The main legal point established in the judgment is the entitlement to specific performance of a contract, the proof of agreements, readiness and willingness of the parties, and the limitation of the suit.

Instant second appeal is directed against the judgment and decree dated 25.08.2000 passed by the 03rd Additional District Judge, Jalgaon in R.C.A. No. 43/1995 confirming the judgment and decree dated 13.01.1995 passed by the Civil Judge Senior Division, Jalgaon in Spl. C. S. No. 49/1985 refusing the relief of specific performance of contract based on the agreement dated 06.05.1974 and registered agreement dated 10.02.1984.

FACTS :

2. The appellant/Kasturbai Patil, the plaintiff filed a suit for specific performance of contract against the original defendant No. 1 Lilabai Patil stating that, Lilabai had entered into a contract with her to sale the suit land on 06.05.1974 for Rs. 25,000/-, out of which Rs. 5,500/- was paid as earnest money and possession was also handed over to her. The agreement was executed on behalf of her minor children for legal necessity. Lilabai was to obtain necessary permissions for the execution of the sale deed. Time was not the essence of contract. After taking possession, plaintiff spent lot of money for making improvements of the fallow land. Since Lilabai started obstructing plaintiff/Kasturbai, R.C.S. No. 202/1976 for injunction was filed. She got injunction. Lilabai died in 1980 and her heirs entered the suit. Her son Balkrishna Patil represented to the plaintiff Kasturbai that his sisters surrendered their right in his favour and by misleading her recovered an amount of Rs. 22,000/- from her and he executed registered document of agreement dated 10.02.1984 in her favour showing total consideration of Rs. 35,000/- for the same property. The sale deed was to be executed on 30.06.1984 by paying the balance amount of Rs. 13,000/-. Then Balkrishna Patil joining hands with his sisters and got filed suit R.C.S. No. 36/1984 for partition and and another suit R.C.S. No. 98/1984 against Balkrishna and the Kasturbai to stop execution of sale deed in favour of the plaintiff Kasturbai. Thus having extracted money, Balkrishna got the said two suits filed against himself and plaintiff/Kasturbai. Finally suit R.C.S. No. 98/1984 was dismissed in default on 22.02.1992, so also suit R.C.S. No. 36/1984. However, Balkrishna continued to dodge the plaintiff and avoided to execute the sale deed, though notice to execute the sale deed was issued, but was replied by denying the agreement. Finally, the appellant/Kasturbai Patil filed a suit for specific performance of contract i.e. R.C.S. No. 49/1985 against the defendant No. 1/Balkrishna and against his three sisters and added the defendant No. 5 at later point of time, her real brother since her real brother Baliram was a proposed joint purchaser under the said registered agreement dated 10.02.1984.

3. After receipt of suit summons only Balkrishna/defendant No. 1 appeared in the Trial Court and filed his written statement, while defendant Nos. 2 to 4, his sisters did not at all appear and were proceeded ex-parte on 10.12.1985. Thus the sisters of Balkrishna did not file written statement, nor even turned up to the Court. Not only that, after trial commenced except cross examination of plaintiff and her witnesses, even Balkrishna abandoned the suit and did not enter the witness box, so also his sisters. The Trial was held and the suit was dismissed. The appeal preferred by the appellant/plaintiff was partly allowed and order of refund of earnest money was made, but the relief of specific performance was denied. Hence this second appeal.

SUBMISSIONS :

4. In support of the appeal Mr. R. N. Dhorde, the learned senior advocate with Shri Girish Wani, learned counsel for the appellant made the following submissions :

i) That the agreement dated 06.05.1974 was executed in favour of the plaintiff/Kasturbai by Lilabai for the legal necessity of the family, since all the children of Lilabai were minor and Lilabai therefore entered into agreement of sale of the suit land with the appellant/plaintiff. But then the finding of fact recorded by the Courts below is perverse. N