Judgment

HEODE, J.-These connected appeals by certificate arise from the decision of the High Court of Kerala in Appeal Suit No. 569 of 1963 on its file. Civil Appeal No. 1782 of 1966 is filed by the plaintiff in the suit and Civil Appeal No. 1783 of 1966 is filed by the second defendant (who shall hereinafter be referred to as (he defendant), who is contesting this appeal.

2. The suit was for specific performance on the basis of an oral agreement alleged to have been entered into on 9-9-1921 (Malayalam Era) between the plaintiff and the 1st defendant who died very soon after the filing of the suit. The suit was contested by the second defendant, his widow. The trial court decreed the suit as prayed for but in appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field at its east for a sum of Rs. 11,500/-.

3. Originally the plaintiff was the owner of the suit properties. He sold the same to the 1st defendant on 9-9-1921 (Malayalam Era) under Exh. P-1. According to the plaintiff at the time of the execution of P-1, there was an oral agreement between him and the 1st defendant whereunder the 1st defendant agreed to re-convey the properties sold for the very price it was sold whenever the plaintiff calls upon him to reconvey them. The suit from which these appeals arise has been founded on the basis of the said agreement. The 1st defendant died even before he could file his written statement in the case. Before his death he had gifted the suit properties by means of a registered deed in favour of the defendant. She denied the agreement pleaded in the plaint but on the other hand she stated that just before his death her husband had agreed to sell to plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500/- but due to the illness of her husband the sale in question could not be effected. She proceeded further and averred as follows in Paragraph 10 of her written statement.

"This defendant has been asked by the 1st defendant before his death that even after his death the properties in item No. 1 (in the plaint Schedule which are the subject-matter of the contract) as mentioned in Paragraph 7, except the nilam on the eastern part thereof, should be assigned to the plaintiff for a consideration of Rs. 11,500/- and accordingly this defendant is willing to give such property as mentioned above to the plaintiff."

After the defendant filed her written statement, the plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the defendant nor did he inform the court that he was ready and willing to accept the agreement pleaded by the defendant or that he was willing to perform his part of that agreement. The suit proceeded on the basis of the agreement pleaded in the plaint.

4. The first question that arises for decision is whether the agreement pleaded in the plaint is true. The burden of proving that agreement is naturally on the plaintiff. The agreement in question as mentioned earlier is said to be an oral agreement. Therefore the plaintiff s task is all the more difficult. The sale deed Exh. P. 1 proceeds on the basis that it evidences an outright sale. It does not either specifically or by implication lend support to the case put forward by the plaintiff. On the other hand it records the following condition stipulated by the vendor :

"Subject to the stipulation that during my life time the Schedule properties shall not be mortgaged or assigned to anyone else without my knowledge and consent, I completely convey and surrender to you all my remaining rights and possession, and the properties are given to your possession on receipt of the sale consideration of Rs. 24,500/-."

From this clause it is clear that the plaintiff conveyed all his rights, title and intere