K.S. LODHA, J.—This is a plaintiffs appeal against the judgment and decree of the learned District Judge, Pali dated 4.6.83 by which their suit for a decree for specific performance of an agreement has been dismissed. The facts giving rise to this appeal briefly stated are that the plaintiffs Gulam Mohammed and Turab Ali filed a suit against Smt. Mariyam and her husband Ibrahim on 22.4.74. It was alleged by the plaintiffs that the plaintiffs were the owners of a shop described in para no. 1 of the plaint situated at Pali. This shop was under mortgage with Thakur Mukan Singh of Chanod for a sum of Rs. 11,160/- Defendant no. 2 Shri Ibrahim agreed to advance the amount to the plaintiff so that he could pay all the mortgage debt to Shri Mukan Singh and it was agreed between the parties that for the security of the amount to be advanced by Ibrahim to the plaintiffs, the plaintiffs shall execute a sale deed of the aforesaid shop in favour of defendant No 2 though in the name of his wife defendant No. 1 Smt Mariyam for a sum of Rs. 15,000/-. It was further agreed that the plaintiffs shall be able to take back the shop from the defendants within seven years on payment of the amount advanced by the defendants along with interest thereon. According to the plaintiffs, it was clearly understood by the parties that there would be no real sale as such and that the sale deed would be simply for the purpose of securing the loan. It was also alleged that the market value of the shop at that time was about Rs. 30,000/- and at the time of the suit, it was about Rs 40,000/-. It was also clarified by the plaintiffs in the plaint that the sale deed was executed and not a mortgage because the defendant no. 2 had told him that as the money was being advanced in the name of the defendant no. 1, who had no licence under the Rajasthan Money Lenders Act and, therefore, the mortgage deed could not be possibly written. 2 had told him that as the money was being advanced in the name of the defendant no. 1, who had no licence under the Rajasthan Money Lenders Act and, therefore, the mortgage deed could not be possibly written. The case of the plaintiffs further was that it was also agreed between the parties that the plaintiffs will execute a rent note in favour of the defendants @ 160/- p.m. and this rent was as a matter of fact interest, because the parties were Mohammendns, interest as such could not have been charged and, therefore, it was given the shape of rent. The plaintiffs go on to allege that this agreement was reduced into writing on 24.4.67 and later on the same day, thereafter a sum of Rs. 11,160/- was not paid to Thakur Mukan Singh from defendant no. 2 and the plaintiffs took a sum of Rs. 350/- in cash from her and executed a sale deed for a sum of Rs. 15,000/- in favour of the defendant no. 1. The rent note was also executed by the plaintiffs in favour of defendant no. 1. Defendant no. 2 had told the plaintiffs that he had spent Rs. 725/-+ 83.50 for stamp and registration etc. and thus in all the plaintiffs had only received a sum of Rs 12,318.50 from the defendant no. 2. The defendant no. 2 had also given a piece of paper containing the above account in his own hands to the plaintiffs. The case of the plaintiffs further was that on 25.4.67, defendant no. 2 Ibrahim executed an agreement on his own behalf as also on behalf of his wife defendant no. 1 agreeing that on payment of Rs. 12,318.50 along with all the due rent, the plaintiffs shall be entitled to take back the shop from the defendants within seven years from that date and the defendants would execute a sale deed in their favour and get it registered. According to the plaintiffs, the defendants had assured the plaintiffs in this respect in the name of Khuda. The plaintiffs further allege that although the sale deed had been executed by them for a sum of Rs. 15,000/- in fact they had received a consideration to the extent of Rs 12,318.50 only. The plaintiffs further allege that all this transaction had been entered into by defendant no. 2 and defendant no. The plaintiffs further allege that although the sale deed had been executed by them for a sum of Rs. 15,000/- in fact they had received a consideration to the extent of Rs 12,318.50 only. The plaintiffs further allege that all this transaction had been entered into by defendant no. 2 and defendant no. 1 was only a benami for defendant no. 2. According to them, the amount had been paid by defendant no. 2 himself. In the alternative, they also allege that in case it is found that defendant no. 1 was not a benami for defendant no. 2, then defendant no. 2 had acted as an agent for defendant no. 1 and therefore, defendant no. 1 also is bound by the acts of defendant no. 2. It is further alleged that the defendant, on the basis of the rent note referred to above had filed a suit for ejectment and arrears of rent against the plaintiffs in the court of Civil Judge, Pali and a compromise was arrived at between the parties in that suit on 28.5.71. According to the compromise, the plaintiffs deposited the arrears of rent upto April, 1974. 2. The case of the plaintiffs now is that the defendants are now malafi-dely taking the above transaction of sale not merely as on ostensible sale but as an absolute sale whereas as a matter of fact, according to the agreement of the parties, it was only a mortgage with a conditional sale or an ostensible sale with a further agreement to resell In the alternative, it was also pleaded that the so called absolute sale got executed by the defendant was only fradulent and the plaintiffs are not bound by such a sale and they are entitled to get back the shop on payment of Rs. 12,318.50 and further to get the sale deed executed by the defendants in their favour. Again as a further alternative, it was pleaded that even if the transaction is taken to be an absolute sale, then also the plaintiffs are entitled to specific performance of the agreement by which the defendants had agreed to resell the property on payment of Rs. 12,318. 50 in accordance with the terms of the said agreement. Again as a further alternative, it was pleaded that even if the transaction is taken to be an absolute sale, then also the plaintiffs are entitled to specific performance of the agreement by which the defendants had agreed to resell the property on payment of Rs. 12,318. 50 in accordance with the terms of the said agreement. The plaintiffs further stated that they had offered a sum of Rs„ 12,318.50 to the defendants on 12.4.74 and had asked them to reconvey the property but the defendants declined. The plaintiffs further alleged to have sent a telegram to the defendants on 18.4.74 in this respect but the same was refused. It is further stated by the plaintiffs that they were always ready and willing to pay the amount in accordance with the agreement as also the cost of stamp and the expenses for registration etc. and to carry out their part of the agreement and are still ready to do so but the defendants are declining and, therefore, the plaintiffs were obliged to file the suit to get the property back and for getting the sale deed executed by the defendants. 3. The defendants contested the suit. Their case was that they had purchased the shop from the plaintiffs for a sum of Rs 15,000/- and there was no question of any mortgage or any ostensible sale. They denied that defendant no. 2 had executed any agreement to resell in favour of the plaintiffs on 25.4.67. According to them, there was no agreement between the parties that the shop would only remain as a security for the loan advanced by the defendants. They further denied that the plaintiffs had only received a sum of Rs. 12, 318.50. They objected that the plaintiffs are not entitled to any relief prayed by them because according to the plaintiffs themselves, the sale deed was a fraud although they had not given the necessary details of the fraud alleged. They denied that the plaintiffs had ever offered a sum of Rs 12,318.50 to them as alleged nor did they receive any telegram from the plaintiffs. They further stated that when there was no agreement, there was no question of any readiness or willingness on the part of the plaintiffs to pay the amount and the cost of stamp and expanses for registration etc. They further stated that when there was no agreement, there was no question of any readiness or willingness on the part of the plaintiffs to pay the amount and the cost of stamp and expanses for registration etc. or their being ready and willing to perform their part of the agreement and all these allegations are useless (bakwas). I was denied that defendant no. 1 was merely benami for defendant no. 2 or that defendant no. 2 was the agent of defendant no 1. An objection was also raised that in view of the decision in the earlier suit for ejectment, the present suit is barred by res judicate. Objections regarding sufficiency of court fee and limitation as also mis joinder of parties, were taken. 2 or that defendant no. 2 was the agent of defendant no 1. An objection was also raised that in view of the decision in the earlier suit for ejectment, the present suit is barred by res judicate. Objections regarding sufficiency of court fee and limitation as also mis joinder of parties, were taken. On these pleadings, the learned trial court framed the following eighteen issues:- <span class="Hfont">¼1½ D;k eqnk;yk uEcj 2 ds bdjkjukek fnukad 25-4-67 rdehy fd;k \ ¼eqnbZ½ ¼2½ D;k eqnk;yk uEcj 2 us eqnbZ;ku dks ;g fookl fnyk dj :i;s 12]3118-50½ iSls ekfQd fQdjk uacj 2 vthZokn fn;s o [kpZ fd;s o mldk iuk mrkj dj eqnbZ;ku dks fn;k \ ¼eqnbZ½ ¼3½ D;k eqnk;yk uacj 2 us ih MwysUVyh eqnb;ku dks ;g fookl fnyk dj fd eqnb;ku o mlds chp es [kqnk gS eqnb;ku }kjk :- 12]3118-50 iSls o fdjk;k lkr lky ds nsus ij edku eqrnkfo;k eqnk;ys ge ls NqMk [kksys fouukek eqrnkfo;k rkehr djk;k \ ¼eqnbZ½ ¼4½ D;k cspkuukek eqrnkfo;k ,c;ksY;wV [ksy ugh gSA vksLVsUlhcy [ksy gS blfy, nqdku jhMhe djkus dk vf/kdkj gS \ ¼eqnbZ½ ¼5½ D;k eqnb;ku bdjkjukek fnukad 25-4-67 dk gS }kjk eqnk;ysfge ls ,s isflfQd ijQksjesUl ds tfj;s edku eqrkfcd dk cspku vius gd es djk ldrs gS \ ¼eqnbZ½ ¼6½ D;k eqnk;yk ua- 2 eqnk;yk ua- 1 dk bl bUtdku ekfQd ,tsUV Fkk blfy, mlds dk;Z dks eqnk;fy;k uacj 1 ikcUn gS \ ¼7½ D;k nkok dkuwuu rLnhlqnk ugh gS \ ¼eqnk-½ ¼8½ D;k nkok feltksbUMj vksQ dkstst vksQ ,Dku ls ihfMr gS \ ¼eqnk-½ ¼9½ D;k dksVZ Qhl ukdkjh gS \ ¼eqnk-½ ¼10½ D;k /kkjk 58 Vh-ih- ,DV vUrxZr djkjukek kgknr es ugh fy;k tk ldrk gS o vksLVsUlhty rsy ds ckjs esa dksbZ tkap ugh dh tk ldrh gS \ ¼eqnk-½ ¼11½ D;k /kkjk 19 o 92 ,foMsUl ,DV ds rgr cspku ds ckgj dh dksbZ kgknr ugh yh tk ldrh \ ¼eqnk-½ ¼12½ D;k nkok E;kn ckgj gS \ ¼eqnk-½ ¼13½ D;k flfoy tt dks LVs ds flfoy vksjhthuy eqdnek u-a 6@70 ds QSlys ls ;g nkok jsltqfMdsVk ds fl}kUr ds cksMZ gS \ ¼eqnk-½ ¼14½ D;k bdjkjukek fnukad 25-4-67 bulfQfl;sUVyh ,VkEiM gksus ls kgknr es xzky ugh gS \ ¼eqnk-½ ¼15½ vk;k izfroknhx.k gLc nQk 35 ,-lh-ih-lh- ds rgr fdl foks"k gjtkuk ikus ds gdnkj gS \ ¼eqnk-½ ¼16½ vk;k cspkuukek csukeh gS \ ¼eqnk-½ ¼17½ vk;k bdjkjukek eqnb;ku eqnk;yk ds gd es rdehy fd;k rFkk izfrQy ds dze es cspku ds igys ns fn;k rFkk bldh jlhn eqnb;ku ds gd es rdehy dj nh \ ¼eqnk-½ ¼18½ nknjlh The trial court decided issues no. 1, 6 and 16 together and held that the execu-tion of the agreement was proved, that defendant no. 1 was benami for defendant no. 2 and that the question that defendant no. 2 was the agent of defendant no. 1 did not call for determination nor was there any evidence in this respect. It also decided issues no. 2,3 and 4 together and found that the plaintiffs had received Rs. 15, 000/- as consideration for the sale, that it was an absolute sale and not a mere mortgage and that there was no question of any assurance in the name of Khuda. Regarding issue no. 13, it was found that the judgment in the ejectment suit did not operate as res judicata nor did the doctrine of estoppel apply. Issues no. 7,8,10, 14, and 17 were not pressed before the court and issues no. 11 and 12 were decided against the defendants. On issue no. 5, the learned District Judge was of the view that there was no averment in the plaint regarding the plaintiffs being ready and willing to perform their part of the contract nor have they proved the same and, therefore, the suit was not maintainable. As a consequence of the decision of the court below on issue no. 5, the suit was dismissed and it was further observed that the defendants were not entitled to any compensatory costs and thus issue no. 16 was also decided against the defendants Aggrieved of this judgment and decree of the learned District Judge, Pali, dated 4.6.83, the plaintiffs have come up in appeal, and the defendants are also challenging the findings of the learned District Judge in respect of some of the issues which have been decided against the defendants. 4. I have heard the learned counsel for the parties and have gone through the record. 5. Since the suit has been dismissed by the learned District Judge on the basis of his decision on issue no. 5, the learned counsel for the plaintiffs-pppel!-ants has concentrated his arguments in respect of that issue, in his opening address. His contention is that the court below was wrong in holding that there was no avernment in the plaint about-the plaintiffs readiness and willingness to perfom their part of the contract inasmuch as there was a clear plea to this effect in para no. His contention is that the court below was wrong in holding that there was no avernment in the plaint about-the plaintiffs readiness and willingness to perfom their part of the contract inasmuch as there was a clear plea to this effect in para no. 5 of the plaint and the learned District Judge did not care to read that part: carefully. His further contenion is that as a matter of fact, there was no specific denial on the part of the defendants in respect of this avernment in the plaint and, therefore, this fact must be deemed to have been admitted by them, consequently it did not call for any evidence. It was further submitted by him that in case the court thought that there has been a denial of this avernment, then a specific issue should have been framed by the court and the parties should have been given an opportunity to lead evidence but this was not done and, therefore, the plaintiffs case has been prejudiced. In this connection, he further contended that the plaintiffs had moved an application requesting the court to frame an issue in this respect on 30.3.83, although at a late stage but this application was wrongly dismissed on 22.4.83. The learned counsel also contended that the ground on which this application was dismissed was that this question, namely, whether the plaintiffs were ready and willing to perform their part of the contract must be deemed to be covered under issue no. 5 and if that was so, the court was bound to take into consideration the material on record in order to find out whether the plaintiffs had proved their readiness and willingness to perform their part of the contract. According to him, there were a number of circumstances, which showed the plaintiffs readiness and willingness to perform their part of the contract and there was no evidence on the part of the defendants to rebut these circumstances. According to him, there were a number of circumstances, which showed the plaintiffs readiness and willingness to perform their part of the contract and there was no evidence on the part of the defendants to rebut these circumstances. On the other hand, the learned counsel for the defendants-respondents urged that as a matter of fact, there was no avernment of the plaintiffs readiness and willingness to perform their part of the contract in the plaint and, therefore, there was no occasion for the defendants to travers the same and in case it is deemed that the avernment in the plaint amounts to an avernment of the plaintiffs readiness and willingness, then those avernments have specifically been denied. The plaintiffs did not lead any evidence in support of their readiness and willingness and also did not pray for an issue at the relevant time. They only made belated attempt to cover up the lacuna left by them and in these circumstances, their application for framing the issue was rightly rejected. He also contended that there was nothing on the record to establish the plaintiffs readiness and willingness to perform their part of the contract. He also contended that in view of the proviso to s. 58(1 of the Transfer of Property Act, the plaintiffs are precluded from contending that the transaction of sale in the present case was a mortgage because the two transactions are evidenced by two separate documents and, therefore, the sale must be deemed to be an absolute sale. He also raised the contention that the plaintiffs have pleaded that the sale was a result of fraud and as Ex. 2 the alleged agreement to resell is also a part and parcel of the same transaction, he cannot ask for the specific performance of that agreement. It was also contended that even if it is taken that there was some avernment in the plaint regarding the plaintiffs readiness and willingness, that avernment was of no avail inasmuch the readiness and willingness must be in respect of the true import of the agreement and not as the plaintiffs understood it. According to the findings of the court below, the consideration for the sale was Rs. 15, 000/- and, therefore, the agreement to sell could be enforced only if the plaintiffs had offered and were ready and willing to pay Rs. According to the findings of the court below, the consideration for the sale was Rs. 15, 000/- and, therefore, the agreement to sell could be enforced only if the plaintiffs had offered and were ready and willing to pay Rs. 15, 000/- along with the interest or rent but the plaintiffs have nowhere alleged that they were prepared to pay Rs. 15, 000/- along with interest or rent. It was further urged that after the alleged agreement, a compromise had been arrived at between the parties in the ejectment suit and by that compromise, the terms of the original agreement had been modified inasmuch as the rent was reduced from Rs 160/-to Rs. 135/-only and the defendants were given time upto 1.6.74 to hand over possession of the shop to the plaintiff of that suit. The learned counsel for the respondents also urged that the document of sale Ex. A5 as also the alleged agreement Ex. 2 clearly show that there was no agreement for resale but it was only a complete and absolute sale in favour of the defendants and by the alleged agreement Ex. 2 only the right of redemption had been given to the plaintiffs and as a matter of fact, the plaintiffs had all through been taking this transaction to be one of mortgage and not of sale and the alleged agreement to resell. Therefore, now the plaintiffs cannot turn round and allege that it was only ostensible sale with an agreement to resell. The learned counsel for the respondents further challenged the findings of the court below in respect of its decision on issues no. 16 and 13 as also in respect of issue no. 2. 6. The learned counsel for the respondents contended that since the plaintiffs-appellants have only challenged the findings of the learned District Judge in respect of issue no. 5, they are precluded from challenging the findings on other issues. He also raised an objection that the court fee paid in the appeal is insufficient because the plaintiffs should have either paid court fee and valued the suit at Rs. 40,000/- as they themselves have valued the suit property for that amount and in any case, they should have valued the suit at Rs. 15,000/-the consideration of the sale as found by the court below and paid court fee accordingly. 7. I have given my careful consideration the rival contentions. 40,000/- as they themselves have valued the suit property for that amount and in any case, they should have valued the suit at Rs. 15,000/-the consideration of the sale as found by the court below and paid court fee accordingly. 7. I have given my careful consideration the rival contentions. Before I come to the merits of the case, 1 may dispose of the objections of the learned counsel for the respondents in respect of the valuation of the appeal and the court fee. It may at once be stated that the suit is for specific performance of the agreement and in the appeal also, the same relief has been sought. According to Ex. 2, the alleged agreement the consideration for resell fixed was Rs. 12,318.50 and, therefore, the appeal should have been valued only at that figure. The consideration for sale by the plaintiffs in favour of the defendants is, therefore, irrelevant so also is the market value of the property. Therefore, this objection has no force and is, therefore, over-ruled. 8. Since the respondents have challenged the very execution of the agreement to resell as also the consideration, I shall first like to deal with that aspect of the matter. Ex. 2 is the alleged agreement dated 25 4.67. The learned District Judge has found it to have been proved and in this connection, he has placed reliance upon the statements of Turab Ali PW. 1, who is one of the plaintiffs and has stated that Ibrahim had put his signatures A to B on Ex 2 in his presence, Murad Ahmed P.W. 3, who has stated that he had attested this agreement Ex.2 at the instance of the defendant Ibrahim and at that time, Ibrahims signatures were already present on it although Ibrahim had not signed it in his presence, Noor Mohammed P.W. 6 who also proves Ibrahims signatures on Ex.2. He has further relied upon the evidence of Yusuf Ali, who states that he had purchased the stamp on which Ex. 2 was written at the instance of the defendant Ibrahim. The learned Judge has also referred to the evidence of Mohammed Sharif and Sanwat Singh. Sanwat Singh is the scribe of Ex. 2 and Mohammed Sharif is alleged to have prepared its draft. 2 was written at the instance of the defendant Ibrahim. The learned Judge has also referred to the evidence of Mohammed Sharif and Sanwat Singh. Sanwat Singh is the scribe of Ex. 2 and Mohammed Sharif is alleged to have prepared its draft. I have also gone through the evidence of these witnesses and I do not see any reason to disbelieve them or to take a view different from that taken by the learned District Judge and in face of this direct evidence, the bare denial of the defendant Ibrahim doss not appear to be of any effect. However, the learned counsel for the respondents has raised certain grounds which according to him, show that the evidence of these witnesses is not reliable and the execution of Ex. 2 cannot be held proved. In this connection, he urged that the signatures of Ibrahim on Ex. 2 do not tally with his signatures on the written statement and Vakalatnama. In my opinion, when there is direct evidence about the execution of the document, the court cannot undertake the Hazardous task of comparing the signatures specially when no expert has been produced. His second contention was that the earlier sale dated 24.4.67 was admittedly for a sum of Rs. 15,000/-, then there was no occasion for defendant no. 2 Ibrahim to agree to resell the same shop for a sum of Rs. 12,318.50 after seven years. This contention also, in my opinion, does not appear to be holding much water because the case of the plaintiffs is that although the sale deed was executed for Rs. 15,000/- they had only received consideration worth Rs. 12,318.50. Of course, the finding of the learned D strict Judge is that the sale was for Rs. 15,000/-but merely because the agreement to resell was for Rs. 12,318.50, in the circumstances of the case, does not make the execution of Ex. 2 doubtful. There was absolutely no reason for the plaintiffs to have entered the figures 12,318.50 in Ex.2 if that was not settled in face of the admitted earlier sale for Rs. 15,000/-. The plaintiffs would certainly not have taken such a risk, which would make the document suspicious on the face of it unless the fact was based on truth. 9. It was next contended that Rs. 15.000/- according to the plaintiffs had been advanced as a loan on mortgage and interest @ Rs. 15,000/-. The plaintiffs would certainly not have taken such a risk, which would make the document suspicious on the face of it unless the fact was based on truth. 9. It was next contended that Rs. 15.000/- according to the plaintiffs had been advanced as a loan on mortgage and interest @ Rs. 160/- p.m. by way of rent was fixed, which appears to be the normal rate of interest prevalent those days and, therefore, also there was no reason why Ibrahim should have entered into the agreement to resell the property on payment of only Rs. 12,318.50 along with the rent and interest. He would not stand to gain by such a deal. This contention also appears to be devoid of force. According to the plaintiffs, the transaction was really only one of mortgage but was given the shape of a sale and an agreement to resell. They, of course, cannot now claim it be a mortgage in view of the provisions of s. 58(1) of the Transfer of Property Act but the fact remains that this transaction came to take place on account of the fact that the property was already under mortgage with Thakur Mukan Singh and that loan had to be discharged and, therefore, the plaintiffs may have asked other persons to raise the money to pay of Thakur Mukan Singh. The defendants may have agreed to come to his help and advance the money at the normal interest. Therefore, the question that the defendants could not have entered into such an agreement unless there was some extra gain over and above the prevalent rate of interest, cannot arise. 10. Yet another contention of the learned counsel was that the sale was in favour of Smt. Mariyam so also the rent note by the plaintiffs, then there was no reason why the agreement to sell should have been got executed from Ibrahim He also pointed out that it would not have been easy for the plaintiffs to forge the thumb impression of Smt. Mariyam, it could have been easy for them to forge the signatures of Ibrahim. I do not find force in this contention either. I do not find force in this contention either. If the plaintiffs were out to forge a document, they could have forged the thumb impression of Smt. Mariyam also by one means or the other and simply because the forging of the thumb impression is difficult, it cannot be presumed that the signatures of Ibrahim had been forged. I have already stated above that there is direct evidence in respect of the execution of Ex. 2 by Ibrahim. The fact that the earlier sale was in favour of Smt. Mariyam and the loan was also in her favour, still the agreement was got executed from Ibrahim is also explained. The plaintiffs case is that Smt. Mariyam was only benami for Ibrahim or Ibrahim was acting as her agent. I shall deal with this aspect of the matter in a little detail later. 11. It was then pointed out by the learned counsel that the stamps for Ex. 2 and Ex. A3 were purchased on the same day but these stamps contain different seals of the treasury. On one it is a long seal and on the other, it is a round one. Although the stamps were meant for agreements, the stamp for Ex. 3A was worth Rs. 2/ only whereas the stamp on which Ex. 2 is alleged to have been executed is worth Rs. 3/- and there is no explanation for these discrepancies These discrepancies were pointed out in the court below also but the learned District Judge did not find any substance in them and I agree with him. As a matter of fact, the persons who purchased these stamps have not been questioned about these discrepancies in order to enable them to explain the same and in the absence of such an opportunity to explain, much capital cannot be made out of them. In this connection, the learned counsel also urged that the stamp on which Ex. 2 was written is alleged to have been purchased by Yusuf Ali while Ibrahim himself was present, there was no reason why Ibrahim should have asked Yusuf Ali to purchase this stamp on his behalf and that too in the name of Smt. Mariyam. In my opinion, this circumstances also is not of much worth. The agency through which the stamp was purchased is not of much significance. In my opinion, this circumstances also is not of much worth. The agency through which the stamp was purchased is not of much significance. It is common knowledge that such stamps are got purchased through others on account of convenience. 12. It was further contended by the learned counsel that the two attesting witnesses of Ex. 2 are both from Jodhpur and not from Pali and the scribe Sanwat Singh is of a doubtful character inasmuch as he is said to have slapped a Tehsildar and, therefore, these witnesses were not at all reliable. I do not find substance in this contention also. Sanwat Singhs character cannot be said to be doubtful only because he slapped a Tehsildar because we do not know in what circumstances, this incident took place. No doubt the two attesting witnesses are from Jodhpur but it clearly appears that they are equally known to the parties and they are on terms of correspondance with the defendants also as would be clear from the three post cards Ex. 3,4 and 5, which have admittedly been written by the defendant Ibrahim to the attesting witness Murad. The contents of these post cards already show that they related to the evidence in this case. Therefore, these attesting witnesses cannot be said to be total strangers to the defendant and persons connected with or under the influence of the planitiffs. In these circumstances, their evidence cannot be discarded merely on the ground that they are residents of Jodhpur and not of Pali. It will not be out of place here to mention that their evidence further shows that formerly they were residents of Pali and had later shifted to Jodhpur. 13. Attacking the evidence of Murad, the learned counsel urged that he has clearly admitted that Ibrahim had not signed the document in his presence and, therefore, his evidence is of no value. The argument appears to be misconceived. An attesting witness need not to see the executant of a document sign the document in his presence. It is enough if he receives an acknowledgment from the executant of his having executed the document. Murad clearly states that he had attested Ex. 2 at the instance of Ibrahim and at that time, Ibrahims signatures were already present on Ex. 2 and it was Ibrahim who had brought the document to him for attestation. It is enough if he receives an acknowledgment from the executant of his having executed the document. Murad clearly states that he had attested Ex. 2 at the instance of Ibrahim and at that time, Ibrahims signatures were already present on Ex. 2 and it was Ibrahim who had brought the document to him for attestation. Not only this, he further states that Ibrahim had told him that he had executed the agreement in respect of the shop. Thus there is no room for doubt that Murad had attested the agreement Ex. 2 after having received an acknowledgment from Ibrahim about the execution of the same. 14. The learned counsel also states that P. W. 1 Turab Ali says that they had gone to get the agreement Ex. 2 scribed by Bhikam Chand but as Bhikam Chand stated that he was otherwise busy, they got it scribed by Sanwat Singh whereas Bhikam Chand P.W. 2 denies the plaintiffs coming to him for getting Ex. 2 scribed. In my opinion, this is no reason to disbelieve the statement of the plaintiffs. Bhikam Chand is a petitioner writer and may not remember who had come to him for getting any document scribed unless he had scribed the same. It was further urged by the learned counsel that Turab Ali states that he got the draft of Ex. 2 prepared by Shri Mohammed Sharif whereas Shri Mohammed Sharif states that he does not remember whether he had prepared the draft of Ex. 2 and, therefore, Turab Alis statement should not be relied upon. I do not agree, Shri Mohammed Sharif does not deny having prepared draft of Ex. 2 but only states that be does not remember to have prepared the draft of this document. Merely because this witness does not remember this fact, the positive fact stated by Turab Ali cannot be disbelieved. 15. Similarly the evidence of Yusuf Ali was challenged on the ground that he states that the sale deed by the plaintiffs in favour of the defendants was got registered on the same day when Ex. 2 was executed whereas the sale deed was registered on 24.4 67 and Ex. 2 was alleged to have executed on 25 4.67. In my opinion, such a lapse of memory cannot be a reason for disbelieving the witness. 2 was executed whereas the sale deed was registered on 24.4 67 and Ex. 2 was alleged to have executed on 25 4.67. In my opinion, such a lapse of memory cannot be a reason for disbelieving the witness. It was further submitted that this witness appears to be interestd in the plaintiffs inasmuch as he admits having stayed for the whole day with them when Ex.2 was executed. This also does not appeal to me to be a reason to discard his testimony. If he was present for the whole day, he was present with both the parties and not merely with the plaintiffs. It was also contended that this witness first denied his having appeared in evidence for the plaintiffs on any earlier occasion but later admitted having appeared for the plaintiffs as a witness and this shows that he is not a reliable witness. This contention is also equally without substance. A witness may not necessarily remember if he had appeared in evidence for a party but when his attention is drawn to a particular statement, he may recollect and admit the same. Now Ex. A7, the statement which has been admitted by this witness is not such a statement which may show that the witness is in any way interested in the plaintiffs. It was further pointed out that this witness has stated that the stamp on which Ex. 2 was scribed was in a solied condition whereas the other witnesses P.W. 1 Turab Ali and P.W. 3 Murad Ahmad have stated that it was in the same soiled condition as it was at the time of their evidence. This only is a matter of memory and much cannot be made out of it. 16. Apart from the other witnesses referred to above, P.W. 14 Khalilu-rehman has stated that Ibrahim had also signed Ex. 2 in his presence apart from the attestation made by Noor Mohammed whose signatures he was called to identify. This witness has not at all been cross-examined by the defendants touching the execution of Ex. 2 by Ibrahim and, therefore, his testimony in this respect goes unassailed and must be believed. Reference in this connection may be made to A.E.C. Carapiet V. A.Y. Derderian (1) and State V. Bhola Singh (2). This witness has not at all been cross-examined by the defendants touching the execution of Ex. 2 by Ibrahim and, therefore, his testimony in this respect goes unassailed and must be believed. Reference in this connection may be made to A.E.C. Carapiet V. A.Y. Derderian (1) and State V. Bhola Singh (2). In these circumstance, I am clearly of the opinion that the court below was perfectly justified in holding that execution of Ex. 2 by Ibrahim has been established. 17. Now the next important question, which arises for consideration is whether Ibrahim was the agent of his wife Smt. Mariyam or the transaction evidenced by the sale deed Ex. A5 and the agreement Ex. 2 was benami in the name of Smt. Mariyam. These two questions were the subject matter of issues no. 6 and 18 and the court below has found that the transaction was benami and in these circumstances the question of agency does not arise. The learned counsel for the respondents has seriously contested this finding of the court be-low. So far as the factual aspect of the matter is concerned, the learned counsel contended that the court below failed to take into consideration the compromise Ex. A2 arrived at between Smt. Mariyam and the plaintiffs in the earlier ejectment suit and has also not read the statement of Ibrahim as a whole and has drawn inference against him by reading a part of his statement disjunct from the other part. It is contended that by compromise Ex. A2, the plaintiffs had suffered a decree for ejectment in favour of Smt Mariyam and, therefore, now they cannot deny that Smt. Mariyam was the actual purchaser and that consequently they cannot allege that she was only a benami holder. This contention does not appeal to me. The sale deed Ex. A5 was admittedly executed by the plaintiffs in favour of Smt. Mariyam and it was in pursuance of that sale deed that the rent note, which was in basis of the ejectment suit had also been executed by them in favour of Smt. Mariyam. This contention does not appeal to me. The sale deed Ex. A5 was admittedly executed by the plaintiffs in favour of Smt. Mariyam and it was in pursuance of that sale deed that the rent note, which was in basis of the ejectment suit had also been executed by them in favour of Smt. Mariyam. In these circumstances in the suit for ejectment based on that rent note, the plaintiffs could not have denied that Smt. Mariyam was the landlord and merely because a compromise was arrived at in that suit and their plaintiffs suffered a decree for ejectment in favour of Smt Mariyam, they cannot be estopped from challenging the actual status of Smt. Mariyam. They cannot, therefore, be bared from alleging that Smt. Mariyam was only benami for Ibrahim. Now coming to the statement of Ibrahim, the learned District Judge has stated that Ibrahim had admitted in his statement that the money by which the shop was purchased in the name of Smt. Mariyam flowed from him and that was according to the learned Judge a very material consideration for holding that it was only a benami transaction and that the real person in whose favour the sale deed was executed was Ibrahim. The contention of the learned counsel for the respondents is that while relying upon this part of the statement of Ibrahim, which he no doubt made, the learned District Judge failed to take into consideration the other parts of his statement wherein he had further stated that the capital (punji) of his and is wife was joint, that Smt. Mariyam was an income tax assessee so also Ibrahim and in these circumstances, the mere fact that Ibrahim had at one place stated that it was he who had given the money from which the suit property was purchased, it could not be inferred that he was the real purchaser and Smt. Mariyam was only a benami holder. I have given my careful consideration to this contention and have also gone through the statement of Ibrahim. I have given my careful consideration to this contention and have also gone through the statement of Ibrahim. No doubt Ibrahim has stated at one place that the capital of himself and his wife is joint and he has also stated that both of them are income tax assessees but that did not detract from the fact that he had also in unequivocal terms admitted that so far as the purchase money of the suit property is concerned, it was paid by him In these circumstances, the fact that there is some joint capital or that both of them are separately income tax assessee, does not detract from his earlier statement and I am in agreement with the learned District Judge that there is no manner of doubt that the property in dispute was purchased by the money flowing from Ibrahim and not from Smt. Mariyam or even from the joint capital of Ibrahim and Smt. Mariyam. On the legal aspect of the matter, the learned counsel for the respondents urged that the burden of proving the transaction to be benami squarely lies on the shoulders of the person alleging the transaction to benami and the fact of the transaction being benami has to be proved by clear and reliable evidence and cannot be accepted merely on the basis of conjuctures and surmises. It was further urged by him that the conduct of the alleged real owner and the benami holder not only at the time of the alleged transaction but even thereafter has to be taken into consideration. In this connection, he placed reliance upon Jaydayal Poddar v. Bibi Hazra (3), Krish-nand v. State of M.P.(4) and Kanakarathanammal v. Loganaths(5).There cannot be any quarrel with these propositions and as a matter of fact they have not been controverted by the learned counsel for the appellants. We have only to see whether in the facts of this case, the principles laid down in these authorities have in any way been violated by the learned District Judge when he holds that the transaction has been proved to be benami. In Jayadayal Poddars case (supra), it has been observed as under:- "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. In Jayadayal Poddars case (supra), it has been observed as under:- "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonable raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick well which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances; (1) the source from which the purchase money came: (2) the nature and possession of the property after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according of the facts of each case. Nevertheless No, 1, viz. The above indicia are not exhaustive and their efficacy varies according of the facts of each case. Nevertheless No, 1, viz. the source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another." Thus according to the criteria laid down by the above authority, which has been followed in Jayadayal Poddars case(supra), the burden of proving that the transaction is benami certainly lies on the plaintiffs and they have to prove it by legal and convincing evidence. It may further be pointed out that their Lordships have also referred to a number of circumstances which have to be taken into consideration to determine the real nature of the transaction and among those circumstances, one of the most important circumstance or the test for determing whether the sale standing in the name of one person is in reality for the benefit of another is the source whence the purchase money came. In these circumstances, if the learned District Judge laid much emphasis on the fact that the purchase money had admittedly come from Ibrahim in holding that the transaction was really a benami transaction, his finding cannot be said to be improper. No doubt there may be other circumstances apart from the source of the purchase money and they also have to be given proper consideration e.g. the conduct of the parties and admissions, if any, made by them. In Kanakarathanammals case(supra), the property was purchased in the name of wife, although the sale proceeds had flowed from the husband. However, there were a number of admissions made by the husband in respect of the title of his wife to the property in question and on the basis of those admissions of the husband, the property was held to be the property of the wife and not benami for the husband. Such does not appear to be the case here. There do not appear to be any admissions by the husband i.e. Ibrahim in favour of his wife Smt. Mariyam. The learned counsel, however, pointed out that in the rent and ejectment suit filed by Smt Mariyam, Shri Ibrahim has admitted that he was only an agent of his wife, in the plaint Ex. There do not appear to be any admissions by the husband i.e. Ibrahim in favour of his wife Smt. Mariyam. The learned counsel, however, pointed out that in the rent and ejectment suit filed by Smt Mariyam, Shri Ibrahim has admitted that he was only an agent of his wife, in the plaint Ex. A9, he had stated that the relationship of landlord and tenant was between Smt. Mariyam and the present plaintiffs Gulam Mohammed and Turab Ali and he had also filed the power of attorney Ex. A 11 on behalf of Smt. Mariyam in that suit. Not only this, there was a compromise arrived at between Smt. Mariyam and the present plaintiffs by Ex. A2 and a decree followed vide Ex. A12 and in these circumstances, there are not only admissions of Ibrahim but also admissions of the present plaintiffs themselves to the effect that Smt. Mariyam was the real owner or the purchaser of the property. I have considered this aspect of the matter. It may at once be stated that both Smt. Mariyam and Shri Ibrahim are defendants in the present suit, the parties cannot take any advantage from their own admissions and, therefore, these admissions in that plaint, in the rent and ejectment suit as also power of attorney filed in that suit are no binding effect against the present plaintiffs. In Kanakarathanammals case(supra), the dispute was between the heirs of the husband and the wife both and, therefore, the admissions, if any, made by one of them were not only relevant but also binding on his descendents and, therefore, this authority is clearly distinguishable. So far as the written statement Ex. Al in the rent and ejectment suit goes, as already stated above, the plaintiffs in the present suit who were defendants in that suit could not have denied the title of the persons in whose name they had executed the rent note and, therefore, the so called admissions in the rent and ejectment suit cannot preclude the plaintiffs from now challenging the title in a regular suit. So far as the compromise Ex. A2 and judgment Ex, A12 are concerned, they cannot be said to be containing any admissions of the present plaintiffs about the title of Smt. Mariyam and, therefore, they also are not of much help so far as the question of the benami nature of the transaction goes. 18. So far as the compromise Ex. A2 and judgment Ex, A12 are concerned, they cannot be said to be containing any admissions of the present plaintiffs about the title of Smt. Mariyam and, therefore, they also are not of much help so far as the question of the benami nature of the transaction goes. 18. The other circumstances which deserve to be taken into consideration in the present case are that Ibrahim not only admits that the purchase money was paid by him but he further admits that it was he who had entered into all the negotiations with the plaintiffs although he further adds that he had gone so only on behalf of his wife. He again admits that his wife had not purchased any property nor sold any for last twenty years. He further admits that of course : he had purchased two houses in the name of his wife but had sold them back after two years. In respect of those two houses also, it was he who had entered into all the negotiations although the sale deeds were executed by his wife. The matter does not rest here. He admits that he pays income tax and furnishes his account to the income tax department, which contains the transactions of sale and purchase of the houses. He, however, does not state that the present transaction does not find place in those books of accounts. On the other hand, he states that the transaction in respect of the shop in dispute finds place in the books of account of his wife which were with him but he has dared not produce those books of account and, therefore, an adverse inference arises against him. 19. It has to be noted that in the present case although both Ibrahim and Smt. Mariyam are interested in denying the fact of the transaction in dispute being benami, only Ibrahim has entered the witness box and not Smt. Mariyam and, therefore, in these circumstances, the statement of Ibrahim, who is a co-defendant with Smt. Mariyam is of considerable importance in order to decide the nature of the alleged transaction of sale which admittedly is in the name of Smt. Mariyam but the consideration of which has flowed from Ibrahim. In this view of the matter and particularly in view of the dictum of their Lordships in Jayadayal Poddars case (supra) referred to above, I am clearly of the opinion that the plaintiffs have established that it was a benami transaction. 20. That being so, the question of agency does not arise and need not be gone into because these two positions are mutually exclusive. When once it is held that Ibrahim was the real owner and Smt. Mariyam is only a benami holder, the question of Ibrahim being the agent of Smt. Mariyam does not arise. 21. I now come to the other contention raised by Mr. Parekh that the suit is in fact only a suit for redemption of the mortgage alleged by the plaintiffs and they also do not as a matter of fact consider the sale deed dated 24.4.67 as a sale deed. In these circumstances, in view of s. 58(c) of the Transfer of Property Act, the suit is not maintainable as the plaintiffs are precluded from putting up the theory of mortgage in the circumstances inasmuch as there are two separate documents regarding sale and the alleged agreement to resell. It is further contended by him that the alternative prayer by the plaintiffs for specific performance of the alleged agreement to sell is as a matter of fact a repetition of the same relief of redemption, which is the main relief. In this connection, he also pointed out that Ex. 2 also speaks of only redemption and not of resale. I have given my careful consideration to this contention. The proviso to s. 58 c) of the Transfer of Property Act lays down that a mortgage by conditional sale can only be by one single document and no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document, which affects or purports to affect the sale. In face of this provision, the plaintiffs are precluded from calling the transaction in the present suit to be a mortgage by conditional sale because an ostansible sale and the agreement to resell are not embodied in the same document but are evidenced by two separate documents. This view has also been taken in Chunchun Jha vs. Ebadat Ali (6) and Simrathmall vs. Nanjalingiah (7) as also in Bahadur v., Motiram (8). This view has also been taken in Chunchun Jha vs. Ebadat Ali (6) and Simrathmall vs. Nanjalingiah (7) as also in Bahadur v., Motiram (8). But merely because this transaction cannot be called a mortgage by conditional sale, as alleged by the plaintiffs, in view of the statutory bar the plaintiffs are not precluded from contending that as a matter of fact, there was only an ostensible sale coupled with an agreement to resell. All that is barred by the proviso to s. 58 (c) of the Transfer of Property Act is the transaction being treated as a mortgage but there is no bar of its being treated as an ostansible sale along with an agreement to resell where the two are evidenced by two separate documents. In this view of the matter, the court below was right in holding that it was not a mortgage but was a sale with an agreement to resell and the learned counsel for the appellants also did not contend before this Court that the transaction was a mortgage with conditional sale. I am supported in this view by the authorities reported in Bhoju Mandal v. Debnath Bhagat(9)and Amir Bee v. Sub. Divnl. Magistrate, Sakaleshpur(l0). 22. So far as the other part of the contention that the plaintiffs have been treating the transaction as a mortgage and the prayer in the alternative for a decree for specific performance of the agreement to resell, is only the same prayer for redemption couched in a little other manner, goes it may at once be stated that the alternative relief asked for by the plaintiffs cannot be said to be merely a relief of redemption put up in other words, or phraseology because in para no. 9 (B) of the plaint, the plaintiffs have in clear and unequivocal terms asked for resale of the shop by getting the agreement specifically performed and getting a sale deed executed and registered by the defendants. No doubt the principal prayer made by the plaintiffs was for redemption as according to them, it was a transaction of mortgage by conditional sale but when as already stated above, it is not open to the plaintiffs to ask for redemption in the present circumstances, the relief for specific performance of the agreement to resell shall not be barred. The learned counsel pointed out that in Ex. The learned counsel pointed out that in Ex. 2 itself the words are- <span class="Hfont">^^:i;s 12318-50 o pwdrk fdjk;k nsdj lkr lky es vki okfil gels NqM+k ldsaxs vkSj ge vkids gd es okfil jftLVªh cspku dj nsaxsA^^<span class="Hfont"> and this also goes to show that this agreement was nothing more than an assurance to the plaintiffs that they would be able to redeem the shop within seven years In my opinion, such an interpretation of the document Ex. 2 would not be justified because if it was only an agreement in respect of the so called redemption of the mortgage the defendants would not have been required to execute a registered sale deed in favour of the plaintiffs but a reconveyance would have been enough much emphasis has been laid by the learned counsel for the respondents on the words "NqM+k ldsaxs" but, in my opinion, much capital cannot be made out of it because according to the plaintiffs themselves, the real intention of the parties was only to create a security for the loan advanced by the defendands and not an absolute sale and, therefore, even if the words " NqM+k ldsaxs" has been used, denoting it to be a mortgage to be redeemed, it cannot prevent the plaintiffs from getting the agreement of resale specifically performed. 23. The other contention of the learned counsel for the respondents was that the plaintiffs having pleaded the transaction of sale by the plaintiffs in favour of the defendants vide Ex. A5 to be the result of fraud and the alleged agreement to resell being a part and parcel of the same transaction, the plaintiffs cannot ask for any relief on the basis of such documents as the alleged fraud vitiates them. Reliance in this connection was placed upon Prem Raj v. D.L. F.H. & C. Ltd. (11) but I am not impressed by this argument also. Reliance in this connection was placed upon Prem Raj v. D.L. F.H. & C. Ltd. (11) but I am not impressed by this argument also. In Prem Rajs case (supra), the plaintiffs had asked for a relief of declaration that a particular contract was void and at the same time, made an alternative prayer for specific performance of the same contract and it was in these circumstances that the court found that u/s 37 of the Specific Relief Act (No. 1 of 1877), it was expressly provided that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided and, therefore, it was not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance of the same. Therefore, in the present case, when the plaintiffs have not asked for the rescission of the contract, they are certainly entitled to ask for its specific performance. Not only this, as a matter of fact, the plea of fraud in the present case cannot be taken to be really the plea of fraud because all that the plaintiffs have stated is that although the intention of the parties at the time of the entering into the contract was to create only a security for the loan, the defendants got an absolute sale deed executed. No other fraud has been pleaded and it has also not been contended that the document is vitiated on account of the alleged fraund. The plaintiffs still stand by its execution but only challenge its interpretation. Therefore, it cannot be said that the plaintiffs had pleaded that the document is vitiated by fraud and thereby they are precluded from asking any relief under this agreement or contract. Again the original sale evidenced by Ex. A5 and the agreement to resell Ex. 2 are two separate documents, the fraud, if at all it can be called a fraud, is alleged to be in respect of the earlier sale but there is no ground to hold that Ex. 2 also must be deemed to have been vitiated on account of the alleged fraud. Even according to the plaintiffs, the agreement Ex. 2 was of reconveyance of the property whether the initial transaction was of mortgage or sale. 2 also must be deemed to have been vitiated on account of the alleged fraud. Even according to the plaintiffs, the agreement Ex. 2 was of reconveyance of the property whether the initial transaction was of mortgage or sale. In these circumstances, this contention of the learned counsel for the respondents has no substance. 24. I shall then examine the other contention of the learned counsel for the respondents based on the ground of estoppel It is urged by the learned counsel for the respondents that in the suit for ejectment filed by Smt. Mariyam against the present plaintiffs, the matter had been compromised and the plaintiffs who were defendants in that suit had agreed to hand over possession of the shop which was on rent with them on 1.6.74 and they also gave up all the other pleas, namely, those of the original transaction being only a mortgage with a conditional sale and that there was an agreement to resell etc. and in liew or in consideration of this, the defendant Smt. Mariyam who was the plaintiff in that suit, not only granted them time upto 1.6.74 to hand over vacant possession of the shop but also reduced the monthly rent from Rs. 160/-to Rs. 135/- and, therefore, now the present plaintiffs are estopped from raising all these pleas and claiming specific performance of the agreement Ex. 2. In this connection, the learned counsel placed reliance upon Sunderabai v. Devaji (12) and Sailendra Narayan v State of Orrissa (13). I do not find force in this contention also and the authorities relied upon by the learned counsel are of no avail to him in the circumstances of this case. In Sunderabais case (supra), the principle of estoppel has been explained. It was observed as under:- "Estoppel is a rule of evidence and the general rule is enacted in section .115 of the Evidence Act, which lays down that when once person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. This is the rule of estoppel by conduct as distingushed from an estoppel by record which constitutes the bar of res judicata." This principle has further been reitarated in Sailendra Narayans case (supra) but in this latter authority, it has further been explained how a compromise decree can operate as an estoppel. It has been observed, after referring to a number of authorities to the effect that the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. Their Lordships further observed as under:- "The correctness of these principles laid down in these decisions is not disputed by Mr. P.R. Das. Proceeding on the basis that there is such a principle of estoppel by judgment, he contends that the test laid down in the decisions referred to above is whether the judgment in the previous case could have been passed without the determination of the question which was put in issue in the subsequent case, where the plea of estoppel by the previous judgment is raised." Then their Lordships proceeded to find out whether the facts of that case stood this test or not. Now in the present case, if this test is applied, it would be clear that it does not appear to be a case of estoppel at all. The previous suit was a suit for ejectment of the tenant and in that suit, the tenant who had executed a rent note in favour of the plaintiff landlord could not have denied the title of his landlord and could not have raised any pleas which were incon-sistant with his status as a tenant. In these circumstances, if at the time of compromise, the present plaintiffs, who were the defendants in that suit, gave up those pleas, it cannot now debar them from raising these pleas in the present suit because as stated above, the decision on those issues or questions in the earlier suit was not possible nor could be necessary or even relevant. All that the present plaintiffs stated in the compromise Ex. All that the present plaintiffs stated in the compromise Ex. A2 is - ^^izfroknh ds vU; mtkjr [kre le>s tkosaxsA^^ These words only amount to saying that those objections were not pressed in that suit and they cannot be interpreted to mean that the defendants in that suit had given up their claim for obtaining specific performance of the agreement Ex 2. In these circumstances, this compromise or the decree based on this compromise cannot operate as an estoppel against the present plaintiffs. 25. It may be pointed out here that relying on the authority of Sailendra Narayans case(supra), this Court had also observed in Bhanwarlal v. Raja Babu (14) as under : "The test to be applied in such cases is that the court could not have passed that judgment without determining that particular point against the party who is raising that point over again." According to what I have stated above, it is quite clear that in the rent and ejectment suit, the pleas regarding the title of the parties to the suit property or the question of specific performance of any agreement in respect of that property could not have been gone into and were not at all necessary to be decided and, therefore, if those pleas had been given up in that suit, the compromise or the decree passed on the basis of that compromise in that suit would not have the effect of precluding any of the parties from reagitation those questions. 26. In Chhaganlal v. Narandas, (15) the ingredients of the principle of estoppel have been enumerated in para no. 23. If these ingredients are taken into consideration while considering the facts of the present case, it would at once appear that there was no representation by the present plaintiffs in the compromise Ex. A2 to the effect that they are giving up their rights to get specific performance of the contract. All that they stated was that the plea in that respect was not being pressed in that suit. The future right to press that plea or enforcing the right to specific performance was not given up. A2 to the effect that they are giving up their rights to get specific performance of the contract. All that they stated was that the plea in that respect was not being pressed in that suit. The future right to press that plea or enforcing the right to specific performance was not given up. Further the representation was such, even if it is taken to be a representation, then the plaintiffs in that case very well knew that the defendands in that case would be entitled to file a suit for specific performance of the agreement or for the enforcement of their rights of the property and, therefore, now the present plaintiffs cannot be debarred from exercising or enforcing that right. I am, therefore, clearly of the opinion that no estoppel arises against the plaintiffs in the present case. 27. This brings me to the main question which has been agitated by the learned counsel for the appellants and it is in respect of issue no. 5. As already stated above, the suit has been dismissed by the learned District Judge on the ground that there was no avernment to the effect that the plaintiffs were and are willing to perform their part of the contract nor there is any evidence to this effect. The contention of the learned counsel is that there was a clear avernment to this effect and the learned District Judge did not properly read and appreciate the pleadings I have set out the pleadings in a little detail with purpose and I would at the cost of repetition refer to para no. 5 of the plaint again. In para no. 5 of the plaint again. In para no. 5, it has been stated by the plaintiffs— <span class="Hfont">^^eqnbZ;ku eqnk;ysfge dks :i;s 12]318-50 iSls vnk dj ekfQd bdjkjukek tfj;s LisflfQd nqdku eqrnkfo;k dk cspku okfil eqnk;ysfge ls vius gd esa djkus ds eqLrgd gSA eqnk;ysfge dks eqnb;ku us rkjh[k 12-4-70 dks :i;s 12]318-50 iSls ysdj ekfQd bdjkj&ukek nqdku eqrnkfo;k dk cspku eqnkb;ku ds ge esa djus dks dgk ijUrq eqnk;ysfge bUdkj gks x;saA eqnb;ku us eqn;ysfge dks fnukad 18-4-70 dks bl gsrq Vsyhxzke ls uksfVl fn;k ijUrq eqnk;ysfge us Vsyhxzke nsus ls Hkh bUdkj dj fn;kA eqnb;ku ekfQd bdjkjukek :i;s vnk djus o cspku ds okLrs LVkEi jftLVªh [kpkZ nsus dks o viuk ikVZ vnk djus dks gj ne rS;kj Fks o gS ijUrq eqnk;ysfge bUdkj gSA vr% ;g nkok f[kykQ eqnk;ysfge] eqnk;ysfge dks :i;s 12]318-50 iSls fnyk dj nqdku eqrnkfo;k dks eqDr dj cspku eqnb;ku ds ge es djokus dks isk gSA^^ The learned District Judge has, however, observed— <span class="Hfont">^^bl nkos es ukeek= dks Hkh bj ckr dk ftdz ugh fd;k x;k gS fd oknhx.k fdlh bdjkjukesa ds vUrZxr vius }kjk fd;s tkus okys dk;Z djus ds fy;s rS;kj o rRij FksaA laHkor% ;g blfy;sa ugh fn;k x;k fd oknhx.k lnk gh bl nkos dks jgu dk nkok ekurs jgsA dsoyek= ;g dgk x;k gS fd ,d rkj }kjk uksfVl fn;k x;k Fkk tks izfroknhx.k us ugh fy;kA dsoy ek= bruk dg nsus ls u rks ;g dFku Li"V gks rk gS vkSj ugh ;g izekf.kr gksrk gS fd oknhx.k geskk viuk ikVZ iwjk djus ds fy;s rS;kj FksA bl ckjs es dksbZ kgknr Hkh izLrqr ugh dh xbZ gSA rqjkcvyh dk c;ku Hkh dsoy mlh rkj rd lhfer gSA blds vfrfjDr mlus dqqN ugh dgk gSA ,slh ifjfLFkfr;ksa es ;g ugh ekuk tkrk gS fd oknhx.k us ;g ckr vius nkos es dgh vkSj izekf.kr dh fd os lnk gh viuk ikVZ iwjk djus ds fy;s rS;kj o rRij FksA okLro es bl lEcU/k es dksbZ kgknr gS gh ughA blfy;s ;g rudh oknhx.k ds fo:} r; dh tkrh gSA^^ It would clearly appear that this observation of the learned District Judge is against the pleadings. The plaintiffs have in unequivocal terms stated their readiness and willingness to perform their part of the contract under the agreement Ex. 2. in para no. The plaintiffs have in unequivocal terms stated their readiness and willingness to perform their part of the contract under the agreement Ex. 2. in para no. 5 as noted above and it is wrong to say that they have not averred that they were and are ready and willing to perform their part of the contract. The learned District Judge appears to have been misled by the fact that before asking for the specific performance of the agreement, the plaintiffs had, of course, alleged the transaction to be one of mortgage with conditional sale and had prayed for the redemption. Merely because the alternative pleas had been raised by the plaintiffs, it cannot be said that their only prayer was for redemption and that they had not laid the necessary foundation for a suit for the specific performance of the agreement. Faced with this situation, the learned counsel for the respondents urged that this plea in para no. 5 of the written statement does not as a matter of fact amount to an avernment of the readiness and willingness of the plaintiffs to perform their part of the contract inasmuch as their readiness and willingness should have been in respect of the true meaning of the agreement and not merely their readiness and willingness for performing their part of the contract as they considered it to be. In this connection, it was contended that the learned District Judge has found that the earlier sale in favour of the defendants was for Rs. 15,000/- and not merely for Rs. 12,318.50, and in these circumstances, it was incumbent upon the plaintiffs to have pleaded that they were ready and willing to pay Rs. 15,000/-along with the interest or rent due but not to speak of raising such an avernment, they have only alleged to have offered Rs. 12, 318.50 only and they also alleged their readiness and willingness to pay that amount only. It was further pointed out that after the alleged agreement Ex. 2, the compromise Ex. A2 in the ejectment suit had been entered into and the terms of Ex. 2 had been modified by Ex. A2 inasmuch as the rent was reduced to Rs. 135/- from Rs. 160/- and the defendants had granted time to the present plaintiffs to hand over possession till 1.6.74. 2, the compromise Ex. A2 in the ejectment suit had been entered into and the terms of Ex. 2 had been modified by Ex. A2 inasmuch as the rent was reduced to Rs. 135/- from Rs. 160/- and the defendants had granted time to the present plaintiffs to hand over possession till 1.6.74. The plaintiffs have not averred that they were ready and willing to comply with the terms of the agreement as modified by Ex. A2 and have not stated that they were ready and willing to hand over possession on 1.6.74. It may at once be stated that the compromise Ex. A2 does dot in any way modify the t3rms of the agreement Ex. 2. The rate of rent has not been fixed by Ex.2. All that it states is - <span class="Hfont">^^:i;s 12]318-50 o pqdrk fd;kjk nsdj lkr lky es okfil :i;s NqM+k ldsaxsA^^ Therefore, even if the rate of rent was changed from that mentioned in the rent note executed along with the sale deed Ex. A5, the agreement Ex. 2 remained uneffected and the plaintiffs were only to pay or offer whatever rent was due at the time they wanted to get the property resold. Therefore, this Ex. A2 does not come in their way nor any pleading in this respect was necessary. So far as handing over of possession on 1.6.74 is concerned, this also was not a part of the agreement Ex. 2 inasmuch as according to this agreement, the plaintiffs were entitled to claim resale within seven years of 25 4.67. When the plaintiffs had filed a suit before the expiry of that term, there was no question of, therefore, handing over possession to the defendants in pursuance of Ex. A2 on 1.6.74 and, therefore, they need not have shown their readiness and willingness in this respect. The learned counsel had placed reliance upon Gyanchand v. Daulatram(16) in support of his contention. But that authority, in my opinion, does not apply in the facts and circumstances of the case. in that case, the plaintiff* had alleged that the price fixed for the sale was Rs. 7,000/- whereas according to the defendants, the price fixed was Rs 11,500/-. The plaintiff insisted that it was only Rs. 7,000/-and the court found that the price fixed was Rs. in that case, the plaintiff* had alleged that the price fixed for the sale was Rs. 7,000/- whereas according to the defendants, the price fixed was Rs 11,500/-. The plaintiff insisted that it was only Rs. 7,000/-and the court found that the price fixed was Rs. 11,500/ and in these circumstances, it was held that the plaintiff was not ready and willing to perform his part of the contract inasmuch he had shown his readiness and willingness only to pay Rs. 7000/- whereas he was to pay Rs. 11,500/-. The case is thus clearly distinguishable from the present one. 28. Based on this authority, the learned counsel also urged that the court below has found that the sale by the plaintiffs in favour of the defendants on 24.4.67 was for Rs. 15,000/- and it was wrong that the plaintiffs had only received Rs. 12,318.50. The plaintiffs have not assailed the finding on that issue and, therefore, when the consideration for the sale was Rs. 15,000/-, the consideration for resale should also be deemed to be Rs 15,000/- and the plaintiffs readiness and willingness only to pay Rs. 12,318.50 would not amount to their readiness and willingness to perform their part of the contract. I am, however unable to accept this contention. The learned District Judge has no doubt found that the consideration for the sale by the plaintiffs in favour of the defendants was Rs. 15,000/- but merely on that account, it could not be inferred that the consideration for resale also was Rs. 15,000/-. As soon as the execution of Ex. 2 is held proved, the burden to show that the consideration for resale was Rs. 15,000/- shifted on to the defendants. The defendants have altogether denied the execution of the agreement Ex. 2 and had never raised the plea that the consideration for resale was Rs. 15,000/- although in the agreement Ex. 2, it was mentioned to be Rs. 12,318.50 only. In the absence of such a pleading, the defendants cannot be heard to say that the consideration for the resale was Rs. 15,000/-. The defendants have also led no evidence in this respect. The finding of the learned District Judge is to the effect that the sale by the plaintiffs in favour of the defendants was for Rs. 12,318.50 only. In the absence of such a pleading, the defendants cannot be heard to say that the consideration for the resale was Rs. 15,000/-. The defendants have also led no evidence in this respect. The finding of the learned District Judge is to the effect that the sale by the plaintiffs in favour of the defendants was for Rs. 15,000/- and that the plaintiffs had received full consideration but it nowhere says that the consideration for the resale also was Rs. 15,000/- and, therefore, this finding does not in any way come in the way of the plaintiffs. 29. How and in what manner, a plaintiff in a suit for specific performance of the agreement should aver his readiness and willingness to perform his part of the contract also has been a subject matter of some controversy. A learned single Judge of this Court in Smt. Dhanbai vs. Pherozshah (17) after considering a large number of authorities, observed as under :- "As it is admitted that there was no agreement to the contrary, it was the plaintiffs duty to make a general avernment 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." This controversy on account of the fact that although the plaintiff had pleaded that he was ready and willing to pay the agreed purchase price, he had not averred that he was also ready and willing to tender the draft of the conveyance and to pay for the stamp duty etc., which was his statutory duty u/s 29 (c) of the Stamp Act. Then in Kirpal Singh vs. Mst. Kartaro (18), a Division Bench of this Court and in Ramesh Chandra vs. Chuni Lal (19), this view was a little watered down. It was observed by their Lordships of the Supreme Court "Readiness and willingness cannot be treated as a strait-Jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. "However, even if the strict principle laid down in Smt. Dhanbais case (supra) also is to be complied with, then in the present case, the plaintiffs have clearly stated in para no. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. "However, even if the strict principle laid down in Smt. Dhanbais case (supra) also is to be complied with, then in the present case, the plaintiffs have clearly stated in para no. 5 of the plant about their readiness and willingness to perform their part of the contract and thus there was a general avernment as has been referred to in that authority. Apart from it, the plaintiffs have also specifically pleaded that they were ready and willing to pay Rs 12,318.50 and also to bear the expenses of the stamp and registration. So far as the interest or rent which also was to be paid along with the purchase money, it may be noted that in para no. 4 of the plaint, the plaintiffs have clearly stated that the rent had already been paid upto the month of April, 1974. Therefore, according to me, nothing remained to be paid on account of rent or interest till the filing of the suit and this part of their pleadings has not at all been controverted. Therefore, it cannot be said that the plaintiffs failed to plead their readiness and willingness to perform their part of the contract. 30. Now so far as the proof of the plaintiffs readiness and willingness to perform their part of the contract is concerned, the learned District Judge has observed that there is no evidence to this effect. The learned counsel for the appellants has raised a two fold objection to this finding. His first contention is that as shown above he had made an avernment about his readiness and willingness to perform his part of the contract and that part of the pleading had not been specifically denied by the defendants. Therefore, it must be taken to be admitted and, therefore, no evidence need have been produced. In the second place, his argument is that if that avernment is deemed to have been traversed, then the court below should have framed an issue in this respect and should have allowed the parties to lead evidence but the court failed to frame any issue in this respect, not even after the plaintiffs application, though a little belated. In the second place, his argument is that if that avernment is deemed to have been traversed, then the court below should have framed an issue in this respect and should have allowed the parties to lead evidence but the court failed to frame any issue in this respect, not even after the plaintiffs application, though a little belated. The defendants case, on the other hand, is that the plea about the plaintiffs readiness and willingness to perform their part of the contract had specifically been denied and traversed and the plaintiffs should have led evidence in this respect even though no specific issue had been framed in this respect because issue no. 5 must be deemed to cover this aspect of the matter. I have given my careful consideration to this contention. New the first question, which arises for consideration is whether the defendants have traversed the plaintiffs avernment regarding their readiness and willingness to perform their part of the contract. I have already set out the pleadings of the plaintiffs in this respect. So far as the defendants are concerned, they have stated in the written statement in para no. 5 that the plaintiffs had never offered the sum of Rs. 12, 318.50 nor had asked them to resell the property in accordance with the agreement nor any question of such a talk between the parties could have arisen. They have also denied having received the plaintiffs telegram. Thus for the allegations of the plaintiffs have been specifically denied but the later part of the plaintiffs avernment that they were and are ready and willing to perform their part of the contract, the reply in para no. 5 of the written statement is vague and indefinite and, in my opinion, it does not amount to a denial or traverse of the plaintiffs allegations. 5 of the written statement is vague and indefinite and, in my opinion, it does not amount to a denial or traverse of the plaintiffs allegations. All that the defendants have stated in this respect is - <span class="Hfont">^^eqnkbZ;ku }kjk :i;s vnk djus dks rS;kj gksuk rFkk LVkEi [kjhnus o jftLVªh [kjpk nsus o viuh rjQ ls ok;nk iwjk djus dks rS;kj jgus dk izu gh mRiUu ugh gksrk u bu ckrks dks dksbZ edln gh gSA tc dksbZ ok;nk gh ugh gS rks ;s reke cdokl gh gSA^^ It is need-less to point out that it has not been stated by the defendants that in fact the in plaintiffs were never ready and willing to perform their part of the contract. On the other hand, their case was that there was no such agreement and they had denied the very existence of Ex. 2 or its execution by them and, therefore according to it, there was no occasion for the plaintiffs being ready and willing to perform any part of the contract. This stand in the written statement, therefore, does not amount to a denial of the plaintiffs avernment or traversing it. In this respect, a reference to Order 8 Rule 5 would proper. Sub-rule (1) to Rule 5 of Order 8 reads as unden- "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admit-ted to be proved otherwise than by such admission." Therefore, in the absence of a specific denial, an avernment in the plaint must be taken to be admitted. Reference in this connection, may also be made to Badat & Co. v. East India Trading Co. (20) Tek Bahadur v. Debi Singh (21) and Kirpal Singh v. Mst. Kartaro (supra) When there was no denial of this fact or the avernment was not traversed, the plaintiffs were not required to prove the same as that fact must be deemed to have been admitted. v. East India Trading Co. (20) Tek Bahadur v. Debi Singh (21) and Kirpal Singh v. Mst. Kartaro (supra) When there was no denial of this fact or the avernment was not traversed, the plaintiffs were not required to prove the same as that fact must be deemed to have been admitted. Reference in this connection may be made to Ardeshir v. Flora Sassoon (22), Gomathinavagam Pillai vs. Palaniswami Madar (23), Prem Raj vs. D.I.F.H. & C. Ltd. (supra), G. Veerayya vs. N.S. Chowdhary (24), Ramakrishna Panicket vs. Krishna Pillai (25) and H.N. Malak v. Mohen Singh(26). The learned counsel for the respondents, on the other hand, however, urged that this may be the position before the amendment of s. 16 (c) of the Specific Relief Act whereby sub-section (c) of s. 16 has made it mandatory for the plaintiffs in a suit for specific performance of a contract to aver and prove readiness and willingness to perform their part of the contract and, therefore, in face of this statutory requirement, the plaintiff has to prove his readiness and willingness to perform the essential terms of the contract which are to be performed by him other than the terms, the performance of which has been prevented or waived by the defendants and, therefore, when the plaintiffs have failed to lead any evidence to prove this avernment in the plaint, the suit has rightly been dismissed by the court below. He has placed reliance upon Kirpal Singhs case (supra). I have given my most anxious consideration to this part of the contention. There is absolutely no doubt that sub-section (c) of s. 16 makes it incumbent and mandatory on the plaintiff to aver and prove his readiness and willingness to perform his part of the contract but in my opinion, the introduction of s. 16 (c) has not made any substantial change in the law which was being enforced by the court even before the introduction of this provision. All that has been brought about by this change, by the introduction of sub-section (c) of section 16 in the Specific Relief Act is that a principle of equity which had been adhered to and followed by the courts right from Ardeshirs case (supra) upon the aforesaid amendment, has now been made a statutory obligation. All that has been brought about by this change, by the introduction of sub-section (c) of section 16 in the Specific Relief Act is that a principle of equity which had been adhered to and followed by the courts right from Ardeshirs case (supra) upon the aforesaid amendment, has now been made a statutory obligation. Kirpal Singhs case (supra), strongly relied upon by the learned counsel for the respondents does not specifically lay down that even if the avernment of the plaintiffs readiness and willingness to perform his part of the contract has not been traversed, the plaintiff has to prove the same. On the other hand, it has also relied upon the defendants not traversing the plaint allegations in this respect. It was observed in the earlier part that "the defendant has not specifically denied the various allegations made by the plaintiff in para no. 3 of the plaint; on the other hand, a general denial has been made. Order 8 Rule 3 C.P.C. lays down that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Rule 5 further provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Now in the present case, no doubt there is a general denial contained in para no. 3 of the plaint but there is a specific denial only with respect to receiving of Rs. 2,000/-at the time of execution of the document and a number of other material allegations contained in that para, have not been specifically denied. Now in the present case, no doubt there is a general denial contained in para no. 3 of the plaint but there is a specific denial only with respect to receiving of Rs. 2,000/-at the time of execution of the document and a number of other material allegations contained in that para, have not been specifically denied. It is also significant that no issue has been struck on the question whether the plaintiff was ready and willing to perform his part of the contract." Of course, the court has not stopped sort of that and has further observed as under:- " However, since in the eye of law the plaintiff is bound to aver and prove the same we must look into the evidence to find out whether the allegation made by the plaintiff as to his readiness and willingness to perform his part of the contract has been proved. But while doing so, we cannot lose sight of the fact that the defendants denial in this respect is evasive." Therefore, it appears that although there was no specific denial of the plaintiffs avernment about his readiness and willingness to perform his part of the contract and there was no issue, the court went further to look into the evidence because evidence had already been led by the plaintiff in this respect. Had the plaintiffs not led any evidence and the court would have found that even in the absence of specific denial and the absence of the issue, the plaintiffs suit must fail because he has not proved his readiness and willingness to perform his part of the contract, the matter would have been different and, therefore, in the circumstances of that particular case, this authority cannot be deemed to have laid down that after the introduction of clause (c) in s. 16, the plaintiff is bound to prove his allegations about his readiness and willingness to perform his part of the contract even though the defendant has not specifically denied it nor any issue has been framed in this respect. The learned counsel for the respondents has also referred to a number of authorities to press his contention that it is the duty of the plaintiff to prove his readiness and willingness to perform his part of the contract. The learned counsel for the respondents has also referred to a number of authorities to press his contention that it is the duty of the plaintiff to prove his readiness and willingness to perform his part of the contract. But [ need not refer to them in detail because all those authorities are those in which either there was no avern-ment regarding the plaintiffs readiness and willingness to perform his part of the contract or the avernmeni had been traversed by the defendants. I would, therefore, only refer to them in brief. Those authorities are H.G. Krishna Reddy & Co. v. H.M. Thimmiah (27), Rahat Jan v. Hafiz Mohammed Usman, (28) Narendra Bahadur Singh v. Baijnath Singh (29) Sankatha Prasad v. Abdul Aziz Khan (30), Smt. Dhanbais case (supra), and Gomathinayagam Pillais case (supra). It may be noted that in Narendra Singhs case (supra), the plaintiff had not pleaded his readiness and willingness to perform his part of the contract in the original plaint and it was after the expiry of the period of limitation for filing the suit for specific performance that the plaintiff applied for amendment of the plaint and in these circumstances, the amendment was refused. Now in these circumstances, I am clearly of the view that in the absence of the defendants traversing the plaintiffs specific plea of their being ready and willing to perform their part of the contract, the plaintiffs were not required to lead specific evidence to prove the same. 31. It may also be stated here that even if we were to look for proof of the plaintiffs readiness and willingness to perfrom their part of the contract, apart from the above proof by admission which is one of the modes of proof, there appears to be some evidence in that respect also although it may be only circumstantial. The plaintiffs were entitled to ask for specific performance of the agreement within seven years and the suit was immediately filed before the expiry of seven years. Such a circumstance has been taken to be a proof of the plaintiffs readiness and willingness to perform his part of the contract in Ramesh Chandras case (supra). The plaintiffs were entitled to ask for specific performance of the agreement within seven years and the suit was immediately filed before the expiry of seven years. Such a circumstance has been taken to be a proof of the plaintiffs readiness and willingness to perform his part of the contract in Ramesh Chandras case (supra). I have already referred to this authority earlier but would like to reiterate that according to this authority, the proof of the plaintiffs readiness and willingness to perform their part of the contract cannot be deemed to be a strait jacket formula and the entirety of the circumstances has to be taken into consideration. Then when the earlier suit for ejectment has been filed by the present defendant Smt. Mariyam against the plaintiffs here had taken up the plea that as a matter of fact, the rent note was only to secure the interest on the loan advanced by the present defendants and that the plaintiffs were entitled to ask for the resale within seven years of the sale by the plaintiffs in favour of the defendants. This also shows that they were adhering to the terms of the agreement. Taken along with these circums-tances, the defendants reply in the written statement denying the very existence of the agreement Ex 2 and its execution by them further makes the position quite clear that the plaintiffs were insisting upon the performance of the agreement and the defendants were trying to riggle out. The defendants have dared not say that the avernment of the plaintiffs readiness and willingness was wrong and all they could say was that when there was no agreement to resell, there was no question of the plaintiffs readiness and willingness to perform their part of the contract. Such a plea would mean that if the agreement is not proved, then the question of plaintiffs readiness and willingness to perform their part of the contract would not arise but if the agreement is proved then there is no denial of the fact that the plaintiffs were ready and willing to perform their part of the contract. 32. Such a plea would mean that if the agreement is not proved, then the question of plaintiffs readiness and willingness to perform their part of the contract would not arise but if the agreement is proved then there is no denial of the fact that the plaintiffs were ready and willing to perform their part of the contract. 32. The learned counsel for the respondents, however, urged that in the ejectment suit, the present plaintiffs had denied the existence of the rent note and that would go to show that they were not ready and willing to pay the rent or interest and, therefore, their plea of their being ready and willing cannot be said to be proved nor was it a genuine plea. This contention does not appear to be sound. The denial of the rent note has to be taken into consideration along with other avernments of the present plaintiffs, who were defendants in that suit. The case set up them was that as a matter of fact the shop had only been mortgaged, the possession remained with the plaintiffs and the rent note was not executed as a rent note but only to secure interest. On the basis of such a plea, therefore, it cannot be said that the plaintiffs had showed their unwillingness to pay the rent or interest whatever it may be called. I am, therefore, satisfied that the material on record and the circumstances clearly establish that the plaintiffs were ready and willing to perform their part of the contract. The defendants were guilty of trying to riggle out from that agreement and were evading to reconvey the property by executing a sale deed in favour of the plaintiffs even on the conditions of their receiving the agreed amount from the plaintiffs. In this view of the matter, the learned District Judge was certainly wrong in holding that there was no avernment of the plaintiffs readiness and willingness to perform their past of the contract nor there was any evidence to that effect. As a result of my findings on the above issues and contentions raised before me, the plaintiffs suit deserves to be decreed. 33. I, therefore, accept this appeal, set aside the judgment and decree of the learned District Judge, Pali, dated 4.6 83 and decree the plaintiffs suit for the specific performance of the agreement Ex. 2 dated 25.4.67. As a result of my findings on the above issues and contentions raised before me, the plaintiffs suit deserves to be decreed. 33. I, therefore, accept this appeal, set aside the judgment and decree of the learned District Judge, Pali, dated 4.6 83 and decree the plaintiffs suit for the specific performance of the agreement Ex. 2 dated 25.4.67. The plaintiffs shall deposit the purchase money i.e. the sum of Rs. 12,318,50 along with the interest or rent within two months from today. On their so depositing the amount in the trial court, the defendants shall execute a sale deed in respect of the shop in dispute in favour of the plaintiffs and get it registered. If the defendants fail to do so, the plaintiffs will be entitled to get the sale deed executed by the court. The plaintiffs shall be entitled to costs of both the courts.