The duty of the appellants to prove that the property is ancestral and joint family property, and the requirement for a concluded contract for specific performance.

The second appeal has been filed against the judgment and decree made in A.S.No.108 of 1996 on the file of the Principal Sub Court, Tenkasi, dated 18.06.1999 reversing the judgment and decree in O.S.No.7 of 1996 on the file of the District Munsif Court, Shencottai, dated 24.04.1996.

2. The plaintiffs, who lost the appeal before the Principal Sub Court, Tenkasi, have come forward with this second appeal stating that they filed a suit for partition and also for specific performance and also for future profits stating that the suit schedule property is the ancestral property of Sudalai Pandaram. Sudalai Pandaram is having a son viz., Arunachala Pandaram. He has two sons viz., Veeraputhiran Pandaram and Muthiah Pandaram. Veeraputhiran Pandaram's Wife viz., Arumugathammal and they have three sons viz., Palanichamy, Karuppasamy, Subramanian and one daughter Palaniammal. Muthiah Pandaram's wife viz., third plaintiff Chidambaram Ammal and they are having one son viz., first plaintiff Chellappa @ Arunachalam and one daughter viz., second plaintiff Palaniammal. Since the property is ancestral property and Arunachalam died intestate, the two children viz., Veeraputhiran Pandaram and Muthiah Pandaram are entitled each half share. Now, the half share of Veeraputhiran Pandaram has been inherited by Arumugathammal and her children and sold the same in favour of the defendants 1 and 2. Therefore, the plaintiffs/appellants have filed the suit for partition of half share in the property. They have also filed the suit for specific performance stating that even though the defendants 1 and 2 have entered into the sale agreement, they have not performed their part of contract, in respect of the half share purchased from the legal heirs of Veeraputharan Pandaram.

3. The defendants filed a detailed written statement contesting the same stating that there was a partition taken place, in which, the plaintiffs were allotted northern 1/3 share, because, even in the year 1923, at the time of marriage of Arumugathammal with Veeraputhiran Pandaram, Arunachalam Pandaram had executed a settlement deed and hence, she is entitled 1/3 share on the southern portion and the northern portion was allotted to the plaintiffs and the middle portion was allotted to the children of Veeraputharan Pandaram and therefore, they are not entitled for any partition.

4. They have also raised a defence stating that there is no sale agreement and hence, the plaintiffs are not entitled decree of specific performance.

5. The trial Court, after considering the plaint and written statement, framed necessary issues and after considering the oral and documentary evidence, decreed the suit, against which, an appeal was preferred and the appeal was allowed and the judgment and decree of the trial Court was set aside and consequently, the suit was dismissed, against which, the second appeal has been preferred.

6. At the time of admission, the following substantial questions of law have been framed for consideration of the second appeal:

“1.Whether the Lower Appellate Court failed to note than when defendants 1 and 2 did not file any written statement, the claim of the plaintiffs are accepted according to law and the decisions rendered by the Apex Court and High Court?

2. Whether the Lower Appellate Court erred in holding that the 3rd defendant is entitled to claim benefits under specific relief Act as bonafide purchaser for value?

3. Whether the Lower Appellate Court erred in rejecting the claim for partition and specific performance of contract especially when the appellants were ready and willing of sale agreement?”

SUBSTANTIAL QUESTIONS OF LAW 1 TO 3:

7. The learned counsel appearing for the appellants would submit that in respect of partition is concerned, there was no partition was taken place. The total extent of suit property is 3-3/4 cents, but, in the written statement, they have stated that they are allotted northern side 1-1/4 cents in favour of the plaintiffs/appellant. But, th