JUDGMENT : ( 1. ) THE suit out of which this appeal arises was brought by the appellants, as plaintiffs, for specific performance of contract against the defendant-respondent No. 1, Laxminarayan. In the suit, they impleaded respondent no. 2, Shrimati Sumitrabai, widow of Badriprasad, as defendant No. 2, and ku. Ashabai, illegitimate daughter of Laxminarayan, as defendant No. 3. They were so impleaded in order that, in the event it was found that the contract was not enforceable against Smt. Sumitrabai, the plaintiff may get a decree for specific performance against the respondent No. 1, so far as his interest in the property in suit was concerned, with abatement of the purchase price, for partition and separate possession thereof. The 2nd Additional District Judge, Sagar, has however, dismissed the suit holding the plaintiffs to be in breach. ( 2. ) THE material facts, shortly stated, are these. By an agreement in writing dated March 23, 1967, Ex. P-1, the plaintiffs agreed to purchase and the defendant No. 1 and his father Ramanujdas agreed to sell all their right, title and interest in the property in suit, being a house in Katra Bazar, Sagar, for a consideration of Rs. 11,750, of which Rs. 1750 were paid as earnest. The date for completion was on or before May 5, 1967. In the meantime, on March 30, 1967, the defendant No. 2, Smt. Sumitrabai, acting as guardian of her minor daughter, Ku. Ashabai, defendant No. 3, served the plaintiffs with a lawyers notice, Ex. P-2, intimating that the property they intended to purchase was joint family property and was subject to the charge of maintenance of Ku. Ashabai as ordered by Criminal Court under section 488 of the Code of Criminal Procedure. ( 3. ) ON receipt of the the notice, plaintiffs apparently met the defendant no. 1, Laxminarayan, and insisted that the defendent No. 2, Smt. Sumitrabai," should join in executing the sale deed. This is clear from the defendant No. 1s notice, Ex. P-5, to the effect- On April 11, 1967, Ramanujdas died. ( 4. ) THE plaintiffs then sat quiet for 15 days. On April 27, 1967, they addressed two notices, through their lawyer; one, Ex. P-3, to the defendant no. 2, Smt. Sumitrabai, describing her as "widow of Badriprasad", and the other, Ex. P-4, to the defendant No. 1, Laxminarayan. In their notice to the defendant No. 1, Ex. ( 4. ) THE plaintiffs then sat quiet for 15 days. On April 27, 1967, they addressed two notices, through their lawyer; one, Ex. P-3, to the defendant no. 2, Smt. Sumitrabai, describing her as "widow of Badriprasad", and the other, Ex. P-4, to the defendant No. 1, Laxminarayan. In their notice to the defendant No. 1, Ex. P-4, they asserted that despite his earlier assurance, on being confronted with the notice of Ku. Ashabai, that the sale consideration would be kept in deposit with a bank, and applied towards her maintenance and marriage, he was now trying to change his stand and seated- On May 5, 1967. the parties admittedly met at the Sub-Registrars Office, but the plaintiffs refused to take a sale deed from the defendant No. 1 alone. On april 6, they brought the suit for specific performance. ( 5. ) THE relationship of the defendants is given in the following geneological table- ( 6. ) THE subject matter in dispute was admittedly ancestral. In the year 1917, there was a partition in the family between Ramanujdas and Laxmandas. As a result of the partition, instead of one, two joint Hindu families came into existence, one representing the branch of Ramanujdas and the other of Laxmandas. After the death of Laxmandas, the half-share allotted to him in the partition, devolved on his son Ramgopal by survivorship. On February 8, 1947, ramgopal sold his interest in the suit house to Ramanujdas and Laxminarayan, as a result of which, the entire house came to be possessed by the joint Hindu family of which Ramanujdas was the karta. Meanwhile, Badriprasad died issueless in the year 1947, leaving behind his widow Smt. Sumitrabai, who continued to live in the ancestral house, as she had already lost her parents. Laxminarayan who was a bachelor, taking advantage of helpless condition of Smt. Sumitrabai, cast an evil eye on her, and from the year 1950 onwards, subjected her to sexual intercourse, resulting in the birth of four illegitimate daughters. She was then turned out of the family house. Smt. Sumitrabai started proceedings under section 488 of the Code of Criminal Procedure for maintenance of her minor daughter, Ku. Ashabai, and in those proceedings, the Criminal Court ordered the defendant No. 1, Laxminarayan, to pay Rs. 40 per month to her for maintenance of the child. ( 7. She was then turned out of the family house. Smt. Sumitrabai started proceedings under section 488 of the Code of Criminal Procedure for maintenance of her minor daughter, Ku. Ashabai, and in those proceedings, the Criminal Court ordered the defendant No. 1, Laxminarayan, to pay Rs. 40 per month to her for maintenance of the child. ( 7. ) THE learned trial Judge held the plaintiffs to be in breach, firstly, on the ground that, though ordinarily in a contract for sale of immovable property, time is not regarded as of essence, but in the instant case, time was made of the essence, but they were not ready and willing to perform the contract "as it stood" within the stipulated time, and, secondly, on the ground that they wanted performance of the contract in a different way, by insisting on conditions extraneous to the terms of the agreement. That decision of his must be upheld on the grounds stated as also on other grounds as well. ( 8. ) GRANTING that the appellants were not in breach, it was contended that: (i) The plaintiffs were entitled to a specific performance of the contract in its entirety. That was on the assumption that Smt. Sumitrabai having remarried Laxminarayan, ceased to have any interest in her former husband, badriprasads estate; (ii) Alternatively, Smt. Sumitrabai had only 1 j6 interest and, therefore, the case was covered by section 12 (2) of the Specific Relief Act, 1963, as the part left unperformed, bears only a small proportion of the whole; (iii) Even assuming that she had 1 /3rd share, i. e. the part left unperformed, forms a considerable part of the whole, the plaintiffs were still entitled to a decree for specific performance against the respondent No. 1, the party in default, of so much of his part of the contract that he could still perform, under section 12 (3) of the Act, i. e. 2/3rd share, on payment of the proportionate price; (iv) The plaintiffs were entitled to partition and separate possession of the defendant No. 1s 2/3rd share under section 22 (1) (a), and (v) In any event, the plaintiffs were entitled to a refund of the earnest money under section 22 (1) (b) of the Act. There is, in our opinion, no substance in any of the contentions except the last. ( 9. There is, in our opinion, no substance in any of the contentions except the last. ( 9. ) THERE can be no doubt whatever that the plaintiffs were in breach. The plaintiffs failed to complete the purchase in accordance with the agreement. ( 10. ) THE plaintiffs claim should fail on the short ground that they were not ready and willing to go on with the contract as agreed to. They failed to complete the purchase in accordance with the agreement. They insisted on what they were not entitled to. It appears from the reply notice of the defendant No. 1, Ex. P-5, that the plaintiffs met him and insisted that he should execute the deed, along with defendant No. 2, Smt. Sumitrabai. They were informed by that notice that that was not the contract between the parties, and they could take the deed from the defendant No. 1, as agreed to, failing which they could take back the earnest money. In response to that notice, the plaintiffs sent the notice, Ex. P-4, insisting upon the fulfilment of that condition. They also complained that there was a breach of assurance given to them that the entire sale consideration would be kept in deposit in a bank. They called upon the defendant No. 1 to be present at the Sub-Registrars office on May 5, 1967, i. e. on the due date. ( 11. ) WHAT transpired at the Sub-Registrars office on that day is amply clear from the evidence. The plaintiff, Damroolal, (P. W. 1) states that he told the defendant No. 1, Laxminarayan that he should get the deed also executed by the defendant No. 2, Smt. Sumitrabai, or keep the money in the bank, but the defendant No. 1 did not agree to either of these conditions. He categorically states that he was not prepared to take a conveyance from the defendant No. 1 alone. The evidence of defendant No. 1, Laxminarayan, is to the same effect. He also states that he offered to return the earnest when the plaintiffs were not prepared to go on with the contract. ( 12. ) NO doubt, a person purchasing property is well within his rights when, before paying the purchase price, he asks for production of the title deeds so that he may be sure that he is getting a clear title. That is about all that he can insist upon. ( 12. ) NO doubt, a person purchasing property is well within his rights when, before paying the purchase price, he asks for production of the title deeds so that he may be sure that he is getting a clear title. That is about all that he can insist upon. Under section 55 (1) (a) of the Transfer of Property act, the vendor is bound to disclose to the buyer any material defect in his title in the property and under clause (b) thereof, to show the title deeds and to hand over the property free from encumbrances. In the instant case, there was no failure on the part of the defendant No. 1 to produce the title deeds and to convey a marketable title to the plaintiffs. marketable title is one which could be forced on an unwilling purchaser under a contract for sale made without specific conditions at all times and under all circumstances. On that point, the clear authority is Pyrke v. Saddingham, 1852 (68) ER 813. If the plaintiffs felt that the defendant No. 1, Laxminarayan, had no marketable title, their remedy was to take back the earnest money. That offer was not only made by the defendant No. 1 during the course of negotiation by his notice, Ex. P-4, as also on the date fixed for completion of the contract, i. e. on May 5, 1967 in the Sub-Registrars office, but again renewed by his counsel during the course of arguments before us. The offer to return the earnest money still continues. That is all that the plaintiffs are entitled to, in our opinion, in all the circumstances of the case. ( 13. ) BY their notice, Ex. P-5, the defendant No. 1, Laxminarayan and his father Ramanujdas had made time of the essence of the contract. Ramanujdas was on the verge of death and he actually died the next day. Admittedly, the parties met at the Sub Registrars office on the date fixed for completion of the contract. The plaintiffs were still insisting on what they had no right to. ( 14. ) THE law on the subject is stated in Mullas Contract and Specific relief Act, 9th Ed. , p. 829, thus- "it is common learning and practice that the plaintiff must have been ready and willing at all times to carry out the contract. The plaintiffs were still insisting on what they had no right to. ( 14. ) THE law on the subject is stated in Mullas Contract and Specific relief Act, 9th Ed. , p. 829, thus- "it is common learning and practice that the plaintiff must have been ready and willing at all times to carry out the contract. But it was held by the Court of Appeal in Beeners v. Fleming that if a vendor sues for performance as he bona fide construes it, and that construction is held to be wrong, he may still have performance according to the true construction of the contract as found by the Court, provided that he has shown willingness to submit to have the agreement actually proved performed. This authority will not apply where the plaintiff has insisted on what he has no right to, until he sees that judgment is likely to go against him, or where his insistence on an interpretation of the contract that, in the event, is held to be erroneous has involved him in a breach of contract which the defendant has treated as a repudiation. " The leading case on the point is Bindeshri Parshad v. Mahant Jairam Gir, 1887 (9) All. 705 (P C ). There, a purchaser delayed payment of the purchase money of immovable property, insisting upon the insertion in the conveyance of an absolute warranty of title by the vendors to the property sold. In these circumstances, their Lordships of the Privy Council held that the delay of payment was not excused and there was no case for decreeing specific performance. See also, Shamjibhai v. Jagoo Hemchand, AIR (39) 1952 Nag. 220. ( 15. ) IN the present case, the willingness disclosed by the plaintiffs was not a willingness to act in terms of the contract sought to be enforced. The plaintiffs cannot, therefore, succeed. In Narinjan v. Mohammad Yunus, AIR 1932 Lah. 265. a case where the plaintiff in a suit for specific performance was not prepared to pay the full price, the Court held that the plaintiff was ready and willing to have the contract performed only in the way in which he himself was insisting performance and that is not the readiness contemplated in the averments, to be made by the plaintiff in a suit for specific performance. See, also Ramakrishna panicker v. Krishna Pillai, 1970 IL R (2) Kerala 186. . ( 16. ) THE contention that the defendant No. 2, Smt. Sumitrabai had lost her status as a widow of Badriprasad, by reason of her alleged remarriage with the defendant No. 1, Laxminarayan, and consequently, her right, title and interest to the suit house, can hardly be accepted. The defendant No. 1 has in para 6 of the written statement admitted that remarriage of widows is not permitted by custom amongst Vaishyas. This is also his admission in the witness box. He, indeed, goes to prove the extent of saying that no remarriage of widows amongst Vaishyas is known; but, nonetheless asserts that defendant No. 2, Smt. Sumitrabai was remarried to him. ( 17. ) THERE is no evidence worth the name to prove that the defendant No. 2, Smt. Sumitrabai was remarried to the defendant No. 1, Laxminarayan. We have the bare assertion of Laxminarayan (D. W. 1) and Babulal (D. W. 2) that she was so remarried, but their testimony is unworthy of credence. Laxminarayan is a highly interested witness, and is bent upon defeating the rights of the widow, Smt. Sumitrabai. Babulal appears to be nothing but a professional witness. Smt. Sumitrabai (2 D. W. 1) has stated that remarriage of widows amongst Vaishya is not prevalent, and categorically denies that she was ever remarried to Laxminarayan. She has, in her cross-examination, stated that when Laxminarayan kept her as a mistress, women in the neighbourhood came and applied her Vindiya and made her put on bangles, which were the usual rites performed when a woman is kept as a mistress. ( 18. ) THE remarriage of a widow is Undoubtedly permissible after the enactment of the Hindu Widows Remarriage Act, 1896. Section 6 of the Act provides "whatever words spoken, ceremonies performed or engagements made on the marriage of a Hindu female who has not been previously married, are sufficient to constitute a valid marriage, shall have the same effect if spoken, performed or made on the marriage of a hindu widow; and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are inapplicable to the case of a widow. " If the parties are governed by Hindu Law, even in the case of a widow, the parties must either observe the formalities and ceremonies requisite for a valid marriage under the Hindu Law, or at any rate, such a form and such ceremonies, which, according to the usage of the community, caste, or sub-caste, govern their marriages in order to bring about and establish a valid marriage. [see deiyanai Achi v. Chidambaram Chettiar, AIR 1954 Mad. 657 . The non-observance of essential ceremonies cannot be overlooked by applying the doctrine of factum valot, unless it is shown that the ceremonies have been modified by custom. ( 19. ) NOW, it is admitted by Laxminarayan (D. W. 1) that amongst the vaishyas, all marriages are performed according to Hindu Shastric rites i. e. by saptapadi, and (here is no custom in the caste modifying the performance of that ceremony. He further admits that no Saptapadi had been performed. That being so, it must be held that the defendant No. 2, Smt. Sumitrabai was not remarried to the defendant No. 1, Laxminarayan, and, therefore, she did not lose her status as a widow of Badriprasad, She, therefore, had one-third share in the suit house after the death of her husband, which was enlarged to one-half share on the death of Ramanujdas, and not one-sixth share as asserted. The half share of the suit house, which Ramanujdas and Laxminarayan had purchased from Ramgopal, was nothing but an accretion to the ancestral property in their hands, because it had admittedly been purchased with the aid of joint family funds. ( 20. ) THAT takes us to the contentions based on the provisions of the specific Relief Act, 1963. In Hungerford Investment Trust Ltd v. Haridas mundhra, AIR 1972 SC 1826 . their Lordships of the Supreme Court have observed- "the Specific Relief Act, 1963, is not an exhaustive enactment. It does not consolidate the whole law on the subject. As the preamble would indicate, it is an Act "to define and amend the law relating to certain kinds of specific relief". It does not purport to lay down the law relating to specific relief in all its ramifications. In Ramdas Khatau and Co. v. Atlas Mills Co Ltd, AIR 1931 Bom. 151. it was held that the Specific Relief Act 1877, was not exhaustive. In Rahmath Unnissa Begum v. Shimoga Co. It does not purport to lay down the law relating to specific relief in all its ramifications. In Ramdas Khatau and Co. v. Atlas Mills Co Ltd, AIR 1931 Bom. 151. it was held that the Specific Relief Act 1877, was not exhaustive. In Rahmath Unnissa Begum v. Shimoga Co. operative Bank Ltd. , AIR 1951 Mys. 59. the Court said that the Specific Relief Act, 1877, is founded on English equity jurisprudence and that it is permissible to refer to English Law on the subject wherever the Act did not deal specifically with any topic (see also Firm Kishore Chand Shiva Charon Lal v. Budaun Electric Supply Co. , ltd, AIR 1944 All. 66 at p. 77. Although a matter on which the Act defines (he law it might generally be exhaustive, the Act as a whole cannot be considered as exhaustive of the whole branch of the law of specific performance " The scheme of the Specific Relief Act, 1963 has been considered in Subramani v. K. Reddiar, AIR 1973 Mad. 393 . , where it is observed - "under the new Act of 1963, those provisions have been amalgamated and are contained in section 12, sub-section (3) to (4) with some modifications. Section 12 of the present Act which has taken the place of sections 14 to 17 of the repealed Act constitutes a complete Code in respect of a claim for specific performance of a part of a contract. In this respect, the law in India is not in complete consonance with the law in England as laid down by the English Courts. " "so far as India is concerned, it is settled law and beyond question that the provisions of sections 14 to 17 of the repealed Act are both positive and negative in their form, and taken together they constitute a complete Code, within the terms of which relief by way of specific performance must be sought if it is to be granted at all and that even though assistance may be derived from a consideration of cases upon this branch of English jurisprudence, the language of the sections must ultimately prevail. Vide William Graham v. Krishna Chandra Dey, 48 Mad. L J 172 at p. 176=air 1925 PC 45. Vide William Graham v. Krishna Chandra Dey, 48 Mad. L J 172 at p. 176=air 1925 PC 45. This rule applies even now and section 12 (1) of the new Act which corresponds to section 17 of the repealed Act, expressly declares" that the Courts shall not direct specific performance of a part of a contract except as provided in section 12, sub-sections (2) to (4 ). " We are in complete agreement with the views expressed therein. ( 21. ) "section 12 (1), corresponds to section 17 of the repealed Act and runs thus- "12 (1) Except as otherwise hereinafter provided in this section, the Court shall not direct the specific performance of a part of a contract. " Section 12 (2) of the Act is not of much assistance in the present case, as it deals with a case where that part of a contract, which remains unperformed, bears only a small proportion to the entirety of the contract. Sub-section (3) corresponds to section 15, while sub-section (4) corresponds to section 16 of the repealed Act. Under section 15 of the repealed Act, if at all, the Courts granted a decree for specific performance of a part of a contract even where the part unperformed bears a considerable proportion to the entirety of the contract, the plaintiff must pay the entirety of the consideration while, under the new provisions i. e. sub-section (3) of section 12 of the new Act, the plaintiff is not bound to pay the entire purchase price, but there will be proportionate abatement thereof. In view of the fact that the plaintiffs were in breach, they are not entitled to the relief of specific performance. It is, therefore, needless for us to decide whether there should be performance of a part of the contract under section 12 (2) of the Act. ( 22. ) IN our judgment, the plaintiffs suit must, as it should, fail except with respect to their claim for refund of Rs. 1,750 paid as earnest. The normal rule is that, when a purchaser is entitled to the return of his earnest money, he should get interest at 6% on that amount [see Shrinivasdas v. Maherbai, AIR 1916 Privy Council 5. ]. In the present case, however, the defendant No. 1 had made that offer not only by his notice, Ex. 1,750 paid as earnest. The normal rule is that, when a purchaser is entitled to the return of his earnest money, he should get interest at 6% on that amount [see Shrinivasdas v. Maherbai, AIR 1916 Privy Council 5. ]. In the present case, however, the defendant No. 1 had made that offer not only by his notice, Ex. P,5, but also at the Sub-Registrars office on May 5, 1967. The plaintiffs did not avail of that offer. In the circumstances, we must disallow interest and costs. ( 23. ) IN the result, the appeal fails and is dismissed with costs, except for the modification that the plaintiffs shall be entitled to a refund of Rs. 1,750 paid by way of earnest money. Counsels fee as per Schedule or certificate, whichever is less. Appeal dismissed.