Continuous readiness and willingness to perform the essential terms of the contract is a mandatory requirement for granting the relief of specific performance, as per Section 16(c) of the Specific Relief Act, 1963.

JUDGMENT :

Sudhir Agarwal, J.

1. Heard Sri. H.M. Srivastava, learned counsel for appellant, Sri. S.D. Yadav, learned counsel for respondents and perused the record.

2. This is defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arising from judgment dated 17.01.1989 and decree dated 31.01.1989 passed by Sri. Brij Raj Singh, IInd Additional Civil Judge, Etah in Civil Appeal No. 84 of 1988, which has been allowed and plaintiff's Original Suit No. 388 of 1986 for specific performance of contract has been decreed and judgment and decree dated 21.4.1988 passed by Sri. Abhay Kumar Gupta, Munsif, Kasganj, has been modified.

3. The appeal was admitted on following substantial questions of law:

"A. Whether in absence of any evidence and proof of the facts of willingness and readiness to perform his part of contract as required under Section 16 of Specific Relief Act, the lower appellate court in decreeing the plaintiff's suit has taken a correct view to the facts and law?

B. Whether there being no partition between the defendant-appellant and Ram Swarup through whom the Agreement to sale is claimed, on the death of Ram Swarup, the Agreement to sale can be legally enforced?

C. Whether finding of the court below about genuineness of Agreement to sale and payment of money to the defendant-appellant, is legally justified?

(Emphasis added)

4. The facts in brief giving rise to this appeal are that sole plaintiff-respondent (hereinafter referred to as "plaintiff') Naresh Pal Singh son of Roshan Singh instituted Original Suit No. 388 of 1986 in the Court of Munsif, Kasganj (Etah), against sole defendant-appellant Naresh Pal Singh son of Talewar Singh (hereinafter referred to as "appellant") vide plaint dated 10.10.1986, praying for a decree of specific performance of agreement dated 9.10.1985 in respect of Arazi No. 1629, area 0.48 dismal, Village Raipur Patna, Pargana Soron, District Etah, by executing sale deed, after receiving remaining amount of Rs. 3,000/-. In the alternative, decree for recovery of Rs. 5,000/- including Rs. 2,000/- paid in advance and Rs. 3,000/- as damages was prayed.

5. Plaintiff set up a case in the plaint stating that appellant's brother Ram Swarup, son of Talewar, was owner of Arazi No. 1629, area 0.48 dismal, situate at Village Raipur Patna, and owner of half share thereof. He executed an agreement for sale on 09.10.1985 regarding his half share to plaintiff and the said agreement was registered. The total amount of consideration agreed between the parties was Rs. 5,000/- of which Rs. 2,000/- was paid in advance at the time of registration of agreement and remaining amount was to be paid at the time of execution of sale deed, which was to be executed within one year. Appellant's brother has died and now appellant is the sole owner of entire property, hence agreement dated 09.10.1985 is now binding upon appellant.

6. Plaintiff served a notice dated 12.02.1986 to appellant requesting him to execute sale deed and the said notice was served upon appellant on 13.02.1986. Another notice dated 10.9.1986 was served by plaintiff upon appellant requiring him to execute sale deed, and in absence of any reply, plaintiff was required to remain present in Registry office on 08.10.1986 to execute sale deed. The said notice was also received by appellant on 18.9.1986 but he tendered no reply. Plaintiff remained present in Registry office on 8.10.1986 and 09.10.1986 but appellant did not come. Plaintiff has always been ready and willing to execute sale deed and has requisite amount of consideration with him but defendant has failed to execute sale deed, hence the suit.

7. Appellant contested the suit by filing written statement dated 13.01.1987, disputing execution of any agreement for sale in respect of Gata No. 1629 and also denied of having received any part consideration in advance. He pleaded that appellant's brother Ram Swarup was in the habit of drink and in the condition of intox