his behalf the decision of the Subordinate Judgehas been assailed on the ground that it is contrary to the weight of evidenceon the record, as it has been satisfactorily proved, not merely that thealleged contract was made, but also that a sum of Rs. 850 was actually paid bythe plaintiff pursuant thereto on the date of sale. This position has been controvertedon behalf of the defendants, and it has further been argued that the appeal isincompetent and ought not to be entertained. Before we deal with the merits ofthe case, we must examine the validity of the preliminary objection.

2. In support of the objection as to the competency of theappeal, it has been argued by the learned Vakil for the respondents, that thesuit is for specific performance of a contract of sale; that under section 7,clause (x), of the Court Fees Act, 1870, in a suit of this description, theamount of the fee payable on the plaint depends upon the amount of theconsideration, and that, under section 8 of the Suits Valuation Act, 1887, thevalue, as determinable for the computation of Court-fees, must also be deemedthe value of the suit for purposes of jurisdiction. On this basis, it has beencontended, that as the amount of the consideration for the half share now indispute is Rs. 3,400, the value of the suit must be taken to be less than Rs.5,000 and consequently, under section 21, sub-section (1), clause (a) of theBengal, North-Western Provinces and Assam Civil Courts Act, 1887, the appeallay to the District Judge and not to this Court. In our opinion, there is noforce in this contention. The plaintiff not merely seeks specific performanceof the alleged contract of sale, but also asks that the defendant may becompelled to execute a conveyance and to deliver possession of the property tohim. The suit, therefore, is in substance one for possession of the property,and ought to be valued under section 7, clause (v), of the Court Fees Act,1870, according to the value of the subject-matter. It has been suggested,however, by the learned Vakil for the respondents, that the suit, treated as soframed, must be taken to have been improperly constituted. His argument insubstance is, that the plaintiff has no cause of action for delivery ofpossession till the conveyance has been executed in his favour, and his titlecompleted. This contention, however, is opposed to the decision of this Courtin the case of Ranjit Sinha v. Kalidasi Deli : 37 C. 57 : 14C.W.N. 527 : 5 Ind. Cas. 205 [LQ/CalHC/1909/446] . It is not necessary for us to go so far as tohold with the learned Judges of the Madras High Court in Narayana v. Kandasami22 M. 24 and Chinna Krishna v. Dorasami : 12 M.L.J. 71, thatin a suit of this description, the plaintiff must not only sue for specificperformance of the contract and execution of the conveyance by the defendant,but also for recovery of possession. That view apparently cannot be reconciledwith the decisions in Nathu v. Budhu 18 B. 537 and Abdul Majid v. Boida Nath 6C.W.N. 314. It is sufficient for our present purpose to hold that the plaintiffmay sue, not only for an executed and completed conveyance on the basis of thealleged executory contract, but also to recover possession, the right to whichsprings out of the contract. In our opinion, the suit has been properlyconstituted, and the value for purpose of jurisdiction is the value of thesubject-matter of the litigation, namely, the value of the half-share of theestate purchased by Fauzdar Singh. It has been suggested, however, that, evenconsidered from this point of view, the case is not altogether free fromdifficulty. The plaintiff valued the suit originally at Rs. 4,400. Thedefendants alleged in their written statement that the properly was of highervalue but they did not press the objection when the issues were framed. On the12th July 1906, that is, about a year and a half after the institution of thesuit, the plaintiff applied for amendment of the plaint on the allegation thatthe property was really worth Rs. 5,400 and that by a mistake of the scribe thefigures had been put down at Rs. 4.400. The Subordinate Judge held no inquiryinto the question of the value of the properly, but summarily disallowed theapplication. When the present appeal came to be heard, on the 2nd March 1909, apreliminary object ion was taken to the competency of the appeal as, on the faceof the plaint, the value of the property was less than Rs. 5,000. We thereuponheld that the value of the suit, which regulates the forum of the appeal, isdependent upon the real value of the subject-matter and not upon the valuewhich might have been, through error or caprice, stated by the plaintiff. Inthis view, we directed the Subordinate Judge to hold an inquiry into thequestion of the value of the subject-matter of the suit. He has now returnedhis finding upon evidence taken for the purpose that the value of thesubject-matter of the suit, that is, of the half share in dispute, is Rs.6,000. We must consequently hold that the appeal is perfectly competent.

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3. Under all these circumstances, it appears to us to beincontestable that although there was an agreement between the plaintiff andthe father of the first defendant to secure the property at the revenue saleand to divide it in equal halves, it is equally plain that the plaintiff, whohad paid Rs. 850 on the date of the sale did not fake any steps to find thebalance of the purchase-money, because he entertained grave doubts as towhether the purchase was or was not subject to encumbrances. In substance, hehas abandoned the contract and cannot be permitted to turn round and enforcehis rights thereon now that he has satisfied himself that the sale was freefrom encumbrances and the bargain was profitable. The claim for specificperformance cannot, therefore, be sustained.

4. The only question which remains for consideration is, whetherthe plaintiff should be awarded any other relief. As already found, theplaintiff has paid Rs. 850 towards the purchase of this property. There is noconceivable reason why the defendant should be allowed to retain the benefit ofthis payment. The defendant has repudiated the contract throughout, and cannotbe held to have suffered any injury by reason of the failure of the plaintiffto perform his part thereof. Consequently, the plaintiff is entitled to recoverthe sum advanced as upon a failure of consideration. [Parangodan v. Perumtoduka: 27 M. 380]. The money paid by the plaintiff can hardly becalled a deposit, which, as Lord Macnaghten says in Soper v. Arnold (1889) 14App. Cas. 429 at p. 435 : 61 L.T. 702 59 L.J. Ch. 214 : 38 W.R. 449, serves atwofold purpose, if the purchase is carried out, it goes against thepurchase-money, but its primary purpose is this, it is a guarantee that thepurchaser means business. Such a deposit may be treated as forfeited and thevendor allowed to retain it, if the contract goes off through the purchasersdefault or is unjustifiably repudiated by him. [Howe v. Smith (1884) 27 Ch. D.89 : 50 L.T. 573 : 32 W.R. 802 : 48 J.P. 773; Bishen Chand v. Radha Kishen 19A. 489 and Balianta v. Bira 23 B. 56]. Here, however, if the plaintiff has beenremiss, the defendant has not been slow to repudiate the contract altogether.Under these circumstances, we think that the defendant may be justly compelledto refund to the plaintiff the sum paid by the latter.

5. The result, therefore, is that this appeal is allowed inpart, and the decree of the Subordinate Judge, modified. There will be a decreein favour of the plaintiff against the first defendant alone for Rs. 850together with interest thereon at 6 per cent per annum from the 7th January1902 up to the date of realisation. There will be no order for costs eitherhere or in the Court below.

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Madan Mohan Singh vs.Gaja Prasad Singh (06.06.1911 - CALHC)