Hon'ble Judges/Coram:
K. Ravichandrabaabu

JUDGMENT

K. Ravichandrabaabu, J.

1. The appellants are the defendants 2 and 4 in a suit for specific performance of an agreement of sale. The trial court decreed the suit as prayed for and the appeal preferred by the defendants 2 and 4 came to be dismissed.

2. The defendants 1 and 3 died during the pendency of the suit leaving the defendants 2 and 4 as their legal heirs.

3. The case of the plaintiff is as follows:

"The suit property belonged to the first defendant. The second defendant is the wife and the defendants 3 and 4 are the children of the defendants 1 and 2. On 25.06.2003, the defendants entered into a registered agreement for sale with the plaintiff agreeing to sell the suit property for total sale consideration of Rs. 2 lakhs and received a sum of Rs. 1,65,000/- towards advance on the same day. For the payment of balance amount and execution of sale deed, three years time was fixed. Possession of the suit property was entrusted to the plaintiff on the date of agreement. Though the plaintiff was ready and willing to perform her part of the contract, the defendants evaded to perform their obligation. The plaintiff issued a legal notice on 16.05.2005, calling upon the first defendant to execute the sale deed. However, the defendants did not execute the sale deed. Therefore, the present suit is filed seeking for the relief of specific performance."

4. The defendants contested the suit as follows:

"The suit agreement was not executed with an intention to sell the suit property. The defendants approached the brother of the plaintiff by name one Venkatachalam for availing loan, who in turn insisted the defendants to execute a registered sale agreement. The defendants have borrowed a sum of Rs. 1,65,000/- only as a loan. Possession was not actually handed over to the plaintiff as recited in the agreement. On the other hand, the possession is with the defendants and they have been cultivating the suit property all along. The value of the suit property is more than Rs. 10,00,000/- per acre and there is no necessity for these defendants to sell the same for the meagre sum of Rs. 2,00,000/-. The defendants are ready to repay Rs. 1,65,000/- with interest. After receipt of the legal notice, when the defendants approached the plaintiff and her brother and expressed their willingness to settle the loan amount with interest, the plaintiff assured that she will not pursue legal action. Believing the words of the plaintiff, the defendants did not reply to the legal notice. The plaintiff's brother is doing money lending business with whom, the defendants have already entered into an agreement of sale in respect of the suit property, which was subsequently cancelled and that for settling the amount to the plaintiff's brother, the present suit agreement was executed."

5. The plaintiff examined herself as PW1 and examined other three independent witnesses as Pws.2, 3 and 4. Exs. A1 to A20 were marked on her side. The fourth defendant examined himself as DW1 and three independent witnesses viz., Dws.2, 3 and 4 were examined. Exs. B1 to B11 were marked on the side of the defendants. Three certified copies of the sale deeds were marked as court documents as Exs. X1, X2 and X3.

6. After considering the pleadings of the respective parties and the evidence let in by them, the trial court decreed the suit as prayed for. The Appellate Court confirmed the findings of the trial court and thus, dismissed the appeal. Hence, the present appeal.

7. This Court while admitting the appeal, raised the following substantial questions of law:

"i) Whether the First Appellate Court was right in holding that the defendants are de-barred from pleading against the sale agreement, purportedly, by the bar emanated under Section 92 of the Indian Evidence Act?

ii) Whether the First Appellate Court was right in ignoring the legal position that when fraud is alleged, Section 92 of the Indian Evidence Act is not a bar for the person who alleges so to le........