COMMON JUDGMENT G. RAJASURIA, J. 1. These two appeals are focussed as against the judgment and decree dated 9.12.1994 passed by the learned Principal Subordinate Judge, Erode in decreeing the suit in O.S. No. 228 of 1996 which was filed by the plaintiffs for specific performance as against the defendants. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Tersely and briefly, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus: The suit property measuring an extent of 3 acres and 90 Cents situated in Ooduthurai Village, Erode, Bhavani Taluk, Erode belongs to the Hindu joint family comprised of the first defendant and his son. the second defendant, of whom the first defendant is the Kartha of the family. While the second defendant was minor, the first defendant, being the Kartha of the Hindu joint family on the one side and the plaintiffs on the other side entered into Exhibit A-1 dated 3.6.1983 the agreement to sell; whereby, the defendants undertook to sell the suit property in favour of the plaintiffs for the sale consideration of Rs. 45,000/- and a sum of Rs. 10,000/- was paid as advance. Period for performance was 45 days, i.e., the last date fixed was 18.7.1983. The plaintiffs were put in possession of the suit property in pursuance of Exhibit A-1, whereupon the plaintiffs started cultivating the suit property also. Even though the plaintiffs have been ready and willing to perform their part of the contract by paying the remaining portion of the sale consideration, nonetheless the defendants have not come forward to receive the balance sale consideration and execute the sale deed. The plaintiffs’ telegram dated 16.7.1983 evoked no positive response. D. Anthioor Munusamy, known as Japan in the locality intervened and offered to mediate but his attempt ended in a fiasco. Thereafter, the matter was referred to Rajendran Exhibit VM of Suriampalayam Village and the balance sale consideration was handed over to him. He tried to mediate, but it also ended in vain. Hence the suit. 3. During the pendency of the suit, the first defendant with his henchmen trespassed into the suit property on 26.7.1990 and took forcible possession. Thereafter, the matter was referred to Rajendran Exhibit VM of Suriampalayam Village and the balance sale consideration was handed over to him. He tried to mediate, but it also ended in vain. Hence the suit. 3. During the pendency of the suit, the first defendant with his henchmen trespassed into the suit property on 26.7.1990 and took forcible possession. A complaint to the police in that connection led to the registration of the case as against the first defendant and his men and the criminal case is pending. Hence, the plaintiffs while seeking for specific performance of the agreement to sell were constrained to pray for delivery of possession of the suit property. Accordingly, the plaintiffs filed the suit. 4. Contradicting and impugning the allegations/averments in the plaint, the first defendant filed the written statement as under; The first plaintiff and his father were cultivating the suit property on lease basis under the first defendant under the first defendant. But they failed to pay the lease amount to the first defendant which necessitated him to file the eviction petition i.e. CTP No.44 of 1989 before the Revenue Divisional Officer, Gobichettipalayam who ordered delivery of possession in favour of the first defendant, who took possession of the suit property from the first plaintiff and his father on 11.5.1983. There was a panchayat between the plaintiffs and their father on the one side and the first defendant on the other side and as a result of which there was a compromise effected on 11.5.1983 itself. As per the compromise, the plaintiffs agreed to pay a sum of Rs. 55,000/- to the defendants and agreed to purchase the suit property and a sum of Rs. 10,000/- was paid as advance to the first defendant. Time limit of 45 days was stipulated for performance. Under the Exhibit A-1 agreement, the suit property was agreed to be in the possession of the first defendant. The plaintiffs were not put in possession of the suit property under Exhibit A-1 as alleged in the plaint. Even though the first defendant was ready and willing to perform his part of the contract, the plaintiffs were protracting the performance. Time was the essence of the contract. Falsely, the plaintiffs sent the telegram dated 18.7.1983. The plaintiffs were not put in possession of the suit property under Exhibit A-1 as alleged in the plaint. Even though the first defendant was ready and willing to perform his part of the contract, the plaintiffs were protracting the performance. Time was the essence of the contract. Falsely, the plaintiffs sent the telegram dated 18.7.1983. The plaintiffs as per the settlement requested the first defendant to be present in the Sub Registrar Office, Goundanpadi, whereupon the first defendant was waiting at the Sub Registrar office concerned from the morning till the evening for nothing but to return home without any useful purpose. The first defendant also applied for encumbrance certificate, vide copy application bearing Number 411 filed during the morning hours of that day and once again, he filed another copy application bearing Number 414 during evening hours, which would prove that he was present there throughout the day. Reference in the plaint relating to the alleged intervention of mediators is an utter falsehood. The contention of the plaintiffs that the remaining part of the sale consideration was paid to Rajendran, is nothing but false. The plaintiffs did not possess the financial wherewithal to get the sale deed executed by paying the balance sale consideration. Accordingly, he prayed for dismissal of the suit. 5. The first defendant also filed one another written statement after the plaintiffs got the plaint amended for incorporating the relief of delivery of possession of the suit property along with the prayer for specific performance. 6. The first defendant’s further contention would run thus: The plaintiffs filed the suit property as though they were in possession of the suit property as on the date of filing of the suit. In view of the false stand taken by them they are not entitled to equitable relief of specific performance. Accordingly, prayed for dismissal of the suit. 7. The second defendant filed the written statement on 6.8.1987 with the averments, which would run thus: The first defendant is not the Kartha of the family. The second defendant is not living with the first defendant. For benefit of the joint family, the first defendant did not enter into such an agreement to sell (Exhibit A-1). There was no necessity for the first defendant to sell the suit property. The suit property is the joint family property. The second defendant is not living with the first defendant. For benefit of the joint family, the first defendant did not enter into such an agreement to sell (Exhibit A-1). There was no necessity for the first defendant to sell the suit property. The suit property is the joint family property. The first defendant picked up quarrel with his wife and the second defendant and they were driven out of the house. Whereupon the second defendant and his mother started living with the first defendant’s grandfather’s house at Gouthamapoondi and he was studying in Sakthi Sugar High School. Exhibit A-1 emerged due to collision between the plaintiffs and the first defendant. The suit properties as on date of Exhibit A-1 was worth much more than what was contemplated in Exhibit A-1. The first defendant is owing coconut thope in Coimbatore and getting good income. There was no necessity to sell the suit property. No advance was paid to the first defendant under Exhibit A-1. The suit property is in possession and enjoyment of the first defendant only. No notice was sent to the second defendant by the plaintiffs. As such, the second defendant is entitled to seek partition of the suit property as against the first defendant. Accordingly he prays for the dismissal of the suit. 8. The first defendant filed one another additional written statement averring that the additional prayer for possession is untenable as per law and would lead to misjoinder of cause of action. On 8.7.1984, the first defendant filed yet another written statement to the effect that the insertion of additional para 9(a) in the plaint setting out the reason for seeking possession of the suit property by the plaintiffs by making allegations as against the first defendant, is untenable. (On 3.12.1993 and 8.7.1994 two memos were filed by the second defendant adopting the additional written statement filed by the first defendant.) 9. During trial, on the side of the plaintiffs, P.W.1 Shanmugam was examined along with P.W.2 and Exhibit A-1 and Exhibit A-3 were marked. The defendants D1 and D2 were examined as D.W.1 and D.W.2 along with D.W.3 and D.W.4 and Exhibit B-1 to Exhibit B-50 were marked. The trial Court ultimately decreed the suit as prayed for. 10. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the first and second defendants filed separate appeals in A.S. Nos. The defendants D1 and D2 were examined as D.W.1 and D.W.2 along with D.W.3 and D.W.4 and Exhibit B-1 to Exhibit B-50 were marked. The trial Court ultimately decreed the suit as prayed for. 10. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the first and second defendants filed separate appeals in A.S. Nos. 84 of 1995 and 296 of 1995 respectively. 11. The pith and marrow of the grounds of appeal as found set out in A.S. No. 84 of 1995 filed by the first defendant would run thus: The judgment and decree of the trial Court is against law, weight of evidence and all probabilities of the case. Even though the plaintiffs have not adduced evidence in support of their contention, nevertheless the trial Court decreed the suit in toto. The discretionary remedy of specific performance should not have been granted by the trial Court in favour of the plaintiffs who failed to prove the case. The plaintiffs failed to prove that there was a valid contract under Exhibit A-1 and no issues were framed relating to validity of Exhibit A-1. The trial Court failed to hold that the plaintiffs were not ready and willing to perform their part of the contract. The trial Court failed to note that the time was the essence of contract under Exhibit A-1. Without deciding the matter on evidence, the lower Court simply held as though time was not the essence of the contract. The conduct of the plaintiffs have not been considered by the trial Court. Had the plaintiffs been in possession of the remaining part of the sale consideration, they would have paid the same to the first defendant; but they did not do so. The trial Court was wrong in holding that the plaintiffs were present at the Registrar Office, whereas the first defendant was not present there. Accordingly, he prayed for the dismissal of the suit. 12. The trial Court failed to note that the plaintiffs’ father, at the instance of the plaintiffs filed the suit in O.S. No. 360 of 1990 in the Court of learned District Munsif, Bhavani against the first defendant and others denying the title of the first defendant over a portion of property covered under Exhibit A-1 and that would prove the conduct of the plaintiffs in not being ready to perform their part of the contract. Accordingly, the first defendant prayed for setting aside the judgment and the decree of the trial Court and for dismissing the original suit. 13. The second defendant filed the separate appeal in A.S. No. 296 of 1995 on the following grounds among others: (i) The judgment and decree of the trial Court is against law, weight of evidence and probabilities of the case. (ii) Exhibit A-1 did not emerge for raising finance for the need of the joint family. The trial Court should have held that there was no joint family at all in existence. 14. The first defendant had no authority to represent the second defendant in Exhibit A-1 which contemplates meagre sale consideration. Time was the essence of contract under Exhibit A-1 but the plaintiffs were guilty of latches and they virtually abandoned their right. Accordingly, the second defendant prayed for setting aside the judgment and decree of the suit and for dismissing the suit. 15. The points for consideration in both the appeals are as to: (i) Whether the first and the second defendant constituted a Hindu joint family? (ii) Whether the suit property happened to be the property of such joint family? (iii) Whether the first defendant as Kartha of the Hindu undivided family, for financial necessity of such family entered into Exhibit A-1 with the plaintiffs? (iv) Whether time was essence of contract under Exhibit A-1 and if so whether the plaintiffs committed default? (v) Whether there is any infirmity in the judgment and decree of the trial Court? 16. The points 1, 2 and 3 taken together for discussion as they are inter-linked and inter-woven with one another. A resume of facts absolutely necessary and germane for the disposal of this appeal would run thus: The quintessence of the case of the plaintiffs, is that the first defendant failed to perform his part of the contract in executing the sale deed in favour of the plaintiffs, even though they were ready and willing to perform their part of the contract. 17. Per contra , the pith and marrow of the case of the first defendant is that the plaintiffs had no financial wherewithal to perform their part of the contract and they committed default in not coming to the Sub-Registrar’s office even though the first defendant was waiting from the morning till evening of 18.7.1983, the date fixed for execution of the sale deed. The second defendant, the son of the first defendant would contend that the suit property was the joint family property and the first defendant had no authority to alienate as the Kartha of the family and that the family was not in need of money or in a cash strapped situation at the relevant time. 18. Indubitably the second defendant is the son of the first defendant. The first defendant in his deposition would candidly and categorically depose that the suit property happened to be the ancestral property which came into his hands. The second defendant, the son of the first defendant, in his written statement as well as in his deposition as D.W.4 would assert that the suit property happened to be the ancestral property over which he had share. Exhibit A-1, the agreement to sell dated 3.6.1983, which emerged between the plaintiffs on the one side and the first defendant on the other side, would recite unambiguously and unequivocally that the suit property happened to be the ancestral property of the first defendant. Unassailably, as on the date of emergence of Exhibit A-1, the second defendant was a minor and the parties were Hindus. In such a case there could be no hesitation to hold that the suit property happened to be the joint family property of the first defendant and the second defendant and that at the relevant time of execution of the sale deed, the second defendant was a minor. The plaintiffs are debarred from pleading otherwise. It is also evident that the first defendant being the father was the Manager of the Hindu joint family. It is a trite proposition of Hindu law that Kartha of the family could sell the suit property only for the family necessity and not for any other purposes and that too, when one of the co-parceners is a minor. In this connection, the learned counsel for the first defendant cited the following decisions: (i) Manohari Devi and Others v. Choudhury Sibanava Das and Others AIR 1983 Orissa 135. (ii) Vishwambhar and Others v. Laxminarayan (dead) through LRs.and Others AIR 2001 SC 2607 : (2001) 6 SCC 163 . (iii) Dwarampudi Nagaratnamba v. Kunuku Ramayya and An other AIR 1963 Andhra Pradesh 177 (V 60 C 60) (iv) Bhupal and Others v. Mam Chand and Others AIR 1973 Allahabad 543 (V 60 C 190). (ii) Vishwambhar and Others v. Laxminarayan (dead) through LRs.and Others AIR 2001 SC 2607 : (2001) 6 SCC 163 . (iii) Dwarampudi Nagaratnamba v. Kunuku Ramayya and An other AIR 1963 Andhra Pradesh 177 (V 60 C 60) (iv) Bhupal and Others v. Mam Chand and Others AIR 1973 Allahabad 543 (V 60 C 190). (v) Sri Kakulam Subrahmanyam and Another v. Kurra Subba Rao AIR 1948 Privy Council 95 : (1948) 2 MLJ 22 (PC) (vi) Balmukand v. Kamla Wati and Others AIR 1964 SC 1385 (V 61 C 182). A mere perusal of those judgments would leave no doubt in the mind of the Court that the burden of proof is on the alienees to prove that the alienation made by the Kartha of the family was for the welfare of the minor sharer in the joint family. 19. In this case, no sale effected but only an agreement to sell emerged, however the same logic is applicable in respect of Exhibit A-1 also. The perusal of the evidence would demonstrate that the plaintiffs are in no way established either by oral or documentary evidence that the Kartha of the family the first defendant agreed to sell the suit properties under Exhibit A-1 so as to raise money for the family necessities and moreso for the welfare of the minor. However, this point relegates to a lower level for the reason that Exhibit A-1 emerged so far this case is concerned as a compromise so as to purchase peace on either side. 20. Exhibit A-3 dated 12.5.1983, which is a Panchayat Muchalika would demonstrate that before the panchayatars, the plaintiffs and Dl agreed to enter into an agreement to sell, which has subsequently took the shape of Exhibit A-1. Exhibit A-3 as well as the oral evidence on either side would unambiguously highlight that earlier D1 leased out in favour of Karuppana Gounder, the father of the first and second plaintiffs the suit property for cultivation; in view of the default in payment of rent by the tenant, D1 instituted proceedings as against the Karuppana Gounder in MCTP 67/57 before the Revenue Divisional Officer, Gobichettipalayam for evicting him; whereupon the order as per Exhibit B-5 emerged in favour of D1; Exhibit B-16 is the possession Certificate, which would reveal that the suit property was handed over to D1 by the revenue officials concerned on 10.5.1983. Exhibit A-3 the Panchayat Muchalika emerged on 12.5.1983, so to say, shortly after Exhibit B-16. The recitals in Exhibit A-3 would show that the Panchayatars intervened purely for the purpose of bringing about peace in that locality between D1 and the plaintiffs. Consequently, Exhibit A-1, the agreement to sell emerged. It is therefore, crystal clear that it is not an ordinary case of a willing purchaser approaching a willing seller relating to an immovable property for getting sale executed on payment of sale consideration, but for the purpose of bringing about an amicable settlement between the rival parties, who were at logger heads; and could not see, eye to eye, Exhibit A-3 would not have emerged and consequently, Exhibit A-1 would not have been brought about. However, I would not incline to hold that Exhibit A-1 was brought about under coercion or undue influence. D1 also in his written statement had no intention to resile from his commitment under Exhibit A-1. Hence, in such a case, it is clear that D1 though not for family necessity or for the welfare of the minor, entered into such agreement of sale as per Exhibit A-1 with the plaintiffs, yet for the purpose of purchasing peace he agreed to the terms and conditions in the agreement of sale. In this view of the matter, Exhibit A-1 cannot be held to be an illegal document or an invalid document on the ground that D1 never intend to sell for the welfare of the family and more so, for the welfare of D1. Purchasing peace is also in one way for the welfare of the family and for the welfare of the minor member of the joint family. Hence, in this view of the matter I hold Point No. 1 is decided to the effect that the first and second defendants constituted a Hindu Joint Family. Point No. 2 is decided to the effect that the suit property happened to be the joint family property and Point No. 3 is decided to the effect that the Kartha of the Hindu Joint Family even though never intended to sell the suit property for financial necessity yet for the welfare of the joint family and also for the welfare of the minor by way of compromise entered into such agreement with the plaintiffs and accordingly, Exhibit A-1 is a valid document. Point No. 4 : 21. Point No. 4 : 21. The learned senior counsel appearing for the first defendant would cite various decisions as found set out infra and develop his argument to the effect that blindly, it cannot be taken that time is not an essence of contract relating to immovable property under an agreement of sale. When the parties got the time stipulated for performance, then time would be the essence of contract and in such a case, if there are laches on any one’s part in adhering to the time limit so fixed, it would amount to breach of the agreement to sell. 22. Time is the essence of the contract : Learned senior counsel for the first defendant would cite the following decisions to highlight that in appropriate cases, time could be construed as the essence of an agreement of sale. An excerpt from para Nos. 19, 21 and 25 in Chand Rani v. Kamal Rani (1993) 1 SCC 519 would run thus: “19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.” 21. In Govind Prasad Chaturvedi v. Han Dutt Shastri following the above ruling it was held at pages 543-544: “... it is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract, (vide Gomathinayagam Pillai v. Pallaniswami Nadar at P. 233). When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract, (vide Gomathinayagam Pillai v. Pallaniswami Nadar at P. 233). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.” 25. From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. from the express terms of the contract, 2. from the nature of the property; and 3. from the surrounding circumstances, for example: the object of making the contract.” 23. On the similar lines, the following decisions also emerged: (i) Saradamani Kandappan v. S.Rajalakshmi and three Others 2002 (3) CTC 277 . (ii) Indravanthi v. Kamala AIR 2001 Madras 127 : (2000) 3 MLJ 106 (iii) S.S. Chokkalingam v. R.B.S. Mani and 6 Others 1994 (1) LW 321 (iv) K.S. Vidyanadam and Others v. Vairavan AIR 1997 SC 1751 : (1997) 3 SCC 1 24. The learned senior counsel appearing for the plaintiffs would in all fairness submit that there could be no quarrel over the proposition as put forth by the learned senior counsel for D1 and also the dicta as found set out in the decisions cited on the side of the plaintiffs. 25. Hence, in this factual matrix, it is to be seen as to whether in this case, time was the essence of the contract. The learned senior counsel for D1 would draw the attention of this Court to Exhibit A-3 and advance his argument that a specific time limit was fixed before the Panchayatars that on or before 19.5.1983, a sum of Rs. The learned senior counsel for D1 would draw the attention of this Court to Exhibit A-3 and advance his argument that a specific time limit was fixed before the Panchayatars that on or before 19.5.1983, a sum of Rs. 10,000/- should be paid by the plaintiffs to D1 and thereafter, within 25.6.1983, the agreement of sale should emerge between the plaintiffs on the one side and D1 on the other side. It is therefore, crystal clear from Exhibit A-3 itself that the parties were time conscious relating to performance and the panchayatars also agreed to it and in those circumstances, the Panchayat Muchalika Exhibit A-3 emerged. To the risk of repetition, without being tautologous, I would highlight that Exhibit A-1 is not a mere agreement of sale, which emerged under normal circumstances between a willing purchaser and a willing seller but it emerged at a time between the parties to purchase peace. In such a case, without any hesitation, this Court could hold that so far Exhibit A-1 is concerned, time was the essence of the contract. Exhibit A-1 would demonstrate that it emerged on 3.6.1983. The learned senior counsel for D1 would convincingly submit that even though in Exhibit A-3 for payment of Rs. 10,000/-as advance time was contemplated as one on or before 19.5.1983, such payment was not made. However, the sum of Rs. 10,000/- as advance was paid only on 3.6.1983, at the time of emergence of Exhibit A-1; even then, D1 was adjustable and was also ready and willing to perform his part of the contract, but the plaintiffs committed default in performing the contract as they did not have the financial wherewithal to pay the remaining sale consideration of Rs. 35,000/- on or before 18.7.1983, so to say, almost 45 days from the date of emergence of Exhibit A-1. As has been already held supra, in this case, time stipulated was not an empty formality. But the parties consciously, as per the decision taken in the panchayat stipulated the time limit so as to purchase peace, it is therefore, just and necessary to analyse as to whether the respective parties were ready and wiping to perform their part of the contract. But the parties consciously, as per the decision taken in the panchayat stipulated the time limit so as to purchase peace, it is therefore, just and necessary to analyse as to whether the respective parties were ready and wiping to perform their part of the contract. So far, this case is concerned, the role of D1 under Exhibit A-1 was only to receive the remaining part of the sale consideration of Rs.35,000/- from the plaintiffs and execute the sale deed and it is quite obvious and axiomatic that under the agreement of sale, the purchaser alone should prepare the sale deed on stamp papers and tender the remaining part of the sale consideration to the defendant and demand him to come for executing the sale deed at the Registrar office. Peculiarly, in this case, Exhibit A-2, the telegram dated 16.7.1983 sent by the plaintiffs to the defendants would reveal that the plaintiffs called upon D1 to be present on Monday, the 18.7.1983 between 11.00 a.m and 12 noon to execute the sale deed, on receipt of the money there from the plaintiffs. It is relevant to note that the plaintiffs have not chosen to send any notice earlier to the telegraphic notice. But, in the telegraphic notice they would refer to the fact as though the plaintiffs were ready and willing to perform their part of the contract and for which, they made several requests earlier, but it was D1, who postponed it. If that be so, it is not known as to why they had not chosen to send any notice earlier to 16.7.1983 and that too, when it is also obvious that 18.7.1983 was the last date for performance of the agreement of sale under Exhibit A-1. 26. The learned senior counsel for the defendant, would convincingly and appropriately advance his arguments to the effect that had really been the plaintiffs ready with the remaining part of the sale consideration, then it is not known as to why, they should have waited to file a suit for specific performance up to 16.7.1986, so to say, almost up to the verge of the expiry of the limitation period of three years as contemplated under the law of limitation. Exhibit A-2 emerged on 16.7.1983 whereas the suit was filed only during the year 1986. 27. Exhibit A-2 emerged on 16.7.1983 whereas the suit was filed only during the year 1986. 27. Over and above such glaring fact, which exposed the unreadiness and unwillingness on the part of the plaintiffs to put forth their part of the contract, they would come forward with the specific case as though, they approached one Athiyur Munusamy Naidu popularly known as “Japan” for mediation; after he having failed to mediate; they approached one Rajendran and he also failed to mediate; whereas the defendants would deny in toto those alleged mediations attempted by the said Japan or Rajendran. In such an event, the onus of proof lies on the plaintiffs to prove their plea by examining the said Japan as well as the said Rajendran about the mediation. Even though, it is also the case of the plaintiffs that the remaining part of the sale consideration was given to Rajendran to mediate for effectively, nonetheless, the said Rajendran was not examined. The learned senior counsel for the defendants would highlight the fact that even in respect of such fact there are contradictions. Quite antithetical to what the plaintiffs averred in para No.8 of the plaint, that the said remaining part of the sale consideration was given to Rajendran, during cross examination P.W.1 would depose that a sum of Rs.50,000/- was given to Munisamy Naidu popularly known as Japan. The question arises as to whether the remaining part of the sale consideration was given to Munisamy Naidu (Japan) or to Rajendran. An excerpt from the deposition of P.W.1 during cross examination could be extracted for ready reference as under: By way of adding fuel to the fire, over and above, in failing to examine the alleged mediators “Japan” and Rajendran, P.W.1 further worsened his case by coming forward with a self-contradictory version relating to the alleged payment of the remaining part of the sale consideration. 28. Once again the trial Court fell into error in accepting the contention of the plaintiffs that the plaintiffs handed over the money to the alleged mediator. My discussion supra would highlight as to how the versions of the plaintiffs are fraught with self-contradictory statements. Without considering these aspects, simply the trial Court believed the case of the plaintiffs. 29. It is a trite proposition of law that preponderance of probabilities will govern the adjudication in civil cases. My discussion supra would highlight as to how the versions of the plaintiffs are fraught with self-contradictory statements. Without considering these aspects, simply the trial Court believed the case of the plaintiffs. 29. It is a trite proposition of law that preponderance of probabilities will govern the adjudication in civil cases. The probabilities are in favour of the defendants rather than in favour of the plaintiffs in this case. D1 by way of fortifying and buttressing his stand; in response to Exhibit A-2, the telegraphic notice received by him from the plaintiffs, promptly visited the Sub Registrar Office concerned on 18.7.1983. Exhibits B-19 and B-20, the receipts issued by the Sub Registrar’s office at Gounthampadi would demonstrate and evidence that on 18.7.1983, D1 visited the said place and paid fees for obtaining encumbrance certificate. As such, those receipts would strengthen the genuineness of the stand of D1 that he was ready and willing to perform his part of the contract by presenting himself at the Registrar’s office in compliance with the telegraphic notice. However, there is no such clinching evidence to show that the plaintiffs were present at the Sub Registrar’s office, having with them, the remaining pan of the sale consideration. The deposition of P.W.2 fails to carry conviction with this Court as his deposition, which is his ipse dixit in no way is capable of explaining the various pit falls as found discussed supra. 30. The trial Court fell into error in understanding Exhibits B-19 and B-20 and held wrongly by finding as though there was no authenticity that D1 alone filed those applications and that he had not shown any interest in getting the necessary document from the Registrar office pursuant to those recitals Exhibits B-19 and B-20. I would like to point out that in one and the same day, two times fees were paid by Annamalai, the first defendant. As per Exhibit A-2, the plaintiffs called upon Annamalai-D1 to be present at the Sub Registrar’s office concerned and in such a case, even the maxim “ Res Ipsa loquitur ” – (the thing speaks for itself) would be applicable in support of D1’s case. Simply because, without any basis, the plaintiffs challenged the genuineness of Exhibits B-19 and B-20, the trial Court was not justified in raising doubts and looking askance at those documents. Simply because, without any basis, the plaintiffs challenged the genuineness of Exhibits B-19 and B-20, the trial Court was not justified in raising doubts and looking askance at those documents. In normal circumstances, ‘genuineness of course of events all evidences should be taken to have occurred, in adjudging cases. At this juncture, I recollect the following maxims: (i) Omnia Praesumuntur legitime facta donec probetur in contrarium – (All things are presumed to be lawfully done, until proof be made to the contrary). (ii) Omnia Praesumuntur rite et solemniter esse acta donee probetur in Contrarium – (All things are presumed to have been rightly and duly performed until it is proved to the contrary). (iii) Omnia Praesumuntur solemniter esse acta – (All things are presumed to have been done rightly). As such, these maxims would highlight that in normal circumstances, the course of events, can be understood to have happened unless the contrary is proved. Here, the plaintiffs whose burden to prove their readiness and willingness to perform their part of the contract have not adduced any iota or shred of evidence, but on the contrary the defendants adduced evidence both oral and documentary, i.e., Exhibits B-19 and Exhibits B-20 and even then the trial Court misconstrued the genuine plea of the defendants and negatived it. 31. If the party, capable of producing evidence, fails to produce the same, then the legal presumption is that had he produced, it would be against him. 32. Illustration (g) to Section 114 of the Indian Evidence Act, 1872 would come into play. “That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it” Had really the mediation taken place before “Japan” or Rajendran, then there would have been no rhyme or reason on the part of the plaintiffs in not summoning any of those witnesses to prove the said fact and also about the alleged payment of the remaining part of the sale consideration. 33. The learned senior counsel for the plaintiffs would submit that the first defendant did not prove that he was present at the Sub Registrar office, but even then, the plaintiffs were present and that shows the readiness and willingness to perform their part of the contract. 33. The learned senior counsel for the plaintiffs would submit that the first defendant did not prove that he was present at the Sub Registrar office, but even then, the plaintiffs were present and that shows the readiness and willingness to perform their part of the contract. Had really the plaintiffs been present as per their Exhibit A-2, the telegraphic notice, it is not known as to what prevented them to issue any notice immediately on the next day or thereafter within a reasonable time to issue any notice to D1 highlighting the default committed by him in not coming to the Registrar Office, but that was not done so. Surprisingly and unbelievably, they would come forward with some additional plea as though the amount that was allegedly paid to “Japan” during 1983 was with him. Exhibit A-2 would read as though the plaintiffs intended to pay the remaining sale consideration on 18.7.1983 to D1 at the Sub Registrar’s Office where as it is their case even in 1983, they entrusted the money to “Japan” or Rajendran. In such a case, it is not known when the plaintiffs got back the money from the mediator and it is also not known whether over and above, what they gave to mediator, they raised fresh sum to pay to D1 on 18.7.1983. Absolute, there is no explanation in that regard. 34. Readiness and willingness to perform the contract : Learned counsel for D1 cited the following decisions to canvass the point that the plaintiff should be ready and willing to perform his part of the agreement of sale. (i) The Division Bench of this Court, in G. Chelliah Nadar (died) and 4 Others v. Periasami Nadar and 3 Others (1993) 2 MLJ 272 : 1993 (2) LW 84 held that there should not be any unexplained delay on the part of the plaintiffs in seeking the remedy of relief of specific performance. (ii) The decision of the Hon’ble Apex Court in N.P. Thirugnanam (D) by LRs. v. Dr. R. Jagan Mohan Rao and Others AIR 1996 SC 116 : (1995) 5 SCC 115 : (1995) 2 MLJ 118 would lay down the law to the effect that if the evidence shows that the plaintiff was never read with resources and money to fulfill his part of the contract, he could not succeed in his suit for specific performance. R. Jagan Mohan Rao and Others AIR 1996 SC 116 : (1995) 5 SCC 115 : (1995) 2 MLJ 118 would lay down the law to the effect that if the evidence shows that the plaintiff was never read with resources and money to fulfill his part of the contract, he could not succeed in his suit for specific performance. Here my discussion supra would highlight that the contention of the plaintiffs that they were ready with the remaining part of the sale consideration was never proved by them in any of the ways known to law. As such, the cited decision of the Hon’ble Apex Court would operate against the plaintiffs herein. The following are also the decisions cited on the side of D1, by way of canvassing the same law point relating to readiness and willingness in performing the obligation under the agreement to sell. (i) His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar AIR 1996 SC 2095 : (1996) 4 SCC 526 (ii) Embar Naidu v. Rathnam Chetiair and Another (2003) 2 MLJ 115 : 2003 (2) CTC 385 (iii) Y.R. Mahadev v. K. Davalan 1998 AIHC 1078 (iv) H.P. Pyarejan v. Dssappa (dead) by L.Rs. and Others 2006 (3) LW 124 (v) Pushparani S. Sundaram and Others v. Pauline Manomani James (deceased) and Others (2002) 9 SCC 582 (vi) Raj Rani Bhasin and Others v. S.Kartar Singh Mehta AIR 1975 Delhi 137 The aforesaid case laws would indicate that mere versions in the plaint that the plaintiffs were ready and willing to perform their part of the contract would not be sufficient and there should be evidence to prove it. Here, the documentary as well as oral evidence on D1’s side clearly demonstrates that he had been ready and willing to perform his part of the contract, but, it was the plaintiffs who did not get the sale deed executed after paying the sale consideration to D1. 35. Learned counsel for the defendant also would specifically highlight that Bank Pass Book was not produced to prove that the plaintiffs had money in the bank. P.W.1’s evidence an excerpt of it extracted supra would clearly highlight that even though P.W.1 averred that he had money in the bank nonetheless he had not chosen to produce any evidence in this regard. 36. P.W.1’s evidence an excerpt of it extracted supra would clearly highlight that even though P.W.1 averred that he had money in the bank nonetheless he had not chosen to produce any evidence in this regard. 36. Whereas the learned senior counsel for the plaintiffs would cite only one decision of the Hon’ble Apex Court in Gurdial Kaur v. Piara Singh 2008 AIR SCW 2699 relating to the readiness and willingness to perform the contract. An excerpt from it would run thus: “20. It is however, trite that, even for the said purpose, the entirety of the plaint must be taken into consideration. If upon reading the plaint in its entirety, the Court comes to the conclusion that for all intent and purport, the requirements of Section 16 (c) of the Specific Relief Act stood complied with, no exception thereto can be taken. We have noticed hereinbefore that the First Appellate Court inter alia opined that not only the plaintiff has expressed his readiness to purchase the land, his willingness to do so can be culled out from other averments made in the plaint as and in particular the one where he had stated that he had gone to the Registration Office for getting the deed of sale executed and registered but it was the defendant, who did not turn up thereafter. He has also fulfilled the criteria of his readiness and willingness to perform his part of the contract as not only he had paid a sum of Rs. 7,000/- on the date of the execution of the agreement, he had deposited a balance sum of Rupees 8,000/- on the date of presentation of the plaint As a vendee what he could do was to offer the balance amount of consideration to the vendor and make arrangements for getting the sale deed executed and registered. If he has done all that, we are of the opinion that the Court of First Appeal was right in holding that he was ready and willing to perform his part of the contract.” Placing reliance on the aforesaid decision, the learned senior counsel for the plaintiffs would submit that the cited decision of the Hon’ble Apex Court by him, is squarely applicable in the facts and circumstances of this case. 37. 37. A perusal of the said cited decision would clearly show that in that case before the Hon’ble Apex Court, there were evidence to the effect that the plaintiff went to the Registrar’s Office and waiting for the defendant to arrive there, but the latter failed to turn up. Over and above that, in that case, the plaintiff was ready with the remaining part of the sale consideration and promptly deposited the same at the time of filing of the suit. Hence, based on such factual circumstances, the Hon’ble Apex Court rendered decision in favour of the plaintiff. But here, my discussion supra would highlight as to how the first defendant by producing documentary as well as oral evidence highlighted that he in response to Exhibit A-2 appeared at the Sub Registrar Office, but the plaintiffs did not go there with the money. Furthermore, the plaintiffs even though pleaded that they handed over the remaining part of the sale consideration to the mediators, none of the mediators have been examined and even the pass book of the plaintiffs were not produced to prove that the money was available at the relevant point of time. Hence, in these circumstances, the cited decision of the Hon’ble Apex Court in fact supports the case of the defendants. 38. The plaintiffs would also contend that earlier as on the date of the filing of the suit, possession was with them and that was why they did not pray for possession; in view of D1 having trespassed into the suit property during the pendency of the suit, they were constrained to add para 9(a) in the plaint and consequently, they prayed for recovery of possession. As such, their version is militating as against the recitals in Exhibits A-2, A-3 as well as A-1. An excerpt from Exhibit A-1 is extracted here under for ready reference: The recitals cited supra from Exhibit A-1 would unambiguously convey that as on the date of the emergence of Exhibit A-1, the possession of the suit property was with D1 only. This recital in Exhibit A-1 is in concinnity with Exhibit B-16 , the possession certificate dated 10.5.1983. Unassailably, Exhibit A-1 emerged not simply between two parties, voluntarily. But, it emerged consequent upon Exhibit A-3, the Panchayat Muchalika. This recital in Exhibit A-1 is in concinnity with Exhibit B-16 , the possession certificate dated 10.5.1983. Unassailably, Exhibit A-1 emerged not simply between two parties, voluntarily. But, it emerged consequent upon Exhibit A-3, the Panchayat Muchalika. It appears that a criminal case emerged as against D1 at the instance of the plaintiffs but, they have not highlighted as to what was the result ensued in the matter. The learned senior counsel for the plaintiffs also would rely upon one important circumstance as found set out in the grounds of appeal and advance his arguments that O.S. No. 316 of 1990 was filed by the father of the plaintiffs in the Court of District Munsif, Bhavani challenging the capacity of D1’s title over a portion of the suit property. The very suit O.S. No. 360 of 1990 would speak by itself that when the plaintiffs suit No. 228 of 1996 had been pending in the Court of Principal Subordinate Judge, Erode. The plaintiffs caused their father to file such a suit so as to take the wind out of the sail of D1 herein and to cut the ground under his feet. There is also no proof to show that the plaintiff and their father, were at logger heads or at daggers drawn or that they could not see eye to eye. Hence, in these circumstances, it is crystal clear that the plaintiffs have not proved that they were ready and willing to perform their part of the contract. 39. Hence, in these circumstances, it is apparently and explicitly, placidly and palpably clear that the proven circumstances in this case, would unerringly indicate that the plaintiffs were not ready and willing to perform their part of the contract even though time was the essence of the agreement of sale as in Exhibit A-1. 40. Learned counsel for D1 cited a decision of the Division Bench judgment of this Court S. Sankaran (died) and 4 Others v. N.G. Radhakrishnan 1994 (2) LW 642 to highlight the point that the plaintiff, who seeks specific performance, if approaches the Court with false pleas, then such a plaintiff is not entitled to any relief. 41. My discussion supra would indicate that the case of the plaintiffs that they were ready and willing to perform their part of the contract, is based on pleas fraught with falsity. 41. My discussion supra would indicate that the case of the plaintiffs that they were ready and willing to perform their part of the contract, is based on pleas fraught with falsity. Accordingly, as per the cited decision of the Division Bench of this Court, the original suit was liable to be dismissed, but the trial Court decreed it, erroneously. 42. Not to put too fine a point on it, I could countenance that the plaintiffs when confronted with a situation that no more they would be able to be in possession of the suit property in their capacity as a tenant, either through their father or by themselves, they managed to bring about Exhibit A-3 and consequently, Exhibit A-1, without any genuine intention of getting the sale deed executed in their favour after complying with their part of the contract. Hence, in these circumstances Point No. 4 is decided in favour of the defendants as against the plaintiffs. 43. In view of the discussion supra , it is clear that the trial Court without appreciating the real facts and evidence, simply carried away by the self-serving statement of P.W.1 and the interested testimony of P.W.2 in decreeing the suit for specific performance. 44. In view of the trial Court having adjudged the lis without au fait with law and au courant with facts, its judgment and decree is set aside and the appeals are allowed. Consequently, the original suit is dismissed. However, there shall be no order as to costs. Appeals allowed.