- (1.) The following questions are raised in this appeal: 1. Whether on the facts and circumstances of this case the High Court is right in decreeing the suit for specific performance to the extent of the share of the Appellants 2. Whether the purported agreement of sale is one for the sale of the entire suit property and not for the sale of individual shares. Hence, whether the High Court is right in decreeing the suit only in respect of the shares of Appellants Nos. 1 to9 3. Whether in a suit for specific performance where alternative plea of partition is also raised, was the High Court to decree the suit for partition
(2.) In order to appreciate the controversy, we are herewith giving short gist of facts.
(3.) The suit property is a tiled house in Erode Town which originally belong to one Aziz Khan. On his death, his heirs under the Muslim Law, viz. , Appellant Nos. 1 to 9 who are brothers and Respondent Nos. 2 and 3 who are sisters inherited the said property. According to Appellants, after negotiation for the sale of the said property with Respondent No. 1, agreement of sale was purported to be executed between the Appellants and Respondent Nos. 2 and 3 on the one hand and Respondent No. 1 on the other hand. Some dispute is raised with reference to two documents viz. , Exhibit A-1 which is said to be the original sale agreement produced by the Plaintiff-Respondent from his possession and the other is Exhibit B-1 produced by the, Appellants. Both these documents according to the Appellant are original. The distinguishing difference between the two documents is that Exhibit A-1 is purported to be signed by Respondent No. 1 while Exhibit B-1 is not signed by Respondent No. 1. It is not in dispute that the aforesaid two sisters, viz. , Respondent Nos. 2 and 3 did not sign either of the two agreements. This agreement of sale is dated 8th November, 1978. In spite of the said agreement, when sale deed was not executed, the plaintiff-Respondent No. 1 issued notice dated 29th November, 1979 for the execution of the sale deed. The notice states that though the Appellants assured and undertook to get , the signatures of Respondent Nos. 2 and 3 but they did not do so. In any case in the alternative the Appellants are bound and thus they should execute the sale deed to the extent of their share in the property. The Appellants denied these allegations of the notice. Thereafter, Respondent No. 1 filed the present suit for specific performance of the aforesaid sale agreement dated 8th November, 1978 and for the partition and separate possession of their 5/6th share in the said property. A written statement was filed by the Appellant No. 1 which was adopted by the other Appellant Nos. 2 to 9. They denied that they gave any assurance or promise to obtain the signatures of their sisters. They fulfilled all their obligations and it is the plaintiff who did not and was never willing and ready to perform his part of the obligations and that this suit is filed only to avoid the forfeiture of his advance money. Initially rupees five thousand was paid by the plaintiff as per the agreement of sale. A plea was raised in the additional written statement that the sale could only be one indivisible sale in respect of the entire property for which all their heirs, viz. , defendant Nos. 1 to 11 (Appellant Nos. 1 to 9 and Respondent Nos. 2 and 3 herein) must join. Admittedly the sisters have not joined in this agreement of sale. The Appellant's case is that it was the plaintiff who undertook to obtain the signatures of their sisters which he could not, hence the suit must fail.;