Judgment :- R.BANUMATHI,J This appeal arises out of the judgment and decree dated 31.03.2009 made in O.S.No.358 of 2005 on the file of Additional District Judge, Fast Track Court No.3, Coimbatore decreeing the plaintiffs' suit for specific performance based on Ex.A.1 consent agreement and granting alternative relief directing the appellants/defendants to pay to the plaintiffs a sum of Rs.12,00,000/-with interest at the rate of 24% p.a. from 8.9.2005 till the date of decree and thereafter at 6% p.a. Unsuccessful defendants are the appellants. For convenience, the parties are referred to as arrayed in the suit. 2. The plaintiffs and defendants are related as under: Ramasamy Gounder (died on 24.6.1983) | Nallakkal (died on 9.3.2003) -----------------------------------------|------------------------------------ ||||||| K.R.KalikattiK.R.AyyasamyR.KrishnaswamyVelathal KaliammalParvathiK.R.Ponnammal Gounderdied 1st plaintiff 2nd plaintiff on 29.2.2004 | Annapoorani (D1) | | Jayalakshmi Thirunavukkarasu 2nd defendant 3rd defendant 3. Case of plaintiffs is that their elder brother -Kalikatti Gounder got married and living separately. In the interest of the family members, on 10.8.2003, Ex.A.1 - consent agreement was entered into among the family members as per which sisters are to be given money or alternatively property. Further case of plaintiffs is that subsequent to Ex.A.1 - consent agreement, plaintiffs along with their brothers and sisters have partitioned their common family properties under Ex.A.2 -partition deed dated 25.8.2003 and the same was registered on 8.9.2003. Subsequent to Ex.A.2 -partition deed, the plaintiffs along with their brothers and sisters entered into family arrangement, reduced into writing under Ex.A.3 -family arrangement deed (dated 8.9.2003). According to the plaintiffs, Exs.A.1 and A.3 were acted upon during the life time of plaintiffs' brother late K.R.Ayyasamy and after the death of Ayyasamy, due to alleged misunderstanding between the plaintiffs and defendants, defendants failed to perform their obligations as per the terms and conditions under Ex.A.1. The plaintiffs allege that the allotment of 'D' Schedule property under Ex.A.2 partition deed is not a fair allotment of share and the plaintiffs attack Ex.A.2. According to the plaintiffs, during the life time of K.R.Ayyasamy he has been postponing the payment of plaintiffs' share amount as per Ex.A.1 - consent agreement and thereafter the defendants were also postponing to pay plaintiffs' share amount or to execute the sale deed in favour of the plaintiffs as per Ex.A.1 agreement inspite of plaintiffs' repeated demands. According to the plaintiffs, during the life time of K.R.Ayyasamy he has been postponing the payment of plaintiffs' share amount as per Ex.A.1 - consent agreement and thereafter the defendants were also postponing to pay plaintiffs' share amount or to execute the sale deed in favour of the plaintiffs as per Ex.A.1 agreement inspite of plaintiffs' repeated demands. The plaintiffs issued Ex.A.4 pre-suit notice on 13.6.2005 and the defendants sent Ex.A.9 reply for which the plaintiffs issued a rejoinder and reply under Exs.A.10 and A.13. Further case of plaintiffs is that as per Ex.A.3, Ayyasamy had to vacate the residential house mentioned in 'D' Schedule property, wherein Ayyasamy and defendants are residing, within 1 = years of execution of Ex.A.3 and hand over vacant possession to the plaintiffs and their sisters. Ayyasamy Gounder died before the expiry of 1 = years on 29.2.2004. Defendants vacated and handed over vacant possession only later and that certain articles were also found missing and the same were reported to plaintiffs' brother Krishnasamy, who in turn preferred Ex.A.15 complaint before Alandur Police Station against the 1st defendant on 16.5.2005. Alleging that the defendants have not complied with terms under Ex.A.1 family arrangement consent agreement, plaintiffs filed the suit for (i) specific performance of the agreement in respect of the suit property by directing the defendants to execute the sale deed in favour of the plaintiffs; or in the alternative directing the defendants to pay a sum of Rs.12,00,000/-, being the market value of the suit property, with interest at the rate of 24% p.a. from 8.9.2005 till the date of realisation....- 4. Admitting Ex.A.2 - partition deed and denying having entered into Ex.A.1 -consent agreement, defendants filed written statement contending that the alleged Ex.A.1 consent agreement is non-existent. The defendants alleged that the consent agreement is a fabricated one. According to the defendants, under Ex.A.2 -partition deed, plaintiffs and other sisters viz., Velathal and Ponnammal were allotted 'D' Schedule properties. The parties to Ex.A.2 have agreed to the terms and conditions mentioned in Ex.A.2 and while so the plaintiffs are estopped from questioning Ex.A.2. 5. Specific case of defendants is that there is absolutely no recital in Ex.A.2 -partition deed about Ex.A.1 and Ex.A.1 - consent agreement is a non-existent document and a fabricated one. The parties to Ex.A.2 have agreed to the terms and conditions mentioned in Ex.A.2 and while so the plaintiffs are estopped from questioning Ex.A.2. 5. Specific case of defendants is that there is absolutely no recital in Ex.A.2 -partition deed about Ex.A.1 and Ex.A.1 - consent agreement is a non-existent document and a fabricated one. Since the house in 'D' Schedule was allotted to the plaintiffs and other sisters under Ex.A.2, the 1st defendant vacated the property after the death of her husband - Ayyasamy. The 1st defendant denied having taken some of the movables as alleged in the plaint. 6. Defendants filed additional written statement, wherein defendants have taken a specific plea that Exs.A.1 and A.3 are forged documents and that Ayyasamy Gounder did not sign in Exs.A.1 and A.3. Plaintiffs have filed reply statement. 7. On the above pleadings, the following issues and additional issues were framed by the trial Court:- Issues:- 1. Whether the Plaintiffs are entitled to the relief of specific performance as prayed for or to the alternative relief? 2. To what relief? Additional Issues: 1. Whether the consent agreement dt.10.8.2003 is true and genuine? 2. Whether the family arrangement dt.8.9.2003 is true and genuine? 3. Whether the consent agreement dt.10.8.2003 and family arrangement dt.8.9.2003 are binding on the defendants? 8. On behalf of the plaintiffs, the first plaintiff examined herself as P.W.1, her brother -Krishnasamy was examined as P.W.2 and one Subbaiyan was examined as P.W.3 and Exs.A.1 to A.15 were marked. On the side of defendants, 1st defendant examined herself as D.W.1 and one Selvaraj was examined as D.W.2 and the 2nd defendant examined herself as D.W.2 and Ex.B.1 was marked. 9. Upon consideration of oral and documentary evidence and invoking Section 73 of the Indian Evidence Act and comparing the disputed signatures of K.R.Ayyasamy in Ex.A.1 with that of his admitted signatures in Ex.A.2, the trial Court held that K.R.Ayyasamy signed in Exs.A.1 and A.3 and that those documents are not forged as alleged by the defendants. The trial Court further held that Ex.A.1 - consent agreement and Ex.A.3 family arrangement are true and genuine and binding on the defendants. The trial Court further held that Ex.A.1 - consent agreement and Ex.A.3 family arrangement are true and genuine and binding on the defendants. Observing that partition effected under Ex.A.2 - partition deed is not a fair partition, the trial Court held that the plaintiffs are entitled to the alternative relief and directed the defendants to pay Rs.12,00,000/- to the plaintiffs with interest at the rate of 24% p.a. from the date of expiry of two years as stipulated in Ex.A.1 i.e., from 8.9.2005 till the date of decree and thereafter at the rate of 6% p.a. from the date of decree till the date of realisation. Being aggrieved by the judgment of the trial Court, the unsuccessful defendants have preferred this appeal. 10. Mr.S.V.Jayaraman, learned Senior Counsel appearing for appellants contended that there was a comprehensive partition effected between the parties under Ex.A.2 partition deed and the said partition was also acted upon. The learned Senior Counsel further submitted that when there was such a complete partition between the parties, the non-mentioning of Ex.A.1 - consent agreement in Ex.A.2 would falsify any such consent agreement entered into between the parties. The learned Senior Counsel submitted that though the appellants deny Ex.A.1 -consent agreement, in view of Ex.A.2 - partition deed entered into among all the heirs of Ramasamy Gounder and Nallakkal and in view of clear and unequivocal terms of deed of partition, suit filed by the plaintiffs for enforcement of Ex.A.1 is not maintainable. Assailing the findings of the trial Court, the learned Senior Counsel submitted that in the absence of any prayer seeking to reopen the partition, the trial Court erred in saying that partition effected under Ex.A.2 - partition deed was unfair and unequal and the trial Court has not properly appreciated the evidence and the conduct of the parties in proper perspective. 11. Per contra, Mr.T.P.Manoharan, the learned counsel for defendants contended that execution of Ex.A.1 is well proved by the evidence of P.Ws.1 and 2 and that no exception could be taken in respect of the implementation of the terms in Ex.A.1. 11. Per contra, Mr.T.P.Manoharan, the learned counsel for defendants contended that execution of Ex.A.1 is well proved by the evidence of P.Ws.1 and 2 and that no exception could be taken in respect of the implementation of the terms in Ex.A.1. Drawing our attention to the evidence of P.Ws1 and 2, the learned Counsel submitted that while the other brother - P.W.2 -Krishnasamy has complied with the terms of Ex.A.1 by paying his share of amount to plaintiffs' sisters -Velathal and Ponnammal and so defendants cannot evade to comply with the terms of Ex.A.1 - consent agreement. The learned Counsel has further submitted that Ex.A.1 cannot be read in isolation and that Exs.A.1 to A.3 are to be read together. Upon analysis of evidence, the trial Court rightly negatived the plea of forgery put forth by the defendants and rightly decreed the suit directing the defendants to pay Rs.12,00,000/-with interest thereon and the reasoning and conclusion of the trial Court warrants no interference. 12. Upon consideration of the rival contentions, the evidence and materials on record and the judgment of the trial Court, the following points arise for consideration in this appeal:- 1. Whether Ex.A.1 -consent agreement (dated 10.8.2003) is a forged document as alleged by the defendants? 2. Assuming that Ex.A.1 - consent agreement is true, whether in view of Ex.A.2 partition deed, the plaintiffs are entitled to the relief under Ex.A.1. 3. In view of the partition effected between the parties under Ex.A.2 - partition deed, whether the plaintiffs are estopped from claiming any further relief from the defendants? 4. Whether the trial Court was right in concluding that the plaintiffs are entitled to Rs.12,00,000/- payable by the defendants with interest at the rate of 24% p.a. from 8.9.2005 till the date of decree and thereafter at 6% p.a. till the date of realisation? 13. Point No.1:- On 10.8.2003, (i) Ayyasamy, (ii) Krishnasamy, (iii) Velathal; (iv) Kaliammal; (v) Parvathi; and (vi) K.R.Ponnammal are said to have entered into Ex.A.1 consent agreement. As per the terms of Ex.A.1 - consent agreement - K.R.Ayyasamy has to pay Rs.12,00,000/- to the plaintiffs - Kaliammal and Parvathi. Another brother -Krishnasamy (P.W.2) has to pay Rs.12,00,000/- to other sisters - Velathal and Ponnammal. Ayyaswamy and Krishnasamy are to make payment to the sisters within a period of two years from the date of Ex.A.1. As per the terms of Ex.A.1 - consent agreement - K.R.Ayyasamy has to pay Rs.12,00,000/- to the plaintiffs - Kaliammal and Parvathi. Another brother -Krishnasamy (P.W.2) has to pay Rs.12,00,000/- to other sisters - Velathal and Ponnammal. Ayyaswamy and Krishnasamy are to make payment to the sisters within a period of two years from the date of Ex.A.1. In case of failure to pay the amount, K.R.Ayyasamy has to execute sale deed for three acres of land in S.Nos.306 and 307 in favour of plaintiffs. Likewise, in case of failure to pay the amount, other brother -Krishnasamy has to execute the sale deed in favour of Velathal and Ponnammal in respect of three acres from out of his share in Survey Nos.306 and 307. 14. The relevant recitals in Ex.A.1 read as under:- Tamil The above recitals make it clear that the agreement Ex.A.1 was entered into for payment of money in lieu of allotment of properties to the sisters (daughters). We find much force in the contention of the learned Senior Counsel for appellants that the payment of money is contemplated and agreed to be paid only if sisters were not allotted share in the property. 15. The plaintiffs seek specific performance of Ex.A.1 -consent agreement. In the trial Court, defendants have taken a specific plea of forgery denying the signature of K.R.Ayyasamy in Ex.A.1 and Ex.A.1 is a forged one and it has been created as an after thought. In the light of the defence plea, the plaintiffs examined their brother - P.W.2 -Krishnasamy to prove the execution of Ex.A.1. In his evidence, P.W.1 stated that Ex.A.1 was executed among the family members on 10.8.2003 and that their brother -K.R.Ayyasamy signed in Ex.A.1. 16. In the trial Court, the plaintiffs have taken steps for comparing the disputed signatures for K.R.Ayyasamy in Ex.A.1 and A.3 with that of his admitted signatures in Ex.A.2 - partition deed. It was stated that the report of the handwriting expert was also received. On perusal of records, it is seen that pursuant to the letter of trial Court dated 24.1.2008, on examination of documents, handwriting expert -i.e., Assistant Director, Forensic Sciences Department, Mylapore, Chennai sent the report in T.No.451/2008 Doc.52/2008 dated 21.08.2008 to the trial Court. The handwriting expert expressed his opinion that no opinion could be given about the disputed signatures of K.R.Ayyasamy in Exs.A.1 and A.3. 17. The handwriting expert expressed his opinion that no opinion could be given about the disputed signatures of K.R.Ayyasamy in Exs.A.1 and A.3. 17. Exercising power under Section 73 of the Indian Evidence Act, the trial Court compared the disputed signatures of K.R.Ayyasamy in Exs.A.1 and A.3 with that of his admitted signatures in Ex.A.2 -partition deed and held that the signature of K.R.Ayyasamy in Ex.A.1 is one and the same as that of his admitted signature in Ex.A.2 - partition deed. The trial Court further held that Ayyasamy signed in all three documents viz., Exs.A.1 and A.3 as well as in Ex.A.2 -partition deed and rejected the plea of forgery raised by the defendants. 18. Both in the trial Court as well asin the memorandum of appeal, even though the plea of forgery was pressed into service, at the time of hearing the appeal, much arguments were not advanced on the plea of forgery and the disputed signature of K.R.Ayyasamy in Ex.A.1. On behalf of the appellants/defendants, learned Senior Counsel Mr.S.V.Jayaraman has advanced arguments contending that notwithstanding the findings of the trial Court regarding Ex.A.1, Ex.A.1 lacks clarity and unenforceable. The arguments were mainly focused on suspicious circumstances surrounding Ex.A.1 and that in view of the conduct of the parties, Ex.A.1 is rendered unenforceable. 19. Points 2 to 4:- All the seven family members viz., K.R.Kalikatti Gounder, K.R.Ayyasamy, R.Krishnaswamy, Velathal, K.R.Kaliammal, K.R.Parvathi and K.R.Ponnammal have effected partition under Ex.A.2 -partition deed dated 25.8.2003 and the same was registered as document No.1798 of 2003 on 8.9.2003. In the said partition deed, Kalikatti Gounder was allotted 'A' Schedule properties; Ayyasamy Gounder was allotted 'B' Schedule properties and also the family common fund of Rs.4,00,000/-; 'C' Schedule property was allotted to Krishnaswamy (P.W.2) and 'D' Schedule property was allotted to the four sisters including the plaintiffs. 20. Specific case of defendants is that there is absolutely no mention in Ex.A.2 partition deed about Ex.A.1 - consent agreement. In their evidence, P.Ws.1 and 2 clearly admitted that there is no mention about Ex.A.1 in Ex.A.2 - partition deed. A perusal of recitals in Ex.A.2 would make it clear that there was much deliberation and elaborate discussion before entering into Ex.A.2 -partition deed. The relevant recitals in Ex.A.2 read as under: Tamil 21. In her oral evidence, P.w.1 reiterated the same and stated as under:- Tamil 22. A perusal of recitals in Ex.A.2 would make it clear that there was much deliberation and elaborate discussion before entering into Ex.A.2 -partition deed. The relevant recitals in Ex.A.2 read as under: Tamil 21. In her oral evidence, P.w.1 reiterated the same and stated as under:- Tamil 22. P.W.2 also reiterated that before effecting partition there was much deliberation. Before effecting partition when there was much deliberation and consultation, absolutely there is no reason as to why the existence of Ex.A.1 -consent agreement was not mentioned in Ex.A.2. P.W.1 also admits that Ex.A.1 -consent agreement was not mentioned in Ex.A.2 - partition deed. Non-mention of Ex.A.1 in Ex.A.2 - partition deed raises serious doubts about Ex.A.1. 23. By perusal of the recitals in Ex.A.2 -partition deed, it is seen that the parties have deliberated upon various issues and that they have taken note of the common family fund of Rs.4,00,000/- available and allotting Rs.4,00,000/-to K.R.Ayyasamy. When recitals in Ex.A.2 -partition deed contain even minute details, it passes one's comprehension as to why a crucial document like Ex.A.1 was omitted to be mentioned in Ex.A.2 - partition deed. 24. As pointed out earlier, 'D' Schedule property was allotted to four sisters including the plaintiffs. After Ex.A.2 - partition deed, the family members including Kalikatti Gounder have entered into Ex.A.3 family arrangement dated 8.9.2003 i.e., the date on which Ex.A.2 - partition deed was registered. It is pertinent to note that Ex.A.3 is written in a stamp paper (Sl.No.7706 dated 22.8.2003), which is contemporaneous with the stamp paper of Ex.A.2 partition deed, which contains Sl.No.7704 dated 22.8.2003. 'D' Schedule property allotted to the share of sisters was in the occupation of K.R.Ayyasamy. Referring to Ex.A.2 partition deed, in Ex.A.3 family arrangement, parties have categorically agreed that K.R.Ayyasamy has to hand over possession of 'D' Schedule house within 1 = years from the date of Ex.A.3 (8.9.2003). Before expiry of 1 = years, K.R.Ayyasamy died. Defendants 1 to 3 have handed over vacant possession of 'D' Schedule house. Handing over of possession of 'D' Schedule house would clearly show that the family members have acted upon Ex.A.2 - partition deed. 25. The parties were given possession of their respective share as reflected in Ex.A.2 as under: Tamil In her evidence, P.W.1 also reiterated the same as under:- Tamil 26. Handing over of possession of 'D' Schedule house would clearly show that the family members have acted upon Ex.A.2 - partition deed. 25. The parties were given possession of their respective share as reflected in Ex.A.2 as under: Tamil In her evidence, P.W.1 also reiterated the same as under:- Tamil 26. The evidence of P.W.1 coupled with the fact of handing over of 'D' Schedule property to the sisters would clearly show that the parties have acted upon Ex.A.2 partition deed. In the recitals of Ex.A.2 -partition deed, the parties have unequivocally expressed their intention that after partition under Ex.A.2, the parties have no connection with each other and that they do not have any manner of right over the shares allotted to others. The relevant recitals in Ex.A.2 reads as under: Tamil 27. Plaintiffs, being parties to Ex.A.2 -partition deed, are bound by the above recitals in Ex.A.2 - partition deed. When parties have unequivocally agreed that they have no further right or claim over one another's share, the plaintiffs cannot fall back upon Ex.A.1 - consent agreement praying for Rs.12,00,000/-payable by K.R.Ayyasamy or to execute the sale deed in respect of the property allotted to him or to claim sale deed in respect of three acres from out of the properties allotted to K.R.Ayyasamy in S.Nos.306 and 307. 28. The intention of the parties not to make any claim over another's property is clear from recitals in Ex.A.2. Ex.A.2 - partition deed was acted upon. As per recitals in Ex.A.2, sisters were allotted 'D' Schedule property and they have taken possession of 'D' Schedule property. Assuming that Ex.A.1 is true, what ever right the plaintiffs had under Ex.A.1, by virtue of the above recitals in Ex.A.2, the said right is deemed to have been given up or the said right merged in the comprehensive partition under Ex.A.2. Therefore, very foundation and basis for Ex.A.1 itself is lost. Enforcing of Ex.A.1 consent agreement would amount to re-writing the partition deed, which the parties have entered into after much deliberation and consultation. Under Ex.A.2 partition deed, when the family properties were divided and the parties effected division in status, the plaintiffs cannot fall back upon earlier document -Ex.A.1 and seek relief against the defendants deviating from the unequivocal intention of the parties expressed in Ex.A.2 partition deed. Under Ex.A.2 partition deed, when the family properties were divided and the parties effected division in status, the plaintiffs cannot fall back upon earlier document -Ex.A.1 and seek relief against the defendants deviating from the unequivocal intention of the parties expressed in Ex.A.2 partition deed. The trial Court does not seem to have kept in view the unequivocal categorical intention of the parties expressed in the recitals in Ex.A.2 - partition deed. 29. It is pertinent to note that elder brother - Kalikatti Gounder is not a party in Ex.A.1 consent agreement. In the plaint, the plaintiffs have alleged that their elder brother -Kalikatti Gounder got married long back and had been living separately for about twenty years and that is why he has not signed as a party in Ex.A.1. The stand of the plaintiffs that Kalikatti Gounder got separated long back does not appear to be correct. By perusal of Ex.A.2 - partition deed dated 25.8.2003, it is seen that Kalikatti Gounder is a party in Ex.A.2 and that he was allotted 'A' schedule properties. Likewise, in Ex.A.3 family arrangement, Kalikatti Gounder is a party. When Kalikatti Gounder is a party in Exs.A.2 and A.3, absolutely there is no reason as to why he is not a party to Ex.A.1. This again raises serious doubts about Ex.A.1 - consent agreement. 30. Yet another circumstance raising doubts about Ex.A.1 also to be pointed out. As pointed out earlier, as per the alleged consent agreement -Ex.A.1, Velathal and Ponnammal and plaintiffs shall be paid money to the extent of their share by Ayyasamy Gounder and Krishnasamy Gounder respectively and in default properties in S.F.Nos.306 and 307 to the extent of three acres shall be conveyed in favour of the plaintiffs and also the two sisters-Velathal and Ponnammal respectively. We find much force in the contention of the learned Senior Counsel for appellants that as on the date of Ex.A.1, Ayyasamy Gounder and Krishnasamy Gounder were yet to be allotted their respective shares in S.F.Nos.306 and 307. While so, without effecting a complete partition, on the date of Ex.A.1, the parties could not have foreseen the mode of allotment that K.R.Ayyasamy and Krishnasamy would be allotted the lands in S.F.Nos.306 and 307. This circumstance coupled with the fact that Kalikatti Gounder is not a party in Ex.A.1 consent agreement we are of the view that Ex.A.1 raises serious doubt. 31. This circumstance coupled with the fact that Kalikatti Gounder is not a party in Ex.A.1 consent agreement we are of the view that Ex.A.1 raises serious doubt. 31. As per Ex.A.1, P.W.2 - Krishnasamy is to pay Rs.12,00,000/- to Velathal and Ponnammal and in case of his default he has to execute sale deed for three acres from out of his share in S.Nos.306 and 307. Mr.T.P.Manoharan, learned Counsel for plaintiffs contended that in terms of Ex.A.1 - consent agreement, P.W.2 - Krishnasamy paid money to Velathal and Ponnammal. P.W.2 -Krishnasamy was examined in Court by the plaintiffs. Absolutely there is no evidence to the effect that P.W.2 - Krishnasamy paid money to Velathal and Ponnammal or that he has sold three acres of land from out of his share in S.F.Nos.306 and 307 to Ponnammal and Velathal on the strength of any registered sale deed. P.W.2's evidence is conspicuously silent on this aspect. The contention of the learned Counsel for plaintiffs that P.W.2 -Krishnasamy acted in terms of Ex.A.1 consent agreement cannot be countenanced. 32. Both in the pleadings as well as in their evidence, the plaintiffs have alleged that the sisters were allotted 'D' Schedule properties in the partition deed - Ex.A.2 dated 25.8.2003 and that the same is not a fair allotment of shares. The total extent of the joint family properties is 25.05 acres. As per Ex.A.2 -partition deed, K.R.Ayyasamy was allotted 9.23 acres apart from the family common fund of Rs.4 lakhs; P.W.2 -Krishnasamy was allotted 8.21 1/2 acres; elder brother -Kalikatti Gounder was allotted 7.56 acres; whereas sisters were allotted only a less extent of land of about 2 > cents and a house was allotted to them. Observing that the total extent of joint family properties is 25.5 acres and by equal and fair partition; each of the seven parties would be entitled to a share of 3.58 acres and that the sisters were allotted only a less extent, trial Court held that the family partition as per Ex.A.2 is not a fair and equal partition. While observing that the partition under Ex.A.2 was not a fair partition, the trial Court overlooked the categorical recitals in Ex.A.2 -partition deed, whereby the parties not only agreed for partition, but also agreed that they would not lay any claim in respect of the properties allotted to the other shares against each other. While observing that the partition under Ex.A.2 was not a fair partition, the trial Court overlooked the categorical recitals in Ex.A.2 -partition deed, whereby the parties not only agreed for partition, but also agreed that they would not lay any claim in respect of the properties allotted to the other shares against each other. It is also pertinent to note that the plaintiffs have not sought for the relief to reopen the partition. In the absence of any prayer for reopening the partition, the trial Court was not right in going into the aspect whether the partition effected between the parties was fair or not and the said approach of the trial Court cannot be endorsed with. 33. Serious doubts arise about Ex.A.1 and its enforceability. As pointed out earlier, based on Ex.A.1, the plaintiffs seek for specific performance of Ex.A.1 - consent agreement directing the defendants to execute the sale deed in favour of the plaintiffs or in the alternative to direct the defendants to pay a sum of Rs.12,00,000/- being the market value of the suit property with interest. The relief of specific performance lies in discretion of the Court and the Court is not bound to grant relief merely because it is lawful to do so. While exercising the discretion, Court would take into consideration of the case, the conduct of the parties and the respective interests under the contract. No specific performance of a contract can be granted if it would give an unfair advantage to the plaintiffs, where the execution of the contract would involve some hardship on the defendants, which they did not foresee. When the parties have subsequently entered into partition deed incorporating recitals and that they have no further right over the property against each other, the plaintiffs cannot seek for recovery of specific performance based upon Ex.A.1. The trial Court did not properly appreciate the evidence and the conduct of the parties. The exercise of discretion in granting alternative relief of directing the defendants to pay the amount is not in proper appreciation of evidence and the conduct of the parties and therefore the judgment of the trial Court is liable to be set aside. 34. In the result, the judgment and decree dated 31.03.2009 made in O.S.No.358 of 2005 on the file of Additional District Judge, Fast Track Court No.3, Coimbatore is set aside and this appeal is allowed. 34. In the result, the judgment and decree dated 31.03.2009 made in O.S.No.358 of 2005 on the file of Additional District Judge, Fast Track Court No.3, Coimbatore is set aside and this appeal is allowed. In the circumstances of the case, and in view of relationship of parties, both parties are directed to bear their respective costs throughout.