GAJARI BAI KALURAM Vs. KASHINATH

JUDGEMENT

(1.) THIS appeal is filed by the defendant against the judgment and decree dated 7-8-1999 passed by District Judge, Guna, in Civil Suit No. 4-A/99, whereby the Trial Court decreed the suit for specific performance filed by the respondent no. 1-plaintiff.

(2.) IT is not in dispute that the plaintiff-respondent No. 1 and Smt. Gajari Bai- defendant No. 1 were co-owners of an area of 7. 692 hectares of survey Number 857, situated at Tehsil and District Guna. They jointly purchased it vide registered sale deed 17-3-1964. On 1-3-68, they executed a registered gift deed on the basis of agreement dated 27-9-66 for an area of 7 bigha to Shastri Mangilal Tripathi for running a Sanskrit Education Centre and possession was delivered to him. Thereafter, the plaintiff and defendant No. 1 mutually partitioned the diverted area of Survey No. 857, i. e. , 1. 00 lac sq. ft. (1. 254 hectares) and as per partition deed dated 30-4-78 jointly, developed a colony in the name of Kashinath Bhargava Colony in respect of their share. In respect of rest of the area, i. e. , 3. 554 hectares of Survey Number 857/1, they jointly owned and possessed an area 1. 777 hectares, i. e. , half of the total area of 3. 554 hectares. On 21-1-83 (Exh. P-1), the defendant No. 1 Smt. Gajari Bai entered into an agreement with the respondent No. 1 plaintiff for sale of an area of 1. 777 hectares for a consideration of Rs. 42,500/-; out of which, a sum of rs. 25,500/- was paid to the defendant No. 1 and possession of the suit land was handed over to him. The defendant No. 1 appended her thumb impression over the said agreement in presence of the attesting witnesses. Rest of the amount of rs. 17,000/- was to be paid at the time of execution of the sale deed. The defendant No. 1 instead of executing the sale deed, as per agreement dated 21-1-1983 asked for time. The plaintiff on the basis of assurance given by the defendant No. 1 executed another agreement on 7-5-85 (Exh. P-2 ). Rs. 7,000/-was paid to the defendant No. 1 and period for executing the sale deed was extended for a further period of two years with a condition that rest of the amount of Rs. 10,000/- shall be paid at the time of execution of the registered sale deed.

(3.) ACCORDING to the plaintiff, he was ready and willing to perform his part of contract. He was ready and willing to pay the remaining consideration and was also ready to get the sale deed executed. Defendant No. 1 was avoiding to perform her part of the contract. On several occasions, oral requests were made by the plaintiff to defendant No. 1, but the defendant No. 1 did not pay any heed to it. Thereafter a written notice was served by the plaintiff on 22-7-87 to get the sale deed executed within 7 days from the date of receipt of notice on 25-7-87. The defendant No. 1 replied to it on 26-7-87 and denied the contents of the agreement and averred that agreement dated 7-5-85 (Exh. P-2) has come to an end. Thereafter, the respondent No. 1-plaintiff filed a suit on 17-8-87 for specific performance of contract on the ground that he was ever ready and willing to perform his part of the contract.