SANDEEP K. SHINDE, J.

1. With the consent of both the parties, the appeal is taken up for the final hearing at admission stage and were directed to file paper-book.

2. This appeal is preferred by the defendant No.2 and I will refer the parties as per their status in the suit.

3. Appellant has raised the following substantial questions of law.

(i) Whether the Appellate Court could have gone into validity of the Will executed by the deceased in favour of the Appellant herein especially when the Trial Court has held that the Will was duly executed and proved and which finding have not been challenged by filing cross objection?

(ii) Whether the Appellate Court failed to consider the case of the Appellant that she has become owner of the suit property, pursuant to the Will and in view of categorical finding that Respondents were not ready and willing to perform his part of agreement? Could the Appellate Court have refused the relief of possession which was claimed by the Appellant by way of counter claim?

(iii) Whether the appellate Court was justified in law in dismissing the counter claim for possession of suit land, in view of the categorical finding that plaintiff was not ready and willing to perform his part of the contract?

4. Heard learned Counsel for the parties.

5. Appellant-Chandrakala, was the defendant No.2 in Special Civil Suit No.20 of 2003. The suit was filed by Bhimrao for specific performance of the contract dated 26th December, 1991, allegedly executed by Indumati Wani (now deceased). The appellant is a grand-daughter of Indumati. Since the suit land was of a new tenure, prior permission was required and as such, the balance consideration was payable after obtaining the requisite permission. Indumati executed a Will on 18th August, 1993 in favour of the appellant-defendant No.2. After demise of Indumati, plaintiff requested the appellant to execute the saledeed in terms of the suit agreement dated 26th December, 1991. The defendant No.1 is daughter of Indumati and mother of defendant No.2 - appellant herein. The suit was resisted by the appellant, inter-alia contending that since Indumati died on 17th September, 1993, the suit was barred by limitation. Besides, execution of the suit agreement was also denied. The suit was resisted also on the ground that for the want of requisite permission, Indumati could not have execute the suit agreement and therefore, the plaintiff has had no right to seek the performance of it.

6. Appellant would assert her title on the ground that she became owner of the suit land on the basis of Will dated 18th August, 1983 executed by Indumati in her favour.

7. Appellant had also filed a counter claim, seeking possession of the suit land and for mesne profit.

8. This counter claim was resisted by the plaintiff on the ground that claim was time barred and Indumati was not in sound and disposable state of mind when she executed the Will in favour of the appellant.

9. The learned trial Judge framed seven issues and answered as under :

(i) plaintiff has proved the suit agreement dated 26th December, 1991;

(ii) that plaintiff was ready and willing to perform his part of the contract;

(iii) that plaintiff has proved that Indumati handed over possession of the suit property to him;

(iv) that appellant-defendant No.2 has proved that she became owner of the suit property on the basis of Will dated 18th August, 1993 executed by Indumati;

(v) that the appellant-defendant No.2 proved that Indumati was in sound and disposable state of mind at the time of execution of the Will;

(vi) that the counter claim was not barred by limitation;

(vii) that the appellant-defendant No.2 is not entitled to relief claimed in the counter claim.

10. Thus, the trial Court recorded the finding on issue Nos. (i), (ii) and (iii) in favour of the plaintiff and held that he has proved the suit agreement; his readiness and willingness to perform his part of the contract; that possession was handed over to him in pursuant to suit agreem