A.R. Tiwari, J. -- 1. This First appeal, presented under section 96 of the Code of Civil Procedure (for short the 'Code') is directed against the judgment and decree dated 20.4.76 rendered by the Addl. Judge Mandsaur Camp Garoth to the court of the District Judge, Mandsaur in COS No. 4-B/74 (old No. 8-B/71), thereby granting the relief of specific performance of the contract as pleaded in the plaint

2. Briefly stated, the fact" of the case arc that survey Nos. 1280 and 1281 area 1.021 acres, owned by the appellant-defendant, are situated in village Shamgarh District Mandsaur. Excluding the portion of this land i.e. 60 feet in width on the Southern side near the fencing the remaining portion of these survey numbers was contracted to be sold on a consideration of Rs. 11,000/- on 13.9.63. This contract was preceded by earlier agreements on 30.9.61, 19.10.61, 6.11.61 and 29.5.62 Out of this consideration, the sum of Rs. 6,000/- was paid to the defendant whereas the balance consideration of Rs. 5,000/- was agreed to be paid between the period-1.1.64 and 1.5.64 in five instalments of Rs. 1,000/- each. The possession, subsequent to the contract dated 13.9.63 is with the respondent. It was pleaded that sum of Rs. 4,500/- was paid by the respondent to the appellant through his agent Shrikrishna Maheshwari and the balance sum of Rs. 500/- was agreed to be paid at the time of registration of the document. On demand, the appellant failed to execute the sale-deed whereas the respondent was always ready and willing to perform his part of the contract. On non-compliance, the respondent filed the suit claiming specific performance of the contract dated 13.9.63 after issuing the notice and receiving the intimation of refusal on 7.10.68. The appellant resisted the claim on number of grounds and asserted that the respondent committed the breach of the contract and was not even ready and willing to perform his part of the contract. The appellant, therefore, prayed for dismissal of the suit. On evaluation of the evidence, the trial Court decreed the suit for specific performance of the contract and directed the appellant to execute the sale-deed on receiving the balance consideration of Rs. 500/-. Aggrieved by this judgment and decree, the appellant-defendant has preferred this first appeal.

3. As noted above, this is defendant's appeal. He is aggrieved by the decree of specific performance of the contract dated 13.9.63 (Ex. P/3) which was preceded by the agreements dated 30.9.61, 19.10.61, 6.11.61 and 29.5.62, on consideration of Rs. 11,000/- out of which sum of Rs. 10,500/- is alleged to have been paid prior to the institution of the suit.

4. Shri S.D. Sanghi, learned Senior counsel with Shri N.K. Sanghi, has impugned the judgment and decree on grounds, prodigious in number, as categorised below-

a) The suit contract is hit by section 23 of the Contract Act as being contrary to law and is thus, unenforceable. It is luculent that transfer; was at the relevant time, i.e. 13.9.63, forbidden by 'law via section 165 (4) (b) of the M.P. Land Revenue Code. Although this constraint was deleted subsequently by amendment on 23.4.64, yet this could not validate the invalidity. Omission of section 165 (4) (b), requiring the Bhumiswami to own not less than ten acres of unirrigated land, by section 15 of the Act No. 25 of 1964, was inconsequential as the suit still remained one for the enforcement of the contract executed at a time when transfer had stood prohibited. Reliance was placed on 1979 (I). MPWN 303 (Burhia v. Gajiba), The full text of the judgment is made available. .

b) The trial Court erred in holding that the respondent was 'ready and willing' to perform his part of the contract. The respondent had clearly flouted the term as regards the schedule of payment of the balance consideration. He did not pay the sum of Rs. 5,000/- as agreed and elvishly showed that Rs. 4,500/- were paid via one Shri Kishanji-mode unconsented-and the sum of Rs. 500/-