( 1 ) BEING aggrieved by the judgment-decree dated 1-2-90 passed by III adj, Chhindwara in C. A. No. 10-A/88 affirming the judgment-decree dated 6-1-88 passed by Civil Judge Class II, Chhindwara in C. S. No. 17-A/85 plaintiff/appellant has preferred this appeal under Section 100, c. P. C. ( 2 ) THE appeal has been heard on the following substantial questions of law :- "1]. Whether the agreement (Ex. P/1) was wrongly held by the Courts below as incapable of specific performance on the ground that the vendor was a Benamidar? 2]. Whether the plea of the defendants based on Benami was barred by the provisions of Benami Transactions (Prohibition)Act, 1988? 3]. Whether the findings of the Courts below that Makhaniya Bai is Benamidar and real owner was her husband Ghudan is vitiated as no issue was framed in that regard and without which finding cannot be recorded?" ( 3 ) APPELLANTS are legal heirs of original plaintiff late Girdhari Similarly respondents are legal heirs of original defendant late Smt. Makhaniya Bai. Ghudan, husband of Smt. Makhaniya Bai in C. S. No. 5-A/80 obtained a money decree against late Girdhari Lai and his father Pyarelal for recovery of Rs. 10,000/ -. Since Girdhari Lal, Pyarelal were unable to pay the decretal amount, agreed to sell the suit land khasra No. 51/1 Area 3. 78 acres village Lonikalan Tehsil and District chhindwara in lieu of decretal amount to Ghudan. Therefore, in full and final satisfaction of the money decree in C. S. No. 5-A/80, Ghudan executed the requisite document dated 16-12-81 (Ex. D/1) recording discharge of liability of late Girdhari Lal, pyarelal and directed them to execute the registered sale deed in favour of his wife defendant late Makhaniya Bai. Accordingly, late Girdhari Lal executed the registered sale deed dated 16-12-81 (Ex. D/1) in favour of defendant late Makhaniya Bai. On execution of registered sale deed (Ex. D/2) an arrangement was made vide agreement (Ex. P/1) that late Girdhari Lal on payment of total sum of Rs. 12,000/- by 16-12-86 may seek reconveyance from defendant late makhaniya Bai. Agreement dated 16-12-81 (Ex. P/1) accordingly was executed by defendant late Makhaniya Bai agreeing to execute a registered sale deed in favour of late girdharilal on payment of aforesaid sum by 16-12-86. In pursuance of agreement (Ex. P/1) that late Girdhari Lal on payment of total sum of Rs. 12,000/- by 16-12-86 may seek reconveyance from defendant late makhaniya Bai. Agreement dated 16-12-81 (Ex. P/1) accordingly was executed by defendant late Makhaniya Bai agreeing to execute a registered sale deed in favour of late girdharilal on payment of aforesaid sum by 16-12-86. In pursuance of agreement (Ex. P/1) late Girdharilal in the year 1985 offered the stipulated amount and made a request for reconveyance in his favour. However, defendant late Makhaniya Bai refused to do the needful as such Girdharilal sent the notice dated 25-11-85 (Ex. P/4) per registered post. Since defendant late Makhaniya bai did not comply with the direction and resiled from the agreement (Ex. P/l), late girdhari Lal instituted C. S. No. 171-A/85 for specific performance of agreement dated 16-12-81 (Ex. P/l) directing defendant late makhaniya Bai to execute the registered sale deed and place him in possession of the suit land. Defendant late Makhaniya Bai filed her written statement dated 23-4-86 and resisted the suit stating inter alia that no such agreement agreeing to execute a reconveyance on receipt of stipulated sum had been executed in favour of late Girdharilal. Subsequently, the written statement was amended to the effect that husband Ghudan infact was the purchaser of the suit land and got executed the registered sale deed (Ex. P/2) in her favour, as such she being the Benami owner has no right-title to execute the agreement dated 16-12-81 (Ex. P/ 1) agreeing to execute the reconveyance on receipt of amount Rs. 12,000/- from late girdharilal. The Civil Judge in C. S. No. 171-A/85 vide judgment dated 6-1-88 held that defendant late Makhaniya Bai executed an agreement dated 16-12-81 (Ex. P/l) agreeing to execute a registered sale deed of suit land in favour of plaintiff late Girdhari Lal on payment of rs. 12,000/- by 12-12-86. Plaintiff late girdhari Lal in the year 1985 itself offered to tender Rs. 12,000/- and asked the defendant makhaniya Bai to execute registered sale deed in his favour. However, defendant late Makhaniya Bai resiled from the agreement. The Civil Judge emphasizing on document discharging of decretal amount of C. S. No. 5-A/80 (Ex. D/l) held that infact ghudan was the purchaser of the suit land, however, got executed a registered sale deed. (Ex. D/2) in favour of his wife defendant late makhaniya Bai. However, defendant late Makhaniya Bai resiled from the agreement. The Civil Judge emphasizing on document discharging of decretal amount of C. S. No. 5-A/80 (Ex. D/l) held that infact ghudan was the purchaser of the suit land, however, got executed a registered sale deed. (Ex. D/2) in favour of his wife defendant late makhaniya Bai. As such, defendant late makhaniya Bai being ostensible owner benami had no right-title to enter into agreement (Ex. P/l) to execute a registered sale deed in favour of late Girdhari Lal on payment of stipulated sum by 16-12-86. Therefore, the suit seeking specific performance of contract-agreement (Ex. P/1) was dismissed. Being aggrieved, plaintiff/appellant preferred C. A. No. 10-A/88 before the III adj, Chhindwara. The Court below affirming the judgment-decree passed by the Court below dismissed the appeal vide impugned judgment-decree dated 1-2-90. ( 4 ) DW/2 Ghudan has stated that in lieu of the decretal amount of C. S. No. 5-A/80 late Girdhari Lal, Pyarelal agreed to sell the suit land. Therefore, recording discharge vide document dated 16-12-81 (Ex. D/1) he got executed the registered sale deed (Ex. D/2) in favour of his wife defendant late makhaniya Bai. DW/1 Makhaniya Bai has stated that in respect of money decree and its discharge for a sum of Rs. 12,000/- the registered sale deed (Ex. D/2) was got executed from late Girdhari Lal. PW/1 Girdhari lal has stated that soon after the registration of the registered sale deed (Ex. D/2) defendant fate Makhaniya. Bai agreed to execute a registered sale deed of suit land in his favour on payment of Rs. 12,000/- by 16-12-86. PW/1 S. K. Simon the ascribe, pw/2 Rooplal, PW/3 Tejlal attesting witnesses of agreement (Ex. P/1) have stated that it was agreed between the parties that on receipt of Rs. 12,000/- by 16-12-86 defendant late Makhaniya Bai shall execute a registered sale deed of the suit land in favour of plaintiff late Girdhari Lal. On the basis of evidence aforesaid the Court below recorded a concurrent finding to the effect that defendant late Makhaniya Bai executing an agreement (Ex. P/1) agreed to execute a registered sale deed in favour of plaintiff late girdhari Lal on payment of Rs. 12,000/- by 16-12-86. P. W. 1 Girdharilal has stated that amount stipulated in the agreement was offered to the defendant late Makhaniya Bai in the year 1985. Since she resiled from the agreement, notice (Ex. P/1) agreed to execute a registered sale deed in favour of plaintiff late girdhari Lal on payment of Rs. 12,000/- by 16-12-86. P. W. 1 Girdharilal has stated that amount stipulated in the agreement was offered to the defendant late Makhaniya Bai in the year 1985. Since she resiled from the agreement, notice (Ex. P/4) per Registered post AD was sent. As per acknowledgment (Ex. P/6) the notice was received by defendant late Makhaniya Bai. PW/2 Rooplal, pw/3 Tejlal have stated that a Panchayat was convened wherein defendant late makhaniya Bai was advised to abide by the agreement (Ex. P/1 ). The minute of the proceedings of the Gram Panchayat, was recorded vide (Ex. P/2 ). It has been proved that defendant late makhaniya Bai having executed the document (Ex. P/1)on being offered the stipulated sum within the time prescribed resiled from the agreement and refused to execute the sale deed in favour of plaintiff late girdhari Lal. ( 5 ) AS an afterthought endeavour on 13-12-89 defendant late Makhaniya Bai amended the written statement to the effect that she had no right to transfer the property as it has not been held by her for her benefit. It was Benami on behalf of her husband who was the real owner of the suit land. The Civil Judge referring to documents (Ex. D/1) executed by DW/2 Ghudan recording discharge of liability of decretal amount held that DW/1 Makhaniya Bai was the Benami purchaser as the consideration of the sale deed (Ex. D/2) was paid by her husband. Therefore, considering her to be an ostensible owner -Benamidar held that she had no right-title to execute the agreement (Ex. P/1) to execute a registered sale deed on receipt of sum of Rs. 12,000/- by 16-12-86. D/2) was paid by her husband. Therefore, considering her to be an ostensible owner -Benamidar held that she had no right-title to execute the agreement (Ex. P/1) to execute a registered sale deed on receipt of sum of Rs. 12,000/- by 16-12-86. ( 6 ) DEALING with this aspect of the case under Section 18, Specific Relief Act in C. V. Muni Samappa v. Kolala Gurunanjappa (dead) AIR 1950 Madras 90, the Division bench held as under:- "when a person sues for specific performance of an agreement to sell a house im-pleading only the two executatuions of the agreement who are the only persons bound to carry out the agreement and the plaint does not make any reference to the sons of defendant 1, there is no necessity to determine the question of the vendors' title, and the fact that the title which the purchaser may acquire might be defeasible by sons of defendant 1 is no ground for refusing specific performance if the purchaser is willing to take such title as the vendors have. " In Kalyanpur Lime Works Ltd. v. State of bihar, AIR 1954 SC 165 , also it has been held that under the circumstances it might be "open to the vendor to repudiate the contract if he so liked, but the vendor could not certainly plead that the contract was void on the ground of mistake and refuse to perform that part of the agreement which it was possible for it to perform. The Division Bench in Mir Abul Hakeem khan v. Abdul Mannan Khadri, AIR 1972 ap 178 , examining the case with reference to pleading of imperfect title on the part of vendor it has been held :-"where a suit for specific performance is filed only against the executant of an agreement to sell and there is no question of the plaintiff attempting to bind the interest of the persons not parties to the contract and making them parties, it is not necessary to go into the question whether the executant's title is defective or whether the property belongs only to the partnership of which the executant is a partner. Hence specific performance cannot be refused on the ground that the property belonged to the partnership. " ( 7 ) THE Courts below erred in refusing to grant the decree for specific performance of the contract dated 16-12-81 (Ex. Hence specific performance cannot be refused on the ground that the property belonged to the partnership. " ( 7 ) THE Courts below erred in refusing to grant the decree for specific performance of the contract dated 16-12-81 (Ex. P/1)whereby defendant late Makhaniya Bai was legally bound to execute a registered sale deed of suit land in favour of plaintiff late oirdhari Lal on payment of Rs. 12,000/ -. The amount within the stipulated period vide agreement (Ex. P/1) was already offered to her. ( 8 ) AS per agreement dated 16-12-81 (Ex. P/1) plaintiff late Glrdhari Lal was required to make payment by 16-12-86. On receipt of amount stipulated defendant late makhaniya Bai was under obligation to execute a registered sale deed of the suit land in favour of late Girdhari Lal. In R Rajagopal reddy (dead) by L. Rs, v. Padmini chandrasekharan (dead) by L. Rs. , AIR 1996 sc 238 , it has been held that Sec,4 (1) (2)Benami Transactions (Prohibition) Act becomes operative from 19th of May, 1988 as such, the defence of defendant late makhaniya Bai being an ostensible owner-Benamidar was not barred by provisions of benami Transactions (Prohibition) Act. The issue in relation to Benamidar since was neither tried nor the defendant late makhaniya Bai was able to demonstrate herself to be a Benamidar the finding of the courts below that defendant late Makhaniyi bai was an ostensible owner-Benamidar is patently perverse and illegal. 0. Consequently, the appeal is allowed setting aside the judgment-decree passec by the Courts below C. S. No. 171-A/85 stands decreed and it is hereby ordered:-1. Defendant/respondents on receipt of rs. 12,000/- from the plaintiff/appellants shall execute the registered sale deed of the suit land in their favour, 2. Defendant/respondents shall place plaintiff/appellants in possession of the suit land. 3. Defendant/respondents shall bear their costs and pay the costs of the plaintiff/appellants. Counsel fee as per rules or certificate (whichever is less ). Appeal allowed .