MARUTI RAMANNA MAKADWALE Vs. ZAHEEDABEGAUM RAJESAB TENDUR

JUDGEMENT

(1.) The plaintiff is in second appeal.

(2.) The plaintiff filed a suit seeking for specific performance of the agreement of sale, dated 22.10.2008 in respect of the house measuring about 15 1/9 square yards by which she sought to be purchase from defendant No.1, namely Smt. Zaheedabegum and her minor son Kumar Saifatali Rajesab Tandur (defendant No.2). The agreement of sale was a registered agreement under which the defendants had agreed to sell the house for a sum of Rs.60,000/- and had received a sum of Rs.50,000/- as part of the sale consideration.

(3.) The Trial Court on consideration of the evidence adduced before it, came to the conclusion that the agreement of sale had been proved. However, Trial Court exercised its discretionary powers conferred under Section 20 of the Specific Performance Act and refused specific performance. The Trial Court took the view that the defendant No.1 as a joint owner, had only 1/3rd share plus fixed 1/6th share out of 1/3rd share of her deceased husband's share and in all she had less than 1/2 of share in the house property which was a small dwelling house. The Trial Court took the view that it was compelled to refuse as the decree for specific performance as it was not feasible to divide the house and it would be inequitable to allow a stranger to the family as to purchase a part of the dwelling house. It accordingly ordered for refund of the part of the sale consideration paid by the plaintiff.