Defendants 1 and 3 are the appellants in this second appeal. The plaintiff’s suit was for specific performance of a contract, Exhibit P-2, dated 27th April, 1942, for sale of certain piece of land belonging to the joint family of defendants 1 and 2. This agreement though it was intended to be executed by both the defendants, was, in fact, signed only by the first defendant. The second defendant is alleged to have later entered into another agreement with the plaintiff, Exhibit P-1, dated 25th May, 1942, but the finding of the lower courts is that this is not a document which could be enforced as it has not been proved to be genuine. On the 6th August, 1942, defendants 1 and 2 sold the same property to the third defendant under Exhibit D-5 and the present suit for specific performance of the contract, Exhibit P-2, was filed, making the purchaser under Exhibit D-5 also a party.

The trial court found that the entire document, Exhibit P-2, is unenforceable because, according to the learned District Munsif, certain decisions of this Court are to the effect that the document cannot be enforced even as against the first executant. On that ground the suit was dismissed even though there were findings that the third defendant was not a person who can claim protection according to the provisions of section 27 of the Specific Relief Act.

On appeal by the plaintiff, the learned Subordinate Judge, Nellore, agreed with the trial Court as regards the applicability of section 27 of the Specific Relief Act and also as regards the unenforceable nature of Exhibit P-1 but came to the conclusion that Exhibit P-2 can be enforced against the first executant and therefore granted a decree for specific performance of the first defendant’s share of the suit property, on the plaintiff fulfilling the necessary conditions regarding the payment of the balance of purchase money and other matters.

Three points have been raised by the learned advocate for the appellants, the first of them being that Exhibit P-2 was only an inchoate agreement and not a completed transaction and as such unenforceable even as against the first defendant. The second point was that in the lawyer’s notice Exhibit P-3, dated 19th May, 1942, the plaintiff had agreed to resort only to his remedy, in the event of the first defendant not executing the conveyance as agreed to under the document, to have the liquidated damages mentioned in that document in addition to the return of the advance payment made under the agreement. The contention is that the relief regarding the specific performance must be deemed to have been impliedly relinquished by not specifically being asked for in this registered notice. As a subsidiary contention to this point Mr. K. Umamaheswaram raised a further argument that since the third defendant purchased the property after Exhibit P-3 was received by the first defendant it should be deemed that the plaintiff is estopped from saying that the remedy by way of specific performance was still existing; and lastly he argued that the direction by the lower appellate Court that the plaintiff should pay the second defendant his costs is unjustifiable, for the person who is really to get the costs is the third defendant and not the second defendant.

I shall deal with these points seriatim. To justify his contention that the agreement cannot be enforced even as regards the first defendant, well-known decision of this Court beginning with Sivaswami Chetty v. Sevugan Chetti1have been brought to my notice. In that case Bashyam Ayyargar, J., held that where a document which was intended to be signed by more than one person was signed only by some of them, the others having refused to execute the deed when asked to do so, and the defence was that no suit could be brought on the document inasmuch as it was not completed as the younger of the brothers who had agreed to sign had not signed it, it constituted merely a proposed agreement which had never been perfected. It was