P.KALAIYARASAN, J.

Challenging the common Judgment and Decree, decreeing the suit for specific performance in O.S.No.11 of 2006 and dismissing the suit for partition with respect to Item No.1 of the property, defendants 2 to 4 in O.S.No.11 of 2006 and the plaintiff in O.S.No.18 of 2009 filed A.S.No.437 of 2011 and A.S.No.480 of 2011 respectively.

2. O.S.No.11 of 2006 has been filed for specific performance by Bakkiyam against T.L.Jagadeesan, his wife J.Alamelu and children T.J.Raghupathi, J.Pasupathi and Jaya Vidhya. After the demise of T.L.Jagadeesan, his daughter Jaya Vidhya filed O.S.No.18 of 2009 against his brothers, mother and the agreement holder for partition with respect to the properties including the property covered under the sale agreement in the above mentioned suit.

3. The plaint averments in O.S.No.11 of 2006 is as follows:

(i) The suit property comprising of 34 3/4 cents in S.F.No.159/2A of Kailasampalayam Thiruchengode Taluk belongs to the first defendant T.L.Jagadeesan. He purchased this property along with his brother Manickam in the year 1961 and then partitioned among themselves in 1987 and therefore, it is a self-acquired property. T.L.Jagadeesan, his wife and their children namely defendants executed a sale agreement in favour of the plaintiff Bakkiyam on 03.10.2005, agreeing to sell the suit property for a sum of Rs.43,76,750/- and the first defendant T.L.Jagadeesan paid advance of Rs.15,00,000/-. Only for binding nature, heirs of Jagadeesan were added in the agreement and except the fifth defendant, namely Jaya Vidhya, others signed the agreement. It was agreed that within two months from the date of sale agreement, the first defendant is to execute the sale deed without any encumbrance and the plaintiff is to pay the balance sale price. The plaintiff has always been ready and willing to pay the balance sale consideration and get the sale deed executed. Though there was tiled shed to an extent of 2500 sq.ft wherein the power loom was running, the same was not mentioned in the agreement as the defendants agreed to hand over vacant possession after clearing the above sheds. Since the fifth defendant was away at the time of the execution of the sale agreement, other defendants informed that they would get her signature in the sale agreement, dated 03.10.2005 afterwards.

(ii) The plaintiff came to know after obtaining the encumbrance certificate that the property has already been mortgaged with the Salem Central Co-operative Bank, Thiruchengode for Rs.10,00,000/-. When the defendants were asked about the same, they informed that they would clear the mortgage and requested time. As informed the defendants did not come forward to clear the mortgage and execute the sale deed before the end of Tamil month Thai. In spite of repeated request, the defendants failed to perform their part of contract and therefore, the plaintiff was constrained to issue legal notice on 10.02.2006. The fourth defendant received the notice and a reply was sent by all the defendants through their Advocate alleging as if the plaintiff orally agreed to clear the mortgage debt of Rs.12 lakhs. But the plaintiff never agreed to clear the encumbrance. Hence the plaintiff has filed the suit for specific performance of contract. The first defendant died on 26.10.2007 and the fifth defendant has been impleaded as per the order in I.A.No.153 of 2008.

4. In the written statement filed by the fourth defendant and adopted by other defendants, it is averred that the suit property was purchased by the first defendant with joint family nucleus and it is not the self-acquired property. The first defendant has got only 1/4th share and defendants 3 and 4 are each entitled to 1/4th share and the first defendant's Daughter D5 is entitled to the remaining 1/4th share. In the sale agreement, dated 03.10.2005 D5 has not signed. It is true that defendants 1 to 4 signed the alleged suit agreement and received Rs.15 lakhs as advance. Since D5 has not signed