SMT. KAMLABAI Vs. BASANT KUMAR AND OTHERS

JUDGEMENT

(1.) This appeal arises out of the judgement and decree dated 6.7.1987 passed by Third Additional Judge to the Court of District Judge, Jabalpur, in Civil Suit No. 11-A of 1985.

(2.) The respondent No. 1 filed a civil suit for specific performance of the contract against the appellant and other two respondent. The case of the plaintiff/respondent No. 1 was that by an agreement dated 9.6.1984. the appellant had agreed to sell him plot measuring 50'x30' and also he houses bearing numbers 1728,1729, 1730 and portion of the house No 1727 for 40,000.00 as per map attached with the plaint. An amount of1001.00 was sent by him to the appellant by Bank-draft dated 4.7.1984. Further payment of 20,000.00 was made by him by bank-draft dated 11.1.1985. He was always and is still ready and willing to perform his part of the contract. Accordingly to him. the appellant has avoided to execute the sale deed and get it registered. He, therefore, prayed that the appellant be ordered to execute the sale deed in respect of the suit property and get it registered .

(3.) The appellant/ defendant No. 1 Smt. Kamlabai in her written statement submitted that her father made a gift of houses bearing numbers 1727, 1728 and 1729 by gift deed dated 10.10.1967. She is not the owner of house No. 1730 but is in possession of it. She is illiterate and aged 75 years. She reside in Pendra Road and is not able to properly manage the property. She, therefore, desired to dispose of the property which is situated near the Telegraph Work Shop Gate No. 4, Wright Town, Jabalpur. The appellant specifically denied that she agreed to sell to the plaintiff a plot admeasuring 50'x30' and the houses bearing municipal corporation Nos. 1728 , 1729 and 1730. Her statement is that only house No. 1728 was agreed to be sold to the plaintiff for a consideration of 40,000.00. But she further submitted that since the balance amount was not paid by the plaintiff,as agreed , within the stipulated time, the said agreement was rescinded. Time being the essence of the contract, no decree for specific performance can be granted.