In case of willingness to perform the contract them the same cannot be enforced.

The plaintiff is the appellant.

2. The subject matter of the suit, an extent of 50 cents comprised in R.S.NO.32/3 situated at Kapparamangalam Circle, Kodavasal Taluk, belonged to the first defendant. According to the plaintiff, the first defendant had agreed to sell the suit property to him, for a sum of Rs.15,000/- on 15.4.1989, for which he had executed an agreement of sale on which date, he had also received a sum of Rs.1000/- as advance. Under the agreement, the first defendant had agreed to redeem the mortgage, which was in favour of the second defendant, then agreed to put the plaintiff in possession, completing the sale transaction, receiving the balance on or before 15.7.1989. In pursuance of the agreement, the plaintiff/appellant had paid a sum of Rs.5,000/- on 18.4.1989, for which the defendant not only refused to make an endorsement, but also attempted to tear of the agreement, for which a criminal case has been filed against the first defendant. Despite the fact, the plaintiff has always been ready and willing to perform his part of the contract, the first defendant failed to perform his part of the contract, due to the ill advice of the second defendant, thereby compelling the plaintiff to file the suit, for specific performance.

3. The first defendant had filed a written statement denying the execution of the agreement contending, that he had executed a hand letter, after obtaining a loan of Rs.1000/-, without knowing the contents of the document and that he never agreed to sell his property to the plaintiff, since the same was sold to third parties, further denying the subsequent payment of Rs.5,000/- also, thereby praying for the dismissal of the suit.

4. The second defendant claiming that he is in possession and enjoyment of the suit property, in pursuance of an agreement dated 30.8.1986 having paid a sum of Rs.10000/- as sale consideration, repudiated the case of the plaintiff, further claiming benefits under Section 53(A) of the Transfer of Property Act.

5. The learned District Munsif, considering the rival contentions of the parties, the oral evidence, and the documentary evidence, has come to the conclusion, that the first defendant had agreed to sell the suit property in favour of the plaintiff on 15.4.1989, which is valid and enforcible, that the second defendant has failed to prove the agreement dated 30.6.1986 and therefore, he is not entitled to retain the possession of the suit property, that the plaintiff is liable to pay only a sum of Rs.9000/- as sale consideration and that on payment of the said amount, the plaintiff is entitled to a decree for specific performance. Thus concluding, a decree was granted on 15.11.1991 under which, the plaintiff was directed to deposit a balance of Rs.9000/- within two months.

6. The second defendant, aggrieved by the decree and judgment of the trial Court, has preferred an appeal before the District Court, Nagapattinam in A.S.No.71/92, questioning the correctness of the lower Court's verdict on various grounds. The learned District Judge, formulating the point whether the agreement dated 15.4.1989 is true, then analysing the evidence available on record, coupled with the probabilities and other attending circumstances also, came to the conclusion that Ex.A1 is not proved, which should follow that the plaintiff is not entitled to a decree for specific performance. He has further held that the sale agreement in favour of the second defendant viz., Ex.B.1 is true and valid and the non examination of the witness by name Anbazhagan has not affected the case of the second defendant. In this view, he had set aside the decree and judgment granted by the trial Court, by allowing the appeal, then dismissing O.S.No.325/90, which is under challenge in this second appeal.

7. This Court, while admitting the appeal, had formulated the following substantial questions of law, for consideration.

1. Whether a document executed contrary to the mandatory provision of Rule 6(2) of