JUDGMENT :

G.JAYACHANDRAN, J.

Prayer :- First Appeal filed under Section 96 of C.P.C., against the judgment and decree, dated 05.07.2012, passed in O.S.No.52 of 2010, on the file of the First Additional District Court, Thoothukudi.

This Appeal Suit is filed by the fourth defendant being aggrieved by the judgment and decree passed by the trial Court for specific performance of the contract entered between the plaintiffs/respondents 1 to 3 with one Ramesh Kannan [since deceased]. The respondents 1 to 3 are the legal heirs of the said Ramesh Kannan.

2. The brief facts of the case as found in the pleadings runs as under:-

2.1. The suit schedule property was purchased by Ayyakutti Achari on 10.03.1975 from S.K.S.Rajamani Nadar. Ayyakutti Achari died intestate leaving behind his wife, sole son Ramesh Kannan and three daughters. The female descendants namely, wife and daughters released their right in the property in favour of the male descendants Ramesh Kannan through a registered release deed, dated 24.03.2003. Thus, Ramesh Kannan became the absolute owner of the suit schedule property. While so, during his lifetime, he entered into an agreement of sale on 28.05.2007 with the plaintiffs for consideration of Rs.75,00,000/-. A sum of Rs.10,00,000/- was received as advance towards the sale consideration. At the time of sale agreement, a portion of the property was already in possession of M/s.Sankareswari Agencies, a Partnership Firm, consisting of the plaintiffs as its Partners. Another portion of the suit property was leased out to one Nevil, who was running a business under the name and style of Mario Car Jewels. Two years prior to the sale agreement, dated 28.05.2007, the said Nevil has inducted J.Thomas [fourth defendant in the suit/appellant herein] and admittedly, the said J.Thomas running a business in a portion of the suit property under the name and style of Mario Car Jewels. As per the terms of the sale agreement, Ramesh Kannan, the vendor agreed to vacate the tenants within six months and hand over the vacant possession. However, Ramesh Kannan within a period of six months was not able to vacate the fourth defendant, who was occupying a portion of the suit property.

2.2. On 30.12.2008, the vendor Ramesh Kannan issued a notice through his counsel, expressing his inability to vacate the tenants and came forward to cancel the sale agreement. The plaintiffs, in turn, were not agreeable for the unilateral cancellation of the sale agreement, but ready and willing to perform their part of contract and waive the performance of the obligation vested on the vendor to hand over the vacant possession after evicting the tenants. While so, the said Ramesh Kannan after cancelling the sale agreement unilaterally and informing the same through a Telegram, dated 20.01.2009, entered into a sale agreement with the fourth defendant on 21.02.2009 and informed the plaintiffs that the rent for the premises occupied by the plaintiffs henceforth should be paid to the fourth defendant.

2.3. A reply dated 23.05.2009 to this intimation was sent by the plaintiffs to the vendor Ramesh Kannan pointing that there cannot be an unilateral cancellation of the sale agreement and the further agreement with the fourth defendant is a fraudulent one. Hence, rent need not be tendered to the fourth defendant. While the parties were exchanging notice between themselves, the vendor Ramesh Kannan died on 28.10.2009. The suit for specific performance to enforce the sale agreement dated 28.05.2007 was instituted by the plaintiffs against the legal heirs of the deceased Ramesh Kannan and the appellant J.Thomas as fourth defendant since he was in possession of a part of the property and running a business under the name and style of Mario Car Jewels.

2.4. At the time of filing the suit, the third defendant Shanmugapriya, daughter of Ramesh Kannan was a minor. The first defendant, the mother of Ramesh Kannan, filed a written statement admitting the sale agreement and receipt of Rs