Vilas V. Afzulpurkar, J.

The unsuccessful plaintiff has filed this appeal aggrieved by the dismissal of his suit for specific performance.

2. Brief facts are as follows:

3. For the convenience, the parties are referred to as they are arrayed in the suit.

4. The defendant is the elder brother of the plaintiff. An agricultural land of an extent of Ac.2.25 cents, out of a total extent of Ac.7.71 cents from Sy.Nos.576/1 and 576/4 in Ellareddipalle Village, Kamalapuram Mandal, Kadapa District, was agreed to be sold by the defendant to the plaintiff under an agreement of sale, Ex.A.1, dated 31.08.1991, which is in telugu, and the terms thereof which are not in controversy are as follows:

5. The total consideration for the said sale was Rs. 1,40,000/- and the plaintiff paid a sum of Rs. 40,000/- on the date of Ex.A.1 i.e. on 31.08.1991. The rest of the amount of Rs. 1.00 lakh was payable in two instalments of Rs. 50,000/- each on or before 20.02.1992 and on or before 31.08.1992 respectively. The agreement also provided that in the event of default being committed by the plaintiff the said agreement would stand cancelled and the defendant would be entitled to forfeit the entire part consideration paid till then. The possession of the said property was not delivered to the plaintiff and continued to remain with the defendant.

6. From the pleadings and admitted case of both the parties, it is evident that the agreement of sale as well as the payment schedule as aforesaid is not in controversy and admittedly the defendant has received the second instalment of Rs. 50,000/- before 20.02.1992. According to the plaintiff, he purchased demand draft on 28.08.1992 to pay the last instalment of Rs. 50,000/- before 31.08.1992 and tendered the said amount to the defendant through PWs.2 and 3. It is, however, alleged by the plaintiff that the defendant deliberately did not receive the said demand draft and by claiming that there is default committed by the plaintiff in payment of the last instalment on 31.08.1992, the defendant issued a legal notice Ex.B.2, dated 01.09.1992, to the plaintiff informing him that on account of non-payment of last instalment, the agreement has been cancelled and the amount of Rs. 90,000/- paid by the plaintiff stands forfeited. The said notice was replied to by the plaintiff under his reply notice, Ex.B.4, dated 04.09.1992, asserting that for payment of the last instalment of Rs. 50,000/- the demand draft payable in the name of the defendant was already obtained on 28.08.1992 from the State Bank of India, Kadapa and was tendered to the defendant through their sister, Smt K. Lakshmi Narasamma and her son Sri K.Eswar Reddy (PW.2). It is alleged, however, that on the refusal of the defendant to receive the same, the plaintiff made another attempt and sent the demand draft along with one of their cousins, Sri Poli Venkata Subba Reddy (PW.3). It is mentioned, however, that the defendant did not receive the demand draft on the ground that the time under the agreement has expired and further alleging inter alia that the plaintiff is always ready and willing to perform his part of the contract and that cancellation of the agreement by the defendant is not justified as there is no default on the part of the plaintiff. The plaintiff also alleged that to avoid the legal proceedings against his own brother, the defendant was called upon to appear before the Sub-Registrar, Kamalapuram on 11.09.1992 and receive the demand draft. Along with the said notice, a photostat copy of the demand draft, dated 28.08.1992, was also sent. The defendant, however, under his reply notice, Ex.B.5, dated 13.09.1992, reiterated that the plaintiff has committed default in not paying the last instalment on the date fixed and he denied the allegations of the plaintiff that the demand draft was sent and tendered before the due date. The defendant also reiterated that since the agreement already stood cancelled, there is no question of refund of the am