KULWANT SINGH Vs. MAKHAN SINGH

JUDGEMENT

(1.) Kulwant Singh, the unsuccessful plaintiff, has filed the present Regular Second Appeal against the judgment and decree, passed by both the Courts below, vide which his suit for specific performance of two agreements has been dismissed on the ground that the agreements in question are not enforceable. However, the plaintiff was held to be entitled to get the refund of his earnest money.

(2.) The brief facts of the case are that the plaintiff and defendant Makhan Singh (now deceased through his LRs), respondent herein, were the real brothers. They were four brothers. Each brother was having 1/4 share in the land measuring 40. 2/3 marlas and building of ice factory situated at Rayya and 1/8 share in the machinery installed in the ice factory. On 3-5-1982, defendant entered into two agreements with the plaintiff, one regarding the sale of his 1/4 share in the land and building for a valuable consideration of Rs. 10,000/-out of which Rs. 5,000/- wac paid as earnest money and the second regarding the sale of his 1/8 share in the machinery installed in the ice factory for a consideration of Rs. 16,000/- out of which Rs. 5,000/- was paid as earnest money. Both these agreements arc Ex, P1 and Ex. P2 on the record. As pcr the terms of the agree ments, the sale deeds in both the agreements were to be executed on or before 10-8-1982. When the defendant did not execute the sale deeds in both the agreements on 10-8-1982, the plaintiff served a notice upon him on 19-12-1983 and when the defendant did not honour the aforesaid two agreements, the present suit for specific performance was filed by the plaintiff on 17-1-1984.

(3.) The defendant contested the aforesaid suit on various grounds. He denied the execution of the agreements as well as the receipt of earnest money. He pleaded that the land in question, building raised thereon and the ice factory were Joint Hindu Family property and the same being a coparcenary property, no coparcener was competent to sell his share, therefore, the agreements in question are not enforceable. He also averred that no decree for specific performance of the agreement of sale in respect of the ma chinery can be passed because damages for compensation in that regard can be claimed by the plaintiff. He also averred that no partner is competent to agree to sell the property of the partnership firm, therefore, both the agreements are void and not enforceable.