RAM MILAN Vs. JAGDISH

JUDGEMENT

(1.) Heard Sri S.P. Mishra, learned counsel for the appellant and Sri M.S. Piparsania, Advocate holding brief on behalf of Sri S.K. Srivastava, learned counsel for respondents.

(2.) This is a defendants' second appeal filed under Section 100 C.P.C. The plaintiff-respondent, Ram Naresh (since deceased and substituted by his legal heirs) and defendant-appellant, Ram Milan (since deceased and substituted by his legal heirs) were two real brothers. The dispute relates to residential house which was an ancestral property and there was a family partition in respect thereto between members of joint family. The defendant-appellant entered into a contract for sale dated 16.06.1977 in respect of his share in house in question for a total consideration of Rs. 6,000/-, whereagainst Rs. 2000/- was paid in advance and remaining amount was to be paid at the time of registration which was to be executed within a period of two years. The contract for sale contained the stipulations that existing house in question lacks appropriate accommodation and is also not very hygienic and healthy accommodation, therefore, the defendant-appellant intends to settle himself elsewhere by purchasing another accommodation and hence wants to sale the same. Later on he declined to execute sale deed, whereupon the plaintiffs-respondents instituted Original Suit No. 216 of 1980. The suit was contested by defendant-appellant wherein besides other he also denied to have received any amount towards partial consideration and also pleaded that he was not inclined to execute sale deed since he would have rendered homeless.

(3.) The Trial Court formulated seven issues. All the issues except issue No. 7 were decided in favour of plaintiffs. In respect of issue No. 7 the Trial Court held that since defendant-appellant would render homeless, therefore, it is not a fit case where the court should exercise discretion for enforcing contract for sale by a decree of specific performance and hence partly decreed suit by directing defendant-appellant to refund the amount received by him towards partial consideration.