Dr. Anshuman, J.—The present second appeal has been filed against the Judgment and Decree dated 30.05.1988 and 17.06.1988 respectively, passed by Sri S.N. Pathak, 1st Additional District Judge, Vaishali at Hajipur, in Title Appeal No.28 of 1987 affirming the Judgment and Decree dated 02.05.1987 and 15.05.1987 respectively, passed by Sri S.N. Sukla, Sub-Judge, Vaishali at Hajipur, in Title Suit No.48 of 1983. The Defendant No.1 of Title Suit No.48 of 1983 was the appellant of Title Appeal No.28 of 1987 and he is also the appellant in Second Appeal No.583 of 1988. The plaintiff of Title Suit No.48 of 1983 is respondent First Party of Title Appeal No. 28 of 1987 and his heirs and legal representatives 1.1 to 1.7 are the respondent first set in this appeal. Defendant No.2 Shambhu Choudhary of Title Suit No.48 of 1983 is respondent Second Party of Title Appeal No.28 of 1987 and his heirs and legal representatives from 2.1 to 2.3 are the respondent second set in the present Second Appeal No.583 of 1988.

2. It is a second appeal against the Judgment of affirmance. The Title Suit No.48 of 1983 was filed for grant of relief of specific performance of a contract for sale (Mahadanama) dated 15.10.1982 (Ext-1). The said Title Suit was Decreed on contest against Defendant No.1 and ex-parte as against Defendant No.2 but without costs. The plaintiff was also directed to deposit Rs.4,000/- (Four thousand only) within one month from the date of Judgment and Defendant was directed to withdraw this money and to execute a sale deed in favour of the plaintiff within two months from the date of deposit of remainder consideration money. It was also ordered in the Judgment that if the plaintiff fails to deposit the remainder consideration money within the above mentioned time limit, the Suit shall ipso-facto stand dismissed. It has also been ordered that in case the remainder consideration is deposited and the defendants do not execute a sale deed, as directed above, the plaintiff shall be entitled to get a sale-deed executed through the assistance of the Court.

3. In the Title Appeal it has been found by the Appellate Court that the appellant of the Title Appeal has not been able to make out a case for interference with the lower Courts’ Judgment and Decree and, therefore, the Title Appeal is accordingly dismissed on contest with costs at the contested scale. Thereafter, the Judgment and Decree of the Lower Court as passed and prepared on 02.05.1987 and 15.05.1987 respectively, in Title Suit No.48 of 1983, was confirmed.

4. The present Second Appeal has been instituted before this Hon’ble Court on 28.11.1988. The Substantial Question of Law has been framed vide order No.8 dated 04.01.1990, which is as follows:—

“Whether the Judgment and Decree of the Courts’ below are valid when Defendant No.2 is lunatic and no guardianship was appointed though this fact was brought to the notice of the Court?”

5. During course of final argument, vide order No.26 dated 07.05.2024, Additional Substantial Questions of Law were framed considering the law laid down under Sections 100(4) and 100(5) of the Code of Civil Procedure, 1908 (Act No.5 of 1908) as well as on the basis of Judgment of Nazir Mohammad vs. J.K. Kamala & Others reported in 2020(5) BLJ SC 492- para-37, which was followed in the case of P. Kishore Kumar vs. Vittal K. Patkar reported in 2024 (1) BLJ 37 (SC). These Substantial Questions of Law are as follows:—

“I. Whether the Courts below have not acted perversely in Decreeing a suit for specific performance of contract, mechanically, in absence of proof of both aspect of readiness and willingness on the part of the plaintiffs to perform their part of contract which is an essential requirement of law?

II. Whether the Judgment of the Courts below shall be sustainable in view of the discarding of supplementary/ additional written statement dated 04.04.1987 of Defendant No.1/ Appellant/ Appellant which resulted into shifting of burden on the Plaintiff to prove that