In a suit for specific performance, the plaintiff must prove continuous readiness and willingness to perform their obligations. Establishing a case based on inadmissible evidence or the testimony of a party who avoids cross-examination is legally insufficient, warranting an adverse inference under Section 114 of the Evidence Act.

JUDGMENT

1.The appellant in this Second Appeal is the second defendant in a suit for specific performance of contract. The second defendant suffered concurrently before the Trial Court as well as the First Appellate Court.

2.The Second Appeal was admitted by this Court on10.07.2018 on the following substantial questions of law:

1) Whether the Courts below are right in accepting the alleged sale agreement dated 13.05.1999 entered between defendants 1 and 2 when the same has not been produced and marked as exhibit, but simple based upon the evidence given in criminal case, which is not permissible under law?

2) Whether the Courts below are right in treating Ex.B.1, the power of attorney executed by the second defendant in favour of the first defendant as a document of sale when there is no transfer of interest or title on the basis of power of attorney and when the General Power of Attorney will not come under the definition of sale as defined under Section 45 of the Transfer of Property Act, 1882?

3) Whether the lower Appellate Court is right in allowing the Cross Appeal holding that the first defendant alone entitle to the sale consideration deposited in the Court?

4) When the plaintiff has entered into an agreement of sale in Exhibit A1, knowing well that the first defendant has no title over the property and as per Section 17 of the Specific Relief Act, 1963, the contract is not enforceable whether the Courts below have committed serious error in decreeing the suit?”

3.At the time of final hearing of the appeal Mr.H.Arumugam, learned Counsel for the appellant would state that the appellant has also suggested additional substantial questions of law. I have examined the suggested questions of law and found that they are also arising for adjudication and hence, the following 4 additional substantial questions of law suggested additionally, on 01.04.2025, are framed:

“a) When admittedly the balance amount of Rs.1,00,000/- was not paid and the suit notice was sent only on 09.05.2011 ie., after 4 months from the expiry of one year time limitation under the sale agreement dated 28.12.2009, whether the Courts below are right in giving a finding that the plaintiff has proved his readiness and willingness as per Section 16(c) of Specific Relief Act, 1963?

b) When the 1^st defendant did not subject himself for cross examination, whether the Courts below are right in not drawing adverse inference under Section 114(g) of Indian Evidence Act, 1872?

c) When there is no proof for payment of sale consideration by the 1^st defendant to 2^nd defendant and settlement of accoutn as contemplated under Section 202 and 207 of Contract Act, whether the lower appellate Court is right in holding that 1^st defendant alone is entitled to sale consideration accepting the evidence of 1^st defendant who is not competent to speak about the same?”

4.I have heard Mr.H.Arumugam, learned Counsel for the appellant, Mr.J.John, learned Counsel for the first respondent and Mr.D.Senthil, learned Counsel for the respondents 4 to 7.

5.Mr.H.Arumugam, learned Counsel for the appellant would contend that the suit property originally belonged to the appellant / second defendant and he had executed a registered power of attorney deed dated 19.07.2000 in favour of the first defendant. The said power of attorney was subsequently cancelled on 12.04.2010. Thereafter, a settlement deed came to be fraudulently executed by the first defendant in favour of his son. However, the first defendant taking advantage of the power of attorney in his favour executed a sale in favour of the plaintiff, wherein he described himself as owner of the property and not as power of attorney agent of the appellant / second defendant. A suit was filed by the appellant in O.S.No.280 of 2011, on the file of the Additional Sub Court Dindigul for the relief of declaration and injunction as against the first defendant, in respect of the suit property. In the meantime, the plaintiff filed the suit for specific performance,