The main legal point established in the judgment is the enforceability of an agreement to sell under Section 13(1) of the Specific Reliefs Act, and the implications of Sections 35 and 37 of the Stamps Act, 1899, on the admissibility of the agreement.

1. This is defendants' first appeal arising out of the judgment and decree dated 29th September, 2001 passed by the District Judge, Raipur in Civil Suit No. 28A/99 whereby and where under, the plaintiff's suit has been decreed.

2. Facts of the case, in brief, are that the plaintiff/respondent filed a suit on 14-6-93 for specific performance of agreement to sell dated 24-5-1990 (Ex. P-1) against late Prabha Shankar Pandey (defendant) i.e. husband of appellant No. 1/defendant. No. 1 and father of other appellants inter alia on the ground the original defendant late Prabha Shankar Pandey entered into agreement to sell with regard to a house bearing No. 17, situated at Aadarsh, State Bank of India Employees Cooperative Housing Society, Sunder Nagar, Raipur for a sale consideration of Rs. 2 lacs and received Rs. 5,000/- as advance. Later on, on 3-2-91, an additional sum of Rs. 2,000/- was also paid by the plaintiff.

3. According to the plaintiff, the sale deed was to be executed after seeking permission from the State Bank of India; balance amount of sale consideration was payable at the time of registration of sale deed. The defendant moved an application on 10-7-90 seeking permission to sell the house to the plaintiff which was granted by the Bank on 10-5-91. The plaintiff also paid installment of Rs. 6951/- of loan amount to the Society on behalf of the defendant and thus has paid Rs. 13,951/- towards the sale price. After completion of the formalities by the defendant, the plaintiff sent a Bank Draft of Rs.l,86,049/- to the defendant by registered post but the same was returned as defendant refused to take the registered letter. Thereafter the plaintiff sent a legal notice on 20-4-92 which was also refused by the defendant. Again another legal notice was sent on 16-4-93 which was replied by the defendant stating that the agreement dated 24-5-90 is fictitious and does not create any right in plaintiff's favour beyond getting refund of Rs. 7,000/- which he shall refund in due course; by lapse of two long years, the cost of land as well as building material increased manifolds, time was essence of contract; the defendant changed the idea of shifting himself to Bilaspur from Raipur; he did not receive any earlier registered letter from the plaintiff; he is not aware whether or not the plaintiff has deposited Rs. 6,951/- on his behalf. Thus defendant refused to execute sale deed.

4. According to the plaintiff, he was always ready and willing to perform his part of contract but the defendant refused to execute the sale deed.

5. After notice, the defendant appeared in the case and filed his written statement and denied the plaintiff's claim inter alia on the ground that the defendant has no absolute title over the suit house; the plaintiff was never ready and willing to perform his part of contract, as per the contract, the plaintiff had to pay full installment and in addition to Rs. 2 lacs towards sale consideration within a year and get sale deed registered at his cost. The defendant accepted his proposal but the plaintiff failed to do so, therefore, he is not obliged to execute the sale deed in plaintiff's favour and he had sent a letter to Secretary, Aadarsh, State Bank of India Employees Cooperative Housing Society, Sunder Nagar, Raipur dated 24-3-92 showing his intention of withdrawing his consent to sell the suit house and for cancellation of the agreement. A copy of which was also endorsed to the plaintiff; on the date of agreement to sell, title to suit house was not transferred by Aadarsh, State Bank of India Employees Cooperative Housing Society, Sunder Nagar, Raipur in defendant's favour and, therefore, the said agreement was not valid and was fictitious to the knowledge of the plaintiff and the said agreement does not create any right in plaintiff's favour.

6. The defendant died on 17-3-97 and appellants were substituted in his place as his legal representatives in the suit. They also filed written statement and denied t