KOTHAI NACHIAR Vs. VIJAYALAKSHMI AMMAL

JUDGEMENT

(1.) THE only question is whether the agreement for sale put forward by the plaintiff is genuine or whether it was brought out by fraud as alleged by the appellant 1st defendant. THE trial court held that the agreement was not genuine, but granted the prayer for alternative relief and directed the 1st defendant to pay the advance received by him. THE Appellate Court reversed that conclusion and upheld the genuineness of the agreement and passed a decree for specific performance as prayed for by the plaintiff. Aggrieved thereby, the 1st defendant has preferred this appeal.

(2.) THE first contention of learned counsel for the appellant is that the lower Appellate Court has misdirected itself misinterpreting the provisions of S. 102 of the Evidence Act, 1872. According to learned counsel, the said Section can be invoked only if there is no evidence whatever on the side of both parties. But in this case, according to him, evidence has been adduced by both parties and therefore, S. 102 is not applicable. THE relevant portion of the discussion is found in paragraph 19 of the appellate judgment. No doubt, the learned Appellate Judge has made a reference to S. 102 of the Evidence Act, which, is my opinion, is not necessary at all. But the further discussion of the facts by the learned Judge is not based on interpretation of S. 102 of the Evidence. Act. THE learned Judge has observed that the 1st defendant though having admitted her signature in the document Ex. A.1, stated that it has been obtained by fraud. THE learned Judge has stated that there is no evidence whatever to prove the alleged fraud and therefore, the plea of fraud raised by the first defendant cannot be accepted. That part of the discussion and conclusion of the learned Appellate Judge are unassailable.

(3.) EX. A.11 is the reply notice dated 11.12.1981 issued by the lawyer on behalf of the first defendant in reply to the notice dated 4.12.1981 issued by the plaintiff. In that notice, it is stated that the 1st defendant visited Srivilliputhur to complete the transaction, but the plaintiff was not prepared to complete the deal, but requested further time due to paucity of funds and to obtain the consent of the children of the 1st defendant. Thus, it is clear that the guanuineness of the agreement was not disputed either in EX. A.11 or in the written allotment. As the 1st defendant has not chosen to enter the witness box and give evidence on her behalf, there is no question of the Court accepting the plea of fraud. The evidence of P.W. 2 shows that the agreement was executed by the 1st defendant in a proper manner and there is no fraud in the execution of the same at all.