In a specific performance case, the Plaintiff must prove readiness and willingness to perform the contract, and the competence of the Defendant to execute the sale deed is crucial.

G.S. Solanki, J.

1. Being aggrieved by the judgment and decree dated 11.02.2005, passed by District Judge, Seoni, in civil suit No. 3-A/01, Defendant/Appellant has preferred this appeal under Section 96 of Code of Civil Procedure

2. In short the Plaintiff/Respondent's case is that the Defendant/Appellant owing a shop in Seoni city which is situated in Block No. 49, Plot No. 209/5, area of 15.5" X 14" pakka construction along with the open plot of 12.5"X17.5" adjoining to backside of the shop, aforesaid shop and plot hereinafter to be referred as disputed property.

3. According to Plaintiff/Respondent, Defendant/Appellant executed an agreement to sale of disputed property on 21.06.2000 vide Ex. P/1 for the amount of Rs. 1,48,500/-, out of which Rs. 48,500/-was taken as an advance. As per terms of the agreement rest amount of Rs. 15,000/-will be paid on Dipawali, 2000 and the balance of Rs. 85,000/-to be paid up to 8.3.2001. Thereafter Defendant/Appellant will execute the registered sale deed in favour of Plaintiff/Respondent.

4. It was further pleaded that Defendant/Appellant had taken Rs. 5000/-on 18.7.2000 and Rs. 15,000/-on 13.10.2000, total Rs. 20,000/-as per terms of agreement and receipt has been endorsed on the back side of Ex. P-1. According to Plaintiff/Respondent in the month of January-February, 2001 he requested the Defendant/Appellant to execute the sale deed after receiving the remaining amount of Rs. 80,000/-but Defendant/Appellant avoided the execution of sale deed. Hence, Plaintiff/Respondent sent a registered notice on 20.02.2001, informing Defendant/Appellant that, he may after receiving the balance amount Rs. 80,000/- execute the sale deed on or before 8.3.2001.

5. Defendant/Appellant in his reply raised the objection in regard to size of the plot as well as he pleaded that Plaintiff/Respondent failed to pay the remaining amount of the agreement, therefore, due to non compliance of terms of agreement to sale, same become void.

6. Defendant/Appellant's case in short is that disputed property is an ancestral property and he is not sole owner of the disputed property. According to Defendant/Appellant there is share of her mother and son in the disputed property therefore he had no right to sale the whole disputed property. He further pleaded that Plaintiff/Respondent indulge in money landing that too, without license. According to Defendant/Appellant he taken the loan from the Plaintiff/Respondent and Ex. P/1 was executed for the purpose of security of loan of Rs. 50,000/- only, therefore he prays for setting aside impugned judgment and decree.

7. Learned trial court after framing the issues and on appraisal of evidence on record decreed the suit as mentioned herein above. Hence, this appeal.

8. Learned Counsel for the Appellant submitted that trial court committed error in not appreciating the evidence on record in its proper perspective. He further contended that the said agreement was only for the purpose of collateral security for loan transaction. He further contended that trial court committed error in assessing the readiness and willingness on the part of the Plaintiff/Respondent. He further contended that disputed property is ancestral property in which share of other coparcener is existed therefore no decree for specific performance of contract can be passed. He lastly contended that learned trial court ought to have use the discretion under Section 20 of the Specific Relief Act, not to decree the suit for specific performance.

9. On the contrary learned Counsel for the Respondent contended that Plaintiff/Respondent was ready and willing to perform his part of contract and Defendant/Appellant failed to perform his part and in this way he supported the impugned judgment and decree passed by the trial court and prays for dismissal of the appeal.

10. I have perused the impugned judgment, evidence and other materials on record and considered the rival contention of the parties.

11. Plaintiff Narayn Singh Thak