JUDGMENT 1. - This is plaintiff's, first appeal against the judgment and decree dated 25.9.1980 passed by the learned Additional District Judge No. 6, Jaipur City, Jaipur, dismissing the plaintiff's suit for specific performance of the contract. 2. The plaintiff-appellant filed the suit, out of which the present appeal arises, for specific performance of the agreement dated 31.1.1977, between the plaintiff and the defendant, regarding plot No. C-65, Amba Bari, Jaipur and the building constructed thereon. The agreement was made for sale of the property for a sum of Rs. 60,000/- and the sale deed was to be got registered within a period of three months. The plaintiff had paid a sum of Rs. 5000/- by cheque on 31.1.1977, to the defendant. The land originally belonged to the then Urban Improvement Trust and one Shri V.D. Grover got it from the Urban Improvement Trust, therefore, it was agreed that the defendant will get either a Patta direct from the Urban Improvement Trust through V.D. Grover or will get the sale-deed executed in the name of the plaintiff-appellant, by the said Shri V.D. Grover. The defendant had made a declaration in 'the agreement that the plot and constructions thereon are her sole property and she enjoyed complete ownership of the land and building. One of the clauses of the agreement was as under : "First party also hereby agrees and declares that in case there is delay in Ramavatar Sharma Vs. Miss L.S. Benjamin-(76) b).B. Civil Regular First Appeal No. 123 of 1980 against judgement & decree dated 25.9.80 passed by Shree N.R. Jtav, A.D.J. No., 6 Jaipur in Civil Suit No. 18/80 , decided on 21st May, 1991. Specific Relief Act, 1963, Section 16(1)(c)-Agreement to sale plot and completing the formalities and execution of the sale deed, on the part of the first party, the second party shall be entitled to obtain complete possession of the plot No. C-65, Amba Bari, Jaipur, including the existing constructions thereon after making a total payment of Rs. 40,000/- in all, including the amount paid already and that the remaining amount of Rs. 20,000/- will be paid at the time of execution of the sale-deed." 3. 40,000/- in all, including the amount paid already and that the remaining amount of Rs. 20,000/- will be paid at the time of execution of the sale-deed." 3. It was further agreed between the parties that in case the defendant makes default in execution of sale-deed, plaintiff will be entitled to get the sale- deed executed through the court of law and also shall be entitled to consolidated damages of Rs. 5000/-. It was further agreed that if the plaintiff fails to discharge his liability under the agreement, the defendant will be entitled to forfeit the amount of Rs. 5,000/-. The plaintiff on 20.1.1978, sent a notice (Ex.2) to the defendant that she had failed to execute the sale-deed in spite of period of about one year having elapsed and if the defendant did not get the sale- deed executed, plaintiff will have no other alternative but to take shelter of the court of law, to get the sale-deed executed. It was further mentioned that she may contact Shri Sita Ram Pareek, for any immediate action if needed, on the part of the plaintiff, but no reply was given to that letter, by the defendant. Again on 28th August, 1978, the plaintiff served another notice (Ex.5) on the defendant, mentioning that as per the agreement, defendant was bound to execute and get the sale- deed registered in favour of the plaintiff within a period of three months from the date of the agreement but she had failed to do so so far and she was called upon to take necessary steps to execute and register necessary document, within a month, failing which the plaintiff will file a suit for specific performance of the contract and damages, to which a reply (Ex-A-1) was sent on 27.9.1978, stating that the execution of the sale deed will be effected only after the Patta was issued in favour of Mr. V.D. Grover, from the U.I.T. It was further stated that in case of delay, the plaintiff might take possession of the plot after making payment of Rs. 40,000/- but since the plaintiff had failed to take possession and to pay a sum of Rs. 40,000/-, and had left Jaipur without giving any intimation, or address to the defendant, so the defendant could not contact the plaintiff. 40,000/- but since the plaintiff had failed to take possession and to pay a sum of Rs. 40,000/-, and had left Jaipur without giving any intimation, or address to the defendant, so the defendant could not contact the plaintiff. In pursuance of the plaintiff's letter dated 20.1.78 when the defendant contacted Shri Sitaram Pareek, at the said address, he was not available. Therefore, the defendant intimated the plaintiff that Shri Sita Ram Pareek was not available and requested the plaintiff to comply with the agreement and to pay Rs. 40,000/- and take possession, but no reply had been received, which shows that the plaintiff was not willing to comply with the terms and conditions of the agreement. It was further mentioned in the notice that, however, the defendant was still prepared to comply with the terms of the agreement, if the plaintiff complied with the terms of the agreement, within seven days from the date of receipt of this letter, where after, it will be presumed that the plaintiff is not willing to do so, within the stipulated period and the responsibility of the defendant will cease as per the agreement. It was further assured that the execution of the sale-deed will be done as soon as the Patta was issued in favour of Shri V.D. Grover. Another notice (Ex. A-3) was sent by the defendant to the plaintiff on 3.11.78 asserting that in the reply dated 27.9.1978 (Ex-A-1) it was mentioned that the defendant was always ready and willing to give possession after receiving the amount as per the agreement but no attention was paid and therefore, it appears that the plaintiff is no more interested in the said agreement. It was further mentioned that if the plaintiff did not give the amount as per the agreement and take possession within seven days after receipt of the notice, then Rs. 5,000/- paid as part consideration of the sale will be deemed to be forfeited. Thereafter, the suit was filed on 29.1.1980 just two days before the period of limitation was going to expire. 4. The defendant in her written statement, admitted the execution of agree- ment and further that the defendant had filed a suit against Mr. Grover, for specific performance of her contract. Thereafter, the suit was filed on 29.1.1980 just two days before the period of limitation was going to expire. 4. The defendant in her written statement, admitted the execution of agree- ment and further that the defendant had filed a suit against Mr. Grover, for specific performance of her contract. It has further been asserted in the written statement that because the plaintiff was not ready and willing to perform his part of the contract, as per the agreement, the plaintiff is not entitled for decree for specific performance. The plaintiff did not comply with the essential conditions of the agreement, by paying Rs. 35,000/- and taking possession of the suit property, in spite of registered notices (Ex.A-2 and Ex.A-3). 5. On the pleadings of the parties, the trial court framed the following is- sues : 1- D;k Jh fo'onso xzksoj ds gd esa iV~Vk tkjh gkus ds ckn gh oknh ds gd esa c;ukek dh jftLV~h rhu ekg esa djkus dk r; gqvk\ 2- D;k oknh bdjkjukes dh 'krksZa dh ikyuk gsrw ges'kk rS;kj jgk\ ;fn ugha rks D;k izfrokfnuh us :0 5000@& tCr fu;ekuqlkj dj fy;s gSA 3- vuqrks"kA 6. Plaintiff examined himself and also examined Shri Sitaram Pareek, as PW-2 in support of his case. Defendant also examined herself as DW-1 and also examined K.V. Lal, as DW-2. 7. Learned trial court, after hearing arguments, decided Issue No. 1 in favour of the plaintiff but decided Issue No. 2 against the plaintiff and held that since the plaintiff did not fulfil the essential terms of the agreement, by paying a sum of Rs. 35,000/- and taking possession of the suit property, he cannot be held to be ready and willing to perform his part of the contract and therefore, the suit was dismissed. It is against this judgment and decree of the learned trial court that the plaintiff has filed this appeal. 8. It may be noted here that the suit filed by the defendant against Shri V.D. Grover, for specific performance of the contract, was decreed in her favour on 18.9.1980, just one week before the judgment and decree in the present suit had been passed. 9. 8. It may be noted here that the suit filed by the defendant against Shri V.D. Grover, for specific performance of the contract, was decreed in her favour on 18.9.1980, just one week before the judgment and decree in the present suit had been passed. 9. Learned counsel for the appellant has very vehemently argued that the terms of the agreement that in case there is delay in completing the formalities and execution of the sale-deed, plaintiff shall be entitled to obtain complete possession of the suit property on payment of additional amount of Rs. 35,000/- cannot be said to be essential condition of the agreement. Moreover, it only creates a right and gives an option to the plaintiff and cannot be said to be a condition precedent for completing the agreement. It is only ancilliary term and mere non-performance of that condition, will not disentitle the plaintiff to specific performance of the agreement, and in this connection, he has placed reliance on a division Bench decision of the Calcutta High Court in Gostho Behari Sadhukhan and another Vs. Omiyo Prosad Mullick and others AIR 1960 Calcutta 361 and Prag Datt Vs. Smt. Saraswati Devi and another AIR 1982 All. 37 . Since the title of the defendant was not perfect till 18.9.1980, when the suit for specific performance which was filed by the defendant against Shri V.D. Grover, had been decreed in her favour, the defendant could not have executed the sale-deed in plaintiff's favour and there- fore, it cannot be said that the plaintiff was a defaulter and was not ready and willing to perform his part of the contract. 10. On the other hand, learned counsel for the defendant also very vehemently submitted that the document is to be read as a whole, harmoniously, all the terms are material and intention has to be gathered from the document. He has submitted that in spite of notices (Ex.A-2 and A-3), the plaintiff did not pay Rs. 35,000/- and take possession of the suit property, which shows that the plain- tiff was not ready and willing to purchase the property and he had failed to fulfil the conditions of the contract on his part. He has further submitted that the suit had been filed just two days before the expiry of period of limitation and in this connection, reliance has been placed on (3) AIR 1987 SC 2328 . He has further submitted that the suit had been filed just two days before the expiry of period of limitation and in this connection, reliance has been placed on (3) AIR 1987 SC 2328 . He has further relied on Gomathinayagam Pillai and others Vs. Palaniswami Nadar AIR 1967 SC 868 wherein it has been held that it is for the plaintiff to show that he was, since the date of the contract, continuously, ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. The plaintiff must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of the hearing of the suit. He has also placed reliance on Santa Singh Vs. Darbara Singh 1986 RLR 663 = 1986 RLW 498 for the preposition that if the plaintiff is guilty of laches, in performing his part of the contract, his suit for specific performance cannot be decreed. 11. Learned counsel for the respondent also drew my attention to Section 10 of the Specific Relief Act and submitted that it is the discretion of the court to grant a decree for specific performance and since the trial court had exercised discretion in refusing to grant a decree for specific performance, this appellate court should not interfere with the discretion of the trial court. He has also drawn my attention to Section 14 of the Specific Relief Act, which says that the contract which is in its nature determinable and a contract for non-performance of which compensation in money is adequate relief, cannot be specifically enforced. According to him, in the present case, the agreement in its nature was determinable and compensation in money of Rs. 5,000/- for non-performance has been specified in the agreement itself, therefore, the trial court was right in dismissing the suit for specific performance. He has also brought to my notice Section 20 of the Specific Relief Act which also says that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial process and capable of correction by a court of appeal. He further submitted that after the suit had been dismissed by the trial court, and before the present appeal had been filed, the defendant had entered into an agreement on 14.10.1980, to sell the suit property and had also delivered possession of the property, and keeping this fact in view, the appellate court should not interfere with the discretion exercised by the trial court. 12. In rejoinder, learned counsel for the plaintiff has submitted that agreement to sell does not create any interest and does not amount to transfer in view of Section 54 of the Transfer of Property Act, and in this connection, he has placed relaince on Mademsetty Satyanarayana Vs. G. Yelloji Rao and others AIR 1965 SC 1405 and Raj Kumar Tejendra Singh and others Vs. Sital Raj Mehta 1988(1)RLR523 . Lastly, he has placed reliance on a recent decision of this Court in S.P. Jain Vs. Laxmi Devi Civil First Appeal No. 19/1976 decided on 12.11.90 13. I have given my thoughtful consideration to the whole matter and have also gone through the record of the case as also the various authorities cited at the bar. I have already, in the earlier part of this judgment, given the substance of the agreement between the parties. Under document (Ex-1) dated 31.1.77, the plaintiff had paid a sum of Rs. 5,000/- and it was agreed that the sale-deed will be executed within three months. It was further agreed between the parties that in case there is delay in completing the formalities and execution of the sale- deed on the part of the defendant, plaintiff shall be entitled to obtain complete possession of the suit property after paying a sum of Rs. 35,000/- to the defendant. It is an admitted fact that the defendant did not have a perfect title over the suit property. She had only made an agreement to sell with Shri V.D. Grover who had been granted or was to obtain a Patta from the Urban Improvement Trust and therefore, the plaintiff was given a right, option and entitlement as an additional safeguard that if the plaintiff wanted, he could pay Rs. 35,000/- to the defendant and obtain possession of the suit property, which cannot by any stretch of imagination be said to be an essential term of the agreement. 35,000/- to the defendant and obtain possession of the suit property, which cannot by any stretch of imagination be said to be an essential term of the agreement. This term of the agreement does not create any liability on the plaintiff nor places any obligation on the plaintiff to perform that part of the agreement; merely because the plaintiff did not choose to exercise his option in paying Rs. 35,000/- and taking possession, it cannot be said that the plaintiff was never ready and willing to perform his part of the contract. Reading the agreement as a whole, the only liability or the condition which the plaintiff was to perform, was to pay a sum of Rs. 55,000/- at the time of execution of the sale deed, for which there is no allegation that he was not ready and willing. The plaintiff had given two notices (Ex-A-2 and Ex-A-5), asking the defendant to get the sale-deed executed but since the title of the defendant was not perfect, she was not in a position to execute the sale deed and her notice to the plaintiff to pay Rs. 35,000/- and taking possession within one week from the date of receipt of the notice, does not make it an essential condition nor time is essence of the contract because it was choice of the plaintiff to have taken risk to part with an amount of Rs. 35,000/- and take possession without having a perfect title, and in the present case, it is so obvious that the defendant had to file a suit for specific performance against Shri Grover, and it was only one week before the present suit was dismissed, that the defendant's suit was decree& against Shri Grover and her title became perfect only after that judgment. It is not known whether any appeal has been filed against that order or not. However, the sale-deed could not have been executed by the defendant before 18.9.1980 when the suit filed by her against Shri Grover was decreed in her favour. In case of immovable properties, decree for specific performance is a rule and the terms, as in the present case, that Rs. 5,000/- will be forfeited or it will be deemed as compensation, cannot be said to be the term for alternative agreement but only in tenorum. In case of immovable properties, decree for specific performance is a rule and the terms, as in the present case, that Rs. 5,000/- will be forfeited or it will be deemed as compensation, cannot be said to be the term for alternative agreement but only in tenorum. Merely because the suit was filed just two days before the limitation was going to expire, does not mean that the plaintiff was not ready and willing to perform his part of the contract. I do not propose to deal with all these aspects in the present case because these points have been discussed in detail by me in Civil First Appeal No. 19/76 S.P. Jain (supra), and as has been held by the Calcutta and Allahabad High Court in Gostho Behari and Prag Datt (supra), mere non-performance of some ancilliary term cannot disentitle the plaintiff for a decree of specific performance. It is true that the suit for specific performance is a discretionary relief and the appellate court should not lightly interfere with the discretion of the trial court, but as has been mentioned in Section 20 of the Act, the discretion of the court cannot be arbitrary, but sound and reasonable and guided by judicial principles and is capable of correction by a court of appeal. In the instant case, the trial court was not justified in holding that the plaintiff was not ready and willing to perform his part of the contract, merely because he had not availed of the option given to him to pay Rs. 35,000/- and taking possession of the suit property. This condition does not create any liability on the plaintiff, on the other hand, it creates a right in favour of the plaintiff and is only an ancilliary term and cannot by any stretch of imagination be called an essential term. Therefore, the discretion exercised by the trial court cannot be said to be sound and reasonable. 14. In the result, this appeal is allowed, the judgment and decree of the learned trial court is set aside and the plaintiff's suit for specific performance of the contract is decreed. The parties shall bear their own costs throughout.Appeal allowed. *******