Judgment :- Legal representatives of deceased plaintiff in O.S. No.54 of 1980, on the file of Additional Sub Court, Nagercoil, are the appellants. 2. Suit filed by the deceased plaintiff was for specific performance of contract of sale, on the following allegations: Deceased plaintiff was an honorary physician and he was running a dispensary, and he was residing in the plaint schedule property from 12. 1958 as atenant. The original owner was late Gomathi Ammal, mother of first defendant. The agreed rent was Rs.35. Gomathi Ammal was sick and she was living with plaintiff and his family from June, 1968 and was receiving regular treatment from plaintiff for acute rheumatism, high blood-pressure and other diseases. She died in the plaint schedule building on 21. 1976. It is said that on the death of Gomathi Ammal, the plaint schedule property was inherited by first defendant, who is her only heir V.R.Sundaram, husband of first defendant, was managing the affairs of the first defendant, and he was acting on her behalf in all matters regarding the plaint schedule property. After the death of Gomathi Ammal Sundaram demanded a rent of Rs.70, and plaintiff began to pay the same from February, 1976 onwards. Because the plaintiff was a professional, he could not leave that house. He was compelled to pay that amount as rent. The husband himself was collecting the rent from plaintiff, and it was being sent by mail transfer to his account in the Bank. It is further said that towards expenses for the medical treatment of Gomathi Ammal, nearly Rs.10,000 had to be spent by plaintiff. He has also effected improvements to the building. It is said that the first defendant and her husband agreed to pay the amount to plaintiff within one year. But Sundaram did not want to honour his commitment, and the relationship between the parties became strained. Sundaram began to demand the plaintiff to vacate the premises, and there was exchange of letters, including lawyer’s notice, asking the plaintiff to vacate the building. In the meanwhile, Sundaram was also transferred to the same place and, therefore, a demand was made for own occupation. Sundaram did not take legal proceedings, and time passed by, and in the meanwhile, first defendant’s husband was transferred to Madurai, and his requirement for own occupation also ceased. In the meanwhile, Sundaram was also transferred to the same place and, therefore, a demand was made for own occupation. Sundaram did not take legal proceedings, and time passed by, and in the meanwhile, first defendant’s husband was transferred to Madurai, and his requirement for own occupation also ceased. At that time, they also thought of selling the property, and a publication was made in ‘Dhina Malar’, for sale. Through one V.S.Srinivasa Iyer, plaintiff came to know about the publication, and plaintiff also offered to purchase the property for a reasonable price. In paragraph 7 of the plaint, it is said that V.S.Srinivasa Iyer is a cousin of first defendant’s husband. It is further said that through him, V.R.Sundaram agreed to sell the property to the plaintiff and pay to the first defendant such price, less Rs.10,000 due to him on account of the amount spent on Gomathi Ammal. In paragraph 8 and 9 of the plaint, it is further said that the first defendant and her husband offered to sell the plaint property to the plaintiff for a total sum of Rs.32,000 in full and final settlement of accounts between them. Plaintiff informed them that he was prepared to purchase the property on payment of Rs.30,000. The price was agreed. Such an oral arrangement was made on 20.12.1979 at the residence of first defendant at Kovilpatti, in the presence of first defendant and her husband, plaintiff, his son-in-law Sankaran, and one T.S.Narayana Iyer, father of plaintiff’s son-in-law. It is further said that a sum of Rs.5,000 was to be paid as advance, and the sale deed was to be executed on receipt of the balance sum of Rs.25,000, within six months. Plaintiff paid a token advance of Rs.101. It is further said that the first defendant, expressed that out of the balance amount of Rs.25,000, she would like to get a sum of Rs.10,000 even before the expiry of a period of six months, for which also, plaintiff agreed. It is further said that the parties were to execute a deed of agreement for sale. Sundaram agreed that he will obtain a specific agreement from his brother, who is a practising advocate, embodying the terms of the agreement, and send the same to plaintiff, within a week, through his cousin V.S.Srinivasa Iyer. It is further said that the parties were to execute a deed of agreement for sale. Sundaram agreed that he will obtain a specific agreement from his brother, who is a practising advocate, embodying the terms of the agreement, and send the same to plaintiff, within a week, through his cousin V.S.Srinivasa Iyer. By 30.12.1979, plaintiff had made every arrangement for payment of Rs.15,000 to the first defendant, and was waiting to receive the draft agreement. On 1. 1980, plaintiff obtained a draft agreement through V.S.Srinivasa Iyer. The draft agreement had been prepared by Sundaram, in his own hand. On 1. 1980, plaintiff was informed by his son-in-law that the first defendant and her husband wanted to withdraw from the commitment, and Sundaram had written to him that he had already sold the building to another party for a higher price. On enquiries by plaintiff, he came to know that the statement about the sale of the building was not correct, and on 11. 1980, a suit notice was issued asking the first defendant to execute a sale deed and he was further informed that he was ready to pay the full price of Rs.30,000. A reply was sent denying any such agreement. On 12. 1980, first defendant, her husband and the second defendant came to plaintiff’s house and wanted the building to be handed over to him. Second defendant further to be handed over to him. Second defendant further threatened the plaintiff that he will be forcibly evicted. Plaintiff had no other go, except to institute a suit against second defendant as O.S. No.147 of 1980 for injunction restraining the second defendant from interfering with his possession. On 11. 1980, plaintiff also informed second defendant and his parents not to take any sale either from first defendant or her husband, for which no reply was sent. Second defendant, according to plaintiff, is not bona fide purchaser for value. Second defendant is also a man of no means. It is further averred that there was great difficulty for the plaintiff to raise funds to purchase the building where he had been residing for over 21 years. The suit was, therefore, filed for specific performance of agreement of sale, directing the defendants to execute a sale deed after receiving the balance consideration of Rs.30,000 and for other consequential reliefs. 3. The suit was, therefore, filed for specific performance of agreement of sale, directing the defendants to execute a sale deed after receiving the balance consideration of Rs.30,000 and for other consequential reliefs. 3. In the written statement filed by first defendant, she denied having any concluded contract with the plaintiff. It is said that in July, 1976, her husband was transferred to Nagercoil, and was compelled to reside in a lodge. At that time, they wanted to reside in the building in question, but the plaintiff was evading to handover possession. Therefore, an advocate’s notice was issued, asking her to vacate. It was at that time, a claim was made that the plaintiff had spent nearly Rs.10,000 for the medical expenses of first defendant’s mother. A reply was sent disputing the liability. When they were about to take steps for eviction, her husband was again transferred to Madurai and, therefore, they could not initiate any proceeding. In fact, her husband also retired from service in October, 1978. Thereafter, they began to reside in their family house at Kovilpatti. First defendant admitted that since they are residing permanently at Kovilpatti, there was no necessity to retain the building at Nagercoil, and therefore, they decided to sell the same. Publication was made in ‘Dhina Malar’ regarding sale of the property. That was in April, 1979. In June, 1979, plaintiff attempted to negotiate for sale of the property. Since the plaintiff was residing in the building in question for long number of years, first defendant thought of selling the property him. But she was very particular that they must enter in to a written agreement, provided plaintiff was prepared to purchase the property by paying a sum of Rs.5,000 as advance on the date of agreement and the balance of Rs.25,000 within six months therefrom, since the plaintiff expressed inability to pay the amount in a lump. Plaintiff agreed to pay a sum of Rs.15,000, and for the balance, he wanted four years time. Defendant No.1 and her husband refused to accede to such request. They insisted on the plaintiff for payment of the entire balance in a lump, In the meanwhile, an employee of Indian Bank, by name Ramji, offered to purchase the building, and he wanted to inspect the building. But plaintiff threatened him with dire consequences and so the offer could not materialise. They insisted on the plaintiff for payment of the entire balance in a lump, In the meanwhile, an employee of Indian Bank, by name Ramji, offered to purchase the building, and he wanted to inspect the building. But plaintiff threatened him with dire consequences and so the offer could not materialise. Because the plaintiff was residing in the building, a final notice was sen by first defendant’s husband on 110. 1979 stating that he will be given a last chance to purchase the building and ten days’ time was granted for the same. Plaintiff was also informed that if he was not interested, the first defendant’s husband may be compelled to take steps including sale of the property to others. For the said letter dated 110. 1979, there was no reply. The averment in the plaint that the plaintiff came to the residence of the first defendant and her husband at Kovilpatti on 20.12.1979 and finally settled the matter is false. The alleged payment of a sum of Rs.101 as token advance in pursuance of the agreement, is also false. They have not received any amount from the plaintiff. On 12. 1980 the building was sold for better consideration to the second defendant, since plaintiff did not show any interest in the matter. It is further contended in the written statement that on the basis of the plaint allegations themselves, it is clear that there is no concluded enforceable contract, and even if there was any negotiation, that was only for the purpose of entering into another agreement and not for an agreement for sale. Since there is no contract between the parties, the question of the specific performance also will not arise. 4. The trial Court decreed the suit. It held that there was concluded contract between the parties and the plaintiff was ready and willing to take a sale deed. A decree was granted. Aggrieved by the decree, defendants preferred A.S.No.99 of 1981,"on the file of District Judge, Kanayakumari at Nagercoil. The lower appellate Court referred the finding on two grounds, namely, (1) On the basis of plaint allegations themselves, it could be found that there is no concluded contract. (2) Even if there was any such contract, plaintiff was never ready to take the sale deed. The suit was dismissed. It is against the said judgment, the legal heirs of the plaintiff have come to this Court. (2) Even if there was any such contract, plaintiff was never ready to take the sale deed. The suit was dismissed. It is against the said judgment, the legal heirs of the plaintiff have come to this Court. 5. It is submitted that the original plaintiff died while the first appeal was pending before the lower appellate Court, and they were impleaded as additional respondents 2 to 6 therein. 6. At the time when the second appeal was admitted, the following questions of law were raised for consideration: "Whether the rulings relied on by the lower appellate Court, namely, Hyam v. Gubbay, 32 I.C. 53 and Keder Nath v. State, A.I.R. 1?59 Cal. 280 are distinguishable on facts, inasmuch as the facts in those judicial precedents are such that there was only a contract to enter into a contract, but in the instant case, the facts evidenced by the correspondences between the parties according to the trial Court, show that there was a concluded contract of sale?" 7. When the matter came for arguments, learned counsel for the appellants submitted that the question to be decided is, whether, on the available evidence, plaintiff has not proved his case when there is no proper counter evidence. Learned counsel for the respondents also had no serious objection for considering that question. The same will also be considered, apart from main point in this case. .8. Paragraphs 8 and 9 of the plaint are relevant for our purpose. They read thus: ."The first defendant and her husband offered to sell the plaint schedule property to the plaintiff for a price of Rs.32,000 (Rupees Thirty-two thousand) in full settlement of all the accounts between them. But the plaintiff told them that he is prepared to purchase the property on payment of Rs.30,000 (Rupees Thirty thousand) only. And finally, the first defendant and her husband agreed that the property shall be sold to the plaintiff for a consideration of Rs.30,000 (Rupees Thirty Thousand) only. This agreement for sale was made on 20.12.1979 (Twentieth December Nineteen Seventy-nine) at the residence of the first defendant at Kovilpatti in the presence of the first defendant and her husband Thiru V.R.Sundaram, the plaintiff, his son-in-law Thiru Sankaran, Telephone Inspector, Tirunelveli, and Thiru T.S. Narayana Iyer, the father of the plaintiff’s son-in-law. This agreement for sale was made on 20.12.1979 (Twentieth December Nineteen Seventy-nine) at the residence of the first defendant at Kovilpatti in the presence of the first defendant and her husband Thiru V.R.Sundaram, the plaintiff, his son-in-law Thiru Sankaran, Telephone Inspector, Tirunelveli, and Thiru T.S. Narayana Iyer, the father of the plaintiff’s son-in-law. A sum of Rs.5,000 (Rupees five thousand) was to be paid in advance and the sale deed was to be executed on payment of the balance amount of Rs.25,000 (Ruf ees Twenty-five thousand), within six months. The plaintiff paid a token sum of Rs.101 (Rupees one hundred and one) only to the first defendant at the conclusion of the agreement. The first defendant stated that besides the advance of Rs.5,000 (Rupees Five thousand), she would like to be paid another sum of Rs.10,000 (Rupees Ten thousand) more as early as possible. .9. The parties were to execute a deed of agreement for sale. The first defendant’s husband stated that he will obtain a specimen agreement from his brother who is an advocate, prepare a draft agreement embodying the terms of the sale deed and send it to the plaintiff within a week, through, his cousin V.S.Sreenivasa Iyer." 10. Defendants seriously disputed the correctness of the averments made in paragraph 8 (extracted above). According to first defendant, there is no such agreement at all at Kovilpatti, and the plaintiff also did not come to her residence. It is further said that the allegation that Rs.101 was paid as token advance for having arrived at the agreement is also a false story. It is further said that the evidence of the plaintiff himself is sufficient to disprove the case of the agreement and payment of Rs.101. .11. The lower.appellate Court has considered this question and has come to the conclusion that the payment of Rs.101 is a story invented only for the purpose of this case. It is the plaintiff’s case that when he went to Kovilpatti, he had with him Rs.5,000 for being paid as advance. If there was an agreement on that day, nothing prevented the plaintiff from paying Rs.5,000, which was one of the terms. Instead of paying that amount, the allegation is that the paid Rs.101, and that too without a receipt which cannot at all be believed. If there was an agreement on that day, nothing prevented the plaintiff from paying Rs.5,000, which was one of the terms. Instead of paying that amount, the allegation is that the paid Rs.101, and that too without a receipt which cannot at all be believed. Lower appellate Court has also takenjnto consideration the fact that before the negotiation, parties were not on good terms, and first defendant had already issued lawyer’s notice for eviction. A demand for more than a sum of Rs.9,000 was made by plaintiff on the ground that he has treated late Gomathi Animal. So, when the parties were at loggerheads, the allegation that he paid Rs.101, without receipt , and at the same time, he had with him Rs.5,000 (which could have been paid as advance since it was one of the terms of the agreement) is beyond one’s comprehension. The further allegation in the plaint also will show that for this sum of Rs.101, plaintiff does not want any deduction or adjustment. Even in the relief portion, he wants only a direction from Court to deposit a sum of Rs.30,000 and to have a sale deed in his favour. After the socalled payment of Rs.101 notices have been issued by the husband of the first defendant, wherein there is no reference either about the agreement or about the alleged payment. He has only said that the plaintiff was never ready to take the sale deed. The lower Court has further found that the plaintiff has come forward with a false story which also disentitles him to get specific performance. Ex.A-35 is a letter written by plaintiff’s husband on 112. 1979 informing him that unless the entire transaction is closed within ten days, he will be constrained to take other legal action. Ex.A-37 is a draft agreement for sale sent by the first defendant’s husband to plaintiff through V.S.Sreenivasa Iyer. There also, there is no reference to the payment of Rs.101 or about the agreement dated 20.12.1979. We must understand that the draft sent by the first defendant’s husband is dated 12. 1979. If the draft agreement is dated 12. 1979, there would not have been an oral agreement on 20.12.1979. Plaintiff has not come to Court with this agreement for sale, and finally, as per Ex.A-38, he informed the plaintiff’s son-in-law that he had already sold the building to the second defendant. 12. 1979. If the draft agreement is dated 12. 1979, there would not have been an oral agreement on 20.12.1979. Plaintiff has not come to Court with this agreement for sale, and finally, as per Ex.A-38, he informed the plaintiff’s son-in-law that he had already sold the building to the second defendant. 12. In paragraph 9 of the plaint (extracted earlier), it is clear that both the parties wanted to put down the socalled agreement in writing. Even the advance amount is paid only on the basis o9f a written agreement, and only when that amount is paid, there comes a concluded contract. Admittedly, such agreement was not executed. The lower Court has taken into consideration the fact that if the parties intended to have a formal written agreement in consequence of an earlier negotiation, unless written agreement is also executed, there cannot be a concluded contract. In this case, if the case put forward in paragraph 8 of the written statement is believed, then a contract comes into play only when a written deed is executed. It is true that there was some negotiation, and the plaintiff was" also given some time to take the sale deed. He was also informed that unless he acts within that time, the property will have to be sold to some other person. A draft agreement was also sent by the first de- fendant for necessary action. But the offer made by the first defendant, by sending the draft agreement was not acted upon by the plaintiff. 13. I find that the allegations in paragraph 9 of the plaint that the parties intended to have a written agreement, embodying the terms and conditions. Ex.A-37 is a draft sale agreement. Apart from what is stated in paragraph 8 of the plaint, further details are provided in Ex.A-37. If the intention of the parties was to have another agreement, what is the effect of the so called oral arrangement as pleaded by plaintiff. 14. The same has been considered in various decisions of Privy Council and also this Court. .15. In ‘Chitty on Contracts’ - General Principles, while dealing with incomplete agreement (at page 107) under Sec.104, the learned Author has said thus: ."Stipulation for the execution of a formal document. 14. The same has been considered in various decisions of Privy Council and also this Court. .15. In ‘Chitty on Contracts’ - General Principles, while dealing with incomplete agreement (at page 107) under Sec.104, the learned Author has said thus: ."Stipulation for the execution of a formal document. - The question whether the parties have reached a complete agreement frequently arises where there has been an agreement in general terms but the parties have stipulated for the execution of some further formal document. The problem then is whether the agreement is too general to be valid in itself and is dependent on the making of a formal contract, or whether the parties have in fact completed their agreement so that the execution of a further formal contract is intended only as a solemn record of the’ already completed agreement. This is a question of construction for the court. In the words of Parker, J. in Von Hatzfeldt-Wildenburq v. Alexander: "It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored." .16. In ‘Indian Contract Act and Specific Relief Acts’ by Pollock & Mulla -11th Edition (1994), the learned has said thus at page 125: ."In deciding whether a contract is a concluded contract or not the essential question is to find out whether the formal document is of such a nature that it was the very condition of the contract or whether it was commemorative of the evidence on the point. In order to decide this matter the entire negotiations and the correspondence on which the contract depends must be considered. In order to decide this matter the entire negotiations and the correspondence on which the contract depends must be considered. It is a matter of construction whether the execution of a further contract is a condition of the contract or a mere expression of a desire of the parties as to the manner in which the transaction already agreed to will go through. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. But there may be cases where the signing of a further formal agreement is made a condition or term of the bargain and if the formal agreement is not approved and signed there is no concluded contract.“ 17. In Harichand Mancharam v. Govind Laxman Gokhale, A.J.R. 1923 PC. 47: 44 M.L.J. 608 it was held thus: ”Whether an agreement is a completed bargain or merely a provisional arrangement depends on the intention of the parties as deducible from the language used by the parties on the occasion when the negotiations take a concrete shape. As observed by the Lord Chancellor (Lord Cranworth) in Ridgway v. Walton, the fact of a subsequent agreement being prepared may be evidence that the previous negotiation did not amount to an agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proportion that they cannot be bound by a previous agreement.“ 18. Same is the principle laid down in the decision reported in Hukum Chand v, Ran Bahadur Singh, AI.R. 1924 P.C. 156: 47 M.L.J. 562. 19. The decision in Harichand Mancharam v. Govind Laxman Gokhale, A.I.R. 1923 P.C. 47:44 M.L.J. 608 is followed in the decision reported in Currimbhoy & Co. Ltd. v. L.A.Creet and others, 64 M.L.J. 163 wherein it was held thus: ” Where the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is binding contract and the reference to the mere formal document may be ignored.“ .20. In S.N.Mundade v. New Mofussil Co. Ltd., A.I.R. 1946 P.C. 97: (1946)2 M.L.J. 249: 73 LA. 48 (2); 224I.C. 598 their Lordships said that ‘By the law of India, an oral contract is valid and enforceable; but in such a case it is a question of construction whether the execution of the further written contract is a condition or term of the bargain, or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through’. On the facts of that case, under the oral agreement itself, the parties entered into a concluded contract, and the idea of putting the terms of the agreement into a formal contract, was only superfluous. .21. In H.G.Krishna Reddy & Co. v.M.M.Thimmiah, A.I.R 1983 Mad. 169: (1983)1 M.L.J. 467 a Division Bench of this Court held thus: .”If a document which is entered into between two parties and which is relied on as constituting a contract contemplates the execution of a further regular agreement between the parties, it is a matter of construction whether the execution of a further contract is a condition of the terms of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement should be performed. In the former case, there cannot be any enforceable contract unless the condition is fulfilled or on the ground that law does not recognise a contract to enter into a contract. The fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to an agreement, but the mere fact that persons wish to have a formal agreement drawn up does.not establish the proposition that they cannot be bound by a previous agreement. When there is a written document which is followed by further negotiations in the form of correspondence, the entirety of the correspondence has to be looked into to find out whether there has been a completed contract or not...“ 22. When there is a written document which is followed by further negotiations in the form of correspondence, the entirety of the correspondence has to be looked into to find out whether there has been a completed contract or not...“ 22. In Killipar.a Sriramulu v. T.Aswatha Narayana, A.I.R. 1968 S.C. 1928: (1968)2 S.C.W.R. 848 it was held thus: ”The question is whether the oral agreement was ineffective because the parties contemplated the execution of a formal document or because the mode of payment of the purchase money was not actually agreed upon. It was submitted on behalf of the appellant that there was no contract because the sale was conditional upon a regular agreement being executed and no such agreement was executed. This argument is not correct. It is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. As observed by the Lord Chancellor (Lord Cranworth) in Ridgway v. Wharto the fact of the subsequent agreement being prepared may be evidence that the previous negotiation did not amount to a concluded agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement. In Von Hatzfeldt Wildenburg v. Alexander, it was stated by Parker, J. as follows: "It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled, or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the mere formal document may be ignored." In other words, there may be a case where the signing of a further formal agreement is made a condition or term of the bargain, and if the formal agreement is not approved and signed there is no concluded contract. In Rossiter v. Miller Lord Cairns said, "If you find not an unqualified acceptance subject to the con- dition that an agreement is to be prepared and agreed upon between the parties, and until that condition is fulfilled no contract is to arise then you cannot find a concluded contract." In Currimbhoy and Company Ltd. v. Creet, the Judicial Committee expressed the view that the principle of the English law which is summarised in the judgment of Parker, J. in Von Hatzfeldt Wildenburg v. Alexander, was applicable in India. ..." 23. In this case also, there is an admission in the pleading that an agreement is to be prepared and agreed upon between the parties. Payment of advance of Rs.5,000 is one of the clauses which must be paid along with the written agreement. The full terms and conditions of the agreement are also to be written. 24. In the above circumstances, the finding of the lower appellate court that till a written agreement is executed there is no concluded contract is to be confirmed. 25. That will be sufficient for dismissing this second appeal. The question of law raised at the time of admission of the second appeal is found against the appellants. 26. Learned counsel for the appellants contended that as against the plaintiffs, the best evidence that could be adduced is that of the first defendant. She has not entered the box and, therefore, his evidence has to be taken as Gospel Truth. 27. I do not agree with the said submission. In this case, the first defendant’s husband has been examined as D.W.1. Even in the plaint, it is admitted that the first defendant’s husband was looking after the affairs of the first defendant in regard to the plaint schedule property. The entire correspondence was also between the plaintiff and D.W.1. 27. I do not agree with the said submission. In this case, the first defendant’s husband has been examined as D.W.1. Even in the plaint, it is admitted that the first defendant’s husband was looking after the affairs of the first defendant in regard to the plaint schedule property. The entire correspondence was also between the plaintiff and D.W.1. Under Sec.120 of the Evidence Act, husband is a competent witness for the wife and merely because the first defendant has not been examined, nothing turns in favour of the appellant. Again, in civil cases decision is to be arrived at preponderance of probabilities. In this suit, it is not the personal knowledge of the first defendant that is sought to be elicited. Therefore, the non-examination of the first defendant does not advance the case of the plaintiff in any way, nor does it affect the rights of the first defendant. Therefore, no adverse inference need to drawn against the defendants. 28. In the result, I do not find any merit in this second appeal, and the same is accordingly, dismissed with costs.