Hon’ble Sudhir Agarwal, J.—Heard Sri Neeraj Tripathi, learned counsel for the appellant and Sri Kunal Ravi Singh, Advocate for respondents.

2. This is a defendant’s second appeal having been filed by defendant No. 3, Smt. Balwant Kumari Yadav (since deceased and substituted by her legal heirs) wife Sri Sohan Lal.

3. The substantial questions of law which are required to be considered in this appeal are:

“(I) Whether the Lower Appellate Court was right in holding that the benefit of Section 40 of Transfer of Property Act, 1882 (hereinafter referred to as the “Act, 1882”) will not be given to the appellant?

(II) Whether the Lower Appellate Court has rightly drawn the conclusion that the plaintiffs-respondents have always been ready and willing to perform the essential terms of the agreement as contemplated under Section 16 of the Specific Reliefs Act?”

4. Before adverting to aforesaid questions it would be necessary to have a brief facts giving rise to present appeal.

5. The plaintiffs, Hari Shankar Yadav and Shiv Kali Devi (since deceased and substituted by her legal heirs), instituted Original Suit No. 400 of 1982 in the Court of Civil Judge (Senior Division), Allahabad seeking a declaration that the agreement dated 8.10.1980 registered on 16.10.1980, before Sub-Registrar, Chail, Allahabad, is void ab initio, illegal and unenforceable in law. They also prayed for a decree for specific performance directing defendants to execute sale-deed in favour of plaintiffs in view of agreement dated 8.2.1972.

6. The dispute relates to House No. 1, Western Side, situate in Mohalla North Malaka, Allahabad, boundaries whereof are given at the end of plaint.

7. The plaint case is that Sri Azizur Rahman entered into an agreement of sale of the house in dispute vide agreement dated 8.2.1972 for a consideration of Rs. 30,000/-, whereagainst Rs. 15,000/- was paid as earnest money and remaining was agreed to be paid at the time of execution of sale-deed. The sale-deed was to be executed within 10 years from the date of agreement. All the expenses towards registration etc. were to be borne by plaintiffs. Sri Azizur Rahman died on 4.11.1980, whereupon defendants No. 1 and 2 succeeded deceased’s interest in suit property.

8. The plaintiffs approached defendants No. 1 and 2 to fulfill the terms of agreement to sale but they deferred for one or the other reason. The registered notice was given by plaintiffs to defendants through counsel asking to execute sale-deed and enforce terms of agreement. The defendants reply the same vaguely and denied to execute sale-deed. The plaintiffs then came to know that defendant No. 2, representing himself to be sole owner of suit property, executed a sale-deed on 27.5.1982 in favour of defendant No. 3 for a consideration of Rs. 50,000, allegedly to be in furtherance of agreement dated 8.10.1980, executed by late Azizur Rahman in favour of defendant No. 3. Both these documents are fraudulent, fictitious and vague. The defendant No. 2 had no right to sale suit property to defendant No. 3. The aforesaid sale-deed would not confer any right upon defendant No. 3. The plaintiffs are entitled for enforcement of agreement dated 8.2.1972 and execution of sale-deed in respect of suit property. It is also stated in para 14 of plaint that suit property was already in possession of plaintiffs, inasmuch as father of plaintiff No. 1 and his brother were tenants in the suit property. After death of father of plaintiff No. 1, the tenancy devolved upon plaintiff No. 1 and his brother who continued to occupy suit property as co-tenants. Therefore, on the date of agreement dated 8.2.1972, the suit property was in possession of plaintiffs, as a matter of fact. A notice dated 29.4.1982 was served upon defendants No. 1 and 2, received by them on 25.5.1982 and replied on 6.9.1982; the cause of action is continuing, hence the suit.

9. The suit was contested by defendant No. 3 by filing a detailed written statement. It challenged agree