KRISHNA Vs. BHAGWAN SWARUP

JUDGEMENT

(1.) The judgment in this appeal shall also govern disposal of First Appeal No. 70 of 1994, Smt. Krishnadevi v. Bramh Swarup and others.

(2.) Respondent-plaintiff, Bhagwan Swarup, had filed a Civil Suit No. 33-A/1991 for specific performance of contract on the ground that plaintiff is occupying a portion of the house No. 46/120 situated in Tamakhuwali ali, Madhogan], Lashkar, Gwalior, as a tenant and on 3-4-1981 deceased Dwarka Prasad, owner of the house entered into an agreement to sell this house to the plaintiff for Rs.40,000/ - out of which Rs.20,000/- was paid on the same day as advance and Rs. 10,000/- were received on 2-8-1981 while the remaining amount of consideration was agreed to be paid at the time of execution of the sale-deed. It was also agreed that the seller would deliver vacant possession of the house after getting it vacated from the possession of other tenants and in case, if he fails to do so he would make a rebate of Rs. 5000/- from the amount of consideration for this purpose. Unfortunately, Dwarka Prasad expired on 14-8-1981 and his widow, appellant Bhagwatibai refused to perform her part of contract even after service of notice on her which compelled the plaintiff to file the suit for specific performance.

(3.) The appellant-defendant denied execution of any agreement between the parties and alleged that deceased was sick and could not properly read because of defective eyesight. In the circumstances the agreement, if any, is forged one. Dwarkaprasad had no legal necessity to set the house which is an ancestral property and secondly it would cause undue hardship to the appellant-defendant as the deceased left behind him his widow and an adopted son, Harishanker who had no other residence or any means of livelihood for their own.