JUDGMENT/ORDER 1. The captioned second appeal is filed by unsuccessful defendant No.6, who has questioned the concurrent judgments of the Courts below, wherein, the plaintiff's suit seeking relief of specific performance is decreed by both the Courts by declaring that the oral gift in favour of defendant No.6 is not proved. 2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court. 3. The plaintiff has filed the present suit for specific performance in O.S.No.222/1994. The plaintiff contends that one Fathima, who is the mother of defendant Nos.1 to 6 offered to sale the suit property and accordingly executed an agreement on 30/8/1993 for a sale consideration of Rs.45, 000.00 and received advance sale consideration of Rs.14, 000.00. The plaintiff also contended that the original owner delivered the possession pursuant to agreement. The plaintiff has further pleaded that the vendor has agreed that she would complete the sale transaction and execute the sale deed whenever the plaintiff called her. The plaintiff further contended that the original vendor Fathima expired on 5/4/1994. It is specifically pleaded that the defendants, who are the daughters of plaintiff's vendor were aware of the sale transaction and therefore, contended that the agreement executed by their mother binds on all the defendants. The plaintiff further pleaded that he made repeated requests to the defendants to execute the sale deed by receiving balance sale consideration of Rs.31, 000.00 and the entire allegations are attributed against defendant No.6 alleging that defendant No.6 went on postponing and hence the present suit. 4. On receipt of summons, defendant No.7 filed written statement and she admitted the plaintiff's claim. Defendant No.7 admitted that her mother has offered to sale the suit land to the plaintiff and accordingly executed an agreement. She has specifically stated in the written statement that her mother was compelled to sell the suit land on account of domestic compulsions. Defendant No.7, who is the wife of the plaintiff further contended that her mother executed an agreement and received advance sale consideration of Rs.14, 000.00. 5. Defendant Nos.1 to 5 filed a memo adopting the written statement of defendant No.7. It is only defendant No.6, who has disputed the suit agreement. There is total denial by defendant No.6. On the contrary, defendant No.6 has set up an oral gift in her favour. 5. Defendant Nos.1 to 5 filed a memo adopting the written statement of defendant No.7. It is only defendant No.6, who has disputed the suit agreement. There is total denial by defendant No.6. On the contrary, defendant No.6 has set up an oral gift in her favour. Defendant No.6 contended that her mother has orally gifted the suit property in the presence of panchas on 26/3/1994 and on the same day, she was put in possession of the suit property and therefore, she asserted that she is the absolute owner of the suit property and further also claimed that she is in exclusive possession and enjoyment over the suit property. 6. The plaintiff and defendant No.6 to substantiate their respective claims have led oral and documentary evidence. Defendant No.5 has also let in oral evidence. 7. The trial Court having examined the oral and documentary evidence, answered issue Nos.1 to 4 in the affirmative and additional issue No.1 was answered in the negative. The trial Court referring to the evidence let in by the plaintiff coupled with the stand taken by the defendant Nos.1 to 5 and defendant No.7 and also coupled with the oral evidence of PW.2, who is the witness to the suit agreement, has come to the conclusion that the plaintiff has succeeded in proving due execution of suit agreement in his favour by Fathima on 30/8/1993. The trial Court also held that the plaintiff has succeeded in proving payment of advance sale consideration and his possession pursuant to execution of the suit agreement. While answering additional issue No.1 in the negative, trial Court held that defendant No.6 has failed to prove the oral gift in her favour by her mother during her lifetime. 8. While answering additional issue No.1 against defendant No.6, the trial Court has examined the evidence let in by defendant No.6 in support of her claim. The trial Court on examining the pleadings and the evidence on record found that defendant No.6 got her name mutated to the suit property on the basis of the gift deed and mutation was also effected by the concerned authorities. While during the trial defendant No.6 for the reasons best known to her has not produced the copy of the gift deed. On the contrary, during the trail, defendant No.6 has come up with a theory of oral gift. While during the trial defendant No.6 for the reasons best known to her has not produced the copy of the gift deed. On the contrary, during the trail, defendant No.6 has come up with a theory of oral gift. It is in this background, the trial Court was not inclined to accept and believe that there was oral gift in favour of defendant No.6. Accordingly, the said issue was answered in the negative and a finding was recorded that defendant No.6 has failed to prove gift in her favour. 9. Feeling aggrieved by the judgment and decree of the trial Court, defendant No.6 preferred an appeal before the appellate Court. The appellate Court being a final fact finding authority has independently assessed the oral and documentary evidence. The appellate Court infact has culled out the relevant cross examination of defendant No.6, who is examined as DW.1. The said cross examination is found at paragraph No.16 of the appellate Court judgment. Having culled out the relevant portion of cross examination of defendant No.6, the appellate Court found that the entire claim of defendant No.6 is based on a gift deed executed by her mother. Defendant No.6 has deposed that the gift deed was prepared as per the instructions of her mother and the said document was signed by 4 witnesses. She has also disclosed the name of the scribe. Therefore, referring to this part of evidence, the appellate Court was of the view that having got her name mutated based on the written gift deed, the burden was on defendant No.6 to prove that she has acquired right based on a written gift deed. While examining the claim of defendant No.6, the appellate Court was of the view that the essential requisite for a valid gift is that the donor should divest himself completely and deliver the possession and it is one of the requisite condition to complete the gift under the Mohammedan Law. The appellate Court found that there are conflicting stands taken by defendant No.6 and both conflicting stands are being simultaneously addressed and canvassed by defendant No.6. She pleads oral gift and at the same time to demonstrate that she is in possession, she has placed reliance on mutation based on a written gift deed, but, she has not produced before the Court. She pleads oral gift and at the same time to demonstrate that she is in possession, she has placed reliance on mutation based on a written gift deed, but, she has not produced before the Court. Therefore, referring to all these significant details, appellate Court has concurred with the findings and conclusions recorded by the trial Court. Consequently, the appeal was dismissed. 10. This Court vide order 26/7/2022 was pleased to admit the appeal on the following substantial questions of law: 1. Whether the Courts below committed an illegality in not properly exercising the discretion under Sec. 20 of Specific Relief Act? 2. Whether the Courts below are legally correct in holding that plaintiff was ready and willing to perform his part of the obligation under the agreement of sale particularly in the absence of necessary pleading and evidence? 11. The learned senior counsel Sri Ameet Kumar Deshpande reiterating the grounds urged in the appeal memo would vehemently argue and contend that both the Courts have erred in drawing an adverse inference against defendant No.6 for having failed to produce the gift deed. He would contend that defendant No.6 has acquired right based on an oral gift and therefore, he would contend that there is no proper appreciation of evidence on record. He has also raised strong objection in regard to adjudication of oral gift deed in a suit for specific performance. The pleadings raised by defendant No.6 at paragraph No.7 of the written statement are not properly appreciated. He would further contend that the plaintiff has not filed rejoinder to the plea of oral gift set up by defendant No.6 and therefore, he would contend that the Court of first instance has erred in framing an additional issue relating to the oral gift. He would further vehemently argue and contend that defendant No.6's mother Fathima has gifted the property on 26/3/1994 and therefore, the subsequent deed, which was produced before the revenue authorities was only a document reporting oral partition and the original document was produced and mutation was effected and therefore, he would contend that adverse inference drawn by both the Courts is erroneous and findings recorded by both the Courts on additional issue No.1 suffer from serious infirmities. Therefore, he would request this Court to answer substantial questions of law in favour of defendant No.6. 12. Therefore, he would request this Court to answer substantial questions of law in favour of defendant No.6. 12. The second limb of argument canvassed by learned senior counsel is in regard to the discretion relief of specific performance granted to the plaintiff. He would point out that the plaintiff is the son-in-law of Fathima, who had meager salary of Rs.6, 000.00 per month and it has come in the evidence that he had to support a family consisting of 15 members. Therefore, he would contend that the plaintiff had absolutely no financial capacity. He would further point out that Fathima had no necessity to sell the land. Learned senior counsel would further point out that the extent, which was agreed to be sold under the suit agreement is 13 acres and the sale consideration shown in the suit agreement is found to be inadequate. Therefore, he would contend that no prudent man could have sold a prime property measuring 13 acres for a paltry sum of Rs.45, 000.00. He would contend that material on record would virtually create a doubt with regard to the sale transaction. 13. He would conclude his arguments by contending that finding recorded by the appellate Court on gift is palpably erroneous. Both the Courts have proceeded on an assumption that gift is by way of written document and therefore, he would contend that both the Courts have not properly appreciated the evidence on record. On these set of grounds, he would contend that the appeal needs consideration and therefore would persuade and answer substantial question of law in favour of defendant No.6. 14. Per contra, learned counsel appearing for respondent/plaintiff repelling the arguments canvassed by learned senior counsel would contend that the entire plea regarding gift set up by defendant No.6 is found to be suspicious. Defendant No.6 has created a fictitious document and mutation was effected by producing the fictitious documents before the revenue authorities. He would further point out that the mutation effected is not in accordance with the provisions of the Karnataka Land Revenue Act. The said fact is substantiated by the plaintiff by securing a report from the Tahsildar. Based on the direction issued by the Court, the Tahsildar was called upon to produce the alleged gift deed, which was tendered for effecting mutation. The Tahsildar has sent an endorsement indicating that no such document is found in the record. The said fact is substantiated by the plaintiff by securing a report from the Tahsildar. Based on the direction issued by the Court, the Tahsildar was called upon to produce the alleged gift deed, which was tendered for effecting mutation. The Tahsildar has sent an endorsement indicating that no such document is found in the record. Coupled with this document, he would further point out that the alleged oral gift deed is dtd. 26/3/1994 while Fathima died on 5/4/1994. Therefore, he would contend that these significant details would clearly demonstrate that the alleged oral gift is not proved and both the Courts were justified in answering additional issue No.1 in the negative. 15. He would also point out that as on the date of filing of the suit, the suit land was infact standing in the name of Fathima, which is evident from Exs.D1 and D2 and the said fact would clearly establish that the alleged gift set up by defendant No.6 is not substantiated. 16. Now coming to the suit agreement, he would contend that Fathima, who was the absolute owner, on account of debt, was compelled to sell the suit land. The suit agreement executed in favour of the plaintiff is admitted by 5 daughters except defendant No.6. Placing reliance on Exs.P5, P6 and P8, he would contend that existence of debt is reflected in the property records. He would further contend that the question of legal necessity and its proof would also be of no consequence in the present case on hand as the defendants have admitted in unequivocal terms that suit property was self acquired property of Fathima. He would conclude his argument by contending that concurrent findings recorded by both the Courts on readiness and willingness cannot be revisited by this Court and such recourse is not permissible under Sec. 100 of CPC and hence, prays for dismissal of the appeal. Regarding substantial question of law No.1: 17. Substantial question of law No.1 is relating to Sec. 20 of the Specific Relief Act. It is a trite law that question of examining the vendor's equitable rights under Sec. 20 Specific Relief Act would arise provided there are pleadings to that effect. In the absence of pleadings, the claim of vendor under Sec. 20 of Specific Relief Act cannot be examined for the first time under Sec. 100 of CPC. It is a trite law that question of examining the vendor's equitable rights under Sec. 20 Specific Relief Act would arise provided there are pleadings to that effect. In the absence of pleadings, the claim of vendor under Sec. 20 of Specific Relief Act cannot be examined for the first time under Sec. 100 of CPC. In the present case on hand, admittedly, the suit property was self acquired property of Fathima. Except defendant No.6, all other daughters have admitted due execution of suit agreement. They have also admitted in unequivocal terms that on account of financial constrains their mother was compelled to sell the suit property. 18. The question of hardship if raised by the defendants though needs consideration, but, while examining the said fact Courts have to see that it is the hardship which is at the time contract would be relevant. A contract if it is found to be failed when it was made merely because a plea of adequate price or on the ground that price of the land had risen astronomically will not be available. It is also a trite law that the discretionary relief of refusal of specific performance on the ground that price is found to be inadequate would be available and relevant only at the time when the trial Court passes a decree for the first and such ground cannot be entertained while judging the legality of judgment rendered by two Courts in favour of the plaintiff exercising discretion in favour of the plaintiff in a second appeal. If all the daughters of Fathima except defendant No.6 have spoken in one voice admitting the sale transaction between the plaintiff and their mother Fathima and have also spoken about compelling financial constraints at that relevant point of time. The plea of hardship under Sec. 20 of the Specific Relief Act even otherwise is not available to defendant No.6. The concept of hardship is not selective. If the other daughters have pleaded hardship and if on the contrary they have supported the sale transaction, defendant No.6 alone cannot set up plea of hardship. It is also a trite law that plea of hardship has to be pleaded which would give raise to an issue and there has to be evidence let in by the party setting up of hardships during trial. It is also a trite law that plea of hardship has to be pleaded which would give raise to an issue and there has to be evidence let in by the party setting up of hardships during trial. In the absence of pleadings and issue to that effect and even otherwise said contention raised before this Court is not available and cannot be entertained in a second appeal. Therefore, substantial question of law No.1 has to be answered in the negative. Regarding substantial question of law No.2: 19. The plaintiff is placing reliance on agreement dtd. 30/8/1993. Under the agreement, the vendor received Rs.14, 000.00 towards advance sale consideration out of total sale consideration of Rs.45, 000.00. The plaintiff was put in possession and remaining balance sale consideration was agreed to be paid at the time of sale deed. No time is stipulated under the agreement. It is also not in dispute that the original owner died on 5/4/1994 and the present suit is filed on 27/9/1994. The suit agreement is admitted by all the daughters. Both the Courts have concurrently held that readiness and willingness is proved. The concurrent finding recorded by both the Courts on readiness and willingness cannot be revisited and the evidence on record cannot be reassessed by this Court under Sec. 100 of CPC. Both the Courts having examined the pleadings, evidence on record coupled with the statement made by defendant Nos.1 to 5 and 7, have concurrently held that the plaintiff has succeeded in establishing the suit agreement and also succeeded in proving that possession was delivered pursuant to the suit agreement and consequently have concurrently held that plaintiff has succeeded in proving his readiness and willingness. Therefore, substantial question of law No.2 needs to be answered in the affirmative. 20. Learned senior counsel apart from the substantial question of law formulated by this Court has also addressed his arguments in regard to the finding recorded by both the Courts on additional issue No.1. Additional issue No.1 relates to the proof of oral gift set up by defendant No.6. Defendant No.6 gets her name mutated to the revenue records by producing the copy of gift deed. The mutation vide Ex.D3 was effected based on gift deed. The claim made by defendant No.6 is found to be conflicting. At one breadth, defendant No.6 claims that there was an oral gift by her mother on 26/3/1994. Defendant No.6 gets her name mutated to the revenue records by producing the copy of gift deed. The mutation vide Ex.D3 was effected based on gift deed. The claim made by defendant No.6 is found to be conflicting. At one breadth, defendant No.6 claims that there was an oral gift by her mother on 26/3/1994. 21. For an oral gift to be held valid, three conditions are necessary to be fulfilled by a Muslim to prove that there is a valid gift. For a valid gift by Muslim, manifestation of the user to give on the part of the donor has to be coupled with and followed by acceptance by the donee either impliedly or expressly and pursuant to acceptance, there has to be delivery of possession to the donee either actually or constructively. This alleged oral gift set up by defendant No.6 is dtd. 26/3/1994 while the clinching evidence on record clearly indicates that defendant No.6's mother delivered the possession to the plaintiff on 30/8/1993. Both the Courts have concurrently held that the suit agreement vide Ex.P1 is proved. If due execution of suit agreement is proved, then the recitals in the suit agreement indicating delivery of possession would go against the entire claim made by defendant No.6. Therefore, defendant No.6 in the present case on hand has miserably failed to prove that possession is handed over pursuant to the oral gift. The conduct of defendant No.6 in the present case on hand is found to be grossly unfair and her claim is found to be fictitious and doubtful. All the other daughters have supported the claim of the plaintiff and they have admitted that their mother had offered to sell the suit property in favour of the plaintiff and it is only defendant No.6, who has set up oral gift, but, she gets her name mutated on the basis of a written gift and therefore claimed that she was in possession. The plaintiff has made all possible efforts by filing an application during the pendency of the suit seeking direction against Tahsildar to produce the gift deed. Strangely, an endorsement was issued by the Tahsildar indicating that no such documents are found. Therefore, an inference can be drawn that defendant No.6 in collusion with revenue authorities has got her name mutated illegally without there being any acquisition of right and title over the suit property. Strangely, an endorsement was issued by the Tahsildar indicating that no such documents are found. Therefore, an inference can be drawn that defendant No.6 in collusion with revenue authorities has got her name mutated illegally without there being any acquisition of right and title over the suit property. The contention of the learned senior counsel that Court could not have ventured into deciding the claim of defendant No.6 based on an oral gift even cannot be acceded. 22. What can be gathered from the material on record is that even if there was a gift in favour of defendant No.6, she will not get a superior title than that of her mother. If agreement is proved, then even the original owner Fathima was bound to honour the agreement and execute the sale deed. The same principle has to be applied to the donee also provided oral gift was proved. Therefore, the proof of oral gift even otherwise would have been of no consequence. 23. In the light of the observations made by this Court in the preceding paragraph No.22, this Court is not inclined to take cognizance of the documents produced along with a memo dtd. 5/12/2012. Along with memo, the defendant No.6 now intends to produce the documents to demonstrate the valuation of the land for the year 2011 as per the Sub-Registrar's Office. All these documents cannot be received along with a memo. These documents are also not relevant and necessary for effective adjudication of actual controversy between the parties. Therefore, the memo is liable to be rejected. 24. For the foregoing reasons, I proceed to pass the following: ORDER The second appeal is devoid of merits and accordingly dismissed.