w w w . L a w y e r S e r v i c e s . i n



Jettybai Ammal (Died) v/s Mohammed Hasan Sahib & Others

    S.A. No. 2145 of 2004

    Decided On, 11 July 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Appellants: T.S. Baskaran, Advocate. For the Respondents: G. Mohana Krishnan, Advocate.



Judgment Text

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 12.2.2004 and made in A.S.No. 90 of 2001 on the file of the Principal District Court, Villupuram District, Villupuram confirming the Judgment and Decree dated 24.08.2000 and made in O.S.No. 337 of 1980 on the file of Principal Subordinate Court, Tindivanam.)

1. The plaintiffs/legal representatives of the plaintiff in O.S.No. 337 of 1980 on the file of the Principal Sub Court at Tindivanam are the appellants herein.

2. The suit in O.S.No. 337 of 1980 had been filed by M.C.Dharmachand Gulocha originally against nine defendants, seeking a direction against the defendants to execute a sale deed with respect to the suit property in favour of the plaintiff by enforcing an oral agreement dated Nil August 1979 and to receive the balance sale consideration and on such failure for the Court to execute the sale deed in favour of the plaintiff and to deliver the suit property to the plaintiff and also for costs of the suit.

3. The property as given in the schedule to the plaintiff was situated in Tindivanam in Mariamman Kovil Street in Grama Natham S.No. 63/1, being land and building consisting of ground and first floors and also an open terrace. Pending the suit, the second, third, fifth and ninth defendants had died, necessitating impleading their legal representatives. Thereafter, by order dated 27.04.1982 in I.A.No. 170 of 1982 the tenth defendant R.Radha Krishnan was also impleaded.

4. The cause of action for instituting the suit was claimed to have arisen in August 1978 which was when the date of oral agreement was said to have been entered into and on 01.07.1980 by which period the agreement should have been performed and sale deed should have been executed.

5. In the plaint, it was stated that the suit property originally belonged to Mohamad Hassan Sahib and that the first to fourth defendants were his sons and fifth and sixth defendants were his daughters and seventh and ninth defendants were his grand children, namely, children of a pre-deceased daughter. It was stated that on his death, the defendants were entitled to the suit property. The first defendant was residing at Tindivanam and was also looking after the business as power of attorney of the other defendants. During the course of such business, the defendants had accumulating debts to be paid to various parties. The plaintiff was a tenant in the ground floor and he was running a business as partner along with his son D.Herachand.

6. It was claimed that the defendants, owing to the debts which had been incurred and also owing to other family necessities had borrowed amounts from the said D.Herachand between April 1978 to June 1978, and when the amounts were demanded to be repaid, the first and third defendants had approached the plaintiff and had orally agreed to convey the property for a total consideration of Rs.95,000/-. It is claimed that they both so on their own behalf and as power of attorney agent of the other defendants. It was specifically stated that the said oral agreement of sale was on 11.08.1978 in the presence of one Advocate R.Srinivasan and another individual V.R.Sethu Madhavan. The son D.Herachand was also said to be present.

7. It was further claimed that an advance of Rs.2,000/- has been paid to the first and third defendants. It was further agreed that out of the balance sale consideration, a sum of Rs.90,000/- had to be paid towards discharge of the amounts to various third parties and that on the date of registration of the sale agreement, the final sum of Rs.3,000/- should be paid. It was stated that the entire transaction should be completed on or before 01.07.1980.

8. It was further stated in the plaint that a written agreement of sale was not obtained from the defendants owing to long standing relationship and also owing to the fact that the two individuals who stood as witnesses were respectful persons.

9. Pending the suit as stated, the tenth defendant had purchased the property and that necessitated impleading him as party/defendant. Consequent to impleading the tenth defendant, the plaint was also amended and it was stated that the sale deed in favour of the tenth defendant was not valid and that the burden was on him to prove that the sale deed was true and valid. It was also stated that he had purchased the suit property with knowledge about the oral agreement of sale. Subsequently some of the defendants died and their legal representatives had been brought on record.

10. Pending the suit, the plaintiff also died and the second plaintiffwas impleaded as his legal representative. Claiming that the defendants did not come forward to execute the sale deed as agreed, the suit was laid for specific performance of the oral agreement of sale and for consequential reliefs of delivery of possession.

11. The first and third defendants filed their written statement. They denied the averment in the plaint that an oral agreement of sale had been entered into on 11.08.1978 and that it took place in the office of Advocate R.Srinivasan and in the presence of the son of plaintiff and another individual V.R.Sethu Madhavan. They stated that they had not received any advance of Rs.2,000/- as claimed and that they reserved a sum of Rs.3,000/- to be paid at the time of registration of the sale deed after discharge of loan amount of Rs.90,000/-.

12. It had been stated that an earlier agreement dated 12.04.1978 with D.Herachand the son of the plaintiff and owing to the complicated nature of the transaction, it could not be pursued further and the said agreement had been given up. It had been stated that the suit had been filed at the instigation of the son of the plaintiff. It had been further stated that they had conveyed the property to the tenth defendant after receiving the entire sale consideration. They claimed that the suit should be dismissed.

13. The tenth defendant filed a written statement adopting the written statement filed on behalf of the first and third defendants. He further claimed that he had purchased the property from the first, third and fourth defendants by way of a registered sale dated 22.04.1980 for valuable consideration of Rs.79,000/-. However, the said defendants did not admit the document for registration owing to the default of the vendors to obtain income tax clearance certificate. Thereafter, the tenth defendant had presented the document for compulsory registration and it was also registered. It was also stated that the purchase was from true owners for valuable consideration without notice of any previous agreement. It was also stated that the sale deed was actually executed by the defendants before the suit was instituted by the plaintiff. It was therefore stated that the suit should be dismissed.

14. On the basis of the aforementioned pleadings, the trial Court, namely, the Principal Sub Court, Tindivanam, framed the following issues:-

(i) Whether the agreement stated in the plaint is true and whether it would bind the defendants?;

(ii) Whether the plaintiff was always ready and willing to perform his part of the agreement?;

(iii) whether the plaintiff has a legal right to proceed against the third defendant for appropriate reliefs?;

(iv) Whether the tenth defendant had purchased the property without notice of the existing agreement of sale and can be categorised as a bona fide purchaser?;

(v) Whether the purchase by the tenth defendant would be hit by the principle of lis pendence?; and

(vi) to what reliefs are the parties entitled to?

15. During the course of trial, the plaintiff examined four witnesses. PW-1 and PW-2 were Srinivasan and Sethu Madhavan, who were said to be present at the time of the oral agreement of sale. They also examined two other witnesses as PW-3 and PW-4. On the side of the defendants, the first defendant was examined as DW-1 and another witness was examined as DW-2.

16. The plaintiff marked Exs. A-1 to A-16. Ex.A-1 was the receipts and payments book for the year 1978, Ex.A-2 was the entry with respect to payment of Rs.2,000/- to the first defendant, Ex.A-4 was the ledger with respect to the business of the plaintiff for the financial year 1977-1978.

17. On the side of the defendants, Exs. B-1 to B-14 were marked. Ex.B-1 was the sale deed dated 22.04.1980 in favour of the tenth defendant. Exs. B-4, B-5, B-6, B-7, B-8, B-9 and B-12 were proceedings and correspondences exchanged for registration of aforementioned Ex.B-1 before the Sub Registrar Office, Ex.B-10 was the earlier agreement of sale dated 12.04.1978.

18. The learned Sub Judge took up for consideration issue Nos. 1 and 2 in the first instance. The learned Judge had extracted the pleadings in entirety and also the evidence recorded. There also appears to have been some evidence adduced with respect to alleged political rivalry between the plaintiff and the tenth defendant, but that aspect is quite irrelevant to determine the issues in the suit. It was finally observed that it was the case of the plaintiff that there was an oral agreement between the plaintiff and the first and third defendants. It was found by the learned Principal Sub Judge that the plaintiff had not come forward to speak about the said agreement, but rather had invited the two individuals Srinivasan and Sethu Madhavan to depose on his behalf. It was stated that the plaintiff should have proved the agreement and should have grazed the witness box and should have subjected himself for cross examination.

19. It was also observed that the tenth defendant had presented for agreement for compulsory registration subsequent to the institution of the suit. The sale deed was however, actually executed on 22.04.1980 much prior to the institution of the suit. It was also found that after the proceedings before the Sub Registrar, the sale deed was registered.

20. The evidence of DW-1 was also considered by the learned Sub Judge. It must be pointed out that a commissioner had been appointed to record his evidence and DW-1 during the course of his chief examination had admitted to the oral agreement and also admitted receiving the advance. However, this evidence of DW-1 was rejected by the learned Principal Sub Judge who found that this evidence was contradictory in itself and more importantly contrary to the written statement already filed. It was therefore stated that issue Nos. 1 and 2 should be answered against the plaintiff and in favour of the defendants which would imply that the oral agreement was held to be not binding on the defendants and that the plaintiffs were not ready and willing to perform their part of the agreement, namely, to pay a sum of Rs.90,000/- towards discharge of the existing debts of the defendants.

21. Thereafter, the learned Trial Judge took up consideration the third and fourth issues with respect to the sale deed in favour of the tenth defendant. Having found that the first and second issues in favour of the defendants, it was only a formality and the sale deed was upheld by the learned Sub Judge. In effect, by Judgment dated 24.08.2000, the suit was dismissed with costs.

22. Aggrieved by the said Judgment, the second plaintiff, who had been impleaded as a legal representative of the original plaintiff took up the matter further before the First Appellate Court in A.S.No. 90 of 2001 which came up for consideration before the Principal District Court at Villupuram. By Judgment dated 12.02.2004, the learned Principal District Judge once again re-examined and re-appreciated the evidence on record. The learned Principal District Judge framed two points for consideration under Order 41 Rule 31 CPC namely, whether the plaintiffs were entitled for the reliefs sought in the plaint and to what reliefs they are entitled to in the appeal.

23. It was observed by the First Appellate Court that the evidence had been adduced on behalf of the appellant/plaintiff that their business income and expenditure account had been maintained and therefore the learned First Appellate Judge wondered if there had an agreement of sale then that aspect should also have been reflected in the income and expenditure account. It was also observed that no evidence was adduced to prove readiness and willingness. It was also found that the suit was filed on 10.07.1980 but Exs.A-1 and A-4, namely, the registers relating to the business were dated 03.07.1981. It was therefore stated that these registers related to the period after the filing of the suit and could have been prepared after the filing of the suit. The evidence of DW-1 was also commented upon and it was stated that the Court cannot take into consideration his evidence. It was also stated that his evidence would also not further the case of the plaintiffs. It was also observed that the plaintiffs had not even obtained the names of the creditors of the defendants and the amounts to be discharged to them towards the loan which the defendants stated that they are in debt with. It was finally observed that the oral agreement of sale had not been established and therefore, the appeal suit was dismissed, thereby confirming the dismissal of the original suit by the trial Court.

24. Questioning such Judgment, the plaintiffs/legal representatives had filed the present Second Appeal.

25. The Second Appeal was admitted on the following substantial question of law:-

“Is not the Judgment of the Courts below vitiated in law when it had failed in taking into account the admission of the first defendant about the oral agreement of sale relied upon by the plaintiff?”

26. Heard arguments advanced by Mr.T.S.Baskaran, learned counsel for the appellants and Mr.G.Mohana Krishnan learned counsel appearing on behalf of the respondents.

27. It is the contention of Mr.T.S.Baskaran, learned counsel appearing on behalf of the appellant that the suit is based on an oral agreement of sale dated 11.08.1978 by which the plaintiff had agreed to purchase the suit property for a total consideration of Rs.95,000/-. It was also pointed out that an advance of Rs.2,000/- had been paid. The learned counsel then pointed out the evidence of DW-1 wherein he had admitted to the said agreement and also receipt of said sum of Rs.2,000/-. The learned counsel further pointed out the evidence of P.W.1 and P.W.2 Srinivasan and Sethu Madhavan and pointed out that in the pleadings, it had been stated that the oral agreement of sale was witnessed by Srinivasan and Sethu Madhavan and they had also deposed regarding that particular fact. It was stated that the arrangement between the parties was that the defendants had an existing debts at Rs.90,000/- to various individuals and that the plaintiff should discharge such debts and pay the balance of Rs.3,000/- at the time of registration of the sale deed. It was broadly agreed between the parties that the sale should be completed before 01.06.1980. The learned counsel further pointed out that it was only natural that the plaintiff entered into an agreement of sale with the defendants because he was already a tenant in the ground floor portion running a business and had entered into such an agreement of sale owing to the necessity of the defendants to pay existing debts.

28. The learned counsel further pointed out that around the middle of July 1980, the plaintiff came to know that the defendants were attempting to deal with the property and therefore, they filed the suit on 30.07.1980 and an interim injunction was also granted restraining alienation of the property. However, it was complained by the learned counsel, that the defendants had proceeded to convey the property to the tenth defendant necessitating impleading the tenth defendant as a party to the suit. It was stated that though the sale deed had been executed on 22.04.1980, the same has not been presented for registration and it was presented much later for registration after the suit had been instituted. It was therefore insisted by the learned counsel that the tenth defendant was not a bona fide purchaser and he cannot claim innocence of the existing agreement of sale and that he had purchased the property with knowledge of the existing agreement of sale.

29. The learned counsel stated that DW-1 / the first defendant had very categorically admitted about the agreement and therefore stated that nothing else remains to be proved, since if the agreement is held to have been proved then it follows that the defendants had not come forward to perform their part of the agreement. The learned counsel also pointed out the evidence of PW-3, who produced necessary books of accounts to show about the suit transaction and also relating to the business of the plaintiff. It was therefore urged that both the Courts below has misdirected themselves while appreciating the evidence and the learned counsel therefore insisted that the substantial question of law which revolves around the admission of the first defendant with respect to the agreement of sale should be answered in favour of the appellants herein and the defendants should be directed to perform such admitted agreement of sale.

30. Mr.G.Mohana Krishnan, the learned counsel for the legal representatives of the tenth defendant, who contested the present Second Appeal however pointed out that the plaintiff had suppressed an earlier agreement of sale which the son of the plaintiff, D.Herachand, had entered into and that the said agreement had been deserted by the said D.Herachand. The learned counsel pointed out that both the Courts below have rendered adverse finding against the plaintiff stating that the agreement holder, namely, the first plaintiff had not grazed the witness box and had not subjected himself for cross examination. He stated that the agreement cannot be held to be proved. Further, the evidence of PW- 1 and PW-2 would not advance the case of the plaintiffs since they were only witness and the fact that the agreement was entered into should have been proved only by the plaintiff himself and not by anybody else.

31. The learned counsel also pointed out the evidence of DW-1 and complained that the evidence was recorded after considerable period of years, nearly after a decade of the alleged oral agreement of sale and stated that since DW-1 was a person of advanced age, a commissioner had been appointed to record the evidence at his place of residence. It was therefore stated that it was only probable that his memory would have failed him on specific aspects. The learned counsel therefore stated that both the Courts below had correctly rejected the evidence of DW-1 and had refused to place any credence on the same.

32. The learned counsel also found fault that with plaintiffs that they had not even obtained the list of creditors with whom the defendants were in debt and stated that therefore, not even a single step had not been taken by the plaintiffs towards the payment of Rs.90,000/- as allegedly agreed. It was therefore stated that the plaintiffs have not come forward to perform their part of the agreement and therefore, there was no such agreement at all.

33. The learned counsel stated that the sale deed with the tenth defendant had been executed much prior to the institution of the suit and therefore, the plaintiff cannot complain about such execution of the sale deed or about the purchase by the tenth defendant. It was stated that he was a bona fide purchaser for adequate and valuable consideration without notice of any agreement of sale.

34. The learned counsel stated that the plaintiffs had miserably failed to establish the oral agreement of sale as alleged by them and had also failed to establish that they were ready and willing to perform their part of agreement and it was stated that both the Courts below had correctly negatived the case of the plaintiffs. The learned counsel therefore urged that this Court should dismiss the Second Appeal.

35. I have given my careful consideration to the arguments advanced and perused the materials available on record.

36. Let me refer to the parties as plaintiffs and defendants. The plaintiffs/legal representatives of the plaintiffs are the appellants herein. The legal representatives of the tenth defendant are the contesting respondents. The second Appeal had been admitted on one substantial question of law which is as follows:-

“Is not the Judgment of the Courts below vitiated in law when it had failed in taking into account the admission of the first defendant about the oral agreement of sale relied upon by the plaintiff?”

37. The substantial question of law revolves around an alleged admission by the first defendant in his evidence about the oral agreement of sale relied on by the plaintiffs. Before adverting to the substantial question of law, it would be worthwhile to examine the case of the plaintiff as projected before the trial Court.

38. The plaintiff had come to Court claiming that in August 1978, the date had not been mentioned either in the cause of action column or in the relief column, he had entered into an oral agreement of sale with the defendants to purchase the suit schedule property. The suit schedule property is land and building at Tindivanam consisting of ground floor and the first floor. It is informed that the plaintiff was already a tenant / lessee of the ground floor portion, running a commercial business in partnership with his son.

39. It is the specific case of the plaintiff that he had agreed to purchase the said property for a total consideration of Rs.95,000/- and in this regard had paid a sum of Rs.2,000/- as advance in the presence of PW-1 and PW-2 / Srinivasan and Sethu Madhavan / Advocate and third party.

40. However, if an agreement of sale is to be proved, then the purchaser of the property should come forward to state about the details and the facts surrounding the execution of the agreement of sale and the reason why it had not been reduced into writing. For reasons best known, the plaintiff had taken a conscious decision not to graze the witness box. Rather, the said Srinivasan and Sethu Madhavan had been examined as PW-1 and PW-2.

41. Quite apart from the advance of Rs.2,000/- it had been further agreed, according to the plaintiff that he should discharge the existing loans of the defendants to various creditors to a total sum of Rs.90,000/-. At the time of registration of the sale deed, which should be on or before 01.06.1980, a sum of Rs.3,000/- alone was to be paid. The major sale consideration was with respect to the discharge of loans of the defendants. If that be the case, when again no books and ledgers had been produced by the plaintiff to show that the plaintiff had paid at least a single rupee towards such discharge to anyone of the creditors, it can hardly be said that the plaintiff was ready and willing to perform his part of the agreement. The only inference would be that there was no agreement at all. It is not the case of the plaintiff that he had discharged such loans or paid a sum of Rs.90,000/- or atleast a small portion of Rs.90,000/- towards discharge of the loans. Quite apart from asserting that he had paid a sum of Rs.2,000/- no other amount had been paid by the plaintiff.

42. The payment of Rs.2,000/- as advance is claimed to have been proved by the evidence of DW-1. It must also be mentioned that at the time of examination of DW-1 was an aged person and he was, as a matter of fact, examined in his residence by an Advocate Commissioner on 13.03.1999 at Tindivanam. In the year 1999 he was called upon to speak about an oral agreement of sale said to have been entered in 1980. The plaintiffs had not paid any amount to anyone of the creditors. If the creditors had been paid then such an act would have impressed itself upon the mind of DW-1. He was examined nearly after 20 years from the oral agreement of sale. It is only probable that he would suffer from some memory loss.

43. Even if it is to be taken that the evidence of DW1 has to be taken as sacrocent and binding upon the defendants, the further point to be examined is whether an admission made by him about the agreement of sale would automatically entitle the plaintiff to get a decree for specific performance. The plaintiffs will have to prove readiness and willingness and on that ground they have failed miserably.

44. Section 58 of the Indian Evidence Act is as follows:-

“58 Facts admitted need not be proved. — No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. ”

45. When a witness had been examined nearly 20 years after a particular event for which there is no written record and no consequent event had happened then, it is only proper and prudent that the Court views such evidence with skewed eyes and calls upon the plaintiff to prove such agreement even admitted by the witness. The provision of law is very clear. Not all facts admitted by the defendants can be taken as proved.

46. In the instant case, Section 101 of the Evidence Act comes into play. Section 101 Evidence Act is as follows:-

“101. Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. “

47. The burden is entirely upon the plaintiff to prove the agreement of sale. Admission by the defendants will not entitle the plaintiff to automatically get the relief sought.

48. I hold that PWs-1 & 2 are interested witnesses. They are friends of the plaintiff. It is the plaintiff, who can speak about the agreement since the agreement is to his exclusive knowledge and he should speak about the oral agreement of sale, about the debts which the defendants had and about the discharge of such debts and why such debts was not discharged and also the names of the creditors to whom such debts to be paid. None of the details have been stated by the plaintiffs. He never grazed the witness box. Thus the evidence of PWs 1 & 2 are only self serving and of no assistance to the plaintiff.

49. The son of the plaintiff also did not graze the witness box. Material evidence about an agreement of sale is not just existence of an agreement but existence of an agreement with lawful consideration, with lawful object and more importantly with consensus ad ideum between the parties. When there is no consensus, then performance of the agreement will have to be negatived.

50. Both the Courts below had rejected the evidence of DW-1 stating that it was contrary even to the written statement filed. The written statement filed under Order 8 Rule 1 Criminal Procedure Code sets out the defences of the defendants against the claim of the plaintiff. A written statement, as a plaint, has to be verified by the defendants. The first defendant had filed written statement immediately on receipt of summons and had denied existence of the agreement. Sanctity must be afforded to what is presented to Court in writing. Thereafter, after nearly 20 years, when the witness was examined, it is only natural that his memory would have failed. I would still appreciate the evidence of DW-1. He had been quite honest when he said that an agreement was entered into. He is a truthful witness but that admission would not entitle the plaintiff for specific performance.

51. Section 16 of the Specific Relief Act is as follows:-

“16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person—

(a) .................

(b) .................

(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. ”

52. It had been very specifically given in the aforementioned provision that readiness and willingness, as a fact must be proved by the plaintiff and only by the plaintiff Right from the time of institution of the suit till the time of execution of the sale deed, the plaintiff must always be ready and must always be willing to perform his part of the agreement.

53. One factor, if the plaintiff had discharged would have swing the pendulum in his favour, namely, atleast obtaining the list of creditors of the defendants. If he had not obtained the entire list, atleast he could have obtained the name of one creditor and made payment towards the debts of that one creditor. But such evidence in that regard is absent. It is the case of the plaintiff that he had agreed to pay Rs.90,000/- which is actually about 95% of the total sale consideration towards discharge of existing debts to the defendants.

54. The plaintiff had not established his readiness to discharge the debts of the creditor

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s of the defendants. The plaintiff had not established that he was willing to discharge the debts of the defendants. Having failed on that ground, again even if it is to be taken that DW-1 had admitted to the agreement, still the plaintiff must fail in seeking specific performance of the agreement of sale. 55. It is also to be noted that when the plaintiff claim is based on an oral agreement of sale, it is very important that he gives the date and the time of such agreement. The cause of action does not give the date of the agreement. The prayer column in the plaint does not give the date of the agreement. It is only in the body of the plaint that a particular date is given. It is not repeated in the material portions, namely, in the cause of action and in the relief column. 56. It is complained that the tenth defendant had purchased the property pending the suit. The date of the sale deed in favour of the tenth defendant was 22.04.1980. A perusal of Ex.B-1 shows that it had been registered as directed by the District Registrar in A.P.No. 8 of 1980 dated 08.12.1980. 57. Section 47 of the Registration Act is as follows:- “47. Time from which registered document operates.—A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. ” 58. The date of registration though in December 1980 would relate back to the date of execution of the document which was in April 1980. This would indicate that the tenth defendant had purchased the property prior to the agreement and much prior to the institution of the suit. 59. It is the contention of the plaintiff that he had instituted the suit as soon as he had come to know about the fact that the defendants had an intention to deal with the property. That knowledge was said to be in the middle of July 1980. But even much prior to that date, in April 1980, the property had been conveyed. The sale deed had been executed and the total consideration had been received by the defendants. Obtaining an order of injunction, post the sale would not come to the assistance of the plaintiff. 60. In view of all these reasons, I would answer the substantial question of law that the admission of DW-1 about the agreement of sale would not automatically and would not certainly entitle the plaintiff to seek specific performance of the agreement. Even that admission was nearly about 20 years after the alleged agreement and there is every possibility of age catching up with the witness and there being a memory loss of details of the agreement. The burden was on the plaintiff to prove readiness and willingness and he miserably failed in that account and therefore, even if the evidence is to be taken as an admission, it would not come to the aid of the plaintiff to seek specific performance. The Second Appeal therefore fails and accordingly, the Second Appeal is dismissed with costs. 61. In the result:- (i) the Second Appeal is dismissed with costs; (ii) The Judgment and Decree of the learned Principal District Court, Villupuram Distrcit, Villupuram, in A.S.No. 90 of 2001 is confirmed; and (iii) The Judgment and Decree of the learned Principal Subordinate Court, Tindivanam, in O.S.No. 337 of 1980 is confirmed.
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