ORDER/JUDGMENT :? Shri N. K. Gupta, Senior Counsel with Shri S.D.S. Bhadauria, Counsel for the appellants.

Shri V. K. Bhardwaj, Senior Counsel with Shri Amit Lahoti, Counsel for the respondent.

This First Appeal under section 96 of Civil Procedure Code has been filed against the Judgment and Decree dated 26-9-2003 passed by 3rd A.D.J., Vidisha in Civil Suit No. 30A/2002 and a decree for specific performance of contract has been granted.

2. The appellant is the legal heir of Smt. Janakibai, Wd/o Late Shri Manakchand Maheshwari. The defendants No. 1 and 2 are the sons of Late Shri Sunnulal. Both the appellants No. 1 and 2/defendants No. 1 and 2 have expired during the pendency of this appeal and their legal representatives have been brought on record. As appellant No. 3 also died during the pendency of this appeal, therefore, her legal representative was also brought on record. The defendant No. 4 died after the passing of the impugned Judgment and Decree but prior to filing of the appeal, and since there is a will Ex.P/5, therefore, no appeal has been filed on behalf of her legal heirs.

3. The necessary facts for disposal of the present appeal in short are that plaintiff/respondent filed a suit for specific performance of Contract on the ground that Late Sunnulal was the owner of a house situated in Kagadipura Colony, in front of Meghdoot Talkies and the boundaries of the same are as under :

East - Meghdoot Talkies West - House of Dalchand North - House of Sindhi after road South - House of Ramnath

4. The mother of the plaintiff was a tenant in the house of Sunnulal and was residing in the said house and a suit for eviction was filed by Sunnulal against Smt. Janakibai, the mother of the plaintiff which was dismissed on 12-2-1996. Sunnulal was a very old and infirm person and was intending to go to Delhi for his treatment and was in need of money, therefore, he entered into an agreement to sell the house for a consideration amount of Rs. 70,000. It was pleaded that on 26-12-1994, an amount of Rs. 6,600 by way of arrears rent, an amount of Rs. 50,000 by way of agreement amount out of Total amount of Rs. 70,000 was paid and it was agreed, that Sunnulal after returning from Delhi would execute a sale deed after receiving the remaining the amount of Rs. 13,400. Accordingly, an agreement to sell was executed by Sunnulal by affixing his thumb impression in front of the witnesses. Thereafter, Sunnulal went to Delhi, where he died as a result of which, he could not execute the sale deed. The appellant as well as Smt. Janakibai requested the defendants to execute the sale deed, however, the defendants always avoided to do so. It was further pleaded that the plaintiff was ready and is still willing to perform his part of contract. It was further pleaded that since, the plaintiff is a poor person having annual income of less then Rs. 6000, therefore, he is entitled for exemption from payment of Court fee.

5. Thereafter, the plaint was amended and the description of the property was changed and it was pleaded that Smt. Janakibai was the tenant of the ground floor of the house and the agreement to sell was executed in respect of front corridor (Single storey) and rear two rooms upto three story.

6. The defendants filed their written statement and accepted that Smt. Janakibai was the tenant of one portion of ground floor of the house, and it was also admitted that the suit for eviction was dismissed on 12-2-1996. It was further pleaded that the agreement to sell is a forged document and a new suit for eviction has also been filed on 15-10-1998. It was further pleaded that Sunnulal had never executed any agreement to sell in favor of Smt. Janakibai. Sunnulal was never in need of money and he was also no sick. His daughter and son-in-law are Doctors and are settled in Delhi, therefore, Sunnulal used to go to Delhi to meet them. The remaining part of the house had always remained in possession of Sunnulal. The payment of Rs. 6,600 by way of rent