JUDGMENT N.N. Mithal, J. - The plaintiff has come up in appeal against the decision of the trial Court refusing to award the relief of specific performance and instead awarding a decree for refund of earnest money only to him. The respondent has also felt aggrieved and has filed a cross-objection. 2. The facts relevant for purposes of appeal may be briefly stated here. Admittedly the defendant 1 was the owner of the land in dispute. It is alleged that by means of an agreement dated 12th June, 1972, he had agreed to transfer the said land in favour of the plaintiff for a consideration of Rs. 24,000/-. A sum of Rs. 5,000/- was paid at the time of the agreement and a receipt was also executed evidencing the payment of the same. The sale deed was agreed to be executed by 20th July, 1972 on payment of balance consideration of Rs. 19,000/-. It is admitted that by means of a notification issued by the Government of U.P. restrictions were imposed on registration of sale deeds with effect from 12-7-1972. The plaintiff alleged that in view of this restriction another agreement was executed on 24-7-1972 after payment of Rs. 10,000/- more to the defendant 1 and it had been agreed that the sale deed would be executed after the removal of the restrictions imposed by the Government on registration of sale deeds. When the restrictions were withdrawn, the plaintiff served a notice calling upon the defendant 1 to execute the sale deed. Despite service there was no response from defendant I and in utter violation of the agreement he executed a sale deed in favour of defendant 2 in respect of a part of the land in question. viz. 2 biswas of land having trees thereupon. It is alleged that defendant 2 was fully aware about the earlier agreement in favour of the plaintiff and the sale deed was executed by the defendant 1 mala fide and without any consideration. The plaintiff further alleged that the defendant 1 illegally cut down two fully grown kacckar trees from the land agreed to be sold which were worth Rs. 800/- and the plaintiff claimed to be entitled to the price thereof. The plaintiff further alleged that the defendant 1 illegally cut down two fully grown kacckar trees from the land agreed to be sold which were worth Rs. 800/- and the plaintiff claimed to be entitled to the price thereof. A second notice was issued on 1-3-1974 again calling upon the defendant 1 to execute the sale deed which was met by a reply in which the execution of the agreement itself was denied. The plaintiff, therefore, filed the suit on 16-9-1974. 3. The defendant No. 1 contested the suit on the ground that none of the two agreements had ever been executed by him nor was any payment made to him as alleged, that he was a minor when the agreements are alleged to have been executed and the same were neither binding nor enforceable against him, that one Onkar Singh who was his father's sister's husband had obtained his signatures and thumb impressions on blank stamp papers misrepresenting to him that this was required for witnessing some document taking advantage of his ignorance about the legal formalities. It was pleaded that after the plaintiff's first notice a Panchayat was called in which the plaintiff made a solemn promise that he will not take any action as threatened, that the plaintiff was never ready and willing as the restrictions had been withdrawn in early 1973 and the plaintiff had not taken any steps for more than a year and that the plaintiff never had the capability of paying Rs. 24,000/-or the balance of Rs. 9,000/- for getting the sale deed executed. These allegations were, however, repudiated by the plaintiff by filing a replica. 4. It may be recalled here that the plaint was initially filed by payment of Re. 1/- only as Court-fee and the deficiency was made good only subsequently. The defendant therefore, took a plea in his written statement that since the plaintiff did not even have means to pay court-fee, it showed absence of his readiness and willingness. On the pleadings of the parties, a number of issues were framed which are enumerated below : 1. Whether the defendant 1 agreed to sell the land in suit to the plaintiff for a consideration of Rs. 24,000/-? 2. Whether in pursuance of the said agreement, the plaintiff paid a sum of Rs. On the pleadings of the parties, a number of issues were framed which are enumerated below : 1. Whether the defendant 1 agreed to sell the land in suit to the plaintiff for a consideration of Rs. 24,000/-? 2. Whether in pursuance of the said agreement, the plaintiff paid a sum of Rs. 5,000/- to be defendant 1 on 2-6-72 and the defendant 1 executed an agreement to sell in favour of the plaintiff? 3. Whether the defendant 1 further paid a sum of Rs. 10,000/- to the defendant on 24-7- 72 and the defendant 1 executed a fresh agreement to sell in favour of the plaintiff on date 24-7-72? 4. Whether the defendant 1 was minor on the date of execution of the agreement to sell in suit. If so, its effect? 5. Whether the agreement in suit are based on fraud and are not enforceable at law? 6. Whether the suit is time barred? 7. Whether the plaintiff had no money to the sale deed executed? If so, its effect? 8. Whether the defendant l cut away the kikar trees from the land in suit after the execution of the agreement to sell in suit and the plaintiff is entitled to adjust a sum of Rs. 800/- on that score in the sale price of the land in suit? 9. To what relief if any is the plaintiff entitled? 5. All the issues were answered in favour of the plaintiff except the one relating to his readiness and willingness. 6. During the arguments, three questions have been thrown up for consideration and decision, and these are (1) whether defendant No. 1 was a minor on the relevant dates, (2) whether the two agreements as set up by the plaintiff had been duly executed and (3) whether the plaintiff was and has always been ready and willing to perform the contract?. 7. On the first point, the defendant himself admitted in his statement under 0. 10, R. 2, C.P.C. that he had read up to High School and his date of birth was 15-9-1953. In his oral testimony he tried to explain this by stating that this was his date of birth according to his school register which was ne or two years more than his correct age. e admitted that his grand father had accompanied him when he was admitted to IXth class in 1970-71. In his oral testimony he tried to explain this by stating that this was his date of birth according to his school register which was ne or two years more than his correct age. e admitted that his grand father had accompanied him when he was admitted to IXth class in 1970-71. He had passed his VIII Class Examination also from the same institution in 1968. In cross-examination he also conceded that he was married twice, first in 1969 and a second time in 1972 after divorce from his first wife. His first wife was about 8-9 years elder to him in age, being 30 years old. From this it will follow that in 1969 he was at least 21 or 22 years of age. Even according to his age recorded in High School Certificate his age in 1969 would be 16 years. Thus in 1972 his age would be more than 18 years in any case. On his own admission therefore it stands established that he was major when the agreements are said to have been executed. 8. The respondents, however, relied upon Jot Bahi to prove that he was only 14 years old when it was issued in Dec., 1970. 'Jot Bahi' is a document issued to the tenure holder as proof of his holding. It is neither . meant to be a record of his date of birth nor is it maintained for that purpose. At best the age entered therein can amount to his own version about his age and being in his own favour cannot be of any help to him. Age recorded in the High School Certificate, however, stands on a better footing. 9. In Mohd. Ikram Hussain v. State of U.P., AIR 1964 SC 1625 , entry in School register was regarded as good proof of age as these entries are made ante litem motam. This was reaffirmed by the Supreme Court in Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202 : AIR 1982 SC 1057 . In any case entry of date of birth in the High School Certificate is invariably made on the basis of date of birth recorded in the Scholars Register which in turn is made at the instance of Scholar's Guardian. The scholar has the option to get that age corrected at the time of filling up the forms for appearing in the High School Examination. The scholar has the option to get that age corrected at the time of filling up the forms for appearing in the High School Examination. The scholar is, therefore, bound by his declaration of age in the form from which he cannot normally be permitted to resile unless there be strong proof to the contrary, which alas is absent in this case. An attempt was made by the defendant by deposing in Court that higher age was written in his High School Certificate. This is quite opposite to the normal human behaviour. Usually attempt is made to ,mention a lower age and not otherwise. In the circumstances, I have no hesitation in rejecting the defence plea that defendant 1 was minor at the relevant time. 10. Coming to the next question we will notice that the defendant has made a blanket denial. His stand was that he did not execute any of the agreements and his signatures and thumb impressions on these were obtained on balnk stamp papers by misrepresentation by one of his own relatives Onkar Singh and he never received any money under these agreements from the plaintiff. The two agreements are on record. The first agreement is dated 12-6-1972. It bears the thumb impression and the signature of the defendant on the margin of both the sheets on which this agreement had been scribed and also at the bottom where the writing comes to an end. The manner in which the document has been scribed and the placing of the thumb impressions and signatures leave no room for doubt that the signatures were made only after the document had been written. The spacing in the writing on the two sheets has remained similar and betrays no effort to adjust it by altering the spacing between the lines as normally happens in the case of preexisting thumb impressions and signatures on a blank sheet. 11. There is yet other important circumstance which belies the defendant on this point. In his statement under O. 10, R. 2, C.P.C. recorded on 1-11-1975 he had stated that his signatures and thumb impressions had been obtained by Onkar Singh in 1971 while the stamp papers on which the two agreements have been scribed were sold only on 12-6-1972 and 24-7-1972. In his statement under O. 10, R. 2, C.P.C. recorded on 1-11-1975 he had stated that his signatures and thumb impressions had been obtained by Onkar Singh in 1971 while the stamp papers on which the two agreements have been scribed were sold only on 12-6-1972 and 24-7-1972. If the signatures and thimb impressions had been obtained in 1971, it was impossible to find them on stamp papers that were sold in 1972. 12. Apart from the above, defendant's thumb impressions and signatures on both these agreements have been admitted according to the endorsements made by the counsel on the back of these agreements, although their execution was denied. It is not the defendant's case that apart from the signatures obtained by Onkar Singh in 1971 he had signed on other blank documents also. The admitted signature and thumb impressions on the agreements therefore, lend support to plaintiff's case that agreement Ext. 7 and Ext. 9 were executed by him. Simultaneously with the signing of agreement Ext. 7 a receipt for Rs. 5000/- (paper No. 14A) was also executed, a mention of which is to be found in the text of the agreement. The execution of this receipt has been proved by the plaintiff which is not even denied by the defendant. This receipt was also executed on 12-7-1972 and makes a mention of the agreement of sale. Thus all these documents and the oral evidence taken cumulatively clearly establish that the agreements Exts. 7 and 9 had been duly executed as stated by the plaintiff. 13. In the second agreement dated 24-7-1972, there is also a note appended at the foot thereof in the hand of defendant No. 1 acknowledging the receipt of an additional sale consideration of Rs. 10,000/- and appending of his signatures to it after reading it and fully understanding its purport. Agreeing with the trial Court, therefore, I have no hesitation in holding that both the agreements had been executed by the defendant 1 and that Rs. 15,000/- in all were. paid towards sale consideration by plaintiff to defendant 1. 14. On the question whether the plaintiff had the means and capacity to perform his part of the duty under the contract, it would be proper to first have an idea about the requirements of law in this respect. 15,000/- in all were. paid towards sale consideration by plaintiff to defendant 1. 14. On the question whether the plaintiff had the means and capacity to perform his part of the duty under the contract, it would be proper to first have an idea about the requirements of law in this respect. The Courts have consistently held that in a suit for specific performance the plaintiff should always treat the contract as subsisting to prove his continuous readiness and willingness from the date of the contract to time of the hearing of the suit and to perform his part of the contract. His failure to make good that case would undoubtedly lead to the rejection of the claim for specific performance. Similarly in a recent decision coming from the Calcutta High Court in Manick Lal v. K.P. Choudhury, AIR 1976 Cal 115 , it was held that it was necessary for the plaintiff to depose that even at the time of the hearing, he had been always ready and willing and had been performing his part of the duty according to the contract. 15. Sri Jagdish Swarup, a senior and widely respected Advocate of this Court who appeared for the appellant submitted that the finding of the trial Court on the question of plaintiff's readiness and willingness was incorrect. According to him what the plaintiff in fact is required to prove in law is only his readiness and willingness to perform the essential terms of the agreement which were required to be performed by him. It could, therefore, have no relation with his inability to pay the Court-fee while seeking to enforce his claim in the Court. His submission was that if the plaintiff was possessed of enough means to pay the sale consideration and to perform other conditions of the contract it was not necessary for him to establish that the plaintiff had the further capacity and means for payment of Court-fee and for meeting other expenses also. He laid emphasis on the expression "has always been ready and willing to perform the essential terms of the contract which are to be performed by him" occurring in S. 16 of the Specific Relief Act, 1963. The section, according to him, related only to the plaintiff's capacity to perform his part of duty under the contract and nothing beyond that. The section, according to him, related only to the plaintiff's capacity to perform his part of duty under the contract and nothing beyond that. Arranging for resources to We the suit had no relation to his ability to perform the contract. In short his submission is that the plaintiff cannot be denied the relief of specific performance merely because due to defendant's intransient attitude he is faced with the prospect of filing the suit entailing additional burden of paying the Court-fee to enforce his rights as it was not part of the contract at all. This, according to him, is not part of the contract but only relates to its enforcement. 16. This submission certainly has some merit but only to a limited extent. Though it may neither be valid nor proper to lay down as a general proposition that in all cases where the plaintiff was unable to pay the Court-fee or a part thereof it should invariably lead to the conclusion that the plaintiff was not ready or willing to perform the contract, yet to hold otherwise would also be equally wrong. In fact such conduct cannot be totally disregarded or ignored when considering the plaintiff's readiness and willingness to perform the contract. In some cases this may certainly be a very_ material and relevant circumstance to decide the question of readiness and willingness but each case must depend on its own facts and merits. It will be unwise to lay down any general principle in this respect except to point out that the totality of circumstances alone should be taken into consideration by the Court to determine whether failure or inability to pay up the Court-fee was to any extent related to plaintiff's ability to otherwise perform his part of the contract. 17. Coming to the facts of the case in hand it is revealed that the plaint was initially lodged with a Court-fee stamp of Re. 1/- only affixed to it and there was a reported deficiency of Rs. 2207-50 in Court-fee stamp. On 16-9-1974 the plaint was directed to be put up on 23-9-74 after the deficiency had been made good. On that date, an application appears to have moved on behalf of the plaintiff seeking 15 days' time for making good the deficiency. This application is neither signed by the plaintiff nor by his counsel. 2207-50 in Court-fee stamp. On 16-9-1974 the plaint was directed to be put up on 23-9-74 after the deficiency had been made good. On that date, an application appears to have moved on behalf of the plaintiff seeking 15 days' time for making good the deficiency. This application is neither signed by the plaintiff nor by his counsel. Strangely it purports to bear the signature of the registered clerk of the plaintiffs counsel. But despite the fact that this application should not have been entertained by the Court since it had not been presented by a proper person, it was nevertheless considered and 15 days' time was granted. In this application it was mentioned the plaintiff had not been able to arrange money for payment of deficient Court-fee and further time was prayed. Subsequently another application was moved on 8-10-1974 under the signatures of the plaintiff himself for time on the ground that as the counsel had gone out it was not possible to obtain the Court-fee from the Stamp Officer without his signatures. This application was allowed and finally on 15-10-1974 the deficiency was made good. 18. According to the plaintiff he had handed over the entire Court-fee amount to his counsel right at the time when the plaint was filed but due to some mistake or mischief in the counsel's office the Court-fee stamp was not appended at that time. He also pleaded ignorance about any application for time moved by the clerk for making good the deficiency. He stated that as soon as he came to know about the deficient Court-fee he applied to the Court on 8-10-1974 and the Court-fee was made good within the time -allowed The learned counsel submitted that merely because the clerk played some mischief, the plaintiff cannot be visited with any evil consequences as on his part he had already deposited the money with the counsel. 19. This, however. runs counter to his own statement in his examination-in-chief where the reason for non-payment of entire Court-fee given was defendant's promise to execute the sale deed and added that it was made good in instalments. 19. This, however. runs counter to his own statement in his examination-in-chief where the reason for non-payment of entire Court-fee given was defendant's promise to execute the sale deed and added that it was made good in instalments. According to Sri Janardan Sahay, learned counsel for the respondent, this statement in his direct examination goes totally against the explanation given by the plaintiff later on during cross-examination according to which the entire amount of Court-fee had been handed over by him to his counsel i.e. Rs. 2400/- which was duly affixed to the plaint. He even feigned ignorance if he ever made any application for seeking time to deposit deficient Court-fee. 20. The statement of the plaintiff on this point appears to be very shaky. All these contradictions certainly raise a lot of suspicion as to whether the plaintiff really had money to pay up the Court-fee. However, as I have mentioned earlier, the mere fact t hat the plaintiff had or did not have requisite money for paying Court-fee will not be the final determinant of plaintiffs readiness and willingness to perform his part of the contract. However, this will certainly be a circumstance to be kept in view. 21. Even if we totally ignore this lapse on the part of the plaintiff, yet we have to examine whether the plaintiff had succeeded in proving that he had been always ready and willing to perform his part of the contract. 22. It has been repeatedly held that what is necessary in such cases is that the plaintiff must depose that up to the time of the trial he had been continuously ready and willing to perform his part of the contract. It has been held by a learned single Judge of this Court in Ganesh Prasad v. Sarasvati Devi, AIR 1982 All 47 , that the plaintiff in order to succeed in a suit for specific performance must aver and prove that he has performed or has through out been prepared to do his part under the contract. That preparedness may not be, however, according to the verbal show of readiness to do his part. It should be backed by means to perform his part of the contract when called upon to do so. That preparedness may not be, however, according to the verbal show of readiness to do his part. It should be backed by means to perform his part of the contract when called upon to do so. The plaintiff does not have in such a case to go about jingling money to demonstrate his capacity to pay the purchase price, all that the plaintiff has to do in such a situation to be really willing to purchase the property when the time for doing so comes and to have the means to arrange for payment of consideration payable by him. 23. Thus we come to the question specifically raised by defendant in this case that the plaintiff was neither ready and willing nor he had the capacity to perform his part of the contract. Despite such a clear averment in the written statement, no definite stand was taken by the plaintiff in his replication where a mere vague allegation that he had the capacity to perform the contract was made. No effort was, however, made to disclose what his means were or how he could manage to, pay the sale consideration to perform the contract. It was for the first time in his deposition before the Court at the trial that the plaintiff disclosed about his alleged shop at Delhi and also about some land in the village. No documentary evidence was, however, filed to support these assertions, This testimony falls much too short of proving the income he derived from this business or from agriculture. There is also no material on record to establish that after meeting his liabilities, he had any available funds to enable him to perform the contract. It is true that defendant's evidence too is silent on this point yet the burden being on the plaintiff it was his duty to have adduced enough evidence to prove his capacity and means to pay the money towards performance of the contract. His failure to do so would certainly weigh against the plaintiff. 24. In all cases seeking specific performance of contract duty lies on the plaintiff to establish by cogent evidence his readiness, ability and willingness to perform his part of the duty under the contract. A very vague and general statement to the effect that he was ready and willing or that he had the capacity to pay the amount is not enough. A very vague and general statement to the effect that he was ready and willing or that he had the capacity to pay the amount is not enough. What is necessary is that the plaintiff must satisfy the Court about his capacity to pay. The mere fact that out of the total sale consideration of Rs. 24,000/- he had been successful in proving payment of Rs. 15,000/- will also not relieve him of his liability to prove that he had the necessary capacity to pay the balance amount of Rs. 9000/-. It was in order to cover up this lacuna that the plaintiff for the first time deposed in Court that he had a shop at Delhi and also agricultural land in his native village. However, as I have pointed out earlier, no supporting documentary evidence in these respects has been filed. There is also no evidence about the income derived by him from any of these two sources. In these circumstances, although the plaintiff has made the necessary averment in the plaint, he has utterly failed in proving the capacity to pay the amount, particularly when this fact was traversed by the defendant. The rule of best evidence has not been followed in this case and no possible documentary evidence about his land holding in the village has been filed. It was also possible to file necessary documents showing that he either had a shop at Delhi or that he derived certain income therefrom. No effort, however, has been made to do so either. 25. Thus from the evidence on the record, two facts emerge. In the circumstances of this case and despite some contradictions in the stand of the plaintiff it is not possible to hold that mere non-payment or delay in payment of the Court-fee had any relation to plaintiffs capacity or otherwise to perform his duty under the contract. However, despite proof of the fact that out of Rs. 24,000/- sale consideration to the extent of Rs. 15,000/-had been paid there is no cogent and convincing evidence on record which may go to establish plaintiffs readiness and ability to pay the balance. The law on the point is clear. Besides being statutory duty of plaintiff to aver and prove his readiness and willingness, the plaintiff is obliged to discharge a heavier burden in this respect when defendant questions his ability to perform the contract. The law on the point is clear. Besides being statutory duty of plaintiff to aver and prove his readiness and willingness, the plaintiff is obliged to discharge a heavier burden in this respect when defendant questions his ability to perform the contract. This additional burden has not at all been discharged in evidence. There is no explanation even for the delay in filing the suit soon after the withdrawal of restrictions on registration of the sale deeds by the Government. 26. In view of the law on the point, the plaintiff had failed to establish that he had the means to pay the money or that he was throughout ready and willing to perform his part of the contract. 27. The respondent has filed a cross- objection wherein it is contended that even a decree for refund of money should not have been granted to the plaintiff once it was found that the plaintiff had failed to prove his readiness and willingness. Such a claim cannot, however, be denied to the plaintiff. Even when the plaintiff fails to prove his readiness and willingness to perform his part of the contract, this may result in refusal of decree for specific performance but his claim for refund of earnest money can be allowed (See Babu Lal v. M/s. Hazari Lal, AIR 1982 SC 818 : 1982 All LJ 345 and Rahat Jan v. Hafiz Mohd. Usman, AIR 1983 All 343 . 28. Thus, in my opinion, the appeal as well as the cross-objection have no merit and both are, therefore, dismissed. The parties in the circumstances are left to bear their own costs in this Court.