Wrong details/averments given in the agreement hence not enforceable.

1. Theabove appeal suit is directed against the judgment and decree dated 12.2.1985 made in O.S.No.141 of 1982 by the Court of Subordinate Judge, Salem, thereby dismissing the suit, filed by the appellant herein for specific performance of the contract, without costs.

2. The facts and circumstances, as pleaded by the appellant/plaintiff in the plaint are that the suit schedule ‘A’ properties belonged to the mother of the defendants 1 to 6, viz., Majubi alias Khairoonkhathu, who died in 1977, leaving behind her the defendants 1 to 6 to succeed to her estate, since her husband had pre-deceased her; that in September, 1978, defendants 1 to 3, for themselves and authorised by defendants 4 and 5 their brothers and the 6th defendant-their sister, represented to the plaintiff to negotiate and sell the suit property and offered the same for sale to the plaintiff, further promising to evict the tenants and hand over vacant physical possession of the property at the time of executing the sale deed; that after negotiation, the price was settled at Rs.51,750 and that the defendants 1 to 3 executed an agreement of sale in favour of the plaintiff on 28.9.1978, after receiving an advance amount of Rs.5,000 from out of the sale price of Rs.51,750, further agreeing to execute the sale deed by all the heirs of Majubi alias Khairoonkhathu Bi (their mother) after receiving the balance sale consideration and to evict the tenants within five months from the date of agreement; that in spite of the plaintiff being ready and willing to perform his part of contract, defendants 1 to 3 adopted declaratory tactics; that on 19.2.1979, at the representation of the defendants 1 to 3, the time for performing the contract was extended till 28.8.1979 or till they got possession of the suit property and necessary endorsement was made on the back of the agreement, but all of a sudden, the second defendant issued a notice dated 8.10.1979 to the plaintiff returning thereby the sum of Rs.5,000 received as advance by defendants 1 to 3, by crossed cheque dated 8.10.1979.

3. The further pleadings of the plaintiff are that the plaintiff sent a reply notice dated 19.10.1979 to the notice issued by the second defendant on 8.10.1979, repudiating the false allegations made in the said notice and further demanding the execution of the sale deed in terms of the contract and in spite of receipt of the reply notice, the defendants failed to comply with the requirements of the same; that on the contrary, the plaintiff was give to understand that the defendants 1 to 3 and 5 and 6 sold the property in favour of the 7th defendant by executing a sale deed on 30.4.1980 for Rs.15,000; that the 7th defendant, having fully known of the earlier agreement of the appellant with defendants 1 to 3, had purchased the suit property; that the 7th defendant is not a bona fide purchaser for value of the suit property, without notice of the suit agreement, as such, he is liable to execute a sale deed in favour of the plaintiff along with the other defendants, if necessary, and put the plaintiff in possession of the suit property. Hence, the suit for specific performance of the agreement of sale, directing the defendants to execute the sale deed in favour of the plaintiff and to put the plaintiff in possession of the suit property, after effecting division by metes and bounds; for awarding mesne profits; alternatively, for granting damages and refund of advance and for costs.

4. In the written statement filed by the second defendant and adopted by the defendants 1, 3, 5 and 6, would deny the allegations of the plaint that in September, 1978, the defendants 1 to 3, represented to the plaintiff that they were authorised by the defendants 4 and 5 their brothers and 6th defendant-their sister, to negotiate and sell the suit property; that the suit property is not capable of division to be enjoyed by the heirs of Majubi alias Khairoon Khathun Bi separately and that since the defendants 1 to 6 we