This is a second appeal by the original plaintiff. The facts giving rise to the appeal are as follows:

Respondent-defendant is the owner of the field Survey No. 14/2 measuring 1 Hectare 35 Ares of village Hiwra Khurd. Defendant respondent is the exclusive owner of the suit property. On 24.06.1989 the defendant entered into a contract of sale of the suit property with the plaintiff. Price of the suit property was settled at Rs. 45,000/-. Plaintiff paid Rs. 40,000/- to the defendant-respondent as earnest. It was agreed that balance of consideration of Rs. 5000/- would be paid at the time of execution of the sale deed. The sale deed was to be executed on 01.01.1990 and the defendant was to bear the expenses of registration of the sale deed. The defendant delivered the possession to the plaintiff of the suit property and plaintiff is in cultivating possession since then. On 29.12.1989 defendant approached the plaintiff and requested him to extend the date of execution of the sale deed. Respondent-defendant told the plaintiff that he was in need of money and therefore plaintiff again paid Rs.2000/- to the defendant. The defendant made an endorsement on the said agreement of sale to that effect. Date was extended till 01.02.1990. On 01.02.1990 also the defendant avoided to execute the sale deed on the pretext that he had some other important work. The defendant once again requested the plaintiff to extend the time and got the time extended from plaintiff. Defendant however did not keep his promise and execute the sale deed. Hence the plaintiff issued notices to the defendant. The defendant still did not execute the sale deed. Plaintiff contends that he was all the while ready and willing to perform his part of the contract and he is still ready. He, therefore, instituted a suit for specific performance of the contract.

2. The defendant though duly served, did not appear before the trial Court. The suit proceeded ex-parte against the defendant.

3. The learned Judge of the trial Court recorded the evidence of the plaintiff. Trial Court found that since the defendant-respondent was not the owner of the entire field but was the owner of only 3/4th share therein, plaintiff was not entitled to performance of part of the contract. He also found that defendant would not be in a position to convey the title of the entire field, hence refused decree for specific performance and ordered refund of the earnest money.

4. Plaintiff, therefore, preferred an appeal before the District Judge. District Judge found that the plaintiff had instituted a suit for specific performance of contract as a whole and had not sought specific performance of part of the contract. Since the defendant was not the owner of the entire field and the plaintiff has not pleaded that he is ready to purchase part of the field he was not entitled to a decree in respect of the part of the contract. Holding so he dismissed the appeal. Being aggrieved by this dismissal this Second Appeal has been preferred by the plaintiff. This Court admitted the Second Appeal on the following two substantial questions of law:

1. Whether under Section 12 of Specific Relief Act if prospective vendee is ready to accept the property in part by paying full agreed consideration, can the decree for specific performance be passed?

2. The Courts below failed to take into consideration the provisions of Section 44 of the Transfer of Property Act which empowers Sheshrao to elinate his share without the consent of other cosharer and such sale will be operative only to the extent of this share even though such co-sharer has agreed to elinate entire share and same principle will apply to the suit for specific performance where Courts only acts for and on behalf of prospective vendor for the purpose of executing sale deed?

5. I have heard the learned counsel for the appellant and the respondent.

6. Learned Civil Judge has observed that defendant-respondent had agreed to sale the entire field Sur