The main legal point established in the judgment is the interpretation of the specific denial of execution and the requirement of attestation under Sec.68 of the Evidence Act.

K.Govindarajan, J.

1. The plaintiff, who got a decree before the trial Court in O.S.No.210/1982, on the file of the Sub-Court, Tirupur, which was reversed by the learned single Judge in A.S.No.630/1984, preferred the above appeal.

2. The plaintiff filed the said suit for specific performance of the agreement of the sale deed dated 12.9.1982 or in the alternative for recovery of a sum of Rs.1,19,000 paid as advance.

3. The suit property originally belonged to one Murugesh as he purchased the same under Ex.B2. He settled the property under Ex.B1 in favour of his daughter, the 2nd defendant on 15.9.1973. The same was cancelled by Murugesh, her father, on 25.2.1975. Thereafter, an agreement was executed by Murugesh in favour of the 1st appellant under Ex.A3 on 12.2.1982. Time was extended to perform the contract by making endorsement under Ex.A4, dated 9.5.1982. Under Ex.A5, a sum of Rs.82,000 was paid by the 1st appell ant to Murugesh and possession was given by executing ‘Athakshi’. Subsequently, under Ex.A6, dated 12.9.1982, a fresh agreement was entered into between the 1st appellant and Murugesh. The said Murugesh died on 27.10.1982. Thereafter, notices were issued asking the respondents to execute the sale deed after receiving the the balance amount of Rs.5,000, which was not accepted by the respondents and so the 1st appellant filed the said suit.

4. The 2nd defendant filed a written statement stating that her father constructed two houses with the help of her husband as he was working as Assistant Engineer at Salem in 1970. According to her, the plaintiff is not correct in stating that the settlement deed dated 15.9.1973 was executed by her father under threat, intimidation, coercion and undue influence. According to her, possession of the property was given to her even on the date of settlement deed. The title deeds also were handed over to her and so Murugesh, the father has no right to cancel the settlement deed executed in her favour and the cancellation deed was obtained fraudulently by adopting dubious methods. She came to know about the said cancellation deed only through the 5th defendant after the death of her father and the said cancellation deed does not bind her. On that basis, she came forward with the case that the 1st appellant/plaintiff is not entitled to specific performance as prayed for and also the amount claimed in the suit.

5. The trial Court, considering the above said pleadings and evidence found that the 2nd defendant failed to prove the execution of the settlement deed executed in her favour as contemplated under Sec.68 of the Evidence Act, hereinafter called ‘the Act’, that Ex.B1 did not come into force, and that the cancellation deed dated 25.2.1975 is a valid document and so Murugesh is having every right to enter into agreement with the 1st appellant/plaintiff and it would bind the 2nd defendant. On the basis of the above said findings, the trial Court granted the decree for specific performance and consequently rejected the consequential relief. Aggrieved against the same, the 2nd defendant preferred an appeal in A.S.No.630/1984. The learned Judge in the order dated 30.10.1998 reversed the judgment and decree of the trial Court and allowed the appeal and gave liberty to the 1st appellant/plaintiff to proceed against the attached sum of Rs.75,000 in bank mentioned in his evidence and also against the assets of the deceased Murugesh in the hands of the legal representatives. Aggrieved against the same, the above appeal is preferred.

6. Learned counsel for the appellants mainly submitted that as an agreement holder of the suit property, to sustain the agreement, the 1st appellant/plaintiff is entitled to challenge the validity of Ex.B1 settlement deed regarding the execution of the said document. Since the 1st appellant/plaintiff raised such a plea, unless the 2nd defendant proves the said document as contemplated under Sec.68 of the Act, the settlement deed cannot be relied on to