JOGESH CHANDRA HOTA Vs. BIBHUTIBHUSAN SAHANI

JUDGEMENT

(1.) THIS is the plaintiffs appeal from a decision of the learned Subordinate Judge, sambalpur by which the plaintiffs (intending purchaser) suit for specific performance of a contract executed by defendant No. 1 Bhibhutibhusan Sahani to sell the suit property a dwelling house of the defendants' family was dismissed. The other defendants in the suit are defendants 2 and 3 two widows of defendant no. 1 Bhibhutibhusan's deceased father Parsuram Sahani; defendants 4, 5 and 6 are three married daughters of the deceased Parsuram Sahani.

(2.) THE plaintiff was the owner of a house adjacent to the suit house which belonged to defendants family governed by Mitakshara School of Hindu Law. From time to time between September 9, 1956 and April 7, 1957 the plaintiff advanced loans to Parsuram Sahani and his son defendant No. 1. Bhibhutibhusan Sahani on nine several promissory notes of the total sum of Rs. 2,600/-without interest. On april 29, 1957 the plaintiff, advanced a further loan of Rs. 1,200/ -. On the same date Parsuram Sahani and his son defendant No. 1 Bhibhutibhusan executed a registered mortgage Ext. 2 in favour of the plaintiff in respect of the suit house as security for the loan of Rs. 3,750/ -. On September 29, 1957, January 16, 1958 and August 24, 1958 the plaintiff advanced further loans of Rs. 150a, Rs. 100a and Rs. 550/- respectively; the total amount of such further loans after the mortgage was Rs. 800/- as mentioned in paragraph 4 of the plaint. On August 24, 1958 there was an agreement under which defendant No. 1 Bhibhutibhusan agreed to mortgage to the plaintiff the 'b' Schedule property being another part of the house.

(3.) IN 1959 Parsuram Sahani died leaving him surviving his son defendant No. 1 bhibhutibusan, defendants 2 and 3 widows, and defendants 4, 5 and 6 married daughters. On January 23, 1959 the plaintiff further advanced on promissory note rs. 1200/- to defendant No. 1 Bhibhutibhusan. About a year thereafter on January 26, 1960 defendant No. 1 Bhibhutibhusan took a further loan of Rupees 1000/- for his own marriage. On that date there was an agreement Ext. 3 between the plaintiff and defendant No. 1 Bhibhutibhusan for sale of the suit house by which the defendant No. 1 agreed to sell the suit house to the plaintiff within one month from the date of the agreement for a consideration of Rs. 6798a which the plaintiff already advanced. It is said that in part performance of the said contract the plaintiff was put in possession of the house.