A decree for specific performance of an agreement for sale can be granted if the agreement is duly executed, for legal necessity and adequate consideration, and the plaintiff is not guilty of any delay in filing the suit.

H.Mahapatra, J.

1. This appeal by the plaintiff arises out of a suit for specific performance of an agreement for sale executed by the defendant on July 13, 1955 in respect of 8 bighas 17 kathas 16 dhurs of land out of plot No. 2144 under khata No. 2 in tauzi 2703 of Saran Collectorate for Rs. 8,001/-. This document has been marked as Exhibit 1. On the date of the execution of this agreement, Rs. 2000.00 was paid as a part of the consideration money to the defendant. Rupees 3,810.00 was to be left in deposit with the plaintiff for redemption of several zarpeshgi deeds in favour of others. Rupees 974-12-6 was also to be left with him to pay the decretal dues of one Ramautar Singh.

Another sum of Rs. 213-13-6 was to be paid for another decretal dues of Bhuteli Pandey, brother of the plaintiff. The balance of Rs. 1,002-6-0 was to be received by the defendant in cash at the time of the execution of the sale deed. This agreement was executed at Durgapur where the plaintiff works as a contractor, and it had been agreed between the parties that when the plaintiff would come to the village to which both he and the defendant belong, the sale deed would be executed, but when the plaintiff came later to his village and demanded execution of the sale deed from the defendant, the latter did not pay any heed to that. The suit was, therefore, instituted to enforce the specific performance of that contract for sale.

2. In defence the execution of the agreement was denied, and it was alleged that the defendant had gone to the plaintiff at Durgapur and asked for Rs. 1,200.00 from the plaintiff which the latter paid on the defendant agreeing to sell 14 kathas 5 dhurs of land appertaining to plot No. 2549 of village Piroutha. The defendant received Rs. 1200/-from the plaintiff for which he gave a receipt putting his signature and thumb-mark on a blank piece of paper. He admitted that he acknowledged in that receipt a sum of Rs. 2,100/-, though in fact he had taken only Rs. 1,200.00 as he was asked to do so.

It was agreed according to him, at that time between the parties that the sale deed would be executed by the defendant when the plaintiff would come to his village; but as the plaintiff asked for a sale deed in respect of the suit land, the defendant refused. He alleged that the blank paper containing his thumb-mark, signature and acknowledgment of receipt of money has been subsequently filled up as an agreement, and, as such, it is not genuine. Inadequate price and want of legal necessity were also pleaded. It should be noted here that the defendant has been sued in the present suit in his capacity as the karta of the family on an averment in the plaint that the family was benefited by that agreement. It is admitted that the only other male member of the family is the minor son of the defendant.

3. Seven issues were framed by the trial Court of which the following are important for our purpose :

"(5) Is the mohaida-deed set up by the plaintiff valid, genuine and for consideration? (5a) Is the alleged contract for legal necessity for adequate price and for the benefit to the family of the defendant?

(6) Is the plaintiff entitled to specific performance of contract?

4. It has been held by the trial Court that the plaintiff succeeded in proving the execution of the agreement (Ext. 1) by the defendant, and the allegation that the signature, thumb-impression and acknowledgment were on a blank paper which was subsequently filled up as the suit in agreement has been found untrue. But against the plaintiff it has been found that the market value of the land under the agreement could not be less than Rs. 1500/-per bigha in the year 1955 when the suit transaction took place, but the price stipulated in the agreement works to Rs. 900.00 per bigha. On that basis the trial Court has also held that the plaintiff failed to prove the legal necessity for alienation. In that view the specific performance has been refused.

5. The learned Additional Subo