RAJESH H. SHUKLA, J.

1. Appeal from Order No. 199 of 2012 with Civil Application No. 6470 of 2012 has been filed by the appellants-original defendants Nos. 3-4 being aggrieved with the impugned order passed below Exh.5 in Special Civil Suit No. 288/2011 by the 5th Addl. Sr. Civil Judge, Surat, dated 2.3.2012 on the grounds stated in the said Appeal from Order.

2. Appeal from Order No. 200 of 2012 with Civil Application No. 6471 of 2012 has been filed by the appellants-original defendants Nos. 1-2 being aggrieved by the impugned order passed below Exh.5 in Special Civil Suit No. 288/2011 by the 5th Addl. Sr. Civil Judge, Surat, dated 2.3.2012 on the grounds stated in the said Appeal from Order.

3. Before recording the rival submissions, a brief background of the facts is required to be stated that the aforesaid Special Civil Suit No.288/2011 came to be filed by the plaintiffs against original defendants Nos.1-2, the appellants in Appeal from Order No. 200 of 2012, and against original defendants Nos. 3 & 4 who are the appellants in Appeal from Order No. 199 of 2012, for specific performance of the writing/Banachitti dated 18.11.2010 on the grounds set out in the Appeal from Orders. The said writing/Banachitti is stated to have been executed pursuant to an oral understanding or an agreement between the parties for sale of land in question situated at Surat.

4. Learned Sr. Counsel Shri Mihir Thakore appearing with learned, Advocate Shri A.B. Munshi appearing for the appellants in Appeal from Order No. 200 of 2012 has stated that there is no agreement to sell entered into by and between the parties for which a specific performance of the contract can be claimed Learned Sr. Counsel Shri Mihir Thakore submitted that the property in question has been a joint property of one Balubhai Kasanji and Nanubhai Kasanji in the year 1986. Nanubhai expired and respondent No. 1 is the widow of Nanubhai. He submitted that as per the agreement of 'samyik' the two daughters consented. Nanubhai expired in 1994 and on his death the share in the property would go as per the devolution in favour of Dhanuben, Nareshbhai and the two daughters. Learned Sr. Counsel Shri Mihir Thakore submitted that in any case the two daughters will have a share in the joint family property and the so-called agreement or Sodachitti dated 18.11.2010 (mark 3/10) produced at p. 43 and 44 cannot be said to be a valid agreement inasmuch as the two daughters have not signed having interest in the property. Learned Sr. Counsel Shri Mihir Thakore further submitted that a close look at the said agreement/writing/Banachitti dated 18.11.2010 would make it clear that it has been signed by only two persons and it does not bear the signature of the sisters or it is not stated that the mother Dhanuben has signed as the power-of-attorney holder of the sisters, defendants Nos. 3-4. Learned Sr. Counsel Shri Mihir Thakore also submitted that there is a sodachitti produced on record which clearly suggests that only two persons have signed (mother and son) and it does not bear the signature of the sisters who were having a share in the property.

5. Learned Sr. Counsel Shri Mihir Thakore submitted that the sequence of events which have taken place are also required to be considered. He submitted that on 12.11.2011 a public notice (Mark 3/12) has been issued and a criminal complaint has been filed which is produced at Mark 3/13. Learned Sr. Counsel Shri Mihir Thakore submitted that the attitude or the conduct of the party is required to be noted. He emphasised and submitted that Rs.40 crores are required to be paid. Again he referred to the public notice (mark 3/22) and submitted that what was provided was that 10% was to be paid by 10.2.2011 whereas only 1% was paid. He submitted that still the suit is not filed till June, 2011. He emphasised and submitted that the bona fides of the appellants-plaintiffs to show that they were ready and willing to perform their part of the obligations is req