Party against whom the contract was sought to be enforced has signed the contract.

P. Sathasivam, J.

1. Defendants 1 to 7 in O.S. No. 7368 of 1978 on the file of IV Additional Judge, City Civil Court, Madras are the appellants in the above appeal. The first respondent herein filed the said suit for specific performance.

2. The case of the plaintiff is briefly stated here under.

The plaintiff and one Narayanaswami Pillai entered into an agreement of sale dated 21.7.1973 under which Narayanaswami Pillai agreed to sell the suit property for a sale consideration of Rs. 37,000 free from all encumbrances According to the terms of the agreement, Narayanaswami Pillai should discharge a subsisting mortgage in respect of this property, pay the arrears of taxe6, obtain an encumbrance certificate and convey the property free from all encumbrances. Subsequently on 11.10.1975 Narayanaswami Pillai received a sum of Rs. 13,500 representing that he would discharge the two mortgages in respect of the property and another in respect of another property of Narayanaswami Pillai due to the same mortgagee. Including the advance of Rs. 1,100 paid on the date of the agreement and the subsequent payments made by the plaintiff, Narayanaswami Pillai had received a total sum of Rs. 17,851 towards the sale consideration. However, Narayanaswami Pillai did not redeem the mortgages. He took a hostile attitude. But possession of the property was delivered in part performance of the agreement of sale. Before completing the execution of the sale deed Narayanaswami Pillai died on 9.11.1977. The first defendant/first appellant is the wife and defendants 2 and 3/appellants 2 and 3 are the sons and defendants 4 to 7/appellants 4 to 7 are the daughters of Narayanaswami Pillai. 8th defendant/2nd respondent is the legal representative of the mortgagee. The plaintiff issued a notice even during the life time of Narayanaswami Pillai asking him to execute the sale deed. But Narayanaswami Pillai sent a reply refusing to execute the sale deed and rescinding the contract. After the death of Narayanaswami Pillai, the plaintiff issued a notice to the defendants 1 to 7 calling upon them to execute the sale deed. The said demand made by the notice dated 2.6.1978 was not complied with by the defendants 1 to 7. The plaintiff has been ever ready and willing to perform his part of the contract and as such he has come forward with the above suit for specific performance directing the defendants 1 to 7 to execute a registered sale deed after discharge of the subsisting mortgage.

3. Defendants 1 to 7 filed a written statement and contended that Narayanaswami Pillai had himself sent a reply notice dated 9.8.1977 terminating the contract. The defendants admit the receipt of the total sum of Rs. 17,851. The plaintiff had agreed to discharge a mortgage from and out of the balance of sale price within a period of six months, but he did not discharge the mortgage. So it is the plaintiff who committed breach of the contract. After the death of Narayanaswami Pillai, the plaintiff had made forcible entry into the property. The possession of the property was not given to the plaintiff in part performance of the agreement to sale. The defendants 1 to 3 had filed O.S. No. 4457 of 1978 in the City Civil Court for permanent injunction. The present suit has been filed only after the other suit was filed by defendants 1 to 3. The 8th defendant filed a written statement and contended that there are two mortgages subsisting over this property, the one for Rs. 3,000 and the other for Rs. 4,000. The 8th defendant has filed O.S. No. 8366 of 1977 for recovery of a sum of Rs. 14,465 due on the mortgages.

4. The plaintiff himself was examined as P.W. 4 and one Ratnam was examined as P.W. 2 apart from marking Exs. A-1 to A-35 in order to prove his case. On the other hand, third defendant was examined as D.W. I and Exs. B-1 to B-9 were marked on the side of the defendants. In the light of the above pleadings and oral and documentary evidence, after framing necessary issued, the learned 4th