Shinghal, J.:— This second appeal of the defendant is directed against the appellate judgment and decree of District Judge, Pratabgarh, dated August 11, 1666 in a suit for specific performance of a contract for the sale of immoveable property situated in Pratabgarh.

2. Pherozshah Fardoonji, the husband of the defendant Smt. Dhanbai admittedly died on December 23, 1956 leaving the defendant and their daughter Smt. Zarbai as his heirs. It seems that he owned plots Nos. 450 and 451, including a petrol godown, in Pratabgarh. Plaintiff Pherozshah is also a resident of Pratabgarh on December 23, 1958, on the second anniversary of the death of the defendant's husband, there was a contract between the plaintiff and “Perozshah Rustamji & Sons” for the sale of the suit land for Rs. 3,501/- in terms of document Ex. 1 executed by the defendant. The defendant received an advance payment of Rs. 101/- from the plaintiff and specifically stated in Ex. 1 that she would get the sale deed registered within two days. She further stated that she and her children will have no objection to the sale and that if any objection was raised, she herself would be personally responsible to her children. Then it was stated that “from today onwards the right, title and interest in property will pass in you that is Ferozshah Rustamji & Son.” The document was written by Shri Basant Lal Jain P.W 4, who was a local advocate. The plaintiff raised the present suit on October 18, 1960, alleging that the defendant put him in possession of the suit property, and that he stopped paying the tent to her but that she did not execute the sale deed within the stipulated period of two days. The plaintiff stated in paragraph 2 of the plaint that inspite of his reminder and demand, the sale deed was not executed and that, on the other hand, the defendant gave him a notice on February 3, 1959 refusing to do so. He sent a reply to that notice on February 7, 1959, informing the defendant that if she would not atonce execute the sale deed after registering it and take Rs. 3,400/- from him, proper action would be taken against her. February 8, 1959, was stated to be the date on which the cause of action for the suit arose to the plaintiff. It was further stated in the plaint that Smt. Zarbai T. Marfatia, the daughter of the defendant, filed a suit for cancellation of document Ex. 1, but it was dismissed on August 18, 1960. Thereafter the plaintiff instituted the present suit claiming that he was entitled to get the sale deed executed and registered on payment of Rs. 3,400/-. He prayed for a decree for the execution of the sale deed and for the payment of Rs. 3,400/- to the defendant. He also prayed for a declaration that he was in possession of the suit property as its owner, and that the defendant had no right to interfere with it. The defendant filed a written statement stating that she was not the only owner of the suit property and that her daughter Smt. Zarbai T. Maifatia was a co-owner. She contended that letters of administration or any other certificate had not been obtained in respect of the property under the Indian Succession Act and that it was therefore a point for consideration as to who were its owners. The defendant admitted the execution of document Ex. 1, but pleaded that it was executed in favour of Ferozshah Rustam, & Son, and that it was obtained from her by undue influence because she was a widow and was overwhelmed with grief on the date of execution of the document as it happened to be the second anniversary of her husband's death. According to her, she could not obtain independent opinion about the execution of Ex. 1 and the document was obtained by mis-representation and coercion even though the property was worth at least Rs. 10,000/- at that time. She pleaded that when she refused to accept Rs. 101/-, the plaintiff threw it without her consent and went away. She then consulted her relations, sought advice from others and gave notice Ex. 2 to the plaintiff. The defendant also took the plea that as the right, title and interest in the land was transferred to the plaintiff by document Ex. 1 which was not a registered document, it was not admissible Page: 596in evidence. Then a specific plea was taken that as the document was in favour of “Ferozshah Rustamji & Son” the plaintiff alone was not entitled to institute the suit which should be dismissed for non-joinder of a necessary party. The defendant, however, denied the claim that the plaintiff was put in possession of the suit property by document Ex. 1. She also denied that he had any cause of action for the suit.

3. The plaintiff filed a written statement under O. 8, r. 9 C.P.C on March 13, 1956 stating that document Ex. 1 was obtained by him and that the agreement was made only with him. His son was not present at that time and there was no business entity of the name of Ferozshah & Son. He clarified that the words “& Son” were written so that his son may be his only heir after his death. On this basis, the plaintiff pleaded that his son was not a necessary party to the suit. He further pleaded that the defendant engaged Shri Basantlal Jain as her counsel in the dispute with the Municipality in respect of the suit land, and that the land was released by the Municipality. It was thus pleaded that the defendant had availed of the independent advice of her counsel when she executed document Ex. 1 on receipt of Rs. 101/- from the plaintiff and promised to execute the sale deed within two days “after bringing the stamp.” The plaintiff denied the allegations regarding undue influence, coercion and mis-representation. He also denied that Smt. Zarbai had anything to do with the property or was a necessary party to the suit. According to him the value of the property on the date of the agreement was not more than Rs. 3,000/- or Rs. 3,500/-.

4. The trial court framed 13 issues, and decreed the suit. The defendant preferred an appeal to the District Judge of Pratabgarh. That learned Judge partly allowed the appeal by directing that the decree for specific performance would be confined to the defendant's share in the suit property on payment of Rs. 3,400/-. As the rest of the appeal was dismissed, the defendant has preferred the present second appeal.

5. It has been argued by Mr. Bachawat, learned counsel for the defendant-appellant, that learned Judge of the lower appellate court committed a substantial error of law in not dismissing the suit even though the plaint did not disclose a cause of action inasmuch as it did not contain an averment regarding the plaintiff's readiness and willingness to perform his part of the contract. On the other hand, Mr. Gupta, learned counsel for the plaintiff-respondent, has pointed out that no such plea was taken in the written statement and there was no issue in respect of it so that it could not be raised for consideration at all. In the alternative, Mr. Gupta has argued that the averment about the plaintiff's readiness and willingness to perform his part of the contract was a condition precedent to the maintainability of the suit and should be implied under O. 6 r. 6 C.P.C This is therefore the first point for consideration in this appeal.

6. As I shall show in a while, it is an essential requirement of a suit for the specific performance of a contract for the sale of the immoveable property that the plaintiff should make an averment about his readiness and willingness to perform his part of the contract. It therefore forms part of the cause of action for the suit, and it is always open to a party to pray for the dismissal of a suit which does not disclose a cause of action. The plaintiff must therefore have been a ware of this requirement. It has infact been argued by his learned counsel that this was so and that the plaintiff has specifically made such an averment in paragraphs 2, 5 and 8(1) of the plaint. Now the averment in paragraph 2 has been admitted by the defendant only to the extent that the plaintiff sent a reply to her notice, and the rest of it has been denied in the written statement. Then the defendant has taken the further plea in paragraph 3 of the written statement that there was no cause of action for the suit. It therefore appears that the parties were aware about the necessity of making an averment about the plaintiff's readiness and willingness to perform his part of the contract, so that it cannot be urged with any justification that a new point has been raised for the first time in this court. Moreover issue No. 3 has been so worded that the controversy regarding the averment may well be said to fall within its purview, for it raises the question whether the plaintiff was entitled to have the sale-deed executed on payment of Rs. 3,400/-. It may also be mentioned Page: 597that the plaintiff has led his evidence on this point and it was raised for the consideration of the lower appellate court, and has been considered in paragraphs 14 to 17 of its judgment. No objection was raised in that court that the point could not be argued in the absence of an issue and, for all these reasons. I am not inclined to take the view that it should be ruled out of consideration. Reference in this connection may be made to Gomathinayagam Pillai v. Palaniswami Nadar (1). That was also a case of specific performance of a contract for the sale of the immoveable property, and there also the trial court did not raise a specific issue about the readiness and willingness of the plaintiff to perform his part of the contract. But the parties were fully aware of what was required to be proved and led evidence in support of their respective cases. No objection was raised in the High Court against the trial of the plea about the plaintiff's readiness and willingness to perform the agreement without a specific issue thereon. For these reasons their Lordships of the Supreme Court held that the second issue, which dealt with the question whether the plaintiff was not entitled to specific performance of the sale of the suit properties, included trial of the plea regarding the absence of the averment about the plaintiff's readiness and willingness to perform his part of the contract. There is therefore high authority for the view that the question whether the plaintiff has made an averment regarding his readiness and willingness to perform his part of the contract should be allowed to be raised in the facts and circumstances of a case like the present, as it relates to the basic question whether the plaint at all discloses a cause of action. As, however, there has been a good deal of controversy before me on the question whether any such averment is necessary in a suit of this nature, I shall proceed to examine the law in that respect.

7. I shall begin by stating the position of the law in England. It has been stated as follows at page 331, paragraph 486, of the Halsbury's Laws of England, third edition, volume 36,—

“486. Plaintiff's plea that he is ready and willing to convey—A plaintiff in an action for specific performance of a contract for the sale of land must plead that he is ready and willing to carry out the contract, and repudiation of the contract by the defendant does not relieve the plaintiff from this obligation.”

8. The question then is whether this has been so in our country? Such a question arose for consideration in Ardeshir H. Mama v. Flora Sassoon (2). Lord Blanesburgh stated the position according to the common law of England as follows—

“Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered.

In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still submitting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part Failure to make good that everment brought with it the inevitable dismissal of his suit.”

9. The learned Judge has then stated the position in India as follows.—

“Bearing in mind this statement of the existing operation of the English system at the time of the passing of the Specific Relief Act, their Lordships now proceed to an examination of the relevant provisions of that statute.

And, first, very notable is the fact that in the Act, the distinction between the two kinds of action is maintained, a distinction obvious in England where originally they had to be brought in different Courts, but not necessarily called for, when, as in India, both legal and equitable relief may be obtained in one. The distinction, however, is clearly indicated in S. 24[c], which enacts that specific performance of a contract cannot be enforced in favour of a person ‘who has already chosen his remedy and obtained satisfaction for the alleged breach of contract:

and even more directly is it manifested in S. 29 already referred to which enacts that the dismissal of a suit for specific performance of a contract…………

‘shall bar the plaintiff's right to sue for compensation for the breach of such contract.’

Although so for as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (S. 24(b) is the nearest), it seems invariably to have been recognized, and on principle their Lordships think rightly, that the Indian and the English requirements in this matter are the same.”

10. This statement of Lord Blanesburgh regarding the correct legal position in India has been cited with approval by their Lordships of the Supreme Court in Pt. Prem Raj v. The D.L.F Housing and Construction (P.) Ltd. (3) where it has been observed as follows,—

“There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract. It is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned, the plaintiff has no cause of action.”

11. It is therefore quite clear that in our country also an averment about the plaintiff's readiness and willingness is necessary in the plaint.

12. It may also be mentioned that Ardeshir H. Mama v. Flora Sassoon (2) has been cited and followed with approval by their Lordships of the Supreme Court in Gomathinayagam Pillai v. Palaniswami Nadar (1). Moreover in Ouseph Varghese v. Joseph Aley (4) their Lordships have referred to the observation in Pt. Prem Raj's case (3) cited above and held that,—

“It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.”

13. In view of these clear pronouncements, there can be no doubt that a suit for specific performance will not disclose a cause of action, and will not be maintainable, if the plaintiff does not make an averment in the plaint that he is ready and willing to perform his part of the contract.

14. Mr. Gupta tried to get over the omission in the plaint by arguing, with reference to the decision in Tan Ah Boon v. State of Johore (5), that an action for damages can also not be maintained unless the plaintiff can aver and prove that he has performed and had at all time been ready to perform his part of the contract. The learned counsel has thereby argued that the requirement of the law in England in this respect is the same in a suit for the recovery of damages as in a suit for specific performance, and that if such an averment can be implied in respect of a suit for the recovery of damages as in Tan Ah Boon's case (5), there is no reason why it should not be implied in the other suit for specific performance. The learned counsel has, in this connection, made a cross-reference to Abdullah Bey Chedid v. Tenenbaum (6). That was a suit for damages by the purchaser, and it was held that readiness and willingness to carry out his obligation need not be expressly pleaded in England, and may be implied. I have gone through the two decisions cited by Mr. Gupta, but they cannot avail the plaintiff because they were actions for the recovery of damages, and not for specific performance of contracts for the sale of lands. The distinction between the two suits for damages the plaintiff treats the obligation at an end, and this is why it has been held that an averment regarding the readiness and willingness to carry out his obligations is a condition precedent to his right to recover damages, so that such a condition need not be specifically pleaded by virtue of O. 19, r. 14 of the Rules of England, which are similar to Page: 599O. 6 r. 6 in our Code of Civil Procedure, and that be implied. It will thus appear that while the averment regarding readiness and willingness is a condition precedent to an action for the recovery of damages, it is an essential part of the cause of action in a suit for specific performance inasmuch as the plaintiff does not put an end to the contract but makes a claim for its specific performance. A condition precedent does not, strictly speaking, form a part of the cause of action: Gates v. W.A and R.J Jacobs, Limited (7). Krishna Prasad Sing v. Adyanath Ghatak* (8), and Ahmed Hossein v. Mt. Chembelli (9).

15. It will thus appear that there is no force in the argument of Mr. Gupta to the contrary. He has however made a further reference to Firm Kanwar Bhan Sukha Nand v. Firm Ganpat Raj Ram Jiwan (10) which has been followed by this court in Ramdeo v. Firm Birdhichand Sumermal (11) for the submission that an averment of the performance of the condition precedent, that is to say, readiness and willingness of the plaintiffs to perform their part of the contract, must be implied. It will be sufficient to say that those were cases for the recovery of damages, and are not really in point. The same is the position regarding Arjunsa Raghusa v. Mohanlal Harakchand Arjuna Mudaliar v. Lakshmi Ammal (13) was no doubt a case for specific performance, and their Lordships, white stating that in a suit for specific performance the plaintiff has to allege that he is ready and willing to perform his part of the contract, reached the conclusion that such an averment could be spelled out from the plaint inasmuch as while the plaintiff put forward his own case, he made it clear that he was ready and willing to perform his part of the contract in accordance with the decision of the court. In Shamlal Yadorao Bhau v. Yosaram Lodku Power [14], their Lordships no doubt referred to the decision in Arjunsa Raghusa v. Mohanlal Harakchand [12], but that was with reference to the meaning of the everment of readiness and willingness and, in fact, their Lordships took note of the decision in Ardeshir H. Mama v. Flora Sassoon [2]. On a perusal of the plaint, however, they found that the plaintiff had asserted that he was ready to perform his part of the contract, and that was therefore held to be quite sufficient. Narayan Nagorao v. Amrit Haribhau [15] was also a case of specific performance. It was appreciated in that case that the plaintiff must treat the contract as subsisting, and it was held in that connection that he can do so by making a specific allegation to that effect in the plaint. As the plaintiff had clearly referred to the notice given by him to the defendant in which he had expressly stated his readiness and willingness to perform his part of the contract, it was held that there was sufficient compliance with the requirement of the law. Nannapanent Subayya Chowdary v. Garikapati Veeraya [16] makes a reference to Arjuna Mudaliar v. Lakshmi Ammal [13] and takes note of the decision in Ardeshir H. Mama v. Flora Sasson [2]. It has been held in it that it is enough in a suit for specific performance of a contract for the sale of land if the plaintiff makes it clear in the recitals in the plaint that he is ready and willing to perform his part of the contract, and such an averment was found to exist in paragraphs 6 to 8 of the plaint Mr. Gupta has made a reference to Mulla Badruddin… v. Master Tufail Ahmed…. [17] also. That was a case relating to specific performance, and it was found that the plaintiff had clearly averred in the plaint that he was ready and willing to perform his part of the contract.

16. It is thus clear that the cases cited by Mr. Gupta do not really help the plaintiff, and the fact remains that his learned counsel has not been able to cite any case in which a view contrary to that stated in Ardashir H. Mama v. Flora Sasson (2) has been taken, or in which O. 6, r. 6 C.P.C [O. 19, r. 14 in England] has been invoked for taking the view that such an averment should be taken to be implied in the pleading, there is therefore no force in the argument of Mr. Gupta to the contrary and it may well be said that the point almost settles itself as a result of the above discussion. I have no hesitation in holding that the plaintiff in an action for specific performance of a contract for the sale of land must plead that he is ready and willing to carry out the contract. The repudiation of the contract by the defendant will not relieve him of this obligation.

17. The question then is whether the plaintiff has made an averment in the present case that he was ready and willing to perform his part of the contract? It has been argued by Mr. Bachawat that no such averment has been made in the Page: 600plaint, while it has been contended by Ms. Gupta that, the averment has been made in paragraphs 2, 5 and 8[1].

18. In order to arrive a decision, it has first to be seen what kind of a plea will meet the requirement of the law in this respect. The matter has been considered in paragraph 6 of Gomathinayagam Pillai v. Palaniswami Nadar [1], which has been referred to above in another connection and their Lordships of the Supreme Court have held as follows,—

“The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his pan of the contract continuously between the date of the contract and the date of hearing of the suit…………………”

19. The averment in the plaint relied on by Mr. Gupta has therefore to be examined in the light of this requirement.

20. In paragraph 2 of the plaint it has been stated that inspite of reminder and demand, the defendant did not execute and register the sale-deed and that, on the other hand, she gave a notice to the plaintiff on February 3, 1959 refusing to execute the document and that the plaintiff therefore stated in his reply dated February 7, 1959 that if she would not at once execute the sale-deed after registering it, and take Rs. 3,400/- from the plaintiff, proper action would be taken against her. But such an averment cannot be said to fulfil the above-mentioned requirement. Then in paragraph 5 of the plaint the plaintiff has stated that he was entitled to have the sale-deed executed by the defendant and to get it registered, and to pay her Rs. 3,400/-. This is also not an averment of the kind of readiness and willingness required in such a case. Paragraphs 8[1] of the plaint relates to the relief claimed by the plaintiff but, even so, its relevant portion relied upon by Mr. Gupta merely contains the prayer that the sale-deed should be got executed by the plaintiff on a stamp paper, that it should be registered after attestation and thereafter Rs. 3,400/- should be ordered to be paid to the defendant. This again is not an averment of the plaintiff's continuous readiness and willingness to perform his part of the contract. On the other hand, it may well be said that the pleas taken in paragraphs 2, 5 and 8[1] of the plaint go to show that the plaintiff was not prepared to do anything more than pay Rs. 3,400/- to the defendant now it has to be remembered that as no contract to the contrary was pleaded in the plaint, it was the duty of the buyer, under sec. 55[1][d] of the Transfer of Property Act, to tender a proper conveyance of the property to the seller for execution at a proper time and place. So also, it was his duty under sec. 29[c] of the Stamp Act to bear the expenses for the purchase of the proper stamp for the conveyance. These statutory obligations of the buyer inhere in every such contract, in the absence of an agreement to the contrary. As it is admitted that there was no agreement to the contrary, it was the plaintiff's duty to make a general averment of his readiness and willingness to perform his part of the contract, or to plead specifically that he was, inter alia, ready to tender the conveyance and pay the expenses for the purchase of the stamp Reference in this connection may be made to Ma Hnit v. Maung Po Pu (18) in which it has been held by their Lordships of the Privy Council that it is the duty of the purchaser to tender a conveyance, and he would then, and not before such a lender was either made or waived, have the right to the deed of transfer. Then it has been held in Dau Alakhram v. Mt. Kulwantin Bai (19) that the expenses for the deed of sale have to be incurred by the purchaser and it was thus for the plaintiff to express his readiness and willingness to pay the money for the stamp paper and to call upon the other side to execute the sale-deed. The other decisions on the point are Saral Kumar Chatterjee v. Madhusudan Auddy (20) (paragraph 33A), and Mst. Suraj Bai v. Nawab Mohammad Mukarram Ali Khan (21) The averments referred to by Mr. Gupta in the plaint are therefore quite inadequate.

21. On the other hand, it appears that in paragraph 2 of his written statement under O. 3 r. 9 C.P.C the plaintiff went to the extent of taking the plea that the defendant agreed to bring the stamp, and he therefore blamed her for her refusal to execute the sale-deed. A perusal of Ex. 1 shows, however, that there was no such agreement between the parties and the plaintiff had to admit, during Page: 601his cross-examination, that this was really so. So even if the averments in the plaint and in the plaintiff's written statement are construed liberally, they do not contain a plea that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of the hearing of the suit. I have, in this connection, tried to find out whether there is a mention of any such document in the plaint from which such readiness and willingness may be inferred on behalf of the plaintiff. I find that he has made a reference to his reply (Ex. 3) to the defendant's notice Ex. 2, but it has not been stated in any part of that reply that the plaintiff was ready and willing to perform his part of the contract.

22. Faced with such a situation, Mr. Gupta tried to get out of the difficulty arguing that the tender of the conveyance and the expenses for the purchase of the stamp were not the essential conditions of the contract for sale and that it was not therefore necessary for the plaintiff to plead that he was ready and willing to comply with the requirement of the law in that respect. The learned counsel made a reference to paragraph 923 of “Fry on Specific Performance”, sixth edition, page 436, where it has been stated that the plaintiff need not show performance of, inter alia, the non-essential terms. But that paragraph falls under the heading relating to the performance of past acts and is not really of any relevance for purposes of the present controversy. On the other hand, it has been stated as follows in paragraph 948 which appears under the heading “The performance of the future acts”,—

“948. We may now consider the obligation which lies on the plaintiff, in an action for specific performance, of being ready and willing to perform all acts that on his part yet remain to be performed.”

23. There is therefore no force in the argument of Mr. Gupta, and it was necessary for the plaintiff to make an averments of his readiness and willingness to perform “all acts”, and it was not open to him to leave out, or to refuse to comply, with the requirement regarding the tender of the conveyance or the purchase of the stamp.

24. Mr. Gupta has made a reference to some cases in support of his argument that the averment regarding readiness and willingness need not relate to the non-essential conditions of the contract and I may as well deal with them here for they are all distinguishable. Gangai Ammal v. Govinda Padayachi (22) dealt with the requirement of sec. 55(5)(d) of the Transfer of Property Act and not sec. 55(1)(d). Ma Sa Bon v. Ma Da Twe (23) also did not deal with sec. 55-1)(d) of the Transfer of Property Act or sec. (29)(c) of the Stamp Act. In fact the default on the part of the promises did not, in that case, go to the root of the contract. Gostho Behari Sadhukhan v. Omiyo Prosad Mullick (24), which was decided with reference to Josheph Oxford, Alexander Levysohn and Jacob Arnhold And Andrew Provand and Robert Daly (25), was a case of the lessee's liability to pay the lessors ‘solicitors’ costs for preparation and execution of the lease according to the custom in Calcutta, and such a default could not be of any consequence with reference to the requirement of the law regarding the plaintiff readiness to perform his part of the contract. International Contractors Ltd. v. Prasanta Kumar Stiri (26) dealt with the question of the purchaser's responsibility to tender the amount to the vendor on repudiation of the contract, and has no relevance for a of determination of the point under consideration. Durga Prasad v. Bishan Swarup (27). I gave that judgment in a suit for specific performance of the contract for sale of immoveable property, but it was decided on different facts even though the plaintiff in that case did not tender the convehance, he took care to make the clarification, in reply to the defendant's notice, that it was not really necessary to prepare a draft of the sale-deed as a simple document in terms of sec. 54 of the Transfer of Property Act would be quite sufficient. The vendor did not choose to sent a reply to that communication, and the plaintiff therefore sent him a telegram to take the ready money and sell the land. It was held that it was the bounden duty of the defendant under sec. 55(1)(d) of the Transfer of Property Act to execute a proper conveyance of the property when the buyer tendered it for execution at a proper time and place. That judgment cannot also be said to be of any help to the plaintiff in the present case.

25. It will thus appear that the plaintiff has not made an averment in the plaint regarding his readiness and willingness to perform his part of the contract. The plaint does not therefore disclose a cause of action for the suit and there is justification for the argument that it should be dismissed for that reason.

26. But even if it is assumed, for the sake of argument, that the plaintiff made an averment regarding his readiness and willingness in paragraphs 2, 5 and 8(1) of the plaint, I find that they hive been traversed in the corresponding paragraphs of the written statement. It is trite law, dating back to the decision in Ardeshir H. Mima's case (2), that in a suit for specific performance the plaintiff his to allege, “and if the fact was traversed” he is required to prove the continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. As the defendant traversed the laconic plea taken in the plaint in this respect, it has to be examined whether the plaintiff has proved his readiness and willingness as required by the law. It is true that there is no express issue on the point, but it may well be said that issue No. 3, which, as has been stated earlier, deals with the question whether the plaintiff is entitled to have the sale-deed executed in his favour in accordance with the terms of the contract, covers this aspect of the matter also it will be remembered that in Gomathinayagam Pillai's case (1) also no specific issue was raised about the readiness and willingness of the respondent to perform his part of the contract, but their Lordships of the Supreme Court took the view that the second issue which raised the question whether the plaintiff was not entitled to specific performance of the sale of the suit properties in his favour, included the trial of the plea about the vendee's readiness and willingness to perform his part of the contract. On a parity of reasoning, I am inclined to think that issue No. 3 should cover a similar question for purposes of the present case. For reasons which 1 need not repeat, the averment regarding the readiness and willingness of the plaintiff is a part of the cause of action without which such a suit can not be maintained, and it is the case of the his learned counsel that the plaintiff was alive to this requirement and has pleaded it in the plaint. As has been stated, the defendant has traversed whatever plea may be said to have been taken by the plaintiff in this respect. The parties were therefore fully aware of what was required to be proved, and as they led evidence in support of their respective pleas, there is no question of any prejudice if it is examined whether the plaintiff has succeeded in proving his readiness and willingness to perform his part of the contract. I am fortified in this view by the decision in Nagubai Ammal & Others v. B. Shama Rao & Others (28) and Gomathinayagam Pillais case (1). At any rate, as the point was allowed to be raised in the lower appellate court without and objection, and a finding of fact was recorded in respect of it in paragraphs 14 to 17 of its judgment, there is justification for Mr. Bachawat's argument that I should examine whether that of finding is legally correct.

27. A perusal of the statement of plaintiff Ferozshah Rustamji P.W 1 shows that in terms of document Ex. 1 dated December 23, 1958 the sale-deed was to be executed within a period of two days. He has also admitted that he did not approach the defendant for the execution of the document within that period. In fact he did not give a notice calling for specific performance until after the defendant had given him notice Ex. 2 on February 3, 1959. He sent reply Ex. 3 to that notice and although it was lengthy, he did not state in it that he was ready and withing to perform his part of the contract. He has stated in the trial court that after the expiry of the period of two days he asked the defendant to take Rs. 3,400/- from him and to execute a registered sale-deed in his favour, but she refused to do so. As it happens, the date, time and place of this demand have not been stated, so that the statement does not inspire confidence. Moreover the plaintiff has admitted that there was no agreement as to who would bear the expenses of the stamp for the conveyance, inspite of this he has stated in his written statement under O. 8, r. 9. C.P.C that the defendant had entered into an agreement to bring the stamp and execute the sale-deed. Mohanlal P.W 6, the muneem of the plaintiff, has also stated that the defendant refused to get the stamp and to execute the sale-deed even though he was prepared to pay her Rs. 3,401/-. It is therefore quite clear that although according to section 29(c) of the Stamp Page: 603Act the stamp was to be purchased at the expense of the plaintiff, he insisted that this should be so at the expense of the defendant. There was thus an unwillingness on the part of the plaintiff to abide by the terms of contract Ex. 1. As has been held in Sobharam Jiwan v. Totaram Sitaram (29) and Simon Jacob Silas v. Gasper John Baithasar Kohlhoff (30), this would negative his continued readiness and willingness to perform his obligation under the contract.

28. It may also be mentioned that the plaintiff has not led any evidence at all to show that he was willing to perform his part of the agreement by tendering the conveyance or the expense for the purchase of the stamps.

29. In these circumstances, I have no hesitation in reversing the finding of the trial court and in holding that the plaintiff has not succeeded in proving that he was read and willing to perform his part of the contract.

30. It has next been by Mr. Bachawat that the finding of the lower appellate court on issue No. 9, which deals with the question whether the plaintiff alone was not entitled to sue and his son was a necessary party to the suit, has been vitiated by substantive errors of law inasmuch as valuable evidence bearing on it has been completely ignored by the learned Judge of the lower appellate court so that it should be re-examined in second appeal.

31. According to document Ex. 1 the defendant agreed to sell the suit land in favour of “Feroz Shah Rustamji & Son”, and in its concluding portion it was reiterated that her right, title and interest in the property “will pass” to “Feroz Shah Rustamji & Son” The document was written by Shri Basantlal Jain P.W 4, who was an advocate. It was therefore a document in favour of the plaintiff and his son and as the sale-deed had to be executed in terms of Ex. 1, it had necessarily to be in favour of both of them, for both of them were to become the owners of the property as the contract for sale was in their favour within the meaning of sec. 45 of the Contract Act. They were therefore both necessary parties to the suit. Reference in this connection may be made to Shankar Bandu v. Shankar Babaji (31) where it has been held with reference to sec. 91 of the Evidence Act that where a contract is entered into by the parties, it deals with the subject matter as well as the persons between whom it is entered, and the names of the parties in so far as they relate to the terms which create obligations cannot be regarded as so divorced from the terms of the contract that evidence may be led to show that some other persons intended to incur the obligations under the contract instead of the persons designated therein. It is important to point out in this connection that the plaintiff has admitted that he has a son named “willed; that he had no firm in the name of Feroz Shah Rustamji & Son” and that he got the words ‘& Son’ written in Ex. 1 so that the property may devolve on his son after his death, to the exclusion of the others. The intention therefore was to exclude the other heirs by making the son a joint owner. He was thus a joint promisee and was entitled to have the sale-deed executed in the name of his father and his own. That this was the true intention of the plaintiff, would appear from the fact that he sent Ex. 3 dated February 7, 1959, which was his first communication to the defendant, in the name of “Feroz Shah Rustamji & Son” and used the expressions “We” and “our” at more than a dozen places. Then it has to be remembered that the plaintiff, or his son Biraf Feroz Shah Contractor P.W 2 have not stated that the father did not have the authority to accept the defendant's promise for the sale of the land on behalf of the son within the meaning of sec. 2(c) of the Contract Act. It has also to be appreciated that if it had become necessary for the defendant to file a suit on the basis of document Ex. 1, it would not have been possible for her to leave out the son and sue father alone.

32. The learned Judge of the lower appellate court did not examine all this evidence and the law bearing on it. On the other hand, he disposed of the whole matter in a summary fashion in paragraph 11 by stating that in his opinion the record did not show that the plaintiff's son was a co-purchaser for the reason that there was no evidence to show that any talk took place between the defendant and the plaintiff's son for the sale and purchase of the property in dispute and there was no privity of contract between them. He also referred to the statement of the son that he had not entered into the agreement with the defendant and took notice Page: 604of the common knowledge that many times the name of a certain person is included among the purchasers even though he is not a purchaser. It is apparent therefore that the learned Judge did not take into consideration the evidence on the record, and the law bearing on the point in controversy, so that his finding has been vitiated by a substantial error of law. I set aside that finding and hold that the plaintiff's son was a necessary party to the suit as a co-promisee. Mr. Bachawat has tried to raise an argument that the contract for the sale of the land in question was void for uncertainty because of the uncertainty about the area of the land. I am not inclined to consider this argument because it essentially relates to a question of fact, and as that fact has not been pleaded in the written statement, no issue has been framed in regard to it, and it has not been argued in the two courts below, it will not be fair and reasonable to allow it to be agitated in second appeal. So also, I do not think it necessary to consider the argument of Mr. Bachawat that the learned Judge of the lower appellate court committed an error of law in allowing the benefit of sec. 15 of the Specific Relief Act to the plaintiff and in granting a decree for specific performance of the contract for sale of immoveable property in disregard of the inequitable conduct of the plaintiff, because I have no doubt that the plaintiff is enmeshed in the other difficulties mentioned above and his suit must fail on account of them.

33. The appeal succeeds, the impugned judgment must be set aside and entered for the defendant. Mr. Bachawat has however agreed that a decree may be passed in favour of the plaintiff for the refund of Rs. 101/- with interest at 6 per cent per annum of the advance received by the defendant. While therefore the plaintiff's suit for specific performance is dismissed, it is decreed that he will be entitled to recover Rs. 101/-, with interest at 6 per cent per annum, from the defendant. The parties will be entitled to costs in proportion to their success or failure in this court, throughout.