In a suit for specific performance of an agreement, the plaintiff must aver and prove that he was ready and willing to perform his part of the contract from the date of the contract to the time of the hearing of the suit.

JUDGEMENT :- The appellants had brought a suit against the respondent for specific performance of a contract of sale of a field admeasuring 10 acres for a consideration of Rs. 400/-. The suit was dismissed by the trial Court and the first appellate Court confirmed the said decree. It is against the decree of the first appellate Court that this appeal has been filed.

2. Shortly stated the case of the appellants was that on 27th May 1961 the respondent had contracted to sell the suit field to one Narayanrao for a consideration of Rs. 400/- out of which he received Rs. 225/- as earnest money and executed an agreement in this respect. Under the terms of the agreement the sale was to be completed on Chaitra Sudha 15 Shake 1371 which corresponds to 19th April 1962, by Narayanrao paying the balance of the consideration of Rs. 175/- and obtaining the sale deed by remaining present in the office of the Sub-Registrar. The appellants alleged that the respondent did not perform his part of the contract. Though Narayan was ready and willing to do so and called upon the respondent by his notice dated 25th June 1962 to complete the sale, the respondent avoided to do so and refused to execute the sale deed. The appellants further alleged that said Narayan had, by his wills dated 19th Dec. 1956 and 22nd Sept. 1959, bequeathed all his estate to the appellants and hence they were entitled to bring the suit for specific performance against the respondent. The appellants, therefore, sought specific performance of the said agreement for sale and in the alternative for refund of the earnest money of Rs. 225/-.

3. The respondent resisted the suit by raising various contentions. He denied that the appellants had acquired title to the estate of deceased Narayanrao by virtue of the alleged wills and that they were entitled to maintain the suit. He denied that he had entered into an agreement for sale or had executed any document in that respect as alleged by the appellants. He further contended that the suit field did not belong to him alone but it was the property of the joint family consisting of himself and his brothers and his eldest brother, namely Bhuia was the Karta of the family and hence he alone was not entitled to enter into any transaction with regard to the suit field in which he held only 1/4th share. Lastly he contended that he had not received the amount of Rs. 225/- in cash as alleged in the agreement but Narayan had obtained certain documents from him (respondent) and his brothers for certain transactions of loan. According to the respondent, the document evidencing the agreement had been obtained from him by practising fraud and it was not intended to be acted upon.

4. After considering the evidence on record the learned trial Judge held that the respondent had agreed to sell the suit field to Narayan for a consideration of Rs. 400/- and had also accepted Rs. 225/- as earnest money. However, the learned trial Judge held that there was no evidence to show that the appellants were ready and willing to perform their part of the contract and that the respondent had only 1/4th share in the suit field and he alone was not competent to sell the entire field. The learned trial Judge, therefore, held that the appellants were not entitled to specific performance of the said contract. With regard to the maintainability of the suit by the appellants the learned trial Judge held that they were entitled to do so. In view of these findings the learned trial Judge rejected the suit in so far as it related to specific performance of the agreement but decreed it with regard to refund of the earnest money of Rs. 225/- with interest at 6% per annum from the date of the decree till

realisation. The appellants went in appeal to the District Court. The learned District Judge was of the view that granting specific performance being a matter within the discretion of the Court, the appellants were not entitled to claim that relief in appeal in the absence of anyt

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