Discretion in specific performance cases must consider hardship on defendants; enforcement refused when it would leave them homeless.

JUDGMENT

Arindam Lodh, J. - The legality and propriety of the judgment and decree dated 20.11.2018 and 23.11.2018 respectively passed by the learned Civil Judge, West Tripura, Agartala, in connection with case No. TS 135 of 2016 are challenged by the defendants by preferring the instant appeal before this court. The suit of the plaintiff, Sri Parswanath Saha, the respondent herein praying for specific performance of agreement for sale dated 27.05.2016 was decreed by the learned court below.

2. The facts of the case, as deduced by the learned trial Judge, may be reproduced here-in-below for convenience:-

'Fact of the case, in brief, is that the predecessor-in-interest of the defendants namely Prabha Ranjan Das due to urgent need of money approached to the plaintiff for selling of the suit land along with the building thereon mentioned in the Schedule of the plaint owned by him for consideration of Rs. 17,50,000/- and on acceptance of the proposal by the plaintiff a Registered Agreement for Sale was executed by the predecessor-in-interest of the defendants in favour of the plaintiff after taking earnest money of Rs. 4,00,000/- with the condition that the defendant shall execute a Registered Deed of Sale transferring the suit land to the plaintiff within a period of three months from the date of agreement for sale after receiving rest consideration amount. But unfortunately on 05.07.2016 Prabha Ranjan Das died. The expiry period of the agreement was on 27.08.2016. But due to death of Prabha Ranjan Das and for his Sraddha Ceremony the plaintiff was silent for sometimes. But on 18.07.2016, 20.07.2016 and on 21.07.2016 the plaintiff visited the house of late Prabha Ranjan Das as well as to the house of father of the defendant No. 1 where she used to reside for sometimes. In spite of repeated requests of the plaintiff as well as sending of Advocate's Notice dated 23.07.2016 defendants denied to execute the Sale Deed on the ground that defendant No. 1 being the mother of the minor son i.e. defendant No. 2 was required to obtain survivorship certificate and guardianship certificate from the proper authority. But on 18.11.2016 when the plaintiff inquired whether the defendant No. 1 applied for those certificates she openly denied to sell the suit land. Hence this suit.

After receiving of summons the defendants appeared and filed written statement denying most of the contentions of the plaint. Defendant No. 1 has been appointed as the guardian of minor defendant No. 2. It is mentioned in the written statement that the value of the suit land and the building was much more than the consideration amount mentioned in the agreement and deceased Prabha Ranjan Das was not physically and mentally fit when the alleged agreement was executed. They also contended that the defendants have no other landed property except the suit land and if it has been sold out they would be shelterless. They stated that the agreement was not enforceable in law and so there cannot be any specific performance of contract. Thus, they prayed to dismiss the suit.'

3. After exchange of pleadings and hearing both the sides, the learned trial court framed the following issues:-

(i) Is the suit maintainable in its present form and nature?

(ii) Has the plaintiff any cause of action to institute the instant suit?

(iii) Has the plaintiff entered into a registered agreement for sale dated 27.05.2016 with Prabha Ranjan Das (Predecessor of the defendants) to purchase the suit land?

(iv) Are the averme