Kalianna Gounder [died] S/o. Komaraswami Gounder v. Kalianna Gounder S/o. Appavu Gounder — 1986 DIGILAW 419 (MAD)

JUDGMENT RATWAM J: - 1. This appeal at the instance of defendants 6 to 8 in O.S.277 of 1968, Sub-Court, Salem, is directed against the Judgment in A.S.No.79 of 1973 dismissing their appeal preferred against the decree in favour of the 1st respondent herein granting the relief of specific performance in respect of an agreement for sale Ex.A.1 dated 2 7.7.1964 executed by the 2nd respondent herein and his father deceased Chinna Gounder. The properties in question admittedly belonged to Chinna Gounder and the 2nd respondent herein. Under the agreement Ex.A.1 which was also registered on 13.11.1964, the 2nd respondent and his father agreed to sell certain properties to the 1st respondent for a consideration of Rs.14,000 and received Rs. 1,500 by way of advance. The 1st respondent had agreed to discharge certain mortgage and pronote debts due by the 2nd respondent and his father to one Kandasami Gounder amounting to Rs.11,2 72 within one year. The balance of Rs.1,228 was agreed to be paid and received at the time of the execution of the sale deed. According to the case of the 1st respondent, at the instance and instigation of the appellants, in November, 1964, the 2nd respondent and his father approached the 1st respondent and asked him to discharge the debt immediately and pay the balance of Rs.1,228 and take the sale deed and gave out that they would sell the properties to third parties if the 1st respondent did not do so. The 1st respondent declined to accede to the request of the 2nd respondent and his father. The 2nd respondent and his father entered into another agreement under Ex.B.1 dated 2 7.7.1964 for the sale of the same properties in favour of the appellants herein for a consideration of Rs.15,000. That agreement recited that a sum of Rs.2,000 had been received as advance by the 2nd respondent and his father and execution of the sale deed could be postponed till the disposal of that suit and believing those representations, the 1st respondent did not insist upon the execution of the sale deeo within one year as stipulated under the terms of Ex.A.1. The 1st respondent therefore instituted the suit for specific performance of Ex.A.1, impleading the appellants herein as defendants 6 to 8 and contending that the sale deed in their favour executed on 9.5.1968 was not valid and supported by considered and that Ex.A.1 was the only true and valid agreement of sale and further that the agreement under Ex.B.1 came into existence long subsequently and had been antedated. 2. The appellants, who were the main contesting defendants, resisted the suit contending that there was already a sale deed in their favour pursuant to an’ earlier agreement under Ex.B.1 and that they had also been put in possession of the properties sold to them and further that the 1st respondent was not entitled to the equitable relief of specific performance on the strength of Ex.A.1. It was also the case of the appellants that the agreement under Ex.A.1 had not been entered into on 27.7.1964. 3. On the aforesaid pleadings of the parties, the two issues, which were tried by the trial Court were (1) whether the agreement Ex.A.1 in favour of the 1st respondent was prior to the agreement Ex.B.1 in favour of the appellants and (2) whether the 1st respondent was entitled to the relief of specific performance on the strength of Ex.A.1. On a consideration of the oral as well as the documentary evidence, the learned Subordinate Judge, Salem, came to the conclusion that Ex.A.1 in favour of the 1st respondent herin was the earlier agreement and that Ex.B.1 in favour of the appellants came to be executed subsequently and was antedated. It was also further found that the sale deed Ex.R, dated 9.5.1968 was not valid in view of Ex.A.1 and that therefore, the appellants did not derive any right to the properties sold thereunder. On those findings, the learned Subordinate Judge, Salem, granted a decree in favour of the 1st respondent herein directing the appellants and respondents 2 to 6 to execute a sale deed in respect of the suit properties and deliver possession within two months on deposit of a sum of Rs.1,228 by the 1st respondent within one month. Against that, the appelants herein preferred A.S.No.79 of 1973 before this Court. Sethuraman. Against that, the appelants herein preferred A.S.No.79 of 1973 before this Court. Sethuraman. J., who heard the appeal, was of the view that Ex.A.l was executed prior to Ex.B.1, that time was not of the essence of the contract and that the 1st respondent was entitled to a decree for specific performance. On those conclusions, the appeal was dismissed, the correctness of which is challenged in this Letters Patent Appeal. During the pendency of the Letters Patent Appeal, the 1st appellant died and his legal representatives have been brought on record as Appellants 4 to 7. 4. In support of this appeal, Shri R. Kesava Iyengar, learned counsel for the appellants raised two principal contentions. The first was that the 1st respondent had not established by best evidence that Ex.A.1 was executed earlier to Ex.B.1 and that Ex.B.1 was ante-dated, while, the appellants had proved by best evidence, the execution of the agreement under Ex.B.1 as well as the sale under Ex.A.12. The second contention urged was that as the 1st respondent had committed breach of the terms of the agreement, Ex.A.1 and there was no continuous readiness and willingness on this part, he should be non-suited as per the provisions of the Specific Relief Act. To make good these submissions, learned counsel referred in extenso to the pleadings, the evidence and also drew our attention to certain circumstances as well as several decisions, which we shall refer later in the course of this judgment. On the other hand, Mr.S.V.Jayaraman strenuously contended by drawing attention to certain other circumstances that Ex.A.1 is earlier in point of time and that had been established to be so by the 1st respondent and that the appellants had not made available to the court the best evidence and therefore, they cannot be heard to contend that the relief of specific performance cannot be granted to the 1st respondent. It was also pointed out that the 1st respondent had averred in the plaint about his readiness and willingness to perform his part of the contract and had also examined himself and that would suffice to enable the Court to grant the relief of specific performance in favour of the 1st respondent. It was also contended that there was a waiver of a strict adherence to the terms of the agreement Ex.A.1. It was also contended that there was a waiver of a strict adherence to the terms of the agreement Ex.A.1. In support of these contentions, reliance was also placed by the learned counsel on some decisions. 5. The first question is whether the 1st respondent had established that Ex.A.1 was executed earlier in point of time. Issue No.2 framed in the suit also reflects this aspect. There is no dispute that the properties agreed to be sold both under Ex.A.1 and Ex.B.1 belonged to the 2nd respondent and his father. The father of the 2nd respondent, Chinna Gounder, died on 2.4.1968 as could be seen from Ex.A.9. The 2nd respondent is one of the executants of Ex.A.l as well as Ex.B.1 Respondents 3 to 6 are the wife and daughters of Chinna Gounder, respectively. It is seen from para 4 of the plaint that according to the case of the 1st respondent, the father of the 2nd respondent and the 2nd respondent made it clear that the agreement they were executing in favour of the appelants herein had to come into effect only if the suit agreement Ex.A.1 is cancelled and given up by the 1st respondent. That would mean that even according to the 1st respondent, there were two agreements executed by the 2nd respondent and his father, one in favour of the 1st respondent and the other in favour of the appellants. The question whether Ex.A.1 or Ex.B.1 was earlier in point of time has to be decided by taking into account the evidence and the other circumstances appearing therefrom. 6. We may first refer to the intrinsic evidence afforded by the terms of Ex.A.1 to ascertain whether it could have been executed on 2 7.7.1964. There is one recital therein which is very significant and it runs thus: This means that the 1st respondent had not till that date made any payment towards the discharge of the debts. Such a recital is wholly inconsistent with the direction for the discharge of the debts under the document Ex.A.i. This would also establish that there was some other agreement or that recital was put in at a point of time later than 2 7.7.1964 making reference to an earlier default committed by the 1st respondent. Further, Ex.A-1 bearing date 2 7.7.1964 had been registered on 13.11.1964. Further, Ex.A-1 bearing date 2 7.7.1964 had been registered on 13.11.1964. In para 5 of the plaint, the 1st respondent had attempted an ingenious explanation for the registration of Ex.A.1 on 13.11.1964. According to him, in November, 1964, the appellants persuaded the 2nd respondent and his father to approach the 1st respondent to discharge the debts mentioned in Ex.A.1 and to pay the balance of Rs.1,228 immediately and take the sale deed. The 1st respondent is stated to have said that he had eight months’ time to complete the sale and with a view to settle the dispute, a panchayat was held, wherein the 2nd respondent and his father agreed to abide by the terms of Ex.A.1 and that, as a matter of caution and with a view to safeguard his rights, the 1st respondent got Ex.A.1 registered on 13.11.1964. We may point out that none of the panchayat-dhars have been examined to establish that the panchayat was so held and that registration was resorted to later. P.W.1 in the course of his cross examination stated that the panchayat took place in the month of Ippasi and that he had given the details of the panchayat in the notice. The notice referred to is Ex.A.4 dated 10.12.1964 sent by the counsel on behalf of the 1st respondent and in para 4 thereof, it is stated that on or about 19th November, 1964, the 2nd respondent and his father pressed for immediate execution of the sale deed and that led to a panchayat, wherein the 2nd respondent and his father agreed to abide by the terms of Ex.A.1 and the 1st respondent insisted upon the registration of the document at once, as he entertained serious doubts about the 2nd respondent-and his father abiding by the terms of the contract. Thus, while, according to Ex.A.4, the panchayat had been held on 19.11.1964, the registration of Ex.A.1 had been done on 13.11.1964, viz., six days earlier to the panchayat. The reason given by the 1st respondent, for the registration of Ex.A.1 on 13.11.1964 is thus not acceptable, especially when Ex.A.1 is not compulsorily registrable. Serious doubts are thus thrown upon the holding of panchayat, as having led to the registration of Ex.A.1 on 13.11.1964. We are therefore unable to hold that “there was a panchayat and thereafter Ex.A.1 was registered. Serious doubts are thus thrown upon the holding of panchayat, as having led to the registration of Ex.A.1 on 13.11.1964. We are therefore unable to hold that “there was a panchayat and thereafter Ex.A.1 was registered. To make it appear as if Ex.A-1 had been executed on 27.7.1964, registration had been resorted to on 13.11.1964, when probably it was executed and registered, as would be seen later. The trial court, while referring to this in para 9 of its judgment, has stated that this is a trivial contradiction. We are however not inclined’ to dismiss this as a trivial or inconsequential circumstance, as could be seen from the other circumstances, which we shall presently refer. 7. Under Ex.A.1, the 1st respondent had been given a year's time to discharge the debts of the 2nd respondent and his father totalling to Rs.11,272. While so, it is not probable and indeed it is also not supported by any acceptable evidence that the 2nd respondent and his father demanded the payment of the debts by the 1st respondent contrary to the terms of Ex.A.1 and that led to the registration of Ex.A.1 on 13.11.1964. In other words, the reason given for the Panchayat does not appear to be true. Likewise, the registration of the document on 13.11.64, as subsequent to the Panchayat, is also unacceptable. P.W.1 in the course of his cross examination admitted that Ex.A.1 was written in the Sub Registrar's office. Ex.A.1 had been attested by one Sengoda Nadar and one Perianna Gounder, belonging to Arasampalayam and Kandangipalayam. They participated in the registration of Ex.A.1 as identifying witnesses also. The evidence of D.W.2 shows that the Sub Registrar's Office at Mallasamudram is at a distance of five miles from Arasam-palayam, where the parties reside. P.W.1 would give contradictory answers in evidence that he went to the Sub Registrar's office only once and that Ex.A.1 was not registered earlier, but three months later, as he was informed that registration was not necessary. The definite admission of P.W.1 in his. evidence that Ex.A.1 was written in the Sub Registrar's office and the absence of other satisfactory evidence regarding the circumstances under which the same set of persons had participated in the attestation as well as identification, clearly establish that Ex.A.1 was executed and registered at Mallasamudram Sub Registrar's office only on 13.11.1964 with the help of. evidence that Ex.A.1 was written in the Sub Registrar's office and the absence of other satisfactory evidence regarding the circumstances under which the same set of persons had participated in the attestation as well as identification, clearly establish that Ex.A.1 was executed and registered at Mallasamudram Sub Registrar's office only on 13.11.1964 with the help of. two persons, who had acted as attesting as well as identifying witnesses. It is in this context that the non-examination of the attestors and the scribe assumes considerable significance. P.W.1 in his evidence stated that he was not going to examine the attestors to Ex.A.1. The further suggestion to P.W.1 is to the effect that the attesting witnesses are respectable people and that they would not come forward to depose falsely. No doubt P.W.1 has stated that he does not know whether it is so. Though according to P.W.1 in chief examination, the attesting witness Perianna Gounder is the son of the aunt of the 2nd respondent and Sengoda Nadar is working in the lands of the 1st appellant, in his cross examination, he stated that Sengoda Nadar is the adjoining land owner and that he had not brought him to court on the last hearing date. He would also state that prior to the registration of Ex.A.1, the witnesses had attended the Sub Registrar's office twice, though in the earlier part of his evidence, P.W.1 stated that he went only once to the Sub Registrar's office. It is thus clear from the evidence of P.W.1 that both the attestors to Ex.A.1 are available; but for some reason, he had not examined them. It would not be unreasonable having regard to the evidence of P.W.I referred to above, to invoke the presumption under section 114(g) of the Indian Evidence Act and hold that if the attestors had been examined, their evidence would have been unfavourable to P.W.1 and that was the reason why their evidence had been with held’ from Court. The evidence of P.W.1 shows that Chinna Gounder and the 2nd respondent brought the attesting witnesses and those witnesses are still available. The explanation for the non-examination of the attestors was that they were obliged to the appellants. This was accepted by the trial court as well as the learned Judge, as exonerating the 1st respondent from his duty to examine the attesting witnesses. We regret our inability to share this view. The explanation for the non-examination of the attestors was that they were obliged to the appellants. This was accepted by the trial court as well as the learned Judge, as exonerating the 1st respondent from his duty to examine the attesting witnesses. We regret our inability to share this view. The two witnesses had gone to the Sub Registrar's office at Mallasamudram at the time of the registration of Ex.A.1 on 13.11.1964 and if they had participated in the attestation as well as the registration of Ex.A.1 despite their being obliged to the appellants, we really do not see any reason why they would not come to speak to the execution of Ex.A.1, if as a matter of fact Ex.A.1 was executed on 27.7.1964. We are also unable to subscribe to the view of the learned Judge that the conviction of D.W.1 in a murder case or the conviction of the 2nd appellant in a case for assault, would enable the 1st respondent to establish the execution of Ex.A.1 without the best evidence. We are also ‘unable to appreciate the reasoning of the learned Judge that by reason of the association of the attestors with the appellants, they would not have been in a position to enter the witness box on behalf of the 1st respondent. Having regard to the participation of the attesting witnesses in the execution of Ex.A.1 as well as its registration, it was the duty of the 1st respondent to have made available to court their evidence and if their evidence was not sufficient to prove the execution of Ex.A.1, it was open to the 1st respondent to establish the same by other evidence as per section 71 of the Indian Evidence Act. Further, we may point out that the conviction of D.W.1 or the 2nd appellant for offences is not very relevant in civil cases under section 52 of the Indian Evidence Act. There is no acceptable evidence of the existence of any impediment in the examination of the two attesting witnesses by the 1st respondent. In the circumstances of this case, there is absolutely no justification whatever for the non-examination of the scribe and attestors of Ex.A.1 and 1st respondent has therefore not placed before the Court the best evidence in support of the execution of Ex.A.1 on 2 7.7.1964. 8. In the circumstances of this case, there is absolutely no justification whatever for the non-examination of the scribe and attestors of Ex.A.1 and 1st respondent has therefore not placed before the Court the best evidence in support of the execution of Ex.A.1 on 2 7.7.1964. 8. We may now refer in this connection to the decision of Privy Council in Surat C.S. & W.Mills. v. Secretary, of State Surat C.S. & W.Mills. v. Secretary, of State (1937) 64 IA 176: (1937) 2 MLJ. 689: 46 L.W. 180: A.I.R. 1937 P.C.152 relied on by the counsel for appellants. It was pointed out by the Privy Council that a failure to place the evidence, which would disclose the manner in which the consignment was dealt with, entitled the court to presume in terms of section 114 (g) of the Evidence Act that evidence, if produced, would be unfavourable, we may also usefully refer in this connection to the observations of the Supreme Court in Gopal Krishnaji v. Mohd. Haji Latif. Gopal Krishnaji v. Mohd. Haji Latif. (A.I.R.1968 S.C.1413: (1968) 3 S.C.R. 862 . The Supreme Court pointed out that even if the burden of proof does not lie on a party, the court may draw an adverse inference,. if he withholds important documents in his possession, which throw light on the facts at issue and it is not sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. Viewed in the light of the principles laid down in the decisions referred to by the learned counsel for the appellants, we are inclined to take the view that the scribe and attestors to Ex.A.1 though available, were not examined and their evidence, if made available to Court, would throw light upon the issues in controversy between the parties and that evidence had been withheld by the 1st respondent. Considered in the light of the evidence of P.W.1 that Ex.A.1 was written in the Sub Registrar's office and taking into account the participation by the same set of persons as attestors as well as identifying witnesses before the Sub Registrar at Mallasamudram five miles away from the village of the parties and the non- examination of the scribe and attestors and the other aspects set out above, the case of the appellants that Ex.A.1 was executed and registered at Mallasamudram on 13.11.1964 is rendered probable and acceptable. 9. Reliance was placed by the learned counsel for the 1st respondent upon Ex.A.2, a notice dated 1.8.1964 issued on behalf of Muthu Gounder and others to three persons, viz. Chinna Gounder,Palaniappan and Kalianna Gounder (1st respondent herein). From this notice, it was attempted to be established that the agreement under Ex.A.l had come into existence even prior to the date of issue of that notice, viz. 1.8.1964. In that notice sent on behalf of Muthu Gounder and others, they claimed that Chinna Gounder, father of the 2nd respondent, was entitled only to a half share in an extent of 9 acres and 73 cents and that Palaniappa Gounder and Kalianna Gounder (1st respondent herein) cannot purchase anything more than a half. There is no reference therein to any prior agreement of sale having been executed by Chinna Gounder or the 2nd respondent in favour of the 1st respondent. It is further stated that Chinna Gounder intends to sell and not that he had already agreed to sell. Thus, the contents of Ex.A.2 cannot be pressed into service to establish the existence of Ex.A.1 on 27.7.1964 itself. Apart from this, the evidence of P.W.2, one of the persons, on whose behalf Ex.A.2 had been issued, is to the effect that on coming to know of the registration of Ex.A.1, the notice Ex.A.2 was given and that it was issued on the assumption that Palaniappan also might have purchased lands. We have earlier noticed that the registration of Ex.A.1 was on 13.11.1964. It is therefore difficult to believe that the notice under Ex.A.2 had been issued even on 1.8.1964, three months and more before the actual registration, knowing about the registration of the agreement for sale. Further, the parties to Exs.A.1 and A.2 are not the same. We are therefore of the view that no reliance can be placed upon Ex.A.2. 10. It is therefore difficult to believe that the notice under Ex.A.2 had been issued even on 1.8.1964, three months and more before the actual registration, knowing about the registration of the agreement for sale. Further, the parties to Exs.A.1 and A.2 are not the same. We are therefore of the view that no reliance can be placed upon Ex.A.2. 10. That takes us on to a consideration of the so called admission by the 2nd respondent and his father as regards Ex.A.1 in the course of this and the prior proceedings in O.S.76 of 1965 referred to already. In para 3 of the written statement in O.S. 277 of 1968, out of which this Letters Patent Appeal has arisen, the appelants have stated as follows: “The plaintiff is not entitled to the relief of specific performance of the agreement dated 27.7.64. The said document is antedated agreement executed by the plaintiff and 1st defendant and his father Chinna Gounder to nullify the effect of an agreement dated 27.7.64 executed between these defendants and the family, of the 1st defendant.” We fail to see how this could be construed as an admission. The use of the expression ‘dated 27.7.64’ can only mean ‘bearing the date 27.7.64’ and cannot amount to an admission of the truth and validity of Ex.A.1. Even otherwise, the stand taken by the appellants is indicative of a specific case that the agreement dated 27.7.64, on the basis of which the suit is filed, is an ante-dated one. We are unable to subscribe to the view that this stand taken by the appellants in the written statement would amount to an admission. Even assuming that the statement, referred to above, can be considered as an admission, we must consider the whole of it or reject the whole of it and not accept it in part or reject it in part. That this should be the proper approach has been laid down by the Supreme Court in Hanumant v. State of M.P. Hanumant v. State of M.P. 1952 S.C.J. 509: (1952) S.C.R. 1091: (1952) 2 MLJ. 631: A.I.R. 1952 S.C. 343 at 350 and Sreedharan Valia Rajah v. Parakkat (alias) Manager of Kunhi Karuthedath Narayana Numbudri Pad Sreedharan Valia Rajah v. Parakkat (alias) Manager of Kunhi Karuthedath Narayana Numbudri Pad (1921) 41 MLJ. 525 at 528: 1.I.C. 270. 631: A.I.R. 1952 S.C. 343 at 350 and Sreedharan Valia Rajah v. Parakkat (alias) Manager of Kunhi Karuthedath Narayana Numbudri Pad Sreedharan Valia Rajah v. Parakkat (alias) Manager of Kunhi Karuthedath Narayana Numbudri Pad (1921) 41 MLJ. 525 at 528: 1.I.C. 270. The stand taken by the appellants in the course of the present suit is one of specific denial and cannot at all be termed as an admission. We then proceed to consider whether the stand taken by the 2nd respondent and his father in O.S.76 of 1965, Sub court, Salem, under Ex.A.6 dated 26.7.1965, can be construed as an admission of the truth as well as the genuineness of the agreement Ex.A.1 That suit was instituted by the present appellants against respondents 2 to 5 herein, who were impleaded as defendants 1 to 5 and the 1st respondent, who was impleaded as the 6th defendant. The relief prayed for was for specific performance of the agreemnt under Ex.B.1. In the written statement filed by the 2nd respondent and his father, in para 3, in Ex.A.6, they have stated as under: “These defendants have entered into an agreement of sale with the 6th defendant (1st respondent herein) on 27.7.1964 to sell their properties to him for Rs.14,000. The agreement of sale in favour of the plaintiffs was executed by the defendants subsequent to the agreement in favour of the 6th defendant.” The statement so made has been construed by the learned Judge to be a specific admission by the 2nd respondent and his father and there was therefore no need also to call any of the attesting witnesses for the purpose of proving the execution of Ex.A.1, which was also registered. In our opinion, Ex.A.6 also cannot be relied upon as an admission either for the purpose of establishing the execution of Ex.A.1 by relying upon it or for purposes of dispensing with the examination of the attestors thereto. Ex.A.10, the judgment in O.S.76 of 1965, does not indicate that Ex.A.1 was marked or used in evidence in those proceedings. Further, there was no controversy between the defendants in that suit regarding Ex.A.1. There was also no denial of the execution of Ex.A.1 by the 2nd respondent, though the 1st respondent in his written statement, Ex.A.7 disputed Ex.B.1. Ex.A.10, the judgment in O.S.76 of 1965, does not indicate that Ex.A.1 was marked or used in evidence in those proceedings. Further, there was no controversy between the defendants in that suit regarding Ex.A.1. There was also no denial of the execution of Ex.A.1 by the 2nd respondent, though the 1st respondent in his written statement, Ex.A.7 disputed Ex.B.1. Even in the present suit, there is no denial by the 2nd respondent regarding Ex.A.1 as he had not even filed a written statement; but the appellants have denied its execution on 27.7.1964. Under those circumstances, there was no question of the applicability of the proviso to section 68 of the Indian Evidence Act. We are therefore of the opinion that the learned Judge was clearly in error in applying the proviso to section 68 of the Indian Evidence Act and stating that it was unnecessary to examine the attesting witnesses for the purpose of proving Ex.A.1. Ex.A.6 can at best be relied upon as a piece of evidence and not as an admission, as understood by the learned Judge. Even assuming that para 3 of Ex.A.6 can be regarded as an admission that cannot be taken in isolation, for, it is seen from Ex.A.12 that the circumstances under which the stand was so taken in Ex.A.6 have been explained by the 2nd respondent, who is the best person who can explain the stand taken earlier. In Ex.A.12, it has been stated by the 2nd respondent that the appellants had instituted O.5. 76 of 1965 and that he and others had filed a wrong written statement at the instance of the 1st respondent herein and that realising that the defence so raised” would not be accepted, they had agreed to withdraw the defence. It is also further stated that Ex.B.1 dated 27.7.64 is true and that in pursuance thereof, the sale deed had been executed. Thus, the 2nd respondent has not only explained, but repudiated the stand taken earlier under Ex.A.6, clearly setting out the circumstances under which it was so taken. Unfortunately, there is no reference by the learned 3udge to Ex.A.12 at all. We are of the view that there is nothing to discredit the explanation given in Ex.A. 12 as regards Ex.A. 6. In any event, in view of the statement made in Ex.A.12, Ex.A.6 cannot be put against the appellants. Unfortunately, there is no reference by the learned 3udge to Ex.A.12 at all. We are of the view that there is nothing to discredit the explanation given in Ex.A. 12 as regards Ex.A. 6. In any event, in view of the statement made in Ex.A.12, Ex.A.6 cannot be put against the appellants. Ex.A.6 and Ex.A.12, when considered as two pieces of evidence, Ex.A.12 explaining the circumstances under which the statement in Ex.A.6 was made, is certainly rendered more acceptable in the light of other circumstances adverted to already. 11. We are unable to attach any importance to the circumstance relied on by the learned counsel for the 1st respondent that the stamp papers used for writing Ex.A.1 bear serial numbers earlier to the serial numbers found in the stamp papers used for writing Ex.B.1. From the mere circumstance that the stamp papers had been purchased earlier, it cannot be concluded that the agreement written with the stamp paper purchased earlier had been written prior to the agreement written with the stamp paper purchased later. There cannot be any assumption regarding the purchase of the stamp papers and the writing up of the documents. We have already referred to some of the circumstances militating against the execution of Ex.A.1 on the date it bears, viz 27.7.1964 and under those circumstances, we are unable to attach any importance to the serial number of the stomp paper found in Ex.A.1. 12. We have already referred to the stand taken by the 2nd respondent in Ex.A.6 and the explanation for taking that stand in Ex.A.12 and held that Ex.A.12 explanation is acceptable and therefore, the truth and validity of Ex.A.1 cannot be upheld on the basis of Ex.A.6. The argument of the learned counsel for the 1st respondent that the 2nd respondent should have been examined by the appellants and that the appellants have not let in the best evidence does not merit acceptance. P.W.1 in the course of his chief examination has stated that the 2nd respondent was in Rasipuram and that there was enmity between him and the 1st respondent. A suggestion was also made to P.W.1 that the 2nd respondent was friendly to him; but that had been denied. D.W.1 deposed that there were no disputes between Chinna Gounder and the appellants after Ex.B.1. He would also say that he was not on talking terms with Chinna Gounder. A suggestion was also made to P.W.1 that the 2nd respondent was friendly to him; but that had been denied. D.W.1 deposed that there were no disputes between Chinna Gounder and the appellants after Ex.B.1. He would also say that he was not on talking terms with Chinna Gounder. He would further say that the 2nd respondent executed the sale deed. From the evidence above referred, it is difficult to accept the contention of the learned counsel for the 1st respondent that the 2nd respondent should have been made available for examination by the appellants. Apparently, the 2nd respondent had been sitting on the fence, as it were, attempting to take sides either with the appellants or the 1st respondent, depending upon the occasion. Even if that be so, the 1st respondent, while basing his claim for. specific performance on the strength of -Ex.A.1, stated to be earlier to Ex.B.1, should make out his case and entitlement to that relief by establishing that Ex.A.1 has been executed by the 2nd respondent and his father on 27.7.1964 and that agree ment was earlier to Ex.B.1. That could have been done by the 1st respondent even by other evidence without the examination of the 2nd respondent. We are therefore of the view that the non-examination of the 2nd respondent is not fatal to the case of either party. Though the learned counsel for the 1st respondent attempted to explain the non-examination of the scribe or the attestors to Ex.A.1, on the ground of some relationship of one of the attestors to one of the appellants, we are not at all impressed by that argument. There is no evidence to show that the scribe was not available. Equally, there is no evidence regarding any impediment for the examination of the attestors. We therefore hold that the 1st respondent has not established that Ex.A.1 was executed on 27.7.1964 and that too earlier to Ex.B.1. 13. From the foregoing discussion, it follows that the one and the only agreement for the sale of the properties in question, which had been executed on 2 7.7.1964 by the 2nd respondent and his father was under Ex.B.1 in favour of the appellants herein. The execution of Ex.B.1 has been established by the evidence of the attestors D.Ws. 2 and 3. The agreement under Ex.B.1 also ripened into a sale deed under the original of Ex.A.2 on 9.5.1968. The execution of Ex.B.1 has been established by the evidence of the attestors D.Ws. 2 and 3. The agreement under Ex.B.1 also ripened into a sale deed under the original of Ex.A.2 on 9.5.1968. Under those circumstances, on the strength of Ex.A.1, the 1st respondent cannot seek to have a sale deed executed and secure title over the properties in question. 14. We now proceed to consider the contention that the 1st respondent had committed breach of the terms of Ex.A.1 and that he had also not established that he had been ready and willing to perform the obligations under Ex.A.1 and therefore not entitled to claim the relief of specific performance under section 16(b) and (c) of the Specific Relief Act. Under the terms of Ex.A.1, the 1st respondent had to discharge the debts totalling to Rs. 11,272 payable by the 2nd respondent and his father within one year from the date of Ex.A.1. The further provision in Ex.A.1 is to the effect that the transaction should be completed by 2 6.7.1965 and that in the event of default, the 2nd respondent and his father would not be bound by the terms of the agreement. A further provision has also been made that “if the 2nd respondent and his father, within the aforesaid period declined to execute the sale deed, then, the 1st respondent was at liberty to secure the execution of the conveyance through Court and also recover the loss and damage from the 2nd respondent and his father. Even in paras 3 and 5 of the plaint, the aforesaid terms of the agreement under Ex.A.1 and the obligation to perform within one year have been accepted by the 1st respondent. Even according to the stand taken in Ex.A.4 issued on behalf of the 1st respondent, he has accepted that the sale should be completed on or before 26.7.1965. P.W.1 in the course of his chief examination stated that he informed the 2nd respondent and his father that the transaction could be completed within the stipulated period. Even according to the stand taken in Ex.A.4 issued on behalf of the 1st respondent, he has accepted that the sale should be completed on or before 26.7.1965. P.W.1 in the course of his chief examination stated that he informed the 2nd respondent and his father that the transaction could be completed within the stipulated period. However, in para 10 of the plaint, the 1st respondent stated that owing to the pendency of O.S.76 of 1965, the 2nd respondent and his father represented that the sale deed need not be written within the time; but can await the disposal of the suit and believing those representations, the 1st respondent did not insist upon the execution of the sale deed immediately, P.W.1 deposed in his chief examination that he was ready to make the payments within the period of one year and that owing to the pendency of O.S.76 of 1965, the amount was agreed to be received after its disposal. However, in the course of his cross examination, P.W.1 was forced to admit that at the time of Ex.A.1, he had only Rs.2,000 and that at the time of its registration, he had only Rs.500. It is his further evidence that he was of the view that the debts due to the creditors could be discharged later and that was the reason why the amounts were not paid and the execution of the sale deed obtained. P.W.1 also stated that money could be raised quickly. This evidence of P.W.1 clearly shows that he did not have the amounts to discharge the debts and pay the balance and he was not ready and willing to adhere to the terms of the contract in the matter of performance. The evidence of P.W.1 referred to above does not at all support the stand taken by the 1st respondent in para 10 of the plaint that he had always been ready and willing to perform his part of the agreement and had also gathered the funds for discharging the debts of the 2nd respondent and his father and to pay the balance. On a consideration of the terms of Ex.A.1, we are inclined to take the view that thereunder the payment of Rs.11,272 towards the discharge of the debts’ due by the 2nd respondent and his father and the balance of Rs.1,228 within one year from the date of the agreement, was one of the vital conditions of the contract. The recital in Ex.A.1 regarding the payment of Rs.11,272 runs as follows: The further recital, which throws considerable light upon the nature of the obligation imposed on the part of the 1st respondent, is as follows: Sethuraman, J. was inclined to take the view that the present case is one similar to the decision in Ravendra Prasad v. Surendra Prasad Suku Ravendra Prasad v. Surendra Prasad Suku (1936) 70 MLJ. 82: 43 L.W. 128: A.I.R. 1936 P.C. 24 and that time was not of the essence of the contract. On the terms of Ex.A.l referred to earlier, we are of the view that a time limit had been set and stipulated under the agreement. In Gomathinayagam Pillai v. Palaniswami Nadar Gomathinayagam Pillai v. Palaniswami Nadar (1967)1 S.C.R 227 : A.I.R. 1967 S.C. 868 referred to by the learned Judga the Supreme Court pointed out that if it is intended by the parties that time is of the essence of the contract, such intention to make time of the essence, if expressed in writing, must be in language, which is clear and unmistakable, but that it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. It was also further pointed out that intention to make time of the essence of the contract may be evidenced by either express stipulation or by circumstances sufficiently strong to displace the ordinary presumption that in a contract of sale of land, stipulation as to the time, is not of the essence of the contract. In the case decided by the Supreme Court, there was no express stipulation nor were there circumstances strong enough to indicate that it was the intention of the parties that time was of the essence. In the case decided by the Supreme Court, there was no express stipulation nor were there circumstances strong enough to indicate that it was the intention of the parties that time was of the essence. On the contrary, in this case, the terms of the agreement, Ex.A.1 already extracted not only make it clear that the intention was to make time of the essence by express stipulation in clear language, but it had also been so understood by the parties as per the pleadings and evidence, so that even on the footing time was not originally of the essence, the parties had agreed to take and execute the conveyance within the time fixed, in default of compliance of which, other consequences were to follow. On the terms of Ex.A.1., we have no doubt that the parties had stipulated that time was of the essence of the contract and had also incorporated a clause to that effect and further had understood the transaction as a time bound one, as could be seen from the evidence of P.W.1, Ex.A.4, etc. already referred to. The principle of the decision in (1936) 63, 1.A. 26: 70 MLJ 82: A.I.R. 1936 P.C. 24relied on by the learned Judge to hold that time was not of the essence of the contract, is not applicable on the facts of this case. That decision arose under section 31 of the Transfer of Property Act with reference to a completed sale, whereunder the property had already passed, containing a provision for a subsequent divestiture, in the event of a failure to satisfy the dues of certain creditors by a particular time. That was thus not a case of an agreement for sale of the properties, as we have here. We are therefore of the view that the principle of that decision cannot have any application at all in this case. We have earlier noticed how the 1st respondent had not made any attempt whatever to discharge the debts within the stipulated time as stated in Ex.A.1, We have also referred to the stand taken by the 1st respondent in the plaint and his evidence, which did not in any manner establish his readiness and willingness. We have earlier noticed how the 1st respondent had not made any attempt whatever to discharge the debts within the stipulated time as stated in Ex.A.1, We have also referred to the stand taken by the 1st respondent in the plaint and his evidence, which did not in any manner establish his readiness and willingness. Under those circumstances, we are constrained to hold that the 1st respondent had violated one of the essential terms of Ex.A.l and had also not made out his readiness and willingness to perform the essential terms of Ex. A.l. and was therefore disentitled to claim the equitable relief of specific performance under section 16(b) and (c) of the Specific Relief Act. 15. Whether the pendency of O.S.76 of 1965 would have any bearing upon the observance of the terms of Ex.A.1 may now be considered. That suit as referred to already, was instituted by the appellants against respondents 2 to 5 and the 1st respondent, who were impleaded as defendants 1 to 6 praying for a decree for specific performance of the agreement Ex.B.1 dated 27.7.1964. That suit was instituted on 13.3.1965 and was ultimately dismissed as withdrawn on 15.6.1968. Ex.A.1 is a registered agreement. In evidence, P.W.1 stated that owing to the pendency of O.S.76 of 1965, it was agreed to postpone the payment and the receipt of monies, as stipulated under Ex.A.1. This would amount to an arrangement or agreement, contrary to the terms of the registered document Ex.A.1 and an ors’ agreement contrary to the terms of a written registered instrument cannot be pleaded, as it would be opposed to proviso (4) to section 92 of the Indian Evidence Act. We may also refer in this connection to the decision in Ramachandran v. Raval. & Co. Ramachandran v. Raval.& Co. (1969) 2 MLJ. 8 (D.B.) where it was laid down that where a tenancy is evidenced by a registered lease deed, it is not open to the tenant to plead variation of rent not evidenced by another registered instrument and sections 105 and 107 of the Transfer of Property Act read with section 92 of the Indian Evidence Act bar the evidence of variation of the terms of the lease, whether the evidence be a course of conduct or correspondence. The Supreme Court in Raval & Co. v. K.G. Ramachandran Raval & Co. The Supreme Court in Raval & Co. v. K.G. Ramachandran Raval & Co. v. K.G. Ramachandran (1974) 2 S.C.R 629 : A.I.R.1974 S.C. 818 at 824 laid down that the variation of rent reserved by a registered lease deed must be made by another registered instrument. We are therefore of the view that the pendency of O.S.76 of 1965 and the consequent oral agreement or arrangement for postponement of the performance of the obligation under the terms of Ex.A.1 varying the relevant clauses in the registered agreement Ex.A.1, cannot be countenanced. 16. We are also of the view that the pendency of O.S.76 of 1965 cannot in any manner affect’ either the terms of the contract or their performance and in any event, would have no impact upon the continuous readiness and willingness of the 1st respondent to perform his part of the contract under Ex.A.1. We may also refer in this connection to the observations of the Privy Council in Ardeshir. H. Kama v. Flora Sassoon Ardeshir. H. Kama v. Flora Sassoon 55 MLJ. 523 at 539: 55 I.A. 360: 28 L.W. 257: A.I.R. 1928 P.C. 208, ‘to the effect that in a suit for specific performance the plaintiff had to allege and if traversed, to establish that he had been continuously ready and willing from the date of the contract to the time of hearing of the suit to perform the contract and that failure to make good that averment brought with it the inevitable dismissal of his suit. In Sundaramayyer v. Jagadesan Sundaramayyer v. Jagadesan (1965)1 MLJ. 362 I.L.R.(1964) Mad. 876: 77 L.W. 493: A.I.R. 1965 Mad.85 (D.B.) it was pointed out that a plaintiff in a suit for specific performance, has to prove his continuous readiness and willingness from the date of contract to the time of the hearing of the suit to perform his part of the contract and that it would not be open to a party, who elects to accept the breach, assuming there was a breach on the part of the other side, to cancel that and treat the contract, as if it was subsisting. We have already pointed out that the non-performance of the conditions under Ex.A.1 during the pendency of O.S.76 of 1965 was not one of the terms of Ex.A.1 and therefore those proceedings would not affect the performance of the terms under Ex.A.1 or even the readiness and willingness of the 1st respondent to perform his part from the date of the contract down to the date of hearing of the present suit. We also do not see any statutory impediment in the matter of readiness and willingness of the 1st respondent to adhere to the terms of Ex.A.1 and perform the same or even a suspension of the terms and conditions under Ex.A.1. The mere pendency of O.S.76 of 1965 could not in our opinion be taken advantage of by the 1st respondent as an excuse for not adhering to the terms of Ex.A.1 and also performing the conditions therein within the/stipulated time. We also do not see any’ basis for the plea of waiver urged by the learned counsel for the 1st respondent. In any event, having regard to the conclusion earlier arrived at by us that the 1st respondent has disabled himself from claiming the relief of specific performance in view of section 16 (b) and (c) of the Specific Relief Act, to grant such a relief would be to fly in the face of the statutory prohibitions contained therein. We may usefully refer in this connection to the decision in Krishna Reddy & Co. v. Thimmlah. Krishna Reddy & Co. v. Thimmlah. (1983) 1 MLJ. 467 : 96 L.W.88: A.I.R.1983 Mad.169 wherein Padmanabhan.J. has pointed out that section 16(c) of the Specific Relief Act is prohibitory and a duty is cast on courts by statute that specific performance of a contract cannot be granted in favour of a person, unless he avers and proves his readiness and willingness to perform his part of the contract. We have already found that there has been a violation of section 16(b) and (c) of the Specific Relief Act and if the decree for specific performance, granted already is to be maintained, the Court would be carrying out what has been prohibited by the provisions of the Specific Relief Act. Viewed in that light also, the 1st respondent cannot be granted the relief of specific performance. 17. Viewed in that light also, the 1st respondent cannot be granted the relief of specific performance. 17. For the foregoing reasons, the judgments and decrees of the trial court as well as Sethuraman, 3. cannot be sustained. Accordingly, we allow the Letters Patent Appeal and dismiss O.S.277 of 1968, Sub Court, Salem, with costs throughout. 18. Under Article 134-A of the Constitution of India, the learned counsel for the first respondent orally seeks leave to appeal to the Supreme Court against our judgment. Though we have discussed certain aspects with reference to the provisions of law, we have not laid down any new law. We have only followed earlier decisions of the Privy Council and some decisions of the Supreme Court. The decision in this appeal purely rested on the facts of the case. In the circumstances, we are of the view that the proposed appeal to the Supreme Court does not involve any substantial question of law of general importance which needs to be decided by the Supreme Court, nor are we satisfied that this is a fit case for the grant of leave. We therefore reject the oral application for leave. R.S. Appeal allowed.