JUDGMENT :

P.B. Balaji, J.

[PRAYER:- Appeal Suit filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 30.06.2008 made in O.S.No.172 of 2007 on the file of the First Additional District Court, Erode.]

The above first appeal has been preferred by the unsuccessful first defendant in a suit for specific performance, challenging the judgment and decree passed in O.S.No.172 of 2007 on the file of the I Additional District Judge, Erode. The array of parties before the Trial Court is being adopted for the sake of convenience.

2. Brief facts of the plaint in O.S.No.172 of 2007 are as hereunder :

The plaintiffs entered into an unregistered agreement of sale on 15.09.2004 to purchase agricultural lands measuring about 3 acres and 63½ cents situated at Perundurai Village and Taluk, from the defendants who are father and son. The total sale consideration agreed to between the parties under the said sale agreement dated 15.09.2004 was Rs.27,823/- per cent and an advance of Rs.11,00,000/- was paid by the plaintiffs. The 1st defendant entered into an agreement of sale as Kartha of the Hindu Undivided family, for himself and also on behalf of his then minor son i.e. the 2nd defendant. The parties had categorically admitted to complete the transaction by the end of Tamil month i.e., on or before 15.11.2004. In other words, a time period of two months was fixed for concluding the sale transaction. It was also agreed under the said agreement that the 1st defendant had to take steps for conversion of the guideline value from house site to agricultural land at his cost. It was also agreed that till such conversion of guideline value, the agreement would be in force. The plaintiffs came to know that guideline was converted into agricultural/acre value basis and they requested the 1st defendant to come forward to execute the sale deed stating that the plaintiffs were continuously ready and willing to perform their part of contract by paying the balance sale consideration and get the sale deed registered at their costs. The plaintiffs caused a legal notice dated 10.04.2007 calling upon the defendants to receive the balance sale consideration and execute the sale deed. The 1st defendant sent a reply notice dated 17.04.2007 to which the plaintiffs sent a rejoinder notice dated 30.04.2007 enclosing a copy of the sale agreement in view of the denial of the very agreement itself by the 1st defendant in his reply notice dated 17.04.2007. There upon, the 1st defendant sent a notice on 05.05.2007 with false and vexatious allegations. Under such circumstances, the plaintiffs approached the Court with a suit for specific performance with an alternate relief seeking refund of a sum of Rs.14,54,567/- together with interest at 12% per annum.

The written statements filed by the defendants in brief :

3. The 1st and 2nd defendant filed independent written statements. The 1st defendant denied that he had entered into the suit sale agreement on 15.09.2004 and contended that suit properties were ancestral properties and therefore the 1st defendant has no locus to sell the same to the plaintiffs. The truth and genuineness of the sale agreement dated 15.09.2004 was disputed and the 1st defendant also stated that prevailing property prices were much higher and therefore the 1st defendant would not have agreed to sell the suit properties at Rs.27,823/- per cent. The 1st defendant further stated that he had no intention to sell the properties and sought for dismissal of the suit.

4. The 2nd defendant filed an independent written statement and attacked the maintainability of the suit on the ground that the 1st defendant had not obtained any permission for alienation of his share and that the suit agreement would not even bind the 2nd defendant. The father of the 2nd defendant never agreed to sell the suit properties and the plaintiffs have fraudulently created the suit agreement.

5. In pursuance of an interlocutory application, I.A.No.998 of 2007, b