Judgment ( 1. ) THIS appeal has been filed by the appellants who are defendants 1 to 3 before the trial Court, against the judgment and decree dated 8/7/1997 passed by 9th Additional Judge to the Court of District Judge, Jabalpur in Civil suit No. 92-A/95 whereby learned trial Court decreed the suit of respondent/plaintiff for specific performance of contract on the basis of an agreement executed on 22/12/1979 (Ex. P/3) by appellants 1 and 2 in favour of respondent and declared the sale deed dated 30/3/1981 (Ex. D/6) executed by appellants 1 and 2 in favour of appellant No. 3 as null and void. The trial court also granted a decree of possession of the bath room shown as "b" in the plaint map, from appellant No. 3/defendant No. 3. ( 2. ) THE plaintiff had brought a suit for specific performance of contract for sale of suit house No. 708 situated at Marhatal Ward, Rashid Ganj, Jabalpur on the basis of an agreement dated 22/12/1979 (Ex. P/3/d-1) entered with her by defendants 1 and 2. ( 3. ) AS per agreement dated 22/12/1979, out of total consideration of rs. 55,000/- a sum of Rs. 5,000/- was paid on the date of agreement and rest of Rs. 50,000/- was to be paid at the time of registration of the sale deed. As per terms of the agreement, the vacant possession of the house agreed to be sold, shall be delivered by defendants 1 and 2 to the plaintiff. They shall close the door by raising the partition wall in between House No. 708 and 709, Marhatal, Jabalpur. This partition wall shall be constructed by defendants 1 and 2 in the Courtyard of House No. 708 separating the courtyard from the adjoining passage portion where wall was to be constructed, is shown by letters x and y in the plaint map. The said construction shall be made before execution and registration of the sale deed in favour of the plaintiff. Defendants 1 and 2 shall apply to the competent authority, Jabalpur under the Urban Ceiling Act, 1976 for obtaining requisite permission for sale of the above stated house in favour of the plaintiff and after obtaining the requisite permission shall intimate the plaintiff about it by registered post. On receipt of the information, the plaintiff shall get the sale deed executed from defendants 1 and 2 within two months therefrom. On receipt of the information, the plaintiff shall get the sale deed executed from defendants 1 and 2 within two months therefrom. In case of failure of the defendants 1 and 2 to perform their part of aforesaid contract, the plaintiff shall be entitled to seek specific performance of the contract through Court and in that event costs of the suit and damages shall be the liability of defendants 1 and 2 and the plaintiff shall be entitled to deduct the same from the balance of the sale consideration. On 11/1/1980, respondent/plaintiff paid a sum of Rs. 7500/-to the defendants 1 and 2 towards part payment of the balance of the sale consideration and the further balance of Rs. 42,500/- was agreed to be paid at the time of execution and registration of the sale deed. ( 4. ) IT is averred that plaintiff has always been ready and prepared to perform her part of the contract and is still ready to perform her part of contract but defendants 1 and 2 are not ready to perform their part of contract and whenever reminded, defendants 1 and 2 avoided to perform their part of the contract on some pretext or the other. It is further averred that in her readiness to perform her part of the contract, the plaintiff had already purchased a non-judicial stamps of the value of Rs. 5000/- on 30/5/1980 (Ex. P/2) and was to purchase stamp of the remaining value subsequently because on 30/5/1980 stamp of a lower denomination were not available. After purchase of stamps and completing other formalities, the plaintiff through her husband requested defendants 1 and 2 to perform their part of contract and to execute a sale deed of the aforesaid house in her favour but they refused to do so. It is further pleaded that defendants 1 and 2 in- connivance with defendant No. 3 with an ulterior motive to avoid to perform their part of contract by defendants 1 and 2 and to dispossess the plaintiff and her family members from the house in question, somehow managed to secure an order of allotment of house in question in favour of defendant No. 3 under the provisions of M. P. Accommodation Control Act, 1961 and with the help of the said order wanted to dispossess the plaintiff and her family members from the house in question. Defendant No. 3 forcibly had taken the possession of the bathroom from the part of the suit house by locking it on 5/4/1981 and the matter was reported by the plaintiff against defendant No. 3 with the Omti Police Station, Jabalpur. The plaintiff in order to protect her possession had filed a civil suit against defendants 1 to 3 before 9th Civil Judge Class-II, Jabalpur claiming the relief of declaration and perpetual injunction against defendants. On 7/4/1981 status-quo order was passed by the trial Court. Defendants 1 and 2 have not constructed the wall at two places as per the terms of the agreement dated 22/12/1979 and in spite of the fact that the plaintiff was always ready and willing to perform her part of the contract, executed sale deed in favour of defendant No. 3 on 30/3/1981 (Ex. P/6 ). It is also contended that agreement dated 22/12/1979 is prior to sale deed dated 30/3/1981 and defendant No. 3 is not a bona fide purchaser. With the above plea, respondent/plaintiff claims decree for specific performance against the defendants. ( 5. ) DEFENDANTS 1 and 2 filed their written statement and admitted that an agreement was written on 22/12/1979 between the plaintiff and them and they had taken Rs. 5,000/- but the agreement was not finalized as it was not signed by the plaintiff and was also not attested by second witness as required. It is also averred that actually the agreement was only nominal. Prior to this agreement for sale they had agreed to sell the suit house to defendant No. 3 for Rs. 45,000/ -. The plaintiffs husband Vijay Kumar Itoriya came with property broker and said that the property could easily be sold for at least Rs. 55. 000/- and that if an agreement was nominally shown as entered with him for Rs. 55,000/- only to make a show, defendant No. 3 would automatically purchase this property at this rate i. e. For Rs. 55,000/-instead of Rs. 45,000/- as he was keen on purchasing this property. In furtherance to the above, she paid Rs. 5,000/- as advance. It is also contended that if defendant No. 3 purchased it for Rs. 55,000/- then he would share the excess half and half and if he (defendant No. 3) did not purchase then he himself would purchase it for Rs. 55,000/ -. In furtherance to the above, she paid Rs. 5,000/- as advance. It is also contended that if defendant No. 3 purchased it for Rs. 55,000/- then he would share the excess half and half and if he (defendant No. 3) did not purchase then he himself would purchase it for Rs. 55,000/ -. The agreement dated 22/12/1979 was merely brought into the existence to increase the price of the property. It is also contended that agreement dated 22/12/1979 has been materially altered by the plaintiff when it was in her custody. They denied that in part performance of the agreement to sell dated 22/12/1979 the possession was handed over to the plaintiff and the plaintiff started living there. In respect of the possession it is contended that the husband of the plaintiff was appointed as a care-taker of defendants 1 and 2 and he wrongly occupied a portion of the house. The suit house was in occupation of Parsi family which was vacated in the month of March, 1980 (2/3/1980), the plaintiffs husband wrongly took over the possession of the house on the pretext that he will look after the suit house. Defendants 1 and 2 admitted the receipt of Rs. 7,500/-on 11/1/1980. In respect of readiness and willingness on the part of plaintiff, it is contended that from 22/12/1979 to march, 1981 plaintiff kept mum because she and her husband very well knew that prior to execution of this agreement on 5/10/1979 (Ex. D/5) defendants 1 and 2 executed an agreement for sale of the suit property in favour of defendant No. 3. Vide ex. D/11 on 25/3/1981 defendants 1 and 2 served a notice for terminating the contract and thereafter on the basis of the sale agreement with defendant No. 3 executed a sale deed on 30/3/1981 in favour of defendant no. 3 for a consideration of Rs. 45,000/- and possession was delivered to him and since then he is in possession of the suit property. In additional plea, it is pleaded that there was a prior agreement dated 5/10/1979 in favour of defendant No. 3 and the agreement with the plaintiff is merely sham and nominal and, therefore, no sale deed can be executed in her favour. ( 6. ) DEFENDANT No. 3 filed separate written statement and denied the averments made in the plaint. In additional plea, it is pleaded that there was a prior agreement dated 5/10/1979 in favour of defendant No. 3 and the agreement with the plaintiff is merely sham and nominal and, therefore, no sale deed can be executed in her favour. ( 6. ) DEFENDANT No. 3 filed separate written statement and denied the averments made in the plaint. He took a plea that there was prior agreement in his favour, executed by defendants 1 and 2 on 5/10/1979 and the agreement in favour of respondent was nominal transaction. It is also contended that before the sale deed could be executed in favour of respondent on the basis of the agreement dated 22/12/1979, defendants 1 and 2 alienated the suit property to the defendant No. 3 on 30/3/1981 and the possession was delivered to him. It is also pleaded that in the month of july, 1981 plaintiff vacated the suit premises and shifted to 426, Gandhi ganj, Jabalpur. It is further contended that nothing was done in furtherance to the agreement dated 22/12/1979 though the permission by the competent authority was granted on 1/4/1980 in the name of plaintiffs husband Vijay Kumar Itoriya. It is he who on 30 January, 1980 filed an application for permission of transfer of urban property and appended his signatures in the application which is evident vide Ex. D/3-A. The husband of the respondent also filed an affidavit in support of said application dated 30 January, 1980 vide Ex. D/3. The competent authority granted NOC on 1/4/1980 in the name of plaintiffs husband in Case No. 464/a-90 (B)-9)/79-80. ( 7. ) IN the additional plea, it is contended that agreement dated 22/12/1979 was bogus, fraudulent and was brought into existence nominally merely to boost up the price whereas defendant No. 3 had agreed to purchase the suit house on 5/10/1979 from defendants 1 and 2 for a consideration of Rs. 45,000/ -. Defendants 1 and 2 were misguided by the plaintiffs husband and property broker that the property was worth over rs. 55,000/- and to pressurize this defendant to give up the agreement or pay more, the defendants 1 and 2 began demanding Rs. 35,000/- as advance. Defendant No. 3 suggested to execute the sale deed immediately as he was ready to pay the whole amount of consideration at the time of execution of the sale deed and purchased stamps worth Rs. 55,000/- and to pressurize this defendant to give up the agreement or pay more, the defendants 1 and 2 began demanding Rs. 35,000/- as advance. Defendant No. 3 suggested to execute the sale deed immediately as he was ready to pay the whole amount of consideration at the time of execution of the sale deed and purchased stamps worth Rs. 4500/- on the same day i. e. 5/10/1979, but no sale deed was executed for want of permission from the competent authority and when the permission was granted the sale deed was executed on 30/3/1981. The agreement of defendant No. 3 was prior in point of time and, therefore, no decree as prayed by the plaintiff can be granted in her favour. ( 8. ) TRIAL Court after appreciating the statement of appellant No. 1-Jagdish chkandra Dwivedi (DW-1), appellant No. 3-Shiv Shankar Ayarchi (DW-2), syed Mansoor Ali (DW-3) and B. P. Sharma (DW-4) came to the conclusion that stamps were purchased by appellant No. 3 on 5/10/79 and there is no material contradiction in the depositions of defendants witnesses inter se on the point and the plaintiff has not succeeded in establishing that the document was not purchased on the date as alleged and a talk with regard to transfer of house did not take place as defendants evidence on the point, is not satisfactorily rebutted and held that by all the preponderance of probabilities, it can be discerned that defendants assembled for sale of the house. The trial Court also gave a finding that the evidence and pleading on record shows that defendant No. 3 refused to pay an amount of Rs. 35,000/-as earnest money as demanded by defendants 1 and 2 as defendants 1 and 2 were not ready to take any lesser amount, there was no consideration as nothing passed and as per Section 6 and 63 of the Contract Act, it can also be said that the agreement, if any, stood revoked or abandoned and held that the defendants did not reach any such an agreement to sell which may be regarded as a valid agreement and held that the agreement by defendant No. 3 with defendants 1 and 2 was not earlier in time to the agreement by defendants 1 and 2 with plaintiff. After appreciating the testimony of D. W. 1 has held that there had been an agreement to sell but, as per him, plaintiffs side avoided the execution of the sale deed. D. W. 1 has no where taken his stand in his testimony that the agreement was sham and for namesake and was never intended to be acted upon and was merely to boost up the price of the house and to fetch more price. Even in the sale deed while the agreement with plaintiff is mentioned, it is no where mentioned that the agreement was merely for namesake and was not intended to be given effect to. With the above, the trial Court has held that there was no concluded agreement between defendants 1 and 2 and defendant No. 3 earlier to the agreement executed in favour of respondent/plaintiff by defendants 1 and 2 and there was only one concluded agreement i. e. Dated 22/12/1979 between defendants 1 and 2 and plaintiff and the sale deed executed in favour of defendant No. 3 by defendants 1 and 2 was declared as null and void. With the above findings, trial Court by the impugned judgment and decree dated 8/7/1997 decreed the suit of respondent/plaintiff. ( 9. ) IT has been submitted Shri Ravish Agrawal, learned senior counsel for appellants that in absence of plea and requisite material, the trial Court committed error in holding that the contract, if any, in favour of defendant no. 3 stood revoked or abandoned as per Sections 6 and 63 of the Contract act. The defendants by oral and documentary evidence proved that there was concluded contract between defendants 3 and defendants 1 and 2 and consideration for the agreement dated 5/10-/1979 was passed on, the defendants 1 and 2 never refused for execution of the agreement and terms appended at the back of Ex. D/5. Defendant No. 3 in pursuance to Ex. D/5 purchased stamp papers for execution and registration of conveyance as it evident by Ex. D/8, D/9 and D/10 and the contract of the sale of the suit house was earlier in point of time to the so called contract of plaintiff. It is also submitted that finding of the trial Court that the agreement of sale dated 22/12/1979 was not entered into with a view to boost up the sale price up to Rs. D/8, D/9 and D/10 and the contract of the sale of the suit house was earlier in point of time to the so called contract of plaintiff. It is also submitted that finding of the trial Court that the agreement of sale dated 22/12/1979 was not entered into with a view to boost up the sale price up to Rs. 55,000/- or to pressurize defendant No. 3 to pay the enhanced consideration from Rs. 45,000/- to Rs. 55,000/- is perverse and contrary to the evidence on record. The contract for agreement of sale was completed between defendants 1 and 2 and defendant No. 3 which was prior to the so called agreement of plaintiff and no decree can be passed on the basis of subsequent agreement of sale dated 22/12/1979. ( 10. ) IN respect of knowledge of permission dated 1/4/1980 granted by the competent authority under the Ceiling Act of 1976, it is contended that permission was applied by the defendants 1 and 2 in the name of plaintiffs husband and he duly signed the application (Ex. D/3-A) submitted his affidavit in support of the said application which is on record and thereafter the competent authority on 1/4/1980 granted permission for transferring the property in favour of plaintiffs husband and copy of the said order was received on the same day i. e. on 1/4/1980, it cannot be said that the plaintiff or her husband has no knowledge about the NOC issued by the competent authority on 1/4/1980 as no intimation or notice was given by defendants 1 and 2 in terms of the agreement dated 22/12/1979. The plaintiff had full knowledge of permission but he took no steps to get the conveyance executed though necessary stamp papers were purchased on 30/5/1980 and he remained silent till 3/4/1981 when he came to know about the execution of the sale deed dated 30/3/1981 and thereafter he issued notices for his readiness and willingness to execute the sale deed. It is lastly submitted that trial Court has not appreciated the oral and documentary evidence properly and findings recorded by the trial Court is liable to be set aside. ( 11. ) SHRI Ashok Jain, learned counsel for respondent/plaintiff, supported the impugned judgment and decree of the trial Court and has submitted that there was no concluded agreement between defendants 1 and 2 and defendant No. 3. The agreement Ex. ( 11. ) SHRI Ashok Jain, learned counsel for respondent/plaintiff, supported the impugned judgment and decree of the trial Court and has submitted that there was no concluded agreement between defendants 1 and 2 and defendant No. 3. The agreement Ex. D/5 was not acted upon. The note appended on the back page does not give any particular to be transferred and to settle the price between the parties as well as the boundary of the property which was to be transferred. None of the ingredients of Section 10 of the Contract Act are satisfied. He, further submitted that as per sale deed dated 30/3/1981 (Ex. D/6) the defendant No. 3 was well aware of the agreement executed in favour of the plaintiff on 22/12/1979 by defendants 1 and 2 and, therefore, it cannot be contended that appellant No. 3 is a bona fide purchaser and no protection is given to him under Section 19 (b) of specific Relief Act, 1963. he further submitted that as per the law laid down by the Apex Court, once the property has been alienated to the subsequent purchaser, the question of readiness and willingness does not arise. He lastly submitted that the trial Court has not committed any legal error in decreeing the suit of the plaintiff. ( 12. ) THE first question which arises for consideration in this appeal is whether there was any concluded contract between defendants 1 and 2 and defendant No. 3. As per Section 10 of the Indian Contract Act, 1872, all the agreements are contract if they are made by the pre-consent of the parties competent to contract, for a lawful consideration and with a lawful object. The contract may be either oral or in writing. In the case of written contract, the intention of parties has to be gathered from the terms of the contract and not from the subsequent conduct of the parties. Where the law requires that the contract should be in a prescribed form, there cannot be any concluded contract unless the contract is executed in that form. Here in the present case Jagdish Chandra (D. W. 1) has deposed that there was an agreement (Ex. D/5) with defendant No. 3 to sell the house on 5/10/1979. As per clause (2) of the said agreement, defendants 1 and 2 wanted Rs. Here in the present case Jagdish Chandra (D. W. 1) has deposed that there was an agreement (Ex. D/5) with defendant No. 3 to sell the house on 5/10/1979. As per clause (2) of the said agreement, defendants 1 and 2 wanted Rs. 35,000/- as earnest money to be paid by defendant No. 3 but defendant No. 3 was ready to pay Rs. 5,000/- to 10,000/- only, out of the total sale consideration of Rs. 45,000/- which was agreed to by the parties. During the course of deliberation and discussion it was agreed by defendant no. 3 that he is ready to execute the sale deed right now and he shall get the sale deed registered after paying full consideration and, therefore, none of the parties signed the agreement and appended a note on the back side of the agreement that defendants 1 and 2 agreed to sell the house and sale deed will be directly executed immediately after obtaining NOC from competent authority under the Urban Land Ceiling Act, 1976 and due to the aforesaid reason they could not sign the agreement and agreed to directly execute the conveyance in favour of defendant No. 3. This note is marked as e to e. D. W. 1-Jagdish Chandra admitted his signature as well as the signatures of his brother and also admitted that they appended their signatures on 5/10/1979. Syed Mansoor Ali (D. W. 3), who is one of the attesting witness admitted his signatures as well as signatures of other attesting witness, Shri S. Phadnish. When it was agreed between the parties that sale deed will be executed directly, defendant No. 3 was left to say that he was going to purchase a none- judicial stamps of Rs. 4500/- for execution of the sale deed. He vide Ex. D/7 on 6/10/1979 deposited a sum of Rs. 4500/- at State Bank of India towards non-judicial stamps. Late Shri jamuna Prasad Dubey, Advocate, brother-in-law of Jagdish Chandra informed the parties that at the time of execution of the sale deed NOC is must and, therefore, sale deed could not be executed. Appellant no. 3/defendant No. 3 thereafter filed an application for cancellation of stamp and refund of the amount vide Ex. D/9 on 25/10/1979. His statement was recorded on 25/10/1979 vide Ex. D/8 and later on Sub Divisional Officer, jabalpur passed an order for payment of Rs. Appellant no. 3/defendant No. 3 thereafter filed an application for cancellation of stamp and refund of the amount vide Ex. D/9 on 25/10/1979. His statement was recorded on 25/10/1979 vide Ex. D/8 and later on Sub Divisional Officer, jabalpur passed an order for payment of Rs. 4500/- in lieu of stamps vide ex. D/10. As per statement of Jagdish Chandra (D. W. 1) and S. S. Ayachi (DW-2) it is not in dispute that vendors agreed to sell the suit house for a consideration of Rs. 45000/ -. The terms and conditions of the agreement ex. D/5 was settled by late Shri J. P. Dubey, Advocate, when he asked the parties to put their signatures. S. S. Ayachi (D. W. 2) protested for the payment of Rs. 35000/- and was willing to pay Rs. 5000/- to 10,000/- only to defendants 1 and 2 at the time of execution of agreement and he also agreed for execution of sale deed by paying the sale consideration of rs. 45000/- then late Mr. J. P. Dubey said to make arrangement for payment of sale money and then to execute the sale deed. Defendants 1 and 2 also agreed for execution of the sale deed directly in favour of defendant No. 3. When S. S. Ayachi (D. W. 2) came along with stamps of Rs. 4500/- one Shri b. P. Sharma, Advocate (junior to Shri J. P. Dubey, Advaocate) intimated them that without permission under the Urban Land Ceiling Act, sale deed cannot be registered and, therefore, the sale deed could not be executed. The said unused stamps were returned and S. S. Ayachi (D. W. 2) applied for its cancellation and refund of the money and he received Rs. 4500/- in lieu of cancellation of stamps. ( 13. ) THERE is no dispute in respect of the description of the property and the price settled between the parties as well as boundaries of the property which was to be transferred. Defendants 1 and 2 in their written statement very specifically admitted for sale of suit house in favour of defendant No. 3. ( 13. ) THERE is no dispute in respect of the description of the property and the price settled between the parties as well as boundaries of the property which was to be transferred. Defendants 1 and 2 in their written statement very specifically admitted for sale of suit house in favour of defendant No. 3. Jagdish Chandra (DW-1) in para-1 of his statement has deposed that he had entered into an agreement with defendant No. 1 on 5/10/1979 for sale of house No. 708 situated at Rashid Ganj, Marhatal, Jabalpur because permission for the competent authority was not granted and, therefore, no sale deed was executed on or immediately after 5/10/1979. In para-2 he has deposed that after one and half month from 5/10/1979 property broker bageshwari Babu met and intimated that he will fetch the price of rs. 55,000/ -. Later on, he came along with Jagdish Chandra (PW-1), husband of plaintiff and stated that if he will execute the agreement with plaintiff then on the basis of the said agreement defendant No. 3 will pay minimum Rs. 55,000/- and they will share the 50-50% profit over and above rs. 45,000/ -. He agreed with the said proposal and executed an agreement with the plaintiff on 22/12/1979 vide Ex. D/1. This agreement was also signed by Bageshwari Babu. At the time of execution of agrement they also intimated the plaintiff that ceiling permission has not been granted and immediately after permission, sale deed will be executed. The husband of the plaintiff applied for grant of permission and filed his own affidavit on 30/1/1980. Vijay Kumar Atoriya (P. W. 1) in para-20 of his statement has admitted his signatures in the application dated 30/1/1980 and signatures on affidavit dated 30/1/1980. The permission was granted on 1/4/1980 in the name of Vijay Kumar Itoriya (PW-1 ). ( 14. ) LEARNED counsel for the respondent drew my attention to the written statement filed by defendants 1 and 2 and has submitted that defendants 1 and 2 denied the execution of agreement dated 5/10/1979 and in the written statement they had not pleaded about the execution of Ex. D/5. Para-1 of the written statement is reproduced as under : "1. Reply to para 1 of the plaint :- it is denied that on 22. 12. D/5. Para-1 of the written statement is reproduced as under : "1. Reply to para 1 of the plaint :- it is denied that on 22. 12. 79 (Twenty second December Seventy Nine) the defendants 1 and 2 entered into an agreement to sell their house No. 708 (Seven Hundred Eight) , Marhatal, jabalpur for a consideration of Rs. 55,000/- (Rupees fifty five thousand), to the plaintiff and received Rs. 5000/- (Rupees Five Thousand) towards the sale price on the same day from the plaintiff. All other allegations in the para are also specifically denied. It is submitted that an agreement was written on 22. 12. 79 (Twenty Second December Seventy Nine)between the plaintiff and the defendants 1 and 2 who had taken Rs. 5000/- (Rupees five thousand) but the agreement was no finalised and so it was not signed by the plaintiff and was also not attested by second witness as required. This apart actually the agreement was only nominally. Prior to this agreement these defendants were selling and had agreed to sell the property to defendant No. 3 for Rs. 45,000/ -. The plaintiffs husband came with Dalals and said that the property could easily be sold for at least Rs. 55000/- (Rupees Fifty Five thousand) and that if an agreement was nominally shown as entered with him for Rs. 55000/-(Rupees Fifty five Thousand) only to make a show, the defendant no. 3 would automatically purchase this property at this rate i. e. For Rs. 55000/- (Rupees Fifty Five Thousand) as he was keen on having this property. Therefore, he nominally got the agreement in suit written in favour of his wife, the plaintiff and to create evidence paid rs. 5000/- (Rupees five thousand) as advance. He had said that if defendant No. 3 purchased it for Rs. 55000/- (Rupees Fifty Five Thousand) then he would share the excess half and half and if he (defendant No. 3) did not purchase, then he would himself have it for Rs. 55000/- (Rupees Fifty Five thousand ). Thus this agreement was merely brought into existence to increase the price of the property. It is under such circumstances that the husband of the plaintiff brought the agreement in suit in existence and got the execution of sale deed in favour of defendant No. 3 postponed. Defendant No. 3 had even purchased stamps for the sale deed. Thus this agreement was merely brought into existence to increase the price of the property. It is under such circumstances that the husband of the plaintiff brought the agreement in suit in existence and got the execution of sale deed in favour of defendant No. 3 postponed. Defendant No. 3 had even purchased stamps for the sale deed. This agreement too had fallen through finally and the plaintiff was and is not entitled to bring the suit on the basis of that agreement at all. " From the perusal of the aforesaid para, it is clear that defendants 1 and 2 in their written statement have not pleaded about the execution of the agreement dated 5/10/1979. ( 15. ) THE Apex Court in the case of Tamil Nadu Electricity Board and another Vs. N. Raju Reddiar and another, (1996) 4 SCC 551 has held that once a contract is reduced to writing, by operation of Section 91 of the evidence Act, 1872 it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead any oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract. The case in hand has to be adjudged bearing in mind the aforesaid principle. ( 16. ) ON Ex. D/5 which is unsigned agreement, a note is appended on the back side of the agreement on 5/10/1979 which reads as under :. . . (Other Language Omited ). . . ( 17. ) IT is evident from the evidence on record that defendant No. 3 never made any written contract with the defendants 1 and 2 from 5/10/1979 till 30/3/1981. . . (Other Language Omited ). . . ( 17. ) IT is evident from the evidence on record that defendant No. 3 never made any written contract with the defendants 1 and 2 from 5/10/1979 till 30/3/1981. The defendants led evidence to prove that the sale could not take place because of lack of ceiling permission, but subsequent to 5/10/1979 none of the defendants 1 and 2 ever tried to procure permission in favour of defendant No. 3. It is also evident from record that the alleged stamps purchased by defendant No. 3 were returned because the permission could not be obtained. In Ex. D/9 and D/10 defendant No. 3 wrote that defendants 1 and 2 were demanding higher price and were avoiding sale, hence the stamps were returned. On the contrary the plaintiff in pursuance of the agreement dated 22/12/1979 proceeded to obtain permission from the Ceiling Authority and did obtain permission from the Ceiling Authority. The evidence and pleading show that defendant No. 1 demanded rs. 35,000/- as advance which defendant No. 3 did not agree to give and as such the agreement could not be executed and was virtually abandoned. It is also evident that in pursuance to the agreement dated 5/10/1979 the construction which were to be carried out were not done which shows that agreement was never acted upon. Defendant No. 3 also never gave any notice to defendants 1 and 2 to comply with the terms of the agreement. The contention of the defendants that the agreement dated 22/12/1979 entered into with a view to share the enhanced price half and half is not proved from the evidence on record. The circumstance that the plaintiff was delivered the possession of the house on being vacated by the tenant further fortified the fact that later agreement was acted upon and the earlier alleged agreement was never acted upon. It is also evident that the defendant No. 3 thereafter threatened to take possession of the aforesaid house from the plaintiff and plaintiff was required to file a suit for injunction before the IX Civil Judge Class II, Jabalpur. The trial Court hence considered the evidence in great detail and has come to the conclusion that there was a valid agreement dated 22/12/1979 and the prior agreement dated 5/10/1979 was neither signed nor acted upon and was virtually abandoned. ( 18. The trial Court hence considered the evidence in great detail and has come to the conclusion that there was a valid agreement dated 22/12/1979 and the prior agreement dated 5/10/1979 was neither signed nor acted upon and was virtually abandoned. ( 18. ) THE trial Court also found that there was no notice to terminate the agreement dated 22/12/1979 alleged by defendants 1 and 2. It is also evident from the record that as per terms of the agreement notice was required to be given by defendants 1 and 2 after obtaining permission from ceiling Authority within a period of two months which was never given that shows that it was the defendants 1 and 2 who did not want to perform the agreement. ( 19. ) IT was urged by the counsel for the respondent that there was no concluded contract between the parties and hence there is no question of performing the sale deed. From the agreement dated 5/10/1979 (Ex. D/5) it is evident that the said agreement was not duly signed. It requires the signatures of both the vendors and the vendee as is evident from the second page of agreement Ex. D/5. Clause 4 was also deleted which does not bear the signature of any of the parties and an abnormal and unnatural course was adopted by the defendants by making an endorsement E to E on the back of the said Ex. D/5 stating that the agreement does not require signature and after obtaining the permission from the ceiling authority the sale deed would be executed. This endorsement was made on 5/10/1979 itself. It is not understood as to why the agreement itself was not signed at the place where it required to be signed and the aforesaid condition of obtaining the NOC from the ceiling authority was already a part of the agreement as per clause 3. This clearly shows that the endorsement must have been made subsequent to 5/10/1979 and was falsely antedated. As stated herein before this agreement was never acted upon. No action for implementation of the alleged agreement was taken, this shows that the agreement was never concluded between the parties as there was no ad-diem (meeting of mind) between the parties and as such there was no concluded contract. ( 20. As stated herein before this agreement was never acted upon. No action for implementation of the alleged agreement was taken, this shows that the agreement was never concluded between the parties as there was no ad-diem (meeting of mind) between the parties and as such there was no concluded contract. ( 20. ) HEREIN the present case Vijay Kumar Itoriya (PW-1) in para-7 of his statement has very categorically stated that he knows defendants 3 and defendants 1 and 2. In para-18, this witness admitted that Bageshwari Babu was broker. In para-20 he admitted that he applied for ceiling permission and admitted his signatures in the affidavit as well as in the application and also admitted that in the application it has been specifically mentioned that he is purchasing the suit land. Defendant No. 3 Dr. Shivshankar Ayachi (DW-2) has deposed that at the time of agreement dated 5/10/1979 (Ex. D/5), j. P. Dubey and B. P. Sharma, Advocates were present. This witness also admitted in para-11 of his statement that at the time of typing of Ex. D/6, sale deed, he came to know about the agreement to sell dated 22/12/1979 with the plaintiff and he in spite of that executed sale deed dated 30/3/1981. Section 19 (b) of the Specific Relief Act protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception of the general rule. Hence the onus of proof of good faith is on the defendant No. 3 who takes the plea that he is a bona fide purchaser. As per statement of appellant No. 3 (DW-2) he had knowledge about the agreement dated 22/12/1979 prior to execution of sale deed dated 30/3/1981. The trial Court was right in holding that having regard to the totality of facts and circumstances emerging from the record, the defendant No. 3 cannot be held as a bona fide purchaser. ( 21. ) APPELLANT No. 3 failed to establish that he was a bona fide transferee for value without notice of the contract for sale between the plaintiff and defendants 1 and 2. Initially burden to show that subsequent purchaser of the suit property covered by the agreement for sale was a bona fide purchaser for value without notice of the suit agreement was on the subsequent transferee. Initially burden to show that subsequent purchaser of the suit property covered by the agreement for sale was a bona fide purchaser for value without notice of the suit agreement was on the subsequent transferee. In the light of the evidence on record, it is established that the subsequent transferee i. e. Respondent had no notice and knowledge about the agreement dated 5/10/1979. ( 22. ) THE findings of the trial Court that by all the preponderance of the probabilities, it can be discerned that the defendants assembled for sale of house is based on the statement of B. P. Sharma (DW-4), which has been discussed by the trial Court in para 14 and 15 of the impugned judgment. In absence of any plea about the terms of conditions of Ex. D/5 taken in the written statement of defendants 1 and 2, it cannot be said that the finding is incorrect or contrary to evidence on record. ( 23. ) IN the case of Ram Awadh (dead) by LRs. and others V. Achhaibar Dubey and another, (2000) 2 SCC 428 , the suit was filed by one Bachna for specific performance of an earlier agreement to sell the suit property to her. She had not pleaded in her plaint that she was ready and willing to perform her part of the agreement, but that plea was later introduced by way of an amendment. The question which arose for consideration before the Apex Court was whether she or her legal representatives were, in fact, at all material times ready and willing to perform his part of that contract. The Apex Court has held that plea of readiness and willingness can be raised also by subsequent purchaser of the property or his legal representatives who were defendants in the suit. It has been held that the obligation imposed by Section 16 of the Act is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b), and (c ) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that that the mandatory requirement of Section 16 (c ) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. ( 24. ) THE Division Bench of this Court in the case of Sushila Devi V. Laxmibai, 1969 JLJ 972, has held that where the hardship had been brought upon the defendant by himself, the Court will not consider that as a circumstance in favour of the refusal of specific performance. It has been held that a case for specific performance, hardship to defendant by the decree is no ground to set aside the decree. ( 25. ) I have gone through the findings recorded by the trial Court and I do not find any error in the said findings for the reasons stated herein above, the findings are based on the admission made by the parties. It is well settled that a finding of fact arrived at by a trial Judge on oral testimony should not be disturbed except in rare cases where some error susceptible of being dealt with wholly by argument is disclosed, such an omission to take account of circumstances or probabilities material to an estimate of the evidence or giving credence to testimony which turns out on more careful analysis to be substantially inconsistent with itself or with indisputable fact. ( 26. ) FOR the aforesaid reasons, I find no infirmity in the impugned judgment of the trial Court. The discretion judicially exercised by the trial court is correct and right granted a decree of specific performance of contract in favour of respondent/plaintiff. There is no merit in the appeal. It is dismissed accordingly, with cost throughout. Counsel fee Rs. 2,500/-, if pre-certified.