The plaintiff in a suit for specific performance is not obliged to deposit the amount before filing the suit, as per Section 16(c) of the Specific Relief Act.

1. Defendants 2 and 4 are the appellants.

2. The first respondent filed the suit for specific performance of an agreement of sale dated 5.5.1993 executed by the father of the appellants and respondents 2 to 8 agreeing to sell the suit property at the rate of Rs.300/= per cent and received an advance of Rs.25,950/= and nine months time was fixed for payment of balance sale consideration of Rs.1,29,850/=. As the father of the appellant Mahalingam failed to execute the sale deed, the suit was filed by the first respondent for specific performance. The case of the first respondent was that the suit property belonged to Mahalingam, the deceased first defendant and it was his separate property and he agreed to sell the suit property for Rs.300/= per cent and received Rs.25,950/= and executed the agreement of sale dated 5.5.1993 and thereafter, he did not evince any interest and therefore, the first respondent issued notice dated 8.9.1993 calling upon the deceased first defendant to execute the sale deed on receipt of balance sale consideration and the deceased first defendant admitted the execution of the agreement of sale and sent a reply on 7.10.1993 stating that without consulting his sons, he had executed the agreement of sale and the properties are the joint family properties of himself and the sons and the sons are objecting to the same and requested the first respondent to cancel the agreement and get back the advance amount.

3. The first appellant and the second respondent sent reply stating that by practising fraud on their father, the agreement was obtained for a low price and the properties belong to them jointly and therefore, requested the first respondent to cancel the agreement and get back the advance. As the deceased first defendant failed to execute the sale deed, the suit was filed for specific performance.

4. The deceased first defendant died before filing written statement, and therefore, his legal representatives were added as defendants 2 to 10. The second defendant viz., the first appellant filed a statement stating that the property belong to them jointly and his father had no right to execute the agreement of sale in favour of the first respondent herein and they have not given consent for the sale and by practising fraud, the signature of the father was obtained by the first respondent with the help of one Palani Chettiar and he also stealthily obtained the original sale deed in favour of their father and the third defendant and the second respondent herein also filed the suit for partition in O.S.No.284 of 1994 and as such, the first respondent/plaintiff is not entitled to the relief of specific performance.

5. The fifth defendant also filed statement stating that he was lured by Palani Chettiar and at his instance, he also helped his father to enter into the agreement of sale with the first respondent without knowing the mala fide intention of the first respondent/plaintiff and therefore, the sale agreement is not valid and the first respondent/plaintiff is not entitled to the relief prayed for.

6. The present appellants, who were defendants 2 and 4remained ex parte in the suit and the suit was contested by defendants 3, 5 and 7.

7. The Trial Court held that the property was the separate property of the deceased first defendant Mahalingam and it was not the joint family property of Mahalingam and his sons and that Mahalingam entered into the agreement of sale voluntarily and no fraud has been practised upon him and considering the price hike, he wanted to rescind from the agreement of sale and issued reply notice and the first respondent proved his readiness and willingness to proceed with the agreement of sale and decreed the suit as prayed for. Nevertheless the Trial Court did not award cost to the first respondent. Therefore, the first respondent filed A.S.No.27 of 2007 against the judgment and decree insofar as the cost is concerned and defendants 2 to 5, and 7, 8 and 10 filed A.S.No.28 of