JUDGMENT

A.S. Chandurkar, J. - Since both these second appeals arise out of a common judgment of the first appellate Court they are being decided together by this common judgment.

The parties are being referred to by their original status. In Second Appeal No. 480/2016 the appellants-original defendant Nos. 1 and 2 are aggrieved by the decree for specific performance passed by the appellate Court directing the said defendants to register the saledeed in respect of a shop block admeasuring 200 sq. ft in terms of agreement dated 07/12/2000 in favour of the respondent No. 1 plaintiff. It is the case of the plaintiff that he was occupying the premises owned by defendant Nos. 1 and 2 for a period of more than twenty years prior to filing of the suit. He was carrying on his business of selling handloom products therein. The defendant Nos. 1 and 2 on 07/12/2000 agreed to sell the shop block to the plaintiff for a consideration of Rs. 4,50,000/-. As per that agreement an amount of Rs. 1,00,000/- was paid as earnest amount and the balance consideration was to be paid within a period of six months by which time the said defendants were to complete construction of the shop block. It was further agreed that in case the defendants failed to perform their part of agreement, the plaintiff would be entitled to claim damages at the rate of Rs. 15,000/- per month. Other relevant documents were to be obtained by the defendants. According to the plaintiff he was always ready and willing to perform his part of agreement but the defendants avoided to complete the transaction. On 02/06/2001 a letter was issued by the plaintiff to the defendants to complete the transaction. As there was no response, the plaintiff issued a notice to the defendants on 14/06/2001 calling upon them to execute the saledeed. The defendants were also informed that a Pay Order for an amount of Rs. 3,50,000/- towards balance consideration was kept ready. As the defendants avoided to execute the saledeed, the plaintiff filed suit for specific performance of the agreement dated 07/12/2000 on 29/06/2001.

2. In the written statement the defendants took the stand that the agreement dated 07/12/2000 was illegal and void ab initio. According to them the suit property was ancestral property of their family. As suit for partition and separate possession being Spl. C.S. No. 511/2011 with regard to the same property was pending, question of executing the saledeed in favour of the plaintiff did not arise. The agreement had been frustrated and attempts were made by the defendants to refund the earnest amount of Rs. 1,00,000/-. It was further pleaded that the grandfather of the defendants Veerbhan had executed a Will on 22/01/1981 bequeathing the property in their favour. However, by revoking that Will Veerbhan had executed a subsequent Will on 15/03/1981. The defendants were not aware about revocation of the Will in their favour. It was thus pleaded that the suit was liable to be dismissed.

3. The trial Court after considering the evidence on record came to the conclusion that the plaintiff had proved the agreement dated 07/12/2000 and that he was ready and willing to perform his part of agreement. The defendants having failed to perform their part of agreement, the trial Court decreed the suit for specific performance by its judgment dated 27/10/2005. Being aggrieved the defendant Nos. 1 and 2 filed R.C.A. No. 744/2012. By the judgment dated 7/06/2016 the appellate Court confirmed the findings of the trial Court and dismissed the appeal. That adjudication is challenged in Second Appeal No. 480/2016.

4. Second Appeal No. 481/2016 has been filed by the original plaintiff who had filed Special Civil Suit No. 511/2001 for partition and separate possession. It is the case of the plaintiff who is the sister of defendant Nos. 1 and 2 in Spl. Civil Suit No. 446/2001 that the grandfather of the plaintiff and defendant Nos. 1 to 7 Veerbhan had executed his last Will on 05/03/1981 and had bequeathed