JUDGMENT : 1. This is defendant's appeal arising out of a decree for specific performance of contract to sell 14.81 acres of land, in favour of the plaintiff-respondent in the Court of the Subordinate Judge, Begamgunj and the dismissal of the defendant's First Appeal. 2. The plaintiff's case was that the defendant agreed to sell the lands to him for Rs. 1,150/-, received a sum of Rs. 50/- as earnest and executed an agreement accordingly, to execute a sale-deed and get it registered. On the contention of the defendant, during the trial of the suit, the plaintiff admitted that the consideration was Rs. 1,500/- and that the document contained a condition that a sum of Rs. 350/- would be damages for failure to effect a sale. The defendant raised the contentions that the court-fee was not proper; that the document was inadmissible in evidence without registration. He denied the contract to sell the lands and added that his signature on the document was obtained by fraud by representing it to be merely for a loan. He added that he could obtain Rs. 3,000/- for the lands. 3. The trial Court ordered payment of deficit court-fee and held that the document was not required to be registered; that the contract was proved and that there was no fraud. On these findings, a decree was passed and the lower appellate Court confirmed the findings and the contention, that the defendant was a minor at the date of the contract and as such it was void, was not allowed to be added and thus dismissed the appeal. The defendant-appellant now contends that : (1) that the contract was not enforceable as compensation was adequate relief; (2) that the plaintiff did not offer to perform his part of contract and therefore no specific performance could be awarded; (3) that the plea, that the defendant was a minor, had not been properly dealt with by the first appellate Court; (4) that the document was inadmissible in evidence for want of registration; (5) that the fraud was indicated by the higher value of the land according to the plaintiff himself; (6) that the suit should not have been decreed before proper court-fee was recovered and (7) that the suit for mere specific performance without possession was not tenable. 4. In my opinion, there is no substance in the last five contentions. 4. In my opinion, there is no substance in the last five contentions. There was no pleading that the defendant was a minor at the date of the contract. This was an allegation of fact and should I have been raised in the trial Court and could not be allowed to be taken in the first appeal. No application for amendment of the statement was also filed in that Court and it rightly rejected the contention in that behalf. The argument, that the said Court did deal with it and gave a negative finding on it, is also not correct. The reference, by the lower appellate Court, to the age of the defendant, as it appeared in the witness-box, merely draws attention to what had been apparent on the record and merely lays emphasis on it to point out the need of a definite pleading on the point. That contention cannot be now allowed to be raised and it may also be noted that no application for amendment of the written-statement has been filed even in this Court. 5. The document (Ex. P. 1) is a mere agreement to sell and under S. 54, Transfer of Property Act, it is laid down that it does not create any interest or charge in the immovable property involved. As such it is not required to be registered. The contention, that it in itself was a sale-deed, is demolished by its mere perusal. The evidence is clear that it was a mere contract to sell. Section 17, Registration Act is not, therefore, applicable to the document and the contention fails to the ground. 6. The allegation regarding practice of fraud raises a question of fact and the concurrent finding of the two Courts below is in the negative and cannot be interfered with in the second appeal. The argument, that the plaintiff himself admitted that the property was mortgaged for Rs. 1,300/- thus indicating that it was worth much higher than Rs. 1,500/- thus further indicating fraud, is not correct as it appears that the plaintiff referred to the alleged mortgage to have been made only after the contract and must be looked at with suspicion. The argument, that the plaintiff himself admitted that the property was mortgaged for Rs. 1,300/- thus indicating that it was worth much higher than Rs. 1,500/- thus further indicating fraud, is not correct as it appears that the plaintiff referred to the alleged mortgage to have been made only after the contract and must be looked at with suspicion. There is no evidence worth the name in support of the plea of fraud and this Court refuses to interfere with the concurrent finding of the two Courts below in the absence of any contention that the evidence was misapprehended. 7. The Court had power to give an opportunity to the plaintiff to make up the deficit court-fee and though at the most it could be contended that it should have recovered the court-fee before the suit terminated, the fact, that this was not done so, is a mere irregularity which causes no prejudice to the defendant as the recovery of proper court-fee was a matter between the Court and the plaintiff, and the defendant had hardly anything to do with it. The contention in that behalf also falls through. 8. The contention, that the suit for a mere specific performance without the consequential relief of possession, was not tenable under S. 42, Specific Relief Act, seems to have been made under misapprehension and is not correct. The bar in the proviso to the section is applicable to only a suit for a declaration and not any other suit. 9. Taking up the contention that the contract could not be enforced as compensation was an adequate relief, it must appear that the presumption under explanation under S. 12, Specific Relief Act is that "a breach of a contract to transfer immovable property cannot be adequately relieved by compensation." The illustration to Cl. (c) under the section shows that a contract to sell immovable property is ordinarily liable to be specifically enforced. It is contended that the document evidencing the contract itself shows that compensation of Rs. 350/- was agreed upon to be paid In case of the breach and therefore, that was an adequate relief and as such under S. 21 (a), Specific Relief Act, the contract should not be enforced. It is contended that the document evidencing the contract itself shows that compensation of Rs. 350/- was agreed upon to be paid In case of the breach and therefore, that was an adequate relief and as such under S. 21 (a), Specific Relief Act, the contract should not be enforced. This argument falls to the ground in view of S. 20 of the Act and a contract of this nature may be specifically enforced as generally the amount named is only done so merely as a penalty, and in law it is always the rule that the penalty being inserted to secure performance, a party could never treat it as an option for him to pay the penalty and decline performance of the contract. Halsbury states the rule thus : "Where the contract contains a stipulation that in the event of non-performance a certain sum of money shall be paid, that fact is not in itself decisive in considering whether or not specific performance should be granted." The answer is to be found by considering the intention of the parties i.e. whether the party bound to performance has an alternative choice given to him by the contract, to perform or to pay the agreed sum, or whether he is bound to do a certain thing, with a penal sum attached as security. In the latter case the Court, notwithstanding the penal clause, enforced performance, if the contract be such that without the penal clause it would have been proper for specific performance. In - 'Kanhaya Lal v. Devidas Jagannath', AIR 1931 Lah 227 (A) it is observed that : "A contract being otherwise proper can be specifically enforced by the plaintiffs under S. 20 although a sum is named in it and the defendant is willing to pay the same on account of its breach by him." The decision in - 'Kandasami Chettiar v. Shanmugha Thevar', AIR 1949 Mad 302 (B) appears to be on all fours with the case on hand. In that case a contract for sale after stating the price and the advance paid by the vendee stated that the balance was agreed to be paid within one month from the date of the contract and that on such payment being made, the sale-deed was to be executed and registered. In that case a contract for sale after stating the price and the advance paid by the vendee stated that the balance was agreed to be paid within one month from the date of the contract and that on such payment being made, the sale-deed was to be executed and registered. The contract contained a default clause as follows : "In case there is a default in completing the sale-deed within the aforesaid due date, the individual who commits the default shall pay the other individual Rs. 100/- as damages and in addition this contract shall become void." It was held that : "The mere existence of a clause to pay Rs. 100/- as damages did not prevent the plaintiff from claiming specific performance by virtue of S. 20, Specific Relief Act." In the case on hand there was no pleading, even in the alternative, that it was the clear intention of the parties that the defendant was merely to pay the compensation as fixed on the breach of the contract and had that choice also under the contract itself. In the circumstances, the contention falls to the ground. 10. Going over to the next point, however, it seems that there is great force in the contention that the plaintiff did not offer to do his part of the contract and therefore it could not be enforced. In a suit for specific performance it is necessary that the plaintiff should prove the existence of a concluded contract between himself and the defendant and further that he was ready and willing at all material dates to perform his part of the contract as it actually was and not as it is alleged by him. The principle underlying this rule is that if there is a desire to enforce a contract, the person seeking to do so must first put himself right by performing his part of or being willing to perform it. In this connection reference may be made to the decision in - 'Rustomali v. Ahider Rehman', 45 Cal WN 837 (D). The principle underlying this rule is that if there is a desire to enforce a contract, the person seeking to do so must first put himself right by performing his part of or being willing to perform it. In this connection reference may be made to the decision in - 'Rustomali v. Ahider Rehman', 45 Cal WN 837 (D). In - 'Arjuna Mudaliar v. Lakshmi Ammal', AIR 1949 Mad 265 (D) it has been observed that : "Undoubtedly in a suit for specific performance the plaintiff has to allege that he is ready and willing to perform his part of the contract." The argument on the opposite side, that this plea was not raised, has no force as it is merely a question of law and can be raised even in the Second Appeal. The plea also could not be taken in view of the fact that the plaintiff himself did not express his readiness and willingness as required under the law. It would also appear that despite the term regarding the consideration, being stated in the document, the plaintiff at the most intended to offer to pay only Rs. 1,150/- and not Rs. 1,500/- as the consideration. This itself is a sufficient indication of the absence of his readiness and willingness to perform, his part of the contract as it actually was. The plaintiff could not be absolved from showing his such readiness and willingness as it was never his case that the defendant repudiated the contract before the suit was brought. In the circumstances, the plaintiff having himself not offered to perform his part of the contract cannot call upon the defendant to do so in respect of his part and as such no decree for specific performance of the contract can be passed. 11. The result is that the decision of the suit in both the Courts below cannot be supported and the appeal, therefore, succeeds and is allowed with costs against the respondent who shall bear his own costs in this Court. The decrees of the lower appellate Court and the trial Court, together with the order for costs in the suit as also in the first appeal, are set aside and it is ordered and decreed that the plaintiff's claim in suit for specific performance of the contract is dismissed with costs and he shall pay the costs of the defendant in all the Courts. Counsel's fees for each party will be up to the maximum, if certified in time. A decree be drawn accordingly. Appeal allowed.