Satish Kumar Mittal, J.

1. Kulwant Singh, the unsuccessful plaintiff, has1 filed the present Regular Second Appeal against the judgment and decree, passed by both the Courts below, vide which his suit for specific performance to 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 this 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/- was 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 are Ex.P1 and Ex.P2 on the record. As per the terms of the agreements, 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 coparcenery was competent to sell his share, therefore, the agreements in question are riot enforceable. He also averred that no decree for specific performance of the agreement of sale in respect of the machinery 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.

4. On the pleadings of the parties, the following issues were framed in that suit:

"1. Whether the defendant executed agreements to sell building and machinery as referred in para Nos. 1 and 2 of the plaint? OPD

2. Whether the plaintiff has been and continues to be ready and willing to perform his part of the agreement? OPP

3. Whether the defendant has committed breach of agreement of sale? OP

4. Whether agreement regarding sale of building is not specifically enforceable? OPP 4A. Whether the suit property is ancestral and/or Joint Hindu Family property? If so, to what effect? OPD

4B. Whether the agreement to sell is void or unenforceable for the reasons given in para Nos. 3 and 4 of additional plea raised in the amendment written statement? OPD

4C. Whether the suit for specific performance is not competent so far as it relates to agreement for sale machinery? OPD

5. Whether the suit property has been properly described? OPP

Both the Courts below have held that the execution of agreements Ex.P1 and Ex.P2 as well as the payment of earnest money have been duly proved from the statements of PW.1 Prem Nath, PW.3 Jaswant Singh and PW.4 Sohan Singh, the scribe and the attesting witnesses of the agreements. Though in the written statement, execution of the agreements and receipt of the earnest money were denied by the defendant, but while leading his evidence, he took the stand that he was ready to perform his part of the agreement as he went to the office of the Registrar on 10.8.1982 to execute the sale deeds. This stand of the defendant