ARULRAJ Vs. JABESTHIAL

JUDGEMENT

(1.) THIS Second Appeal was directed against the decree and judgment dated 19. 04. 1994 of Sub Court, Dharmapuri in A. S. 7 of 1993, by confirming the decree passed by the trial court (District Munsif Court, Dharmapuri) on 04. 01. 1993 in its O. S. 722 of 1990.

(2.) DURING the course of admission of the second appeal, the following substantial questions of law were framed:

(3.) THIS is a suit for specific performance. Defendants 2 and 3 are the sons of the 1st defendant, who himself is the brother of plaintiff's husband. There was an agreement between the parties on 27. 08. 1987 under Ex. A-1, agreeing to sell 25 cents of land in Survey No. 122 and 33 cents of land in Survey No. 120 with right to irrigate in the well thereon, for a sum of Rs. 10,000/= and that there was payment of advance of Rs. 7,000/- to the defendants with a further clause that sale deed can be executed within a period of three years upon payment of the balance of Rs. 3,000/- and in case, if the defendants were not ready to receive the said cash of Rs. 3,000/-, it may be deposited in District Munsif Court, Dharmapuri. It is a registered document. The copy of registration itself will be proved for execution thereon. Therefore, it is idle for the appellants/defendants to contend, under their notice dated 21. 06. 1990 marked as Ex. A-2, as if Ex. A-1 was not an agreement for sale and that it was only executed as a mortgage. The further plea of the appellants in the written statement was that a fraud has been played. The element of fraud has to be proved only by the person who has pleaded so. In view of the fact that Ex. A-1 is a registered document and the recitals very clearly do show that it was executed as an agreement of sale, the mere denial under Ex. A-2 by the appellants/ defendants without any further evidence, may not go to substantiate their case of fraud and therefore, Ex. A-2 was issued only in avoidance of the agreement.