Adverse inference if can be drawn by Court for not producing best evidence.

Srinivasan, J.

The plaintiff is the appellant. The defendants have filed a memorandum of cross-objections. The suit is one for specific performance of an agreement for sale. The case of the plaintiff is as follows:

On 3. 1977, the first defendant, who is the owner of the property entered into an agreement with the plaintiff for sale of the suit property for a total consideration of Rs.l,10,000 and received an advance of Rs.25,000. It was agreed that the sale should be completed within a period of one year. Ultimately, a term was introduced by agreement that before the month of That in the next year, possession will be handed over and the sale deed will be executed. The defendant was in need of money in order to perform his sons’ marriages. He was also in debts and as a manager of the joint family consisting of himself and his sons, he had to meet the needs of the family. There was legal necessity for selling the property and that was the reason for the defendant agreeing to sell the same. Though the property was the self-acquired property of the first defendant, he agreed to get the signatures of his sons in the said deed. When the plaintiff called upon the defendant to execute the sale deed in January 1978, the first defendant wrote a letter containing false allegations and concocted a new story that he intended to execute only a mortgage and there was an agreement only for that purpose. The case of the defendant is false and the plaintiff having parted with a sum of Rs.25,000 was entitled to get a sale deed from the defendant on payment of balance. The plaintiff is prepared to deposit the balance into court.

2. The first defendant filed a written statement contesting the genuineness of the agreement. According to the first defendant, he was in need of money for having an operation for cataract in his eye and he approached the plaintiff therefor. He wanted a loan of Rs.40,000 and agreed to execute a mortgage in favour of the plaintiff over the suit property. For the purpose of preparing an agreement to execute a mortgage, he signed certain papers at the places shown by the plaintiff and at that time he could not see due to cataract, he signed as directed by the plaintiff, without seeing what exactly the papers on which he had signed. He received a sum of Rs.15,000 only from the plaintiff and got himself admitted in the General Hospital at Madras. After his discharge he got a letter from the plaintiff and when he wrote to the plaintiff to prepare the mortgage deed, the plaintiff came forward with a case that there was an agreement for sale. The agreement for sale is a fabricated one and the plaintiff is not entitled to have a decree for specific performance. The properly is joint family property and there was no legal necessity and it is not binding on the sons of the defendant.

3. The first defendant died soon after the filing of the suit and his legal representatives were brought on record as defendants 2 to 8. The second defendant is the widow and defendants 3 to 5 are the sons while defendants 6 to 8 are the daughters. The legal representatives filed a formal written statement adopting the written statement already filed by their father and adding that they were not aware of the suit agreement and the first defendant had no right to enter into an agreement in respect of the entire property. They also contended that the first defendant was in affluent circumstances and had no necessity whatever to borrow any money.

4. The trial court framed six issues and one additional issue. The trial court held that the suit agreement is true and the first defendant intended to sell his property to the plaintiff. It also held that the first defendant had received a sum of Rs.25,000 and his case that he received only Rs.15,000 was not true. The trial court held that the property was a joint family property and there was no evidence as to the application of the money for necessary purposes. Consequently, the trial court pass