Continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance.

1. The defendants have filed this First Appeal against the judgment and decree dated 23.12.1982 passed by the learned 3rd Additional Subordinate Judge, Darbhanga in title suit No.74 of 1975/43 of 1981 whereby the court below decreed the plaintiff-respondent’s suit for specific performance of contract.

2. The aforesaid suit was filed for specific performance of contract for reconveying the suit property to the plaintiff on receipt of Rs.27,000. According to the plaintiff, she had three storied building i.e. the suit property. She was in need of money for starting business, therefore, she approached the defendants for loan. The defendants agreed to advance loan of Rs.37,000 on condition that the plaintiff has to execute a registered sale deed in favour of the defendants with respect to her residential house. The defendants also agreed to execute an agreement in favour of the plaintiff to the effect that if the plaintiff will repay the entire amount within two years from the date of agreement, the defendant shall reconveyed the house. Accordingly, a registered sale deed was executed on 18.10.1962 with respect to the suit house for a consideration of Rs.37,000. The defendant also executed a registered agreement dated 02.11.1962 to the effect that the defendants shall reconvey the house in question within two years on repayment of the consideration amount. The plaintiff also executed a registered Kirayanama dated 02.11.1962 in favour of the defendants whereby the plaintiff was allowed to continue in possession as tenant on monthly rent of Rs.133. The plaintiff paid Rs.10,000 on 06.06.1967 out of Rs.37,000 and the defendants granted receipt and extended the date for receipt of the balance consideration amount uptill 31.12.1970. Thereafter, the plaintiff sent a registered notice to the defendants on 17.09.1969 requesting them to accept Rs.27,000 and reconvey the house but the defendant failed to reconvey rather he filed title suit No.227 of 1967 for eviction of the plaintiff from the house in question and for arrears of rent. In that suit, the plaintiff filed application that they are ready to pay Rs.27,000 as per agreement. The plaintiff sent her son-in-law on 23.12.1970 to the defendants for requesting him to accept Rs.27,000 and reconvey the house but the defendants refused. Therefore, the suit was filed. The plaintiff alleged that she was all along been ready and willing to perform her part of the agreement.

3. The defendants-appellants filed contesting written statement. Besides taking various legal and ornamental pleas, the defendants mainly contended that the plaintiff was only in occupation of the suit house as tenant of the defendants as the plaintiff had already sold the suit property for Rs.37,000. The plaintiff never paid Rs.10,000 as claimed by the plaintiff. The receipt alleged to have been granted by the defendant No.1 is forged and fabricated. The stipulated period of two years given in the agreement has lapsed long ago. The defendants never received any notice said to have been sent by the plaintiff. Son-in-law of the plaintiff never came to defendant with money and requested to reconvey the house because there was no such occasion in view of the fact that two years had lapsed long ago. The plaintiff was neither ready nor willing to perform her part of the contract dated 02.11.1962.

4. On the basis of the aforesaid pleadings, the learned court below framed the following issues:

I. Whether the plaintiff has got cause of action for the suit?

II. Whether the suit is maintainable in its present form?

III. Whether the receipt of Rs.10,000/- as perpounded by the plaintiff as part payment out of Rs.37,000/- on 06.06.1967 granted by defendant no.1 extending the date of payment to remaining amount to 31.12.1970 was genuine, valid and binding on the defendants?

IV. Whether the plaintiff is entitled to a decree for specific performance of contract?

V. To any other relief or reliefs to which the plaintiff may be entitled?

5. Th