JUDGMENT Kuldip Chand Sood, J.—Hari Singh, the plaintiff herein, has filed this suit against the defendant for specific performance of the contract dated March 27, 1997 for executing the sale deed in favour of the plaintiff in respect of the following properties: (i) Land measuring 1-18-06 Hects. comprised in Khasra Nos. 172, 173 and 180, Khatouni No. 102, Khata No. 32/30, Kita 3, situate in mohal Sihal Upperli, mauza and Tehsil Fatehpur, District Kangra, as shown in the jamabandi for the year 1994-95 ; (ii) Land measuring 0-79-43 Hects., comprised in Khata/Khatouni number 3, Khasra Nos. 188, 359/189, 276, 284, 285, 289, 290, 368/291, 293, 295, 370/304, kitas 11, situate in Mohal Lohara mauza and Tehsil Fatehpur, District Kangra, as shown in the Jamabandi for the year 1994-95; and (iii) Two houses one cow-shed, that is, one kutcha slate posh residential house, with four rooms, two verandahas, one in front and the other on the eastern side of the house, and one pucca house, slate posh, consisting of two rooms and one cow-shed (kutcha) slate posh. All these structures are situate on Khata No. 107 min (100), Khatouni No. 263 min, Khasra number 171, measuring 0-10-53 Hects., Gair Mumkin Abadi, as shown in the jamabandi for the year 1994-95 and tatima, pertaining to mauza Fatehpur, District Kangra. 2. The case of the plaintiff, as disclosed in the plaint is: The defendant was the owner in possession of the land detailed in sub-paras (i) to (iii) above, suit property for short. On March 27, 1997, the defendant executed an agreement with the plaintiff whereby he agreed to sell the property in dispute to the plaintiff for a consideration of rupees 6.25 lakhs. Out of the total consideration of rupees 6.25 lakhs, a sum of rupees 50,000 were paid by the plaintiff to the defendant as advance at the time of execution of the agreement. The amount of rupees 50,000 was paid by the plaintiff to the defendant by transfer of this amount from his Bank Account to that of defendants account No. 809 with State Bank of India, Fatehpur Branch of Kangra District in Himachal Pradesh. 3. By this agreement, the defendant was required to execute the registered sale deed in favour of the plaintiff in respect of the "suit property" on or before June 10, 1997. 3. By this agreement, the defendant was required to execute the registered sale deed in favour of the plaintiff in respect of the "suit property" on or before June 10, 1997. The balance sale consideration of rupees 5.75 lakhs was to be paid to the defendant on the date of execution of the agreement. 4. The plaintiff was always ready and willing and is still ready and willing to perform his part of the agreement by paying the balance sale consideration of rupees 5.75 lakhs to the defendant but the defendant inspite of the requests of the plaintiff, avoided to execute the sale deed, on one pretext or the other, on or before June 10, 1997, the stipulated date in the agreement. On June 10, 1997, plaintiff specifically requested the defendant to execute the sale deed as that was the last day for the execution of the registered sale deed and further requested him to accompany him to Tehsil headquarters for that purpose. The defendant, on the request of the plaintiff, accompanied him to Tehsil Headquarters at Fatehpur but on reaching Fatehpur, he started avoiding: plaintiff and did not execute the sale deed in accordance with the agreement. In view of the failure of the defendant to execute the sale deed, on June 10, 1997, the plaintiff moved an application before the Naib Tehsildar, Fatehpur explaining him the situation and his willingness to perform his part of the contract by paying the balance sale consideration of rupees 5.75 lakhs. The defendant, who was present in the Tehsil premises, was called by the Naib Tehsildar. Ultimately, the defendant prayed for ten days extension of time to execute the registered sale deed in favour of the plaintiff. The said request was accepted and time was extended for the execution of the sale deed till June 23, 1997. 5. On June 23, 1997, the plaintiff, the defendant and his son, namely, Kulbir Singh appeared before the Naib Tehsildar. The defendant represented before the Naib Tehsildar that he had no land except the suit property and if that land is sold to the plaintiff, then he would be left with no land. The son of defendant, Kulbir Singh, proposed that the defendant may be permitted to retain 5 kanals of land in each tikka though particulars of the land to be retained by them were not given. The son of defendant, Kulbir Singh, proposed that the defendant may be permitted to retain 5 kanals of land in each tikka though particulars of the land to be retained by them were not given. The defendant sought extension of time for execution of the sale deed and the time was accordingly extended upto 26th of June, 1997. 6. On June 26, 1997, the plaintiff went to the Tehsil headquarters andappeared before the Naib Tehsildar but the defendant did not appear till 4.00 p.m. The Naib Tehsildar then examined and verified the particulars of the cheque number 701654 dated 10.6.1997 drawn on State Bank of India, Fatehpur in the amount of rupees 5.75 lakhs issued by the plaintiff in favour of Kishan Singh defendant. The proposal of the defendant dated June 23, 1997 for retention of 5 kanals of land in each tikka did not materalise. 7. On July 2, 1997, the plaintiff issued a notice through his counsel to the defendant calling upon him to execute the sale deed in favour of the plaintiff within a period of fifteen days but inspite of issuance of notice, the defendant failed to execute the sale deed in accordance with the agreement dated 27.3.1997. 8. Plaintiff apart from specific performance of the agreement, also claimed "future mesne profits" from the date of filing of the suit till the date of delivery of possession. Plaintiff claims future interest at the rate of 18% per annum on the amount of rupees 50,000 received by the defendant as advance of the sale consideration from the date of institution of the suit till the execution of the sale deed. 9. The defendant resists the suit. Allegations are controverted. The defendant raised preliminary objection that property in suit is ancestral having inherited from his grand-father Relu Ram as his father Lai Singh pre-deceased Relu Ram. The defendant, it is pleaded, constitute joint Hindu Family with his son Kulbir Singh. There was no legal necessity or need for the defendant to have agreed to sell the property to the plaintiff. The agreement to sell was obtained by the plaintiff by practicing fraud and mis-representing the facts. According to the defendant, he was employed as Clerk in the Department of Education in Punjab at Pathankot in Government School drawing salary of rupees 8,000. The agreement to sell was obtained by the plaintiff by practicing fraud and mis-representing the facts. According to the defendant, he was employed as Clerk in the Department of Education in Punjab at Pathankot in Government School drawing salary of rupees 8,000. He has only one son Kulbir Singh who is looking after the cultivation of the land and, therefore, the agreement "is not specifically enforceable being opposed to land and custom." 10. It is admitted that rupees 50,000 were deposited by the plaintiff in the account of the defendant. However, it is pleaded that the defendant is prepared to refund the amount alongwith interest to the defendant. 11. According to the defendant, a civil suit No. 278/97 was filed by Kulbir Singh, son of the defendant, against him for permanent injunction restraining him from transferring, alienating or creating any charge or donating the property in suit. The suit was decreed by the learned Sub Judge 1st Class, Jawali on 15.12.1997 and, therefore, the defendant cannot execute the sale deed and decree for specific performance. 12. It is further pleaded that the plaintiff is estopped from filing the suit on account of his own acts, deeds and conduct. 13. On merits, it is pleaded that the suit property is ancestral in the hands of the defendant having inherited from his grand-father. The value of the house alone is rupees 6 lakhs and the total value of the property exceeds rupees 10 lakhs. 14. It is the case of the defendant that he never agreed to sell the suit property for rupees 6.25 lakhs. The defendant was duped by the plaintiff to execute the alleged agreement for sale. According to the defendant, the plaintiff represented that his land had been acquired for Pong Dam and he would help the defendant "in improving and cultivating his Banjar land also and had therefore, got a writing executed for the purpose and had deposited rupees 50,000 in the account of the defendant for developing the land". It is the further case of the defendant that he now realizes that the agreement of sale had been got executed by mis-representation made by the plaintiff, stated above. The agreement, pleads defendant, having been obtained by misrepresentation and fraud is not binding on him. 15. It is the further case of the defendant that he now realizes that the agreement of sale had been got executed by mis-representation made by the plaintiff, stated above. The agreement, pleads defendant, having been obtained by misrepresentation and fraud is not binding on him. 15. The defendant, it is pleaded, "would become landless by the transfer of the suit land which is prohibited under these H.P. Tenancy and Land Reforms Act. The suit is also resisted on the ground that plaintiff being non-agriculturist in Himachal Pradesh, cannot acquire the agricultural land under the H.P. Tenancy and Land Reforms Act. The agreement of sale is not enforceable being opposed to public policy and prohibited by law as also being "against Kangra Customary Law and Hindu Law". 16. On the pleadings of the parties, the following issues were settled : 1. Whether a valid and subsisting agreement of sale dated 27.3.1997 was entered by the defendant in favour of the plaintiff as alleged, if so, its effect? OPP. 2. Whether the plaintiff is entitled to specific performance of the alleged agreement of sale dated 27.3.1997 as alleged? OPP. 3. Whether the suit property is ancestral property and the defendant constitutes a Joint Hindu Family with his son as alleged, if so, its effect? OPD. 4. Whether the agreement to sell is not specifically enforceable being opposed to law and custom as alleged, if so, its effect? OPD. 5. Whether the alleged agreement has been obtained by misrepresentation and fraud and not binding on the defendant, if not, its effect? O.P. Parties. 6. Whether the plaintiff is barred/prohibited from buying the suit land under the H.P. Tenancy and Land Reforms Act, being non-agriculturist Himachali? OPD. 7. Whether the defendant has been prohibited from alienating the suit land in civil suit No. 279/97 Kulbir Singh v. Kishan Singh, if so its effect? OPD. 8. Whether the suit is maintainable in its present form? OPP. 9. Whether the plaintiff had paid any advance money to the defendant as alleged, or had unilaterally deposited the amount of Rs. 50,000 in the account of defendant without authority, if so, its effect? O.P. Parties. 10. Whether the plaintiff is estopped from filing the suit on account of its acts, deeds and conduct? OPD. 11. Relief. 17. I have heard the learned Counsel for the parties and gone through the record with their help. 50,000 in the account of defendant without authority, if so, its effect? O.P. Parties. 10. Whether the plaintiff is estopped from filing the suit on account of its acts, deeds and conduct? OPD. 11. Relief. 17. I have heard the learned Counsel for the parties and gone through the record with their help. My findings on the various issues are : Issues No. 1, S and 9 18. It is not seriously disputed that agreement Ext. PW1/A was executed between the parties on March 27, 1997 whereby the defendant agreed to sell the suit land to the plaintiff for a consideration of rupees 6,25,000. It is also not in dispute that an amount of rupees 50,000 was paid by the plaintiff to defendant by transfer of this amount from his account to the account of the defendant. The case of the defendant is that this agreement to sell was obtained by the plaintiff "by practicing fraud and mis-representing the facts". Appearing as DW1, defendant states that plaintiff represented that he would improve the land of the defendant and that he would pay him rupees 50,000 and defendant should also contribute some amount. He then goes on to state that when this document was registered with the Naib Tehsildar, he was called by him and asked if this agreement was executed but he replied in the negative, yet, the defendant would have us believe, the Naib Tehsildar obtained his signatures. In cross-examination, he admits that Ext PW1/A bears his signatures. He further admits that stamp papers on which this agreement was executed, also bears his signatures, on the back in token of having purchased it. 19, On the other hand, the version of the plaintiff (PW1) is that a deal was struck with the defendant for the sale of the "suit property" for rupees 6,25,000./Rs. 50,000 were paid to the defendant as earnest money and it was further agreed that the sale deed shall be registered on June 10, 1997 and balance of the sale consideration shall be paid on that date. Agreement to this effect Ext. PW1/A was executed and signed by him and the defendant. This agreement was scribed by Shri Ravinder Pathania, Advocate, at Sub Tehsil Fatehpur. It is his further evidence that the contents of the agreement were read over and explained to him and defendant and it was thereafter that both of them signed it. Agreement to this effect Ext. PW1/A was executed and signed by him and the defendant. This agreement was scribed by Shri Ravinder Pathania, Advocate, at Sub Tehsil Fatehpur. It is his further evidence that the contents of the agreement were read over and explained to him and defendant and it was thereafter that both of them signed it. This part of the testimony is not disputed in the cross-examination. 20. Ravinder Singh (PW 2), scribe of the agreement, categorically states that agreement Ext. PW1/A was scribed by him. At that time, Parkash Chand and Bachittar Singh were also present and signed the agreement as witnesses. It is his evidence that he "read over and explained the agreement to both the parties, who signed the same after admitting the contents to be correct". Shri Vikaram Singh (PW 4) was Branch Manager of State Bank of India, Branch at Fatehpur at the relevant time. It is his evidence that on March 27, 1997, rupees 50,000 were withdrawn from the Saving Bank Account No. 2554 of the plaintiff and deposited in the Saving Bank Account of defendant Kishan Singh. Copies of the transactions are Exts. PW4/ A and PW4/B, respectively. Copy of the Ledger account is Ext. PW4/ C. Rai Singh (PW 5) is the stamp vendor. It is his evidence that on March 27, 1997, he sold stamp papers in the amount of rupees 10 to Kishan Singh defendant for the purpose of agreement in favour of Hari Singh and obtained signatures both on the stamp papers as well as on his register. The register in original was produced for inspection in the Court. The witness has not been cross-examined on this aspect. Parkash Chand is witness of the agreement Ext. PW1/ A. Appearing as PW 6, he states that he signed the agreement as witness. It is his evidence that the contents of the agreement were read over and explained to both the parties and it is only after hearing the contents, that they signed the agreement and it is thereafter that witnesses signed the agreement. 21. From this overwhelming evidence, it is proved that a valid and subsisting agreement to sell the suit property was executed between the defendant and plaintiff in terms of Ext. PW1/A. 22. There is no evidence to show that agreement is vitiated by any fraud or mis-representation as claimed by the defendant. 33. 21. From this overwhelming evidence, it is proved that a valid and subsisting agreement to sell the suit property was executed between the defendant and plaintiff in terms of Ext. PW1/A. 22. There is no evidence to show that agreement is vitiated by any fraud or mis-representation as claimed by the defendant. 33. The case of the defendant is that agreement Ext. PW1/ A was obtained by the plaintiff by practicing fraud and mis-representing the facts inasmuch as "the plaintiff allured the defendant that since his land had been acquired for Pong Dam, he would help the defendant in improving and cultivating his Banjar land also and had, therefore, got a writing executed for the purpose and had deposited rupees 50,000 in the account of the defendant for developing the land". The evidence discussed above clearly proves that defendant executed the agreement with open eyes. The contents of the agreement were read over and explained to him by the Scribe. There is no question of plaintiff having practicing fraud. The evidence of plaintiff and Vikaram Singh Parihar (PW4), Branch Manager of State Bank of India, Fatehpur, as discussed above, proves that rupees 50,000 were paid by the plaintiff to the defendant as advance in terms of the agreement Ext. PW1/A. Issues are accordingly decided. Issue No. 3. 24. The contention of Mr. K.D. Sood, learned Counsel for the defendant is that the suit property is ancestral and in the absence of any legal necessity to sell the land, the defendant could not have entered into the agreement to sell the suit property and, therefore, the agreement is not enforceable. 25. Defendant Kishan Singh (DW 1) in his evidence states: "My grand-father was Sh. Relu Ram. At present my family consists of my mother, my wife, son and his two children and also wife of my son. My grand-sons are of 7 years and 5 years of age. We live jointly. The land subject matter of dispute, has come to me from my grand-father" 26. Merely because the suit property came to the defendant from his grand-father, will not make it a joint Hindu Family property with his son Kulbir Singh. Copy of the jamabandi for the year 1971-72 (Ext. DW1/C) shows that the suit property was joint of Relu, grandfather of the defendant and Dulo, alongwith one Prem Singh. Merely because the suit property came to the defendant from his grand-father, will not make it a joint Hindu Family property with his son Kulbir Singh. Copy of the jamabandi for the year 1971-72 (Ext. DW1/C) shows that the suit property was joint of Relu, grandfather of the defendant and Dulo, alongwith one Prem Singh. Defendant Kishan Singh inherited the share of his grand-father Relu Ram by mutation No. 361 which was attested on May 16, 1977 after coming into force of the Hindu Succession Act, 1956. It further appears from the jamabandi for the year 1983-84 (Ext. DW1/E) and jamabandi for the year 1989-90 (Ext. DW1/H) that partition took place between co-owners and mutation of partition No. 30 was attested on 11th June, 1991. Under this partition, the property in Mohal Lohara, fell into the share of defendant Kishan Singh. So far the land situate in Mohal Sihal Upparli is concerned, the land in a partition fell into the share of Relu, grand-father of the defendant mutation number 285 whereof was attested on November 25, 1971. Subsequently, by mutation No. 298, the land in Mohal Sihal Upperli was inherited by Relu Ram which was attested on May 16, 1977. In the settlement of 1982-83, new khasra numbers 172, 173 and 180 were given to the land of Mohal Sihal Upperli which was in thfe ownership and possession of defendant Kishan Singh. 27. Mr. K.D. Sood refers to C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar and another, AIR 1953 SC 495, and submits that Kulbir Singh son of defendant Kishan Singh has a right in the "property in suit" by birth. Kulbir Singh therefore has equal right alongwith his father in the "property in suit" which was inherited by Kishan Singh defendant from his grand-father. I am afraid, the contention is misplaced and cannot be accepted. 28. The Hindu Succession Act, 1956, which came into force on June 17, 1956, has brought radical changes in the law of succession without destroying the joint families and joint family property. The question is whether a son who inherits ancestral property of his father and/or grand-father under the Hindu Succession Act, holds it as a separate property or as property of his joint family. 29. The question is whether a son who inherits ancestral property of his father and/or grand-father under the Hindu Succession Act, holds it as a separate property or as property of his joint family. 29. Section 8 of the Hindu Succession Act provides that property of a male Hindu dying intestate shall devolve according to the provisions gf the Act, firstly, upon the heirs, being the relative specified in Class-I of the Schedule which include, amongst others son of predeceased son. Section 9 of the Act provides those in Class I shall take simultaneously and would exclude all other heirs. Question whether a son who inherits the ancestral property of his father under Section 8 of the Act takes it as his separate property or holds it as property of his joint family arose on several occasions. There was divergence of judicial opinion on this question. The High Court of Gujarat in Commissioner of income-tax Gujarat v. Babubhai Mansukhbhai, (1977) 108 ITR 417 (Guj), took a view that when a son inherits self acquired property of his father, he takes it as joint family property with his son and not his separate property. A Full Bench of Madras High Court in Additional Commissioner of Income Tax Madras v. P.L. Karuppan Chettiar, AIR 1979 Madras-1 (FB), was of the view that property inherited by a son from his father, even if it was ancestral property in the hands of the father, would be his separate and individual property and not of the joint family consisting of his wife, sons and daughters. The Madhya Pradesh High Court in Shrivallabhdas Modani v. Commissioner of Income tax, M.P., 138 ITR 673, following Full Bench decision of the Madras High Court was of the opinion that Section 8 of the Hindu Succession Act should be taken as self contained provision laying down the scheme of devolution of property of a Hindu dying intestate and, therefore, the property which may come to a Hindu on the death of his father dying intestate, after coming into force of 1956 Act, will not constitute HUF property consisting of his own Branch, including his sons. The Andhra Pradesh High Court in Commissioner of Wealth Taxv. The Andhra Pradesh High Court in Commissioner of Wealth Taxv. Mukundgirji, 144 ITR 18, held that the property coming to Class-I heirs of the schedule under Section 8 would constitute absolute property of such heirs and his sons will have no right by birth in such property. 30. The controversy has been set at rest by the decision of Apex Court in Commissioner of Wealth Tax Kanpur, etc. v. Chander Sen etc., AIR 1986 Supreme Court 1753. In Chandersen, one RL I and his son CS constituted a Hindu undivided family. The family had some immovable property and the business was carried in the name and style of Khushi Ram Rangi Lal. There was partial partition in the family and the business was divided between the father and the son and thereafter it was carried out by partnership consisting of the two. The house property of the family continued to remain joint. Rangi Lal after his death was survived by his son CS and his grand-sons, i.e., sons of CS. His wife and mother had pre-deceased him and he had no other issue except CS. CS at the time of the death of his father constituted a joint family with his own sons. A question arose whether separate property left by RL and inherited by CS under Section 8 of the Act was to be regarded as a separate property of the CS or property of the joint family of CS in which CS and his sons were members. Their Lordships held that CS inherited the property as an individual and his separate property and said property cannot be said to be the property of joint family of the CS with his own sons. Their Lordships upholding the views of the Madras High Court and Andhra Pradesh High Court and over-ruling the views of the Gujarat High Court, observed in para 20 of the judgment: "20. In view of the Preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when schedule indicates heirs in Class I and only includes son and does not include sons son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Courts view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the later would be applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu Law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu Family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc." (Emphasis supplied)``````````````````````````````````````` 31. This view was reaffirmed by the Supreme Court in Yudhishter v. Ashok Kumar, AIR 1987 Supreme Court 558. Their Lordships in Ashok Kumar observed that the property which devolve on a father on the demise of his grand-father cannot be said to be HUF property with the son. 32. In view of the ratio in Chander Sen as reaffirmed in Yudhishter, the suit property, though ancestral but having come to the defendant under the provisions of Section 8 of the Hindu Succession Act, would be individual and separate property of the defendant and not joint with his son Kulbir Singh. Issue is accordingly decided. Issue No. 4. 33. Learned Counsel for the defendant has not been able to show how the agreement Exhibit PW1/A is opposed to law and custom and, therefore not specifically enforceable. Defendant appearing as DW1 does not whisper a word that the agreement is opposed to any custom. On the contrary, he categorically states. "I am Rajput by caste. There is no custom in our caste regarding sale of ancestral land".. Defendant appearing as DW1 does not whisper a word that the agreement is opposed to any custom. On the contrary, he categorically states. "I am Rajput by caste. There is no custom in our caste regarding sale of ancestral land".. Shiv Dev Singh (DW2), the other witness of the defendant, also states that there is no such custom that Rajputs cannot sell their ancestral land. However, according to him, they do not sell their land since several generations. In cross-examination, he admits that "he is not aware of any case where the sale of a land of a Rajput was held to be invalid on account of custom". Lateron he admits, "it is correct that there is no custom". In the absence of any evidence, this issue is decided against the defendant. Issue No. 7 34. Learned counsel for the defendant submits that Kulbir Singh son of the defendant, filed a suit against the defendant Kishan Singh and obtained a decree from the court of learned Sub Judge 1st Class, Jawali whereby defendant Kishan Singh has been restrained from transferring, alienating or creating any charge on the suit property. According to the defendant Kishan Singh, his son filed a suit against him and obtained a decree. Copy of the judgment and decree has been placed on record as Ext. DW1/A and DW1/B respectively. Perusal of the order dated December 15, 1997 shows that case was decided on admission made by the defendant Kishan Singh in favour of his son and, therefore, the suit was decreed restraining Kishan Singh from transferring, alienating, creating any charge, mortgaging, donating and executing any sale deed of the suit property. This suit was filed on June 9, 1997, i.e. after the present controversy between the parties arose. In this case, present plaintiff Hari Singh was not a party and, therefore, this judgment does not bind the plaintiff. This decree has no effect so far the specific performance of the agreement Ext. PW1/A is concerned, moreso, in view of my findings on issue No. 3. I Issue No. 2. 35. Section 10 of the Specific Relief Act, 1963, hereinafter referred to as "the Act" provides for the cases where contracts can be specifically enforced in the discretion of the court. Section 10 reads: "10. PW1/A is concerned, moreso, in view of my findings on issue No. 3. I Issue No. 2. 35. Section 10 of the Specific Relief Act, 1963, hereinafter referred to as "the Act" provides for the cases where contracts can be specifically enforced in the discretion of the court. Section 10 reads: "10. Cases in which specific performance of contract enforceable.—Except otherwise provided in this chapter, the specific performance of any contract may, in the discretion of the Court, be enforced— (a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Explanation,—Unless and until the contrary is proved, the Court shall presume— (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and (ii) that the breach of a contract to transfer moveable property can be relieved except in the following cases: (a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consist of goods which are not easily obtainable in the market; (b) where the property is held by the defendant as agent or trustee of the plaintiff.” It may be seen that in case of contracts for sale of immovable properties, the grant of relief of specific performance is a rule and refusal being an exception, can be only on proved valid and cogent grounds. 36. Section 20 of the Act provides that grant of decree for specific performance is discretionary with the Court and the Court is not bound to grant specific performance merely because it is lawful to do so. It, however, stipulates that discretion of the court is not arbitrary but guided by sound and reasonable judicial principles. Section 20 reads : "20. Discretion as to decreeing specific performance.—(1) 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 principles and capable of correction by a court of appeal. Discretion as to decreeing specific performance.—(1) 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 principles and capable of correction by a court of appeal. (2) The following are cases in which the Court may properly exercise discretion not to decree specific performance,— (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, given the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract-voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Cl. (a) or hardship within the meaning of Cl. (b). Explanation 2.—The question whether the performance of a contract would involve hardship on the defendant within the meaning of Cl. (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The Court may properly, exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a. contract capable of specific performance. (4) The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. 37. Perusal of Section 20 shows that exercise of discretion should be based on sound judicial principles. It then specifies the circumstances under which the Court may, in its discretion, declined to decree specific performance. 38. 37. Perusal of Section 20 shows that exercise of discretion should be based on sound judicial principles. It then specifies the circumstances under which the Court may, in its discretion, declined to decree specific performance. 38. Shri K.D. Sood, learned Counsel for the defendant submits that the defendant has one son Kulbir Singh and Kulbir has no other vocation except agriculture. Kulbir singh and his family are solely dependent on this land and, therefore, alienation of this land by the defendant, will cause undue hardship to the defendant and his family. He further submits that Kishan Singh did not consult his son Kulbir Singh before entering into agreement. 39. Kulbir Singh appearing as DW 3 states that he is an agriculturist and entirely dependent on agricultural pursuits. It is his evidence that he has no other source of income except from agriculture. It is true that defendant would not be left with any land after the sale of this land as also admitted by the plaintiff in his cross-examination as PW 1. It is equally true that sale of this land will cause hardship to the family of the defendant. But the fact remains that such hardship was created by the defendant himself. Hardship resulting from ones own act or omission cannot be a valid defence against claim for specific performance (See: Damacharia Venkata Seshaiah v. Damachar Venkayya, AIR 1974, AP 193 and Baijnath v. Kshetrahari Sarkar and others. AIR 1955 Calcutta 210). 40. In the present case, defendant negotiated and entered into an agreement for the sale of the land in dispute with open eyes knowing fully well the consequences of such sale. The hardship which may cause was foreseen by the defendant before entering into an agreement to sell the suit land. Plaintiff in the circumstances cannot be non-suited on this ground. 41. Learned Counsel for the defendant cites Parakunnan Veetill Josephs son Mathew v. Nedumbara Kuruvillas Son and others, 1987 (Supp) Supreme Court Cases 340 and Kallathil Sreedharan and another v. Komath Pandyala Prasanna and another, (1996) 6 Supreme Court Cases 218. But the ratio of the cases is of no assistance in the present cases. In Kallathil Sreedharan, the agreement came to be executed in impecunious circumstances resulting in the hard-up condition of the respondent woman. It is in these circumstances that the Apex Court held that the agreement did not warrant specific enforcement. 42. But the ratio of the cases is of no assistance in the present cases. In Kallathil Sreedharan, the agreement came to be executed in impecunious circumstances resulting in the hard-up condition of the respondent woman. It is in these circumstances that the Apex Court held that the agreement did not warrant specific enforcement. 42. In Parakunnan, the Apex Court observed that the Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. In that case, the High Court failed to consider the motive with which the suit was instituted. The suit was instituted by V because K could not get the estate and M’ was not prepared to part with it. The sheet anchor of the suit was the first agreement for sale with C’ However, the evidence indicated that the subsequent sale deed and agreement were obtained from the owners of the estate after taking C’ into confidence. There was implied consent of C’ for executing those subsequent documents and the parties settling their rights under the initial agreement. In these circumstances the Apex Court observed that C’ must have waived his rights to purchase the estate for himself and that being so as an assignee V could not get a better right to enforce that agreement. (Emphasis supplied) 43. This apart, I find, the defendant has not come to the Court with clean hands. Defendant in his written statement specifically pleaded that the plaintiff deposited rupees 50,000 in the account of the defendant in State Bank of India Fatehpur Branch and he was duped in executing the agreement and he never agreed to sell the property. In his evidence, defendant states that plaintiff came to him and represented that he will pay him rupees 50,000 and defendant should also contribute some amount so that land of the defendant is improved. The plea of the defendant, as discussed earlier, has been found to be false. As discussed earlier, the amount was deposited in the account of Kishan Singh by a voucher which contained his signatures as proved by Shri Vikaram Singh Parhar (PW 4) then Branch Manager of the State Bank of India. The defendant on this ground too is not entitled to any discretion in his favour. As discussed earlier, the amount was deposited in the account of Kishan Singh by a voucher which contained his signatures as proved by Shri Vikaram Singh Parhar (PW 4) then Branch Manager of the State Bank of India. The defendant on this ground too is not entitled to any discretion in his favour. Specific performance of an agreement is an equitable relief, therefore, a person who seeks equity must come with clean hands. 44. In view of the facts and circumstances of the case, as discussed above, the plaintiff is entitled to the specific performance of the agreement dated 27.3.1997 Ext. PW7/A. Issue is accordingly decided. Issue No. 8. 45. There is nothing wrong in the form of the suit. All the necessary ingredients have been pleaded. The plaintiff has specifically pleaded that "he was always ready and willing and still willing and ready to perform his part of the agreement and to pay the balance sale consideration of rupees 5,75,000 to the defendant". There is ample evidence on record to show that plaintiff had the balance consideration amount to rupees 5,75,000 in his Bank Account and was ready with the cheque on the date fixed for the execution of the sale deed. It is the evidence of Vikaram Singh (PW 4), the then Branch Manager that a sum of rupees 7,80,252.20 paise were available in the Saving Bank Account No. 2554 of plaintiff Hari Singh copy of which is placed on record as Ext. PW4/C. It may be noticed that on 10.6.1997, plaintiff moved an application before the Naib Tehsildar Fatehpur (Registering Authority) that defendant is refusing to execute the sale deed though he had brought cheque No. 701654 in the amount of rupees 5,75,000 in the name of the defendant. This fact was noticed by the Naib Tehsildar in his order and copy of the cheque was also taken on record which was produced in the Court in terms of Ext. PW3/A by Naib Tehsildar Fatehpur (PW 3). In these circumstances, it cannot be said that suit as framed is not maintainable. Issue is decided accordingly in favour of the plaintiff. Issue No. 10. 46. The issue was not pressed by the learned Counsel for the defendant and is decided against the defendant. 47. No other point is urged before me. Relief 48. In these circumstances, it cannot be said that suit as framed is not maintainable. Issue is decided accordingly in favour of the plaintiff. Issue No. 10. 46. The issue was not pressed by the learned Counsel for the defendant and is decided against the defendant. 47. No other point is urged before me. Relief 48. In result, plaintiff succeeds and I proceed to pass a decree for specific performance of the agreement executed between the plaintiff and the defendant on March 27, 1997 and direct the defendant to execute and register the sale deed of the suit property as detailed in para 1 of the judgment on receipt of the balance sale consideration of rupees 5,75,000 by bank draft in the name of defendant at the time of registration before the concerned sub registrar within two months from today failing which the plaintiff shall be entitled to get the sale executed and registered through the nominee of the Registrar General of this Court on the deposit of balance sale consideration of rupees 5,75,000 in the Registry of this Court. The defendant, on deposit of such amount, shall be entitled to withdraw the same. The defendant shall also pay the cost of the suit. Petition allowed.