IMPORTANT POINT
The central legal point established in the judgment is the requirement to demonstrate readiness and willingness for specific performance, as well as the application of Section 92 of the Evidence Act, 1872, and the amendment to Section 6 of the Hindu Succession Act.

JUDGMENT :

V. LAKSHMINARAYANAN, J.

Prayer: Second Appeal filed under Section 100 of CPC against the judgment and decree of the learned Subordinate Judge of Harur dated 20.09.2012 in A.S. No. 22 of 2012 confirming the judgment and decree of the learned District Munsif of Harur dated 25.11.2011 in O.S No. 343 of 2006.

1. The present second appeal arises out of a judgment and decree of the Court of Subordinate Judge at Harur in A.S. No. 22 of 2012 dated 20.09.2012 in confirming the judgment and decree of the Court of District Munsif at Harur in O.S. No. 343 of 2006 dated 25.11.2011.

2. O.S. No. 343 of 2006 is a suit for specific performance of an agreement for sale dated 28.10.2005. The case of the plaintiff is that his son, Dharuman, 1st defendant had agreed to sell the suit schedule mentioned property for a sum of Rs. 60,000/-. To that effect they entered into an agreement for sale on 28.10.2005 and the same was registered. On the basis of this agreement, a sum of Rs. 50,000/- was paid as advance leaving a balance of Rs. 10,000/-. It was agreed that the balance amount will be paid and the sale deed will be registered. The time period granted under the agreement was one year.

3. According to the plaintiff, he approached the vendors to alienate the property on several occasions but they were evading the same. Being left with no other option, he issued a telegram to the vendors on 23.10.2006 and called upon them to be present for registration before the Sub-Registrar, Harur on 26.10.2006. Despite this notice and demand, as the defendants did not execute the sale deed, being left with no other option, he filed a suit for specific performance of an agreement for sale. The suit was taken on file as O.S. No. 343 of 2006. Just before the presentation of the plaint, Annamalai, the second defendant passed away and therefore, his legal heirs, namely his wife and three daughters were impleaded as Defendants 2 to 5.

4. On entering appearance, the defendants took a stand that the suit is a false one. They further stated that Annamalai and Dharuman never entered into an agreement for the property, which is an ancestral one for the purpose its alienation. The plaintiff had lent a sum of Rs. 25,000/- to the first defendant and Annamalai and as a security thereof, this agreement had been entered into. In fine, it was denied that the agreement under Ex.A1 is an agreement of sale but the plea being, that was one of a loan transaction.

5. On the basis of these pleadings, the learned trial Judge framed the following issues:

6. On the aspect of the loan transaction, the learned trial Judge came to the conclusion that Section 92 of the Evidence Act, 1872 bars the party from pleading that a sale agreement is not one for the purpose of security for a loan. However, the learned trial Judge went on to hold that since the daughters have a share in the property, as it is an ancestral property by virtue of the amendment to Section 6 of the Hindu Succession Act and the daughters not being a party to the agreement, the suit has to fail.

7. Aggrieved by the judgment and decree, a regular appeal was preferred before the learned Subordinate Judge at Harur. The learned Subordinate Judge confirmed the judgment and decree against which the present second appeal has been presented before this Court.

8. On 10.04.2013, notice regarding admission was ordered by this Court. Ms. Zeenath Begum entered appearance on behalf of the first respondent.

9. I heard Ms. Mathumitha for the appellant and Ms. Zeenath Begum for the respondents.

10. Ms. Mathumitha submitted that the following substantial questions of law arise for consideration in the present second appeal:

“(a) When the trial Court has given a finding that the plaintiff has established the execution of the registered suit agreement by the first defendant and his father Annamalai and the defendants having failed to challenge the said finding by way of a cross objection whether the lower appellate court is correct in reversing the sa