The burden of proof lies on the party asserting a legal right or liability dependent on the existence of facts. The plaintiff must prove the existence of the facts to establish the validity of an agreement.

JUDGMENT

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree made in A.S.No. 66 of 97 dated 31.03.1999 by the learned Principal Subordinate Judge, Chengalpattu reversing the Judgment and Decree made in O.S.No. 81 of 1996 dated 11.07.1997 by the learned District Munsif Court, Chengalpattu.)

1. The 1st, 4th, 6th to 11th defendants in O.S. No. 81 of 1996 on the file of the District Munsif Court, Chenglapet (originally O.S. No. 47 of 1987 on the file of Sub Court, Chengalpet) are the appellants.

2. The suit in O.S. No. 47 of 1987, subsequently on transfer to the District Munsif Court, renumbered as O.S. No. 81 of 1996 had been filed R. Premchand, the 1st respondent who died pending the second appeal, seeking specific performance of an agreement dated 30.09.1985, alleged to have been entered into with him by Govindaraja Naicker with respect to the suit schedule punja lands at Puducheri Village hamlet of Kattur Village, Guduvanchery, Chengalpet. The defendants in the suit were the legal heirs of Govindaraja Naicker. The 2nd defendant remained exparte. During the pendency of the suit, the 3rd defendant died and his legal representatives had been brought on record as 8th to 11th defendants.

3. By judgment dated 11.07.1997, the District Munsif, Chengalpet dismissed the suit with costs.

4. The plaintiff then filed A.S. No. 66 of 1997 before the Principal Sub Court, Chengalpet. By judgment dated 31.03.1999, the appeal suit was allowed with costs and the decree of the trial court in O. S. No. 81 of 1996 was set aside.

5. This had necessitated the 1st, 4th, 6th to 11th defendants to file the present second appeal. Pending the appeal, the 3rd respondent/5th defendant in the suit and the 1st respondent/plaintiff in the suit/R. Premchand died and their legal representatives had been brought on record as 4th to 7th and 8th to 12th respondents respectively.

6. The second appeal had been admitted on the following substantial questions of law :

“1. Whether the lower Court erred in coming to the conclusion that Ex. A-1, the sale agreement, dated 30.09.1985, has been proved in spite of the fact that P.W.2 admits that he is not aware whether Ex. A-1 contains the signature of Govindaraja Naicker or not ?

2. Is the lower Court right in concluding that the plaintiff has proved Ex. A-1 especially when no attempts have been made by him to prove the signature of Govindaraja Naicker with that of any of his admitted signatures, especially when there is ocean of difference between Exs. A-1 and A- 2?

3. Has the lower Court committed grave error in not at all going into the question as to the willingness and readiness of the plaintiff from the date of agreement till filing of suit, more so when the fact is not admitted by the defendants ? “

7. As stated, the 1st respondent/plaintiff in the suit died pending the second appeal and his legal representatives had been brought on record as 8th to 12 respondents. Though notice had been served, they had taken a conscious decision not to appear before this Court. This Court had therefore appointed Mr. K. Venkatasubban, Advocate to assist the Court as amicus to put forth their case.

O.S. No. 81 of 1996 (District Munsif Court, Chengelpet) (Originally O.S. No. 47 of 1987 on the file of Sub Court, Chengelpet):

8. The plaintiff, R. Premchand sought specific performance of an agreement which he claimed had been entered into by him with Govindaraja Naicker on 30.09.1985 with respect to the suit schedule punja lands at Puducheri Village hamlet of Kattur Village, Guduvanchery, Chengalpet for total consideration of Rs. 16,640/-. An advance of Rs.2,101/- was stated to have been paid as advance. Govindaraja Naicker died on 28.11.1985. It was further claimed that the 2nd defendant, one of the sons of Govindaraja Naicker, who remained exparte in the suit, approached the plaintiff on 04.12.1985 and received further advance of Rs.1,300/-. Claiming that he was ready and willing