JUDGMENT S.K. Dubey, J. -- 1. The defendant aggrieved of the judgment and decree dated 7.8.1987 passed in civil suit No. 7A of 1983 by Second Additional Judge to the Court of District Judge, Morena, preferred a first Appeal No. 37/1987, which having been dismissed by the learned Judge of this Court on 9.4.1991, has filed this appeal under clause 10 of the Letters Patent. 2. Factual matrix giving rise to this appeal in brief is thus: A three storeyed house situated in Rui Mandi, Morena, bearing Municipal House No. 46, Ward No.3, was owned and possessed by the plaintiff Kanhaiyalal, who executed a nominal registered sale deed on 16.2.1967 (Ex.P/1) in favour of the respondent/defendant No.2, Nand Ram, as a security for a consideration of Rs. 10,000/-, which was to be repaid within a period of three months by the plaintiff to the defendant No.2. As the defendant No.2 immediately needed his money back, which the plaintiff could not repay, the defendant No.2 executed a registered sale deed on 21.3.1967 (Ex. P/2) in favour of the defendant No.1 for a consideration of Rs. 26, 000/-. Out of the said amount, Rs. 10, 000/- were received by the defendant No.2, and rest of the amount of Rs. 16,000/- was received by the plaintiff. Though the document was executed by Nand Ram as vendor, the plaintiff also signed the document, Ex. P/2, as consent-giver (Sahamatikarta). One of the recitals in this Ex. P/2 relates to the document, Ex. P11, stating therein that there was a contemporaneous oral agreement between the parties that if the house could be sold for an amount exceeding Rs. to, 10, 000/-, then the vendee shall execute the sale deed in favour of the person, to whom the house could be sold at the instance of Kanhaiyalal and, that the excess amount shall be received by Kanhaiyalal, and it was in that way that Rs. 10,000/- were received by Nand Ram and Rs. 16,000/- were received by Kanhaiyalal. To that effect there is also an endorsement on Ex. P/2 of the Sub-Registrar, confirming the payment of Rs. 10,000/- and Rs. 16,000/- in the aforesaid manner. On the same day, vendee Hari Ram, as first party, executed another document, an agreement to sell (Ex. 10,000/- were received by Nand Ram and Rs. 16,000/- were received by Kanhaiyalal. To that effect there is also an endorsement on Ex. P/2 of the Sub-Registrar, confirming the payment of Rs. 10,000/- and Rs. 16,000/- in the aforesaid manner. On the same day, vendee Hari Ram, as first party, executed another document, an agreement to sell (Ex. P/3) in favour of Kanhaiyalal as second party and Nand Ram as third party in the presence of two attesting witnesses, namely, Mani Ram (PW 3) and one Dwarika Prasad, agreeing therein to sell the house to Kanhaiyalal on payment of Rs. 26,000/-. It was also agreed therein that the vendee shall not be entitled to any interest on the said amount of Rs. 26,000/- and in lieu of interest the vendee shall be entitled to the rent at the rate of Rs. 40/- per month from Kanhaiyalal. A time limit of 15 years was stipulated between the parties for execution of the sale deed by the vendee in favour of Kanhaiyalal. 3. Kanhaiyalal instituted a suit for a decree for specific performance on 13.3.1982 against the vendeel defendant Hari Ram impleading Nand Ram as defendant No.2 to the suit, stating therein circumstances how the three documents were executed. It was averred that the document Ex. P/2, being a nominal sale and a separate document of agreement to sell, Ex. P/3, having been executed by the defendant No.1 in favour of the plaintiff, the plaintiff always remained ready and willing to perform his part of the contract and requested the defendant No.1 to execute the sale deed, which was not executed in spite of notice dated 28.10.1980 and another notice dated 19.1.1982, noticing the defendant No.1 to execute the sale deed on 28.1.1982 before the Sub-Registerar; but the defendant No.1 did not perform his part and sent a false reply dated 1.2.1982, hence, the plaintiff has to institute the suit for a decree for specific performance of the contract in pursuance of the agreement to sel1, dated 21.3.67 (Ex. P/3). 4. The defendant No.1 denied the claim and contended that the sale dated 21.3.67 was not a nominal sale, but was an out and out sale. P/3). 4. The defendant No.1 denied the claim and contended that the sale dated 21.3.67 was not a nominal sale, but was an out and out sale. The defendant also denied the execution of the agreement to sel1 and contended that the document is col1usive, fabricated and forged one, as the plaintiff and the defendant No.2 and the two attesting witnesses are related to each other. An additional plea was raised that the plaintiff, as a tenant in a part of the suit house on monthly rent of Rs. 40/-, which was not paid, on making a demand of arrears of Rs. 2,400/-, fabricated the document of agreement to sell and instituted this suit, which deserves to be dismissed. 5. During the pendency of the suit, plaintiff Kanhaiyalal died, and Dau Dayal who is his son was brought on record. 6. The trial Court, on appreciation of evidence of hand-writing experts examined on both sides to prove and disprove the document, Ex. P/3, the experts' opinions being conflicting compared the signatures of the defendant No.1 on Ex. P/3 with other admitted documents on record and on evidence adduced on Ex. P/3, held the document Ex. P/3 duly executed by the defendant No.1, who did not perform his part, and decree the suit for specific performance and also restrained the defendant No.1 from interfering with the possession of the plaintiff in the suit house. The defendant No.1 aggrieved of this decree preferred a first appeal, which was heard and decided by a learned Judge of this Court, who on reappraisal of evidence affirmed the judgment and decree passed by the trial Court, repelling the contention of the appellant that the condition for resale was not embodied in the document Ex. P/2, as such, the contract was hit by the proviso to Section 58 (c) of the Transfer of Property Act (for short, the 'T.P. Act'). The contention that the essential term of the document Ex. P/3 of payment of rent was not complied with, therefore, the plaintiff was not entitled to a decree for specific performance, was also not accepted by the learned Judge, as the appellant/defendant came with a case of the document Ex. P/3 being forged one, the document was denied in its entirety and the plea being raised for the first time in appeal, thus, was not available to the appellant. 7. P/3 being forged one, the document was denied in its entirety and the plea being raised for the first time in appeal, thus, was not available to the appellant. 7. At-the admission stage, Shri R.D. Jain, learned counsel for the appellant, Shri B.G. Apte and Shri RD. Gupta, learned counsel for the respondents, argued the matter finally. 8. It was first contended that the document of sale (Ex. P/2) was an out and out sale and was not a nominal sale and, as none of the terms as required under section 58 (c) were embodied in the document, the sale could not be said to be a nominal sale executed for the purpose of the security. In our opinion, it is not a case of mortgage by conditional sale, as no terms as required by Section 58 (c) were embodied in the document, but a saperate document, an agreement to sell (Ex. P/3), was executed by the defendant/vendee in favour of the plaintiff, and therefore, the plaintiff based his claim on the document Ex. P/3, stating all the circumstances how the document Ex. P/1, the first sale in favour of the defendant No.2, and then the document Ex. P/2 executed by the defendant No.2 in favour of defendant No.1, to which the plaintiff was a signatory as consent giver• (Sahamatikarta), who received the amount of Rs. 16,000/-, and then the document Ex. P/3 executed on the same day in favour of the plaintiff on the terms and conditions stated therein. The two documents, Ex. P/2 and Ex. P/3, were operative in their field, as was the intention of the parties, therefore, the defendant No.1 cannot escape from performing his part under Ex. P/3 by taken recourse to proviso of section 58 (c) of the T.P. Act. 9. Shri Jain, placing reliance on a decision of the Supreme Court in case of Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd. and another, AIR 1968 SC 1355 ; and a decision of this Court in case of Kamlabai v. Motiram and others, 1983 JLJ 780 = 1983 MPLJ 343 , submitted that when the validity of the document Ex. P/2 was challenged as a nominal sale, the plaintiff was not entitled in the alternative to ask for specific performance of the agreement. But, that is not the case here. P/2 was challenged as a nominal sale, the plaintiff was not entitled in the alternative to ask for specific performance of the agreement. But, that is not the case here. The plaintiff has not challenged the validity of the document of sale, Ex. P/2, nor Ex. P/3 is part of the document Ex. P/2, but, the two documents are separate; the plaintiff's suit was based on Ex. P/3, therefore, the decision relied are distinguishable and have no application in the facts of the case. 10. Shri Jain attacked the finding recorded by the trial Court, confirmed in first appeal, relating to the document Ex. P/3, and submitted that on face, the document is collusive and forged. In our opinion, the findings recorded after appreciation of evidence are neither perverse nor manifestly illegal. The finding being concurrent, in our opinion, cannot be disturbed in a Letters Patent Appeal. See, a recent decision of this Court in case of Pradeep Kumar v. Smt. Mridula, 1994 JLJ 147 . 11. Then, it was contended by Shri Jain that the plaintiff is not entitled to a decree for specific performance in view of Section 16 (c) of the Specific Relief Act, 1963, as the plaintiff did not aver and prove that he has performed or remained always ready and willing to perform the essential terms of the contract, which are to be performed by him. True, in a suit for specific performance the plaintiff has to allege and to prove the continuous readiness and willingness, from the date of the contract to the time of hearing to perform his part, failure to make good that averment brings with it inevitable dismissed of the suit, but that is not the case here. The requisite plea is contained in para 5 of the plaint. The defendant in counter to this plea only stated that the document Ex. P/3 is collusive, forged and fabricated; however, the trial Court raised issue No.6 on that plea placing onus of that issue on the plaintiff. The trial Court recorded a finding of fact in affirmative established by evidence aliunde and said finding on reappraisal of evidence was also accepted by the learned Judge in first appeal. 12. Lastly, it was contended by Shri Jain that the term contained in Ex. The trial Court recorded a finding of fact in affirmative established by evidence aliunde and said finding on reappraisal of evidence was also accepted by the learned Judge in first appeal. 12. Lastly, it was contended by Shri Jain that the term contained in Ex. P/3 as to payment of rent was not complied with by the plaintiff, therefore, the plaintiff ought to have been non-suited, because the said term was one of the essential terms of the contract, which was to be performed by the plaintiff; the specific performance of the contract was barred in view of Section 16 (b) of the Specific Relief Act. Reliance was placed on two decisions of the Supreme Court in cases of K Simrathmull v. Nanjalingiah Gowder, AIR 1963 SC 1182 ; and, Smt. Chand Rani (dead) by L.Rs. v. Smt. Kamla Rani (dead) by L. Rs., AIR 1993 SC 1742 . In our opinion, as rightly held by the learned Single Judge that this plea raised for the first time in appeal was not available to the defendant, because the appellant denied the execution of the agreement to sell into being collusive, forged and fabricated. The appellant's defence for decree for specific performance was not based on section 16 (b) of the Specific Relief Act. The defendant No.1 failed to plead and prove that the rent due was not paid. A Specific plea was not raised, the defendant No.1 did not invite the attention of the trial Court to frame an issue on that. Moreover, when the plaintiff denied arrears of rent to be due, the defendant No. 1 was bound to establish the same even in absence of pleading and issue. Besides, the appellant also failed to demonstrate that he did not peform the contract because the plaintiff violated the 'essential term', which gave a right to the defendant No.1 not to perform the contract. 13. In any case, on fact, finding recorded by the trial Court, affirmed in appeal, and on the material on record, we are of the view that the plaintiff has established that he remained continuously ready and willing to perform his part of the contract. 13. In any case, on fact, finding recorded by the trial Court, affirmed in appeal, and on the material on record, we are of the view that the plaintiff has established that he remained continuously ready and willing to perform his part of the contract. The decree for specific performance is discretionary power, a Court in certain circumstances may not grant decree, but the discretion of the Court should not be arbitrary, but should be sound and reasonable, guided by well recognised principles of justice equity and good conscience depending upon with due reference to facts and circumstances of each case. See, a decision of the Supreme Court in case of Surya Narain Upadhyaya v. Ram Roop Pandey and others. AIR 1994 SC 105 . In the case in hand, we are of the opinion that the trial Court has exercised the discretion keeping in view the settled principles of law as envisaged in Section 16 of the Specific Relief Act, which is neither perverse nor arbitrary, and that decree having been confirmed in appeal, no interference is warranted in this appeal under Clauses 10 of the Letters Patent. 14. In the result, the appeal under clause 10 of the Letters Patent has no merit and is dismissed with costs. Counsel's fee as per schedule. If pre-certified.