GOYAL, J. - (1.) THIS first appeal by the defendants arises out of suit for specific performance of contract instituted by the plaintiffs. The parties in this appeal would be referred as arrayed in the plaint.
(2.) THE suit was instituted by the plaintiffs (five in number) on 14. 8. 1991, which the averments the defendants who are the owners of house-propriety bearing No. C-86a, Jagraj Marg, Mangal Marg, Bapu Nagar, Jaipur, agreed to seel this property to the plaintiff No. 1 for a consideration of Rs. 17,51,000/- vide agreement dated 8. 7. 1989. An amount of Rs. 3 lacs was paid in advance on 8. 7. 1989. THE defendants in part performance of the agreement handed-over possession of some portions of this house to the plaintiff as contained in para 5 of the plaint while giving the details of the terms and conditions of the agreement, it was interalia agreed upon between the parties that the defendants would get the house vacated from the tenants within a period of four months from the date of agreement and that the defendant should obtain N. O. C. from the Income Tax Department and thereafter shall get the registered sale deeds executed in favour of the plaintiff No. 1 or in the name of other persons as named by him. THEreafter, half portion of the house (Northern side) was got vacated from the tenants and sale-deed of this half portion was got registered on 9. 8. 1990 on payment of Rs. 4,37,750/ -. It was next pleaded that the defendants vide letter dated 22. 12. 1989 informed the plaintiff that remaining half portion of the property (Southern side) is now vacant and the plaintiff may take possession of the said portion after making the remaining payment but this information given by the defendants was incorrect as the plaintiff came to know that one tenant Baijnath Ashrfilal is still in occupation in one portion of the house. It has also been pleaded that at the time of registry of the half portion, the plaintiff No. 1 informed the defendants to execute sale-deeds of the remaining half portion in favour of the defendants No. 2 to 5 and further asked the defendants to obtain N. O. C. from the Income tax Department. But the defendants did not obtain N. O. C. in the name of defendant Nos. 2 to 5 and vide Notice dated 7. 11. 1990, the defendants informed the plaintiff regarding cancellation of the agreement and raised a demand of Rs. 50,000/- as damages in addition to an amount of Rs. 1,50,000/- already deposited with the defendants as an advance consideration for the remaining half portion of the house. It was also pleaded that the plaintiff was/is always ready and willing to perform his part of the contract but the defendants failed to do so. The defendants in their joint written statement admitted the agreement and the terms contained there in with a plea that it was not agreed upon between them that the defendants would get the entire house vacated from the tenants within four months. As per written statement, the entire house was got vacated from the tenants by 26. 12. 1989 and it is wrong to say that one tenant Baijnath Ashrafilal was in possession of one portion of this house. While admitting the correspondence between the parties, it was stated that the plaintiffs No. 1 never informed from the obtain N. O. C. in the name of remaining plaintiffs and it was the plaintiff No. 1 who was never ready and willing to perform his part of the contract regarding remaining half portion of the house. It was also pleaded that since there was no agreement between the defendant and the plaintiff No. 2 to 5, the present suit for specific performance in favour of defendants No. 2 to 5 is not maintainable and transaction of sale in favour of defendant Nos. 2 to 5 is barred by Section 3 of the Benami Transactions (Prohibition) Act 1988 (for short the `act' ). On the basis of the pleadings of the parties, following Issues were framed. ************
(3.) EVIDENCE of the parties was recorded. Vide impugned judgment dated 17. 1. 1995, the learned trial Judge decided all the issues in favour of the plaintiffs and thus decreed the suit for specific performance. I have heard learned counsel for the parties. On the basis of the submissions made before this Court, following points arise for consideration:- ``1. Whether the plaintiff No. 1 was and is ready and willing to perform his part of the contract? 2. Whether the suit was not maintainable in absence of fresh agreement? 3. Whether decree for specific performance in favour of plaintiffs Nos. 2 to 5 is illegal? 4. Whether Ex. 1 is a Benami Transaction prohibited by the Act, 1988?'' First Point In a suit for specific performance, it is well settled that the plaintiff has to plead and prove that he was and is ready and willing to perform his part of the contract from the date of agreement to the date of filing of the suit. ;