JUDGMENT : Sudhir Agarwal, J. 1. Heard Sri. H.M. Srivastava, learned counsel for appellant, Sri. S.D. Yadav, learned counsel for respondents and perused the record. 2. This is defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arising from judgment dated 17.01.1989 and decree dated 31.01.1989 passed by Sri. Brij Raj Singh, IInd Additional Civil Judge, Etah in Civil Appeal No. 84 of 1988, which has been allowed and plaintiff's Original Suit No. 388 of 1986 for specific performance of contract has been decreed and judgment and decree dated 21.4.1988 passed by Sri. Abhay Kumar Gupta, Munsif, Kasganj, has been modified. 3. The appeal was admitted on following substantial questions of law: "A. Whether in absence of any evidence and proof of the facts of willingness and readiness to perform his part of contract as required under Section 16 of Specific Relief Act, the lower appellate court in decreeing the plaintiff's suit has taken a correct view to the facts and law? B. Whether there being no partition between the defendant-appellant and Ram Swarup through whom the Agreement to sale is claimed, on the death of Ram Swarup, the Agreement to sale can be legally enforced? C. Whether finding of the court below about genuineness of Agreement to sale and payment of money to the defendant-appellant, is legally justified? (Emphasis added) 4. The facts in brief giving rise to this appeal are that sole plaintiff-respondent (hereinafter referred to as "plaintiff') Naresh Pal Singh son of Roshan Singh instituted Original Suit No. 388 of 1986 in the Court of Munsif, Kasganj (Etah), against sole defendant-appellant Naresh Pal Singh son of Talewar Singh (hereinafter referred to as "appellant") vide plaint dated 10.10.1986, praying for a decree of specific performance of agreement dated 9.10.1985 in respect of Arazi No. 1629, area 0.48 dismal, Village Raipur Patna, Pargana Soron, District Etah, by executing sale deed, after receiving remaining amount of Rs. 3,000/-. In the alternative, decree for recovery of Rs. 5,000/- including Rs. 2,000/- paid in advance and Rs. 3,000/- as damages was prayed. 5. Plaintiff set up a case in the plaint stating that appellant's brother Ram Swarup, son of Talewar, was owner of Arazi No. 1629, area 0.48 dismal, situate at Village Raipur Patna, and owner of half share thereof. In the alternative, decree for recovery of Rs. 5,000/- including Rs. 2,000/- paid in advance and Rs. 3,000/- as damages was prayed. 5. Plaintiff set up a case in the plaint stating that appellant's brother Ram Swarup, son of Talewar, was owner of Arazi No. 1629, area 0.48 dismal, situate at Village Raipur Patna, and owner of half share thereof. He executed an agreement for sale on 09.10.1985 regarding his half share to plaintiff and the said agreement was registered. The total amount of consideration agreed between the parties was Rs. 5,000/- of which Rs. 2,000/- was paid in advance at the time of registration of agreement and remaining amount was to be paid at the time of execution of sale deed, which was to be executed within one year. Appellant's brother has died and now appellant is the sole owner of entire property, hence agreement dated 09.10.1985 is now binding upon appellant. 6. Plaintiff served a notice dated 12.02.1986 to appellant requesting him to execute sale deed and the said notice was served upon appellant on 13.02.1986. Another notice dated 10.9.1986 was served by plaintiff upon appellant requiring him to execute sale deed, and in absence of any reply, plaintiff was required to remain present in Registry office on 08.10.1986 to execute sale deed. The said notice was also received by appellant on 18.9.1986 but he tendered no reply. Plaintiff remained present in Registry office on 8.10.1986 and 09.10.1986 but appellant did not come. Plaintiff has always been ready and willing to execute sale deed and has requisite amount of consideration with him but defendant has failed to execute sale deed, hence the suit. 7. Appellant contested the suit by filing written statement dated 13.01.1987, disputing execution of any agreement for sale in respect of Gata No. 1629 and also denied of having received any part consideration in advance. He pleaded that appellant's brother Ram Swarup was in the habit of drink and in the condition of intoxication, if plaintiff has got any signature or thumb impression on any document, the same is not binding upon appellant. Appellant's brother was never in need of money and, therefore, there was no occasion for execution of any agreement for sale. He pleaded that appellant's brother Ram Swarup was in the habit of drink and in the condition of intoxication, if plaintiff has got any signature or thumb impression on any document, the same is not binding upon appellant. Appellant's brother was never in need of money and, therefore, there was no occasion for execution of any agreement for sale. Appellant's brother Ram Swarup was murdered on 05.11.1985 in which plaintiff's real brother Mahesh Pal Singh was accused and it appears that for concealment of factum of fraud in preparation of agreement for sale, the said offence was committed. Value of disputed land is not less than Rs. 22,000/- since it is Abadi and there is house constructed thereon besides some old trees. 8. Trial Court formulated following five issues: ^^1- D;k oknh ds i{k esa fnukad 9-10-85 dks izfroknh ds HkkbZ jkeLo:i us 2000-00 :i;s crkSj c;kuk ysdj fookfnr vkth ds 1@2 Hkkx dks cspus dk bdjkjukek eqvk;nkcS fd;k gSA "1. Whether Ram Swarup, i.e., the brother of the defendant has on 09.10.1985 entered into an agreement with the plaintiff to sell him 1/2 portion of the disputed land by taking Rs. 2,000/- as earnest money? 2- D;k bdjkjukek fnukad 9-10-86 oknh us vuqfpr rjhds ls djk;k gS tSlk fd izfrokn i= dh en uEcj 9 esa vafdr gS\ 2. Whether the plaintiff has got executed the agreement dated 09.10.1986 improperly as alleged in para 9 to the written statement? 3- D;k oknh us ewY;kadu xyr fd;k gS o izLrqr U;k; 'kqYd vi;kZIr gS\ 3. Whether the plaintiff has undervalued the suit and the court fee paid is insufficient? 4- D;k bl U;k;ky; dh eqdnesa ds lquus dk {ks=kf/kdkj ugha gS\ 4. Whether this court has no jurisdiction to hear this suit? 5- oknh fdl&fdl lqfo/kk dks ikus dk vf/kdkjh gS\** 5. The reliefs the plaintiff is entitled to?" (English translation by Court) 9. Issues 3 and 4 were considered as preliminary issues and decided vide order dated 02.12.1987 in favour of plaintiff and the said order was made part of final judgment and decree of Trial Court. Issues 1 and 2 were taken together. The reliefs the plaintiff is entitled to?" (English translation by Court) 9. Issues 3 and 4 were considered as preliminary issues and decided vide order dated 02.12.1987 in favour of plaintiff and the said order was made part of final judgment and decree of Trial Court. Issues 1 and 2 were taken together. Trial Court held that original registered copy of agreement, Exhibit 9, though not admitted by appellant but during course of argument it was admitted that document has thumb impression of Ram Swarup but the same was obtained when he was in drunken state, therefore, document is not valid. Trial Court held that agreement was duly proved and a valid document. However, on the question, whether document was enforceable, Trial Court specifically held that after death of Ram Swarup, entire property now belongs to appellant and mutation has also taken place. In Khatauni, disputed property at Khata No. 451 was jointly recorded in the name of Ram Swarup and Naresh Pal Singh, as bhumidhar with transferable rights, and there was no partition between them. Plaintiff's witness Natthu Singh, PW-2, admitted that there are 2-3 mango trees, 2-3 eucalyptus trees and one tree of jack fruit (kathal) standing on disputed land. Appellant and his witness has also stated in their oral deposition that appellant's house is existing on disputed land since there was no partition between the two brothers and there was no demarcation, hence it was difficult to execute sale deed. He did not mention about standing trees and Abadi and, therefore, specific performance of contract is not justified. It also held that in oral deposition plaintiff has nowhere said that he was ready for execution of sale deed after payment of Rs. 3,000/- and willing to do so even in present time and therefore, also agreement cannot be specifically enforced. Consequently, issue 1 was answered in affirmative and issue 2 was answered against defendant. In view of discussion made in respect of issues 1 and 2, issue 5 was answered against plaintiff that specific performance of agreement is not possible and justified and therefore, appellant be directed to refund amount of advance as part consideration with interest. Consequently, Trial Court decreed the suit, partly, for payment of Rs. 2,000/- along with proportionate cost with interest at the rate of 12 percent per annum. 10. Both the parties filed appeal. Consequently, Trial Court decreed the suit, partly, for payment of Rs. 2,000/- along with proportionate cost with interest at the rate of 12 percent per annum. 10. Both the parties filed appeal. Civil Appeal No. 70 of 1988 was filed by appellant and Civil Appeal No. 84 of 1988 was filed by plaintiff to the extent both the parties were aggrieved by judgment of Trial Court. Unfortunately, IInd Additional Civil Judge, Etah, (hereinafter referred to as "LAC") has not formulated any point for determination as contemplated under Order XLI, Rule 31, C.P.C. but from paras 15, 16 and 17 of the judgment it is evident that it has examined the question "whether refusal by Trial Court to specifically enforce agreement was justified in view of Section 20 of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963")". 11. Referring to statement of appellant, LAC has observed that for the purpose of Abadi, appellant got 5 biswa land from Gaon Sabha and therefore alleged Abadi was not on disputed land but on a separate 5 biswa land, which was allotted by Gaon Sabha to appellant. It has also held that agreement was executed by deceased Ram Swamp for sale of his half share in the property and not any particular part or area of the property, therefore, there was no obstruction in enforcement of Specific Performance of the contract. Consequently, vide judgment dated 17.1.1989 LAC dismissed Civil Appeal No. 70 of 1988 filed by appellant and allowed Civil Appeal No. 84 of 1988 filed by plaintiff directing appellant to execute sale deed in respect of disputed land by transferring half of the share in favour of plaintiff after receiving balance amount of consideration of Rs. 3,000/- within two months, failing which plaintiff shall have right to get the sale deed executed through Court. 12. Learned counsel for appellant contended that LAC has completely failed to consider that one of the grounds taken by Trial Court for non-suiting plaintiff and denying specific performance of contract was that no evidence led by plaintiff that he was ready and willing to execute sale deed and on this aspect LAC has not considered the matter at all. Findings of Trial Court have not been reversed still appeal of plaintiff has been allowed for execution of sale deed by enforcing specific performance of agreement, which is patently illegal. Findings of Trial Court have not been reversed still appeal of plaintiff has been allowed for execution of sale deed by enforcing specific performance of agreement, which is patently illegal. The condition precedent is that proposed buyer is ready and willing to execute sale deed, not only in past, when notice was given to proposed seller to execute sale deed, but also when the suit was filed, and unless the same is satisfied, no decree of specific performance could have been passed. In this regard, Trial Court has specifically recorded its findings but LAC has not examined this aspect. There is no discussion and no finding has been recorded otherwise and without reversing findings of Trial Court on this aspect, judgment of Trial Court has been reversed, which is patently illegal. He further submitted that after death of Ram Swarup, agreement executed by plaintiff in respect of share of Ram Swarup could not have been executed since entire property stood succeeded by appellant and a share was agreed by Ram Swamp to be sold, which ceased to exist after his death, plaintiff could not have sought execution of transfer of half of share of appellant and agreement in fact stood frustrated and could not have been enforced at all. 13. Learned counsel for plaintiff, on the contrary, submitted that agreement was in respect of half of share and therefore partition by metes and bound was not necessary and it has rightly been decreed by LAC and he supported the judgment of LAC for the reasons stated therein. 14. Now coming to first and second questions, it is agreed by both the learned counsel for parties that in a suit for specific performance, it is a fundamental requirement that plaintiff's must aver about his readiness and willingness to perform contract according to its true construction. Section 16(c) of Act, 1963 contemplates such requirement and reads as under: "16. Personal bars to relief.-.... (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Personal bars to relief.-.... (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.-For the purposes of clause (c)- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court; (ii) the plaintiff must aver performance of. or readiness and willingness to perform, the contract according to its true construction." (Emphasis added) 15. This requirement is mandatory. In Ouseph Varghese v. Joseph Aley and Ors. (1969) 2 SCC 539 , Court said: "A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement." 16. In Jagarnath Mishra v. Uma Mishra, 1984 All LJ 1, a Division Bench of this Court said: "Where in a suit for specific performance there was an omission of the averment in the plaint that the plaintiff was ready and willing to perform his part of the contract, the omission rendered the plaint without a cause of action for the suit and the suit was liable to the dismissed." 17. Pleading with regard to "readiness and willingness" is not a matter of technical requirement but a matter of substance which' has to be demonstrated by plaintiffs, if challenged by defendants that plaintiffs were not in condition of "readiness and willingness" for execution of sale deed and all other conditions precedent were not satisfied. Plaintiff has to plead that whatever was required to be performed by him, was performed by him. 18. Plaintiff has to plead that whatever was required to be performed by him, was performed by him. 18. The term "willingness" and "readiness" though appears to be synonymous but there is essential difference between two terms. Legislature when has used two words which apparently show some similarity then intention of legislature has to be found out in using two similar terms for the reason that legislature does not provide surpluses and words are not essentially repeated by legislature unless required for some specific performance. Here legislature has used two words "readiness" and "willingness". Meaning thereby it had an intention to cover every aspect of matter which may be within the ambit of both terms keeping in view the minutest difference in implication and meaning of two terms. 19. Words 'ready' and 'willing' have been defined in "Concise Oxford English Dictionary", Twelfth Edition, on pages 1196 and 1652, respectively, as under: "ready"-1. in a suitable state for an activity or situation; fully prepared, Made suitable and available for immediate use. 2. willing to do something. 3. in such a condition as to be likely to do something. 4. easily available or obtained; within reach. 5. immediate, quick, or prompt." "willing"-ready, eager, or prepared to do something. Given or done readily." 20. In "Collins Cobuild Advanced Learner's English Dictionary", Fourth Edition 2003, latest reprint 2004, words "readiness" and "willing" are defined on pages 1189 and 1666, respectively, as under: "readiness"-1. If someone is very willing to do something, you can talk about their readiness to do it. 2. If you do something in readiness for a future event, you do it so that you are prepared for that event." "willing"-1. If someone is willing to do something, they are fairly happy about doing it and will do it if they are asked or required to do it. 2. Willing is used to describe someone who does something fairly enthusiastically and because they want to do it rather than because they are forced to do it." 21. In "The World Book Dictionary" Volume Two, 2011 World Book, words "readiness"; "ready"; and, "willing" have been defined on pages 1737 and 2393, respectively, as under: "readiness"-1. the condition of being ready; preparedness. 2. quickness; promptness. 3. ease; facility. 4. willingness." "ready"-1. prepared for action or use at once; prepared. 2. willing. 3. quick; prompt. 4. quick in thought or action. 5. likely; liable. 6. the condition of being ready; preparedness. 2. quickness; promptness. 3. ease; facility. 4. willingness." "ready"-1. prepared for action or use at once; prepared. 2. willing. 3. quick; prompt. 4. quick in thought or action. 5. likely; liable. 6. easy to get it; very easy to reach; immediate available." "willing"-1. ready; consenting. 2. cheerfully ready. 3. freely done or offered; voluntary. 4. of, having to do with, or using the will; volitional." 22. In "The New Lexicon Webster's Dictionary of The English Language", 1987 by Lexicon Publications, Inc., words, "readiness", "ready" and "willing" have been defined on pages 831 and 1125, respectively, as under: "readiness"-the state of being ready; willingness, lack of hesitation." "ready"-1. in a state fit for immediate action; immediately available whenever needed; in an emotional state adapted to a possible set of circumstances, willing; quick and easy; forward, prompt. 2. the state of being fit or poised for immediate action or use." "willing"-working, helping etc. readily; done, given etc. readily; favourably disposed; of the power of the will." 23. In "Black's Law Dictionary", Eighth Edition, South Asian Edition-2015, words "ready, willing, and able" have been defined on page 1291 as, "legally and financially capable of consummating a purchase". 24. In "Mitra's Legal & Commercial Dictionary", Sixth Edition, Published by Eastern Law House Pvt. Ltd., Second Impression-2014, expression "ready and willing" has been defined on page 727 as under: "The expression 'ready and willing' implies not merely the disposition but also the capacity to do the act." (Emphasis added) 25. In P. Ramanatha Aiyer's "Concise Law Dictionary (Abridged Edition) With Legal Maxims, Latin Terms and Words & Phrases", Third Abridged Edition Reprint 2010, expression "readiness and willingness" has been defined on page 977 as under: "Readiness and willingness. To come within the expression "readiness and willingness" in S. 51 of the Contract Act (9 of 1872), it is not necessary for a person to prove that on the due date he had the goods actually in his possession. To come within the expression "readiness and willingness" in S. 51 of the Contract Act (9 of 1872), it is not necessary for a person to prove that on the due date he had the goods actually in his possession. It is quite sufficient if he is able to prove that he had control of the requisite goods or that he had the capacity to deliver them to the purchaser when called upon to do so, in other words, that he was in a position to fulfil his part of the contract on the due date on a demand being made by the purchaser." "The expression 'readiness and willingness' means continuous readiness-dictionary and willingness to pay the balance price as and when the appropriate occasion for the same arises and the expression cannot be treated as a straitjacket formula." 26. Apparently the above two terms, to some extent, are overlapping, but one can find a marked distinction between two inasmuch as while "willingness" is a mental process, "readiness" refers to something to do with translating that into action and is preceded by necessary preparation for being in a position to be ready. Willingness must be something to do mainly with a person's mental process to do an act but readiness implies close proximity of such willingness and ultimate physical manifestation. Readiness must, in all cases, be backed by willingness and its imminent physical action is demonstrated when it is about to be put into action. Readiness is a total equipment of a person who is ready to do the thing before he actually does it. Willingness is when a person claims that he is interested to do something but readiness demonstrates and reflects capacity of such person to perform after completion of all other requisite acts or having taken requisite steps which put him into the stage of readiness to put the final act into execution having performed of preceding act on his part. For example, a person claims that he is ready and willing to get sale deed executed but has no sufficient fund for payment of consideration to seller then it cannot be said that he is ready to perform or he is in a state of readiness to perform. For example, a person claims that he is ready and willing to get sale deed executed but has no sufficient fund for payment of consideration to seller then it cannot be said that he is ready to perform or he is in a state of readiness to perform. Similarly, if some other act is required to be performed by purchaser which he is not done then also it cannot be said that he is in a position to readiness to perform the ultimate act. 27. In R.C. Chandiok and Anr. v. Chuni Lal Sabharwal and Ors. (1970) 3 SCC 140 : ( AIR 1971 SC 1238 ) Court said that readiness and willingness cannot be treated as a straightjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. 28. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. (1995) 5 SCC 115 : ( AIR 1996 SC 116 ), Court said: "Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance......the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances." (Emphasis added) 29. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance......the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances." (Emphasis added) 29. In P. D'Souza v. Shondrilo Naidu (2004) 6 SCC 649 : ( AIR 2004 SC 4472 ), Court said: "It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract.....The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale." 30. In J.P. Builders and another v. A. Ramadas Rao and another (2011)1 SCC 429 : (AIR 2011 SC (Civ) 230) Court said: "The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness." (Emphasis added) 31. The facts of this case, now, I proceed to examine, in the light of aforesaid exposition of law, and find that plaintiff has stated in para 8 as under: ^^;g fd oknh ofd;k tjs leu cSukek ysdj nQ~rj jftLV~h dklxat ij fnukad 8-10-86 o 9-10-86 dks vius gd esa cSukek djkus gsrq ekStwn jgk vkSj gj le; cSukek djkus gsrq rS;kj jgk vkSj rS;kj gS vkSj oknh ds ikl /ku dk izcU/k 'kq: ls jgk gS vkSj oknh izfroknh ls U;k;ky; ds }kjk gLc bdjkjukek cSukek djk ikus dk vf/kdkjh gSA** "That the plaintiff, on being called upon, had been present at the registry office, Kasganj on 08.10.1986 and 09.10.1986 for getting a sale-deed executed in his favour and had always been ready and is ready now too for the execution of the sale-deed and plaintiff is having the required money since the beginning and he is entitled to get the sale deed executed by the defendant through the court as per the agreement." (Emphasis added) (English translation by Court) 32. In the written statement, para 8 of plaint has been denied by appellant. In oral deposition of plaintiff, PW-1, he has said that agreement was executed on 09.10.1985 and Ram Swamp died on 09.11.1985 i.e. almost after a month. He had no issue, therefore, entire property was succeeded by appellant. He has also stated that after serving notices dated 12.02.1986 and 10.09.1986 upon appellant, he presented himself in the Registry Office on 8.10.1986 and 9.10.1986. In the cross-examination, he has also admitted that Mahesh Pal Singh is his real brother and accused in the alleged murder of Ram Swarup, brother of appellant. One of the witnesses of agreement is real brother-in-law (Sadhoo) of plaintiff. Ram Swarup and Naresh Pal both were residing separately and Ram Swarup was unmarried. In oral deposition of plaintiff, I do not find any averment that he had requisite balance amount of consideration with him when he attended Registry Office on 8.10.1986 and 09.10.1986 and still ready and willing for execution of sale deed. 33. It is no doubt true that in the pleadings, plaintiff pleaded about his readiness and willingness for execution of sale deed but as stated by Supreme Court in N.P. Thirugnanam ( AIR 1996 SC 116 ) (supra) that plaintiff must plead and prove that he has always been ready and willing to perform essential terms of the contract. Continuous readiness and willingness on the part of plaintiff is a condition precedent to grant relief of specific performance. Except of the fact that on 8th and 9th October, 1986 he was present, there is no evidence that plaintiff was willing to perform his part of contract and in my view, this requirement is not satisfied. 34. With regard to his financial condition, nothing has been said and no evidence has been adduced by plaintiff at all. However, I do not propose to rest the matter here for the reason that even otherwise I am of the view that agreement, in the terms it has been written, it was not enforceable against appellant. 34. With regard to his financial condition, nothing has been said and no evidence has been adduced by plaintiff at all. However, I do not propose to rest the matter here for the reason that even otherwise I am of the view that agreement, in the terms it has been written, it was not enforceable against appellant. The original agreement, Exhibit 9 is on record and contents thereof reads as under: ^^eSa fd jke Lo:i iq= rkysoj flag fuoklh jk;iqj iVuk ijxuk lksjksa rglhy dklxat ftyk ,Vk dk gwWa tks fd Hkwfe uEcj 1629@0&48 dk 1@2 Hkkx yxkuh 9&60 iSlk okds xzke jk;iqj iVuk ijxuk lksjksa rglhy dklxat ftyk ,Vk esa fLFkr gS ftldk eSa ekfyd o dkfct gwWa eq>s [kpZ [kkuxh vkfn ds okLrs :i;k dh t:jr gS rFkk dher Hkh equkflc fey jgh gS vr% eSaus viuh jkth [kq'kh ls o cxSj fdlh ncko ds fcy ,ot eqofyx 5000@& ikap gtkj :i;k flDdk ljdkj ds vk/ks eqofyx 2500@& nks gtkj ikap lkS :i;k gksrs gSa cnLr Jh ujs'k iky flag iq= jks'ku flag fuoklh jk;iqj iVuk ijxuk lksjksa ftyk ,Vk dks cspuk r; fdj fn;k rFkk C;kus esa 2000@& nks gtkj :i;k le{k lc jftLVªkj egksn; dklxat ikÅWaxk o 'ks"k /ku 3000@& rhu gtkj :i;k ojoDr cSukek jftLVjh ds le; izkIr d:axkA bdjkj ;g gS fd eSa vUnj fe;kn ,d lky mijksDr Hkwfe dh jftLVjh oYd [kjhnkj ds gd esa dj nqaxk vxj jftLVjh cSukek u d:a rks [kjhnkj vnkyr }kjk tcfj;k jftLVjh cSukek djk ysosa gedks o okfjlku gekjs dks fdlh izdkj dk ,rjkt u gksxk blfy;s [kwc lksap le> dj o cxSj fdlh rnko ds ;g eqvkotk oS; bdjkjukek fy[k fn;k fd lun jgs le; ij dke vkosA** "That I, Ram Swarup, S/o. Talewar Singh R/o Raipur Patna, Pargana Soron, Tahsil Kasganj belong to District Etah. I am owner having possession over half portion of land No. 1629/0-48, revenue whereof comes to 9-60 paise, and which is situated at Village Raipur Patna, Pargana Soron, Tahsil Kasganj, District Etah. I am in need of money to meet household expenses etc., and since I am also getting a reasonable price; hence, I, at my free will and without any undue pressure, have agreed to sell the same to Shri. Naresh Pal Singh S/o. Roshan Singh R/o Raipur Patna, Pargana Soron, District Etah for a consideration of Rs. 5,000/- (Rupees five thousand Only), half of which comes to Rs. 5,000/- (Rupees five thousand Only), half of which comes to Rs. 2,500/- (Rupees two thousand five hundred only) as per the Government currency, with the term that I shall receive Rs. 2,000/- (Rupees two thousand only) as earnest money before the Sub-Registrar, Kasganj and shall receive the remaining amount of Rs. 3,000/- (Rupees three thousand only) at the time of registry of the sale deed. It is agreed that I shall within a period of one year execute a sale deed of the aforesaid land in favour of the buyer. If I do not execute the sale deed, the buyer shall have the right to get the sale deed executed through the court, and my heirs and I shall have no objection to it. Hence, I have after much consideration and without any pressure written this agreement to sell so that it may serve as a certificate if there be such need." (English translation by Court) 35. It does not show that agreement was executed for sale of half of the share only to plaintiff. Agreement specifically does not talk of sale of mere share in property but property itself. When there is no partition by metes and bounds, owner of joint property can only transfer his share but property to the extent of share can be transferred when partition by metes and bounds takes place. Moreover, this aspect also could not have been ignored that almost after a month of execution of alleged agreement, Ram Swarup was murdered and on the allegation of his murder, plaintiff's brother was an accused in a criminal case. LAC has not examined all these aspects and findings of Trial Court on the question of readiness and willingness has neither been discussed nor reversed by LAC. 36. There is one very important aspect of the matter arising from substantial question (B), whether agreement in question executed by plaintiff with brother of appellant, who died before execution of sale deed, could be executed against appellant. 37. Admittedly, Ram Swarup (deceased) entered into agreement for sale with plaintiff for property in dispute claiming himself to be owner of half of the share therein. An agreement for sale is a promise by one party to another to execute another instrument whereby title in immovable property would stand transferred. 37. Admittedly, Ram Swarup (deceased) entered into agreement for sale with plaintiff for property in dispute claiming himself to be owner of half of the share therein. An agreement for sale is a promise by one party to another to execute another instrument whereby title in immovable property would stand transferred. So long as subsequent instrument is not executed, an agreement for sale is a mere promise to execute another instrument i.e. sale deed. Ram Swarup (deceased) was owner of half of property and rest half was owned by appellant. After death of Ram Swarup, entire property is owned by appellant and he became sole owner. Agreement nowhere says that it will bind not only on Ram Swarup but his successor in property. Plaintiff wanted specific performance of contract for sale in respect of half of the share of Ram Swarup in deputed property but that half share has disappeared since entire property, after death of Ram Swarup, vested in appellant. There is no agreement between appellant and plaintiff. In my view, in such circumstances, execution of agreement for sale against appellant is impermissible since he has no privity of contract with plaintiff to sell out his half share to plaintiff and agreement for sale executed by deceased Ram Swarup, in my view, cannot termed to be a 'charge' over the share of Ram Swarup so as to continue the same upon appellant also after death of Ram Swarup, which can successfully be executed by plaintiff. 38. I am of the view that since there was no partition and only half share was sought to be sold which share disappeared after death of Ram Swarup since appellant became owner of entire property, hence, qua him, agreement for sale executed by plaintiff with Ram Swarup cannot be executed. 39. I, therefore answer questions (A) and (B) both in favour of appellant. 40. So far as question (C) is concerned, learned counsel for appellant could not dispute that no such issue was raised or pleaded before Courts below hence a new question, which has not arisen from judgment under appeal, cannot be allowed to be taken at this stage in second appeal and, therefore, in my view, question (C) has not arisen from judgment in question and therefore, need not be considered and answered in this case. 41. 41. However, in view of my findings and answer to questions (A) and (B) in favour of appellant, appeal is bound to succeed and is accordingly allowed. Judgment of LAC dated 17.01.1989 passed Civil Appeal No. 84 of 1988 is hereby set aside and judgment of Trial Court is hereby restored and confirmed.