JUDGMENT Defendants 3 and 4 are appellants. Feeling aggrieved by judgment and decree in O.S.No.13 of 1985 dated 30-3-1990 passed by the Court of Subordinate Judge, Penukonda, this appeal is filed. Plaintiff and defendants 2 and 5 to 7 are arrayed as respondents. During pendency of suit first defendant, Venkatamma, who is none other than matemal grandmother of appellants, died and her legal representatives were brought on record as defendants 5 to 7. In this appeal, for the sake of convenience, appellants and respondents 2 to 5 are referred to as defendants and first respondent is referred to as plaintiff. 2. Admitted background of the case is as follows. Venkatamma, w/o. Devireddy Venkatappa, had two daughters, namely, Papamma and Venkata Lakshmamma. Latter is a spinster and was staying with Venkatamma at Pedapalli village of Bukkapatnam Mandai in Ananthapuram District. Papamma was married to Maddimadugu Subbi Reddy of Marlapalli. Defendants 3 to 7 are children of Papamma, who had died about two decades prior to filing of suit. It is admitted case that father of first defendant and father of one Sreerami Reddy are children of brothers. Venkatamma inherited an extent of about Acs. 12.00 of agricultural land including Acs.2.00 of wet land (hereinafter, suit schedule land) from her father. 3. Plaintiff's case in brief is that first defendant on 10-12-1982 agreed to sell suit schedule land to plaintiff for consideration of Rs. 35,000/- and received advance amount of Rs. 10,000/-. She also executed agreement of sale on the same day promising to execute registered sale deed after receipt of balance sale consideration from plaintiff. On 30-12-1982 plaintiff paid another sum of Rs. 10,000/-, which was duly endorsed on agreement of sale. Again on 22-1-1983 plaintiff paid another sum of Rs. 13,000/-, on receipt of which, first defendant delivered possession of suit schedule land to plaintiff. Plaintiff was ready with balance sale consideration of Rs. 2,000/and requested Venkatamma to execute registered sale deed. She did not perform her part of contract. On 2-2-1985 plaintiff issued suit notice. Venkatamma did not give any reply. Defendants 3 and 4 issued reply notice dated 15-2-1985 denying execution of suit agreement by first defendant. They alleged that Venkatamma executed a Will on 14-6-1966 and also executed gift deed dated 22-2-1983. Plaintiff alleged that all the defendants colluded with an intention to defeat rights of plaintiff. On 2-2-1985 plaintiff issued suit notice. Venkatamma did not give any reply. Defendants 3 and 4 issued reply notice dated 15-2-1985 denying execution of suit agreement by first defendant. They alleged that Venkatamma executed a Will on 14-6-1966 and also executed gift deed dated 22-2-1983. Plaintiff alleged that all the defendants colluded with an intention to defeat rights of plaintiff. The alleged Will and gift deed in favour of defendants 3 and 4 are nominal and are not intended to confer any right. Defendants 2 to 4 are not bona fide transferees. They had notice of suit agreement and therefore suit agreement can be specifically enforced against them. 4. First defendant, Venkatamma, filed written statement admitting execution of agreement of sale and receipt of amounts subsequently under endorsements. She however alleged that plaintiff was not having balance of sale consideration and it is he who failed to perform his part of contract within reasonable time. She further alleged that defendants 3 and 4 are aware of suit agreement and also that plaintiff is in possession of suit schedule land. They took major share of consideration paid by plaintiff. When first defendant asked for advice of defendants 3 and 4 with regard to realizing balance of sale consideration, they represented that agreement could be cancelled in Sub Registrar's Office. She was taken to Sub Registrar's Office, Bukkapatnam. A document was written and it was read over as if it was a document cancelling suit agreement. She being old and illiterate lady and was also in bad health, she believed defendants 3 and 4. After receiving suit summons, she came to know that defendants 3 and 4 misrepresented, played fraud and by exercising undue influence obtained document purported to be gift deed. She never intended to execute any gift deed in favour of defendants 2 to 4 and she never inducted them into possession. 5. Fourth defendant filed separate written statement, which was adopted by third defendant. Defendants 2 and 5 to 7 remained ex parte. In the written statement of fourth defendant important allegations and contentious averments in brief are as follows. First defendant never executed agreement of sale and the same is brought up document at the instance of D.Sreerami Reddy and his son-in-law. Plaintiff was stranger and belonging to Kariimavaripaiie village. Sreerami Reddy obtained thumb impression of Venkatamma taking advantage of her old age and mental instability. First defendant never executed agreement of sale and the same is brought up document at the instance of D.Sreerami Reddy and his son-in-law. Plaintiff was stranger and belonging to Kariimavaripaiie village. Sreerami Reddy obtained thumb impression of Venkatamma taking advantage of her old age and mental instability. Using such blank papers containing thumb impression of Venkatamma sale agreement was fabricated with active connivance of plaintiff. Defendants 3 and 4 are owners of suit schedule land by virtue of registered gift deed dated 22-2-1983 executed by first defendant. Plaintiff has no capacity to pay huge amount of sale consideration and he never paid sale consideration amounts as alleged. First defendant executed gift deed out of love and affection and free will and put the properties in possession of defendants. If she had executed such gift deed to defeat rights of plaintiff under alleged agreement of sale, plaintiff ought to have filed a suit challenging gift deed. First defendant had no necessity to sell property as she was affluent lady having lot of cash and had no immediate necessity to part with the property. 6. Trial Court framed three issues which are as follows: (1) Whether the suit agreement of sale dated 10-12-1982 in respect of plaint schedule lands is true, valid and binding on defendants 2 to 4? (2) Are registered Will dated 14-6-1966 and registered gift deed dated 22-2-1983 true and valid? And (3) Is the plaintiff entitled for specific performance of agreement of sale? By the time suit was taken up for trial, Venkatamma had died and therefore except her written statement in which she made some admissions, she could not be examined as witness. Be that as it is, plaintiff examined himself as P.W.1. Scribe and attestor of agreement of sale, Ex.A-1, and two payment endorsements on Exs.A-2 and A-3, were examined as P.W.2 and P.W.3. Fourth defendant examined himself as D. W.1 . Attestor of gift deed dated 22-2-1983 marked as Ex. B-2, was examined as D:W.2. Plaintiff also marked office copy of notice as EX.A-4. Defendants marked Exs. B-1 to B-5. 7. Defendants 3 and 4 did not examine at least one attesting witness to prove Ex. B-1 Will and therefore it remained unproved as per law. Insofar as Ex. Attestor of gift deed dated 22-2-1983 marked as Ex. B-2, was examined as D:W.2. Plaintiff also marked office copy of notice as EX.A-4. Defendants marked Exs. B-1 to B-5. 7. Defendants 3 and 4 did not examine at least one attesting witness to prove Ex. B-1 Will and therefore it remained unproved as per law. Insofar as Ex. B-2 gift deed is concerned, trial Court believed version of Venkatamma in her written statement, that it was obtained by playing fraud and by exercising undue influence and accordingly recorded finding that Ex. B-2 does not confer any right on defendants 3 and 4. Trial Court also came to the conclusion that EX.A-1 suit agreement of sale is true and genuine executed by first defendant and binding on other defendants. Suit was accordingly decreed with costs. 8. Learned Counsel for appellants/ defendants 3 and 4 submits that Exs.A-1, A-2 and A-3, are false and fabricated documents based on which plaintiff cannot seek specific enforcement of agreement of sale. He points but that plaintiff was stranger to first defendant who had no capacity to pay amount of Rs.33,000/- as alleged and in the facts and circumstances of the case, it is highly improbable that plaintiff would have purchased suit schedule land under agreement of sale. He further contends that EX.A-1 was created to defeat gift deed Ex. B-2 and trial Court was erred in placing undue importance on written statement filed by first defendant. On this aspect he also points out that when agreement of sale is dated 10-12-1982 even for a period of three years plaintiff could not pay balance sale consideration of Rs. 2,000/-, which itself would improbablise EX.A-1. With regard to gift deed Ex. B-2, learned Counsel submits that it was executed validly by donor and gift deed was accepted by defendants 3 and 4 pursuant to which they were in possession of property. Lastly he submits that essential ingredients for specific enforcement of contract of sale were not made out and without seeking decree for setting aside gift deed plaintiff cannot maintain the suit for specific performance of agreement of sale. 9. Learned Counsel for first respondent/ plaintiff submits that Exs.A-1 to A-3 were proved by examining P.Ws.1 to 3 and their evidence remained unimpeached. 9. Learned Counsel for first respondent/ plaintiff submits that Exs.A-1 to A-3 were proved by examining P.Ws.1 to 3 and their evidence remained unimpeached. Plaintiff had proved to the satisfaction of Court that he was ready and willing to perform his part of contract and defendants cannot be permitted to take out pleas which were not raised in written statement. Nextly he contends that Ex. B-1 Will was not proved and even if it is executed, before his/her death, testator can always deal with property as he/she likes and the same does not preclude Venkatamma from executing Ex.A-1 agreement of sale in favour of plaintiff. Ex. B-2 was rendered ineffective. Even according to Venkatamma Ex. B-2 gift deed was obtained by playing fraud and by exercising undue influence and therefore it is not a valid gift deed. It was only nominal and does not confer any right on defendants 3 and 4. 10. In view of rival contentions made before this Court, two points that would arise for consideration are: (1) Whether Ex.A-1 agreement of sale is validly proved by plaintiff? and (2) Whether Ex. B-2 gift deed has effect of rendering Ex.A-1 agreement of sale invalid and ineffective? 11. Plaintiff examined himself as P.W.1. He deposed that having come to know that Venkatamma wants to sell suit schedule land, he approached her along with P.W.3 and one Rama Lingappa to Pedapalli one week prior to date of Ex.A-1. He requested her to keep all the details of property ready for executing agreement. Five or six days later he went with money, got particulars and bargained the price for wet land of Acs.2.00 and dry land of Acs.9.39. After bargain sale consideration was settled at Rs.35,000/-. P.W.2 who is a teacher in the village was summoned. He scribed Ex.A-1 agreement. The same was executed by Venkatamma and attested by P.W.3. Agreement of sale does not require examination of attesting witness to prove execution or contents thereof. Presumably for the reason that defendants 3 and 4 raised a doubt about validity of Ex.A-1, plaintiff as precaution also examined scribe and attestors, who broadly support the case of P. W.1 with regard to negotiations for bargaining price and execution of Ex.A-1. It is no doubt true, as pointed out by learned Counsel for appellants, there are minor variations in depositions of P.W.1 to P.W.3 but they do not dilute probate (sic. It is no doubt true, as pointed out by learned Counsel for appellants, there are minor variations in depositions of P.W.1 to P.W.3 but they do not dilute probate (sic. Probative) value of evidence adduced by plaintiff. All the witnesses also speak about payment of Rs. 10,000/- as per Ex.A-2 endorsement, and Rs. 13,000/- as per Ex.A-3 endorsement. Thus Ex.A-1 has been proved. It is altogether different question whether it is binding on defendants 3 and 4 and other successors of Venkatamma who claim benefit under Ex. B-2 gift deed. In any event in her written statement, Venkatamma admitted execution of Ex.A-1. The admission in paragraph 4 of her written statement reads as under. This defendant has executed the suit agreement in favour of the plaintiff on 10-12-1982 and on that day received an advance of Rs.10,0001- from him. Again she received a further sum of Rs. 10,000/- on 30-12-1982 and endorsed the same on the suit agreement. Again on 22-1-1983 she received a further sum of Rs. 13,000/from the plaintiff and delivered possession of the properties to the plaintiff. On that day she has endorsed on the suit agreement for having received that amount and also for having delivered possession of the property to the plaintiff. The plaintiff has been in possession and enjoyment of the property ever since then. He did not pay the balance of Rs. 2,000/- to this defendant. 12. In a suit for specific performance of agreement of sale based on an agreement of sale in writing when vendor/executant admits execution of agreement, but opposes specific enforcement on some other ground, co-defendants who claim right and interest in the same property may not challenge admission made by vendor/executant, though they can oppose specific enforcement of such agreement of sale of immovable property on other grounds. They cannot challenge the very execution of agreement. In the face of admission made by executant any such challenge by third parties to agreement must be rejected. Further plaintiff need not prove a fact in issue which has been admitted by other party in the pleadings. And admission by a defendant is best evidence, which cannot be ignored or rejected by Court of law. In the face of admission made by executant any such challenge by third parties to agreement must be rejected. Further plaintiff need not prove a fact in issue which has been admitted by other party in the pleadings. And admission by a defendant is best evidence, which cannot be ignored or rejected by Court of law. Section 58 of Indian Evidence Act, 1872 lays down that, "no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings." 13. In a suit for specific performance of agreement of sale of immovable property, defences could be many. Executant of agreement may deny execution or allege fraud and misrepresentation vitiating such execution. In addition to such basic defence, vendor can also oppose a suit for specific performance by taking other grounds as per Sections 12, 14, 15, 16 and 19 of Specific Relief Act 1963. In a given case subsequent purchasers or persons, who acquired ostensible right or interest subsequent to agreement, may also take such pleas, but when once execution is admitted by paramount owner, others cannot ordinarily be permitted to impeach agreement. 14. Whether plaintiff had capacity to purchase property? Strictly speaking this question would not arise for the same reason that Venkatamma admitted in her written statement that she executed EX.A-1 after receiving Rs.10,000/- on 10-12-1982. She also admitted that she received Rs.10,000/and Rs.13,000/- under Exs. A-2 and A-3 endorsements respectively. When receipt of amount was admitted, question of capacity ~oo of purchaser would not arise. The law is that a sale without consideration is void but not the sale with payment of consideration by person who has allegedly no capacity to pay consideration amount. Apart from this, evidence of P.W.1 would show that he was grilled on this aspect by defendants 3 and 4 unsuccessfully. P.W.1 deposed that at Kammavaripalle village, he owns Acs.50.000 of agricultural land including Acs.10.000 of wet land, that there is a well cultivation in an extent of AcsA,OO, that he is cultivating Acs.6.00 personally where he is growing paddy, sugarcane and groundnut crops. P.W.1 deposed that at Kammavaripalle village, he owns Acs.50.000 of agricultural land including Acs.10.000 of wet land, that there is a well cultivation in an extent of AcsA,OO, that he is cultivating Acs.6.00 personally where he is growing paddy, sugarcane and groundnut crops. He also deposed that one of his three sons is working as a teacher and third son is studying. He also obtained loan from Land Development Bank, Penukonda, and discharged the same. He deposed that he sold 50 bags of jaggery at Rs. 250/- per bag and used this money along with other savings to pay sale consideration in December 1982. A reading of crossexamination on this would show that P.W.1 got Rs. 12,500/- by sale of 50 bags of jaggery. He had Rs. 10,000/- at that time. Out of this amount, he paid Rs. 10,000/- on the date of Ex.A-1 and Rs.10,000/- as per Ex.A-2. Twenty two (22) days thereafter he borrowed Rs. 13,000/- from his brother-inlaw, Narappa of Kothacheruvu, as hand loan and made payment under Ex.A-3. This Court is not able to understand how an inference can be drawn from this evidence that plaintiff had no capacity to pay sale consideration? He is a farmer with considerable extent of dry and wet land. The fact that he has raised loan from Land Development Bank shows that he is considered to be solvent. The facts that he is educating his third son and another son is working as teacher, would indicate that he is financially sound. Secondly he paid an amount of Rs. 33,000/- in instalments on 10-12-1982, 30-12-1982 and 22-1-1983 under Exs.A-1 , A-2 and A-3, within a period of about one month. This itself would belie any submission regarding alleged financial incapacity of plaintiff. 15. Are there any improbabilities in the transaction between Venkatamma and plaintiff in execution of EX.A-1 agreement? The improbabilities pointed out by learned Counsel for appealees (sic. Appellants) are following. Plaintiff is a native of Kammavaripalle. He is stranger to first defendant. Venkatamma had already executed EX.8-1 Will in favour of children of her elder daughter, Papayamma. On 22-2-1983 she also executed registered gift deed in favour of defendants 3 and 4. Venkatamma was not doing well and she was walking with a stick. She was almost 80 years old. Therefore it is highly improbable that Venkatamma would have executed EX.A-1 to stranger. On 22-2-1983 she also executed registered gift deed in favour of defendants 3 and 4. Venkatamma was not doing well and she was walking with a stick. She was almost 80 years old. Therefore it is highly improbable that Venkatamma would have executed EX.A-1 to stranger. This Court is not impressed with any of these so called improbabilities. It is the case of appellants themselves that Sreerami Reddy, father of P.W.3, who is first cousin of Venkatamma, was bent upon grabbing the property. It is quite probable that Venkatamma wanted to sell the property to a person, who is a stranger to Pedapalli village. However she appears to be a wise lady. So as to avoid any future trouble she summoned a teacher of Pedapalli (P.w.2) to scribe agreement and did not object P.w.3, who is son of Sreerami Reddy, to attest EX.A-1. Presumably for the reason that there would be any criticism from her agnate that she sold property to a stranger especially son of Sreerami Reddy (P.W.3) himself is attestor of EX.A-1. It is also in written statement of Venkatamma, defendants 3 and 4 siphoned off major portion of sale consideration and she was annoyed with this. This itself would show that relationship between family of Venkatamma and defendants 3 and 4 was strained. That may be one reason that second defendant (spinster daughter of Venkatamma) filed suit being O.S.No. 145 of 1987 on the file of the Court of District Munsif, Penukonda, for injunction against other co-defendants. From this, it is reasonable to draw an inference that Venkatamma wanted to sell her property to a person, who is not a native of Pedapalli, and that she never wanted to involve defendants 2 to 4 or her son-in-law. It is admitted case that she alone was absolute owner of suit schedule land and therefore merely because owner sells property to a stranger, the same does not lead to a conclusion that execytion of agreement by her is improbable. 16. Exs.B-1 and B-2 also would not lead to the conclusion that EX.A-1 is improbable. A Will executed by a testator comes into operation only after death of testator. Before his/her death, testator can always enjoy prop~rty with all alienable rights. Execution of Will by owner does not divest his/her rights over the property. Therefore EX.B-1 after execution of agreement was rendered ineffective. A Will executed by a testator comes into operation only after death of testator. Before his/her death, testator can always enjoy prop~rty with all alienable rights. Execution of Will by owner does not divest his/her rights over the property. Therefore EX.B-1 after execution of agreement was rendered ineffective. In case any other property is bequeathed under Ex. B-1, legatees would certainly, subject to proof of that Will (Ex.B-1), succeed to such property excluding property, which is subject matter of EX.A-1 agreement. Insofar as Ex. B-2 is concerned, Venkatamma in her written statement while asserting that defendants 3 and 4 are also knowtl about execution of EX.A-1 by her and th~t plaintiff is in possession of suit schedule land, advised her to cancel agreement. For that purpose, representing that agreement has to be cancelled in Registrar's office, they got executed Ex. B-2.. Relevant averments in her written statement are as below: They took her to the Sub-Registrar's Office at Bukkapatnam and got a document written. It was read over to her as if it was a document cancelling the agreement in favour of the plaintiff. It was not read over to her in the presence of the Sub-Registrar. This defendant is an old and illiterate lady and at the time when she attended the Sub-Registrar's Office she was in a bad state of health. She was not in a position to exercise her discretion and she believed the representation of the defendants 3 and 4 by misrepresentation and playing fraud and exercising undue influence have obtained a document purporting to be a gift deed. She did not intend to execute any gift deed in favour of defendants 2 to 4 and in fact she was not told at the time of the execution of the document, that she was executing a gift deed. She did not induct defendants 2 to 4 into possession. 17. To prove Ex. B-2, appellants examined D.W.2, who is one of attestors of Ex. B-2. Though this evidence may help appellants to satisfy requirements of Section 123 of Transfer of Property Act, 1882, Ex. B-2 cannot be treated as valid gift. A gift of immovable property has to be accepted by donee. There is evidence to show that defendants 3 and 4 accepted gift. B-2. Though this evidence may help appellants to satisfy requirements of Section 123 of Transfer of Property Act, 1882, Ex. B-2 cannot be treated as valid gift. A gift of immovable property has to be accepted by donee. There is evidence to show that defendants 3 and 4 accepted gift. It is no doubt true that P.W.2 deposed that seven years prior to his deposition Venkatamma sent for him for the purpose of executing gift deed. Venkatamma, her daughter Venkata Lakshmamma (second defendant) and two persons from Marlapalli went to office of Sub-Registrar, Bukkapatnam. One Azad scribed document, which was executed by Venkatamma whereafter P.W.2 and one Venkata Reddy attested document. This is evidence of P.W.2. He nowhere mentions that gift was accepted by defendants 3 and 4, and other donees. Though Venkata Lakshmamma was allegedly present in Sub-Registrar's Office, she did not sign document in token of accepting the same. Further defendant as D.W.1 admits in his chief examination that he came to know about gift given by Venkatamma later. From this evidence, it becomes clear that there is a truth in the allegation made by first defendant in her written statement that gift deed was obtained misrepresenting that it is a document intended to cancel EX.A-1 agreement. In any event in view of nonacceptance of gift by donees, it is not a valid gift. Even if property passed on to defendants 2 to 4, they are bound to execute sale deed in fulfillment of vendor's obligation under EX.A-1 . 18. Last submission of learned Counsel for appellants is that Exs.A-1, A-2 and A-3 are false. He submits that all the documents are scribed by P.W.2, that all of them are in the same ink and therefore they are false documents. The submission cannot be accepted. P.W.2 who is a scribe is a school teacher. He has experience in drafting agreements. It is quite possible that he could have taken lot of precautions while drafting agreement and endorsements. In that endeavour if wring and ink appears to be similar in all documents, it is not possible to surmise that all of them are written on the same day. Even if it so happened that scribe and attestors of Exs.A-1 to A-3 are the same, by a perusal of these documents, it is not possible to accept submission of learned Counsel for appellants. Even if it so happened that scribe and attestors of Exs.A-1 to A-3 are the same, by a perusal of these documents, it is not possible to accept submission of learned Counsel for appellants. As already noticed supra, executant of all these three documents herself admitted in pleadings that these documents are true and she executed the same. Defendants 3 and 4 who are third parties to EX.A-1 and who are allegedly having only ostensible interest cannot be permitted to raise such pleas. Equally the submission that EX.A-1 was created to defeat gift deed is proved as false by averments in written statement of Venkatamma, which are extracted hereinabove. There is ample evidence on record to show that Venkatamma executed EX.A-1 and that plaintiff was ready and willing to perform his part of contract and that he is entitled to specific enforcement of EX.A-1 agreement of sale. The defence of contesting defendants is devoid of any merit and they failed to prove any of their allegations. 19. In the result, for the above reasons, appeal must fail. It is accordingly dismissed with costs, confirming judgment and decree in O.S.No.13 of 1985 passed by the Court of Subordinate Judge (now Senior Civil Judge,) Penukonda.