A party to a contract who is unable to perform the whole of his part of it may still be entitled to specific performance of the part that he can perform, provided that the other party relinquishes all claims to the performance of the remaining part of the contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

1. This appeal arises out of the suit for specific performance of the contract entered into by the plaintiff with the first defend ant on 19.11.1981. Defendants 2 to 7 are the children of the first defendant. The agreement was that the plaintiff should pay a sum of Rs. 2,50,000/- as consideration for the purchase and on the date of the agreement, he paid a sum of Rs. 25,000/- by way of advance. It was agreed that the transaction should be completed within three months from the date of agreement and that the first defendant should discharge all the encumbrances over the proper ties. It was also stated in the agreement that the first defendant would bring all his children and make them parties to the sale deed in favour of the plaintiff. It is not in dispute that a total sum of Rs. 2,00,000/- was paid by the plaintiff to the first defendant on different dates and the time for completion of the contract was being extended periodically. Ultimately, the suit was filed when, according to the plaintiff, he came to know that the defendants were taking steps to sell the property to others and thereby deprive the plaintiff of his interest.

2. The prayer in the plaint is for specific performance of the contract or in the alternative for return of the sum of Rs. 2,00,000/- paid as advance by the plaintiff with interest thereon.

3. The first defendant filed a written statement in which he raised a plea that the land in the property belonged to his wife as it was purchased by her under two documents. It was also his plea that a building was constructed and a saw mill was being run which belongs to him. He contended that a rice mill business was being conducted in another portion of the land and that belongs to his wife. Defendants 3 to 7 filed a separate written statement raising the plea that the first defendant was not entitled to the entirety of the property and it belonged to their mother, who died on 23.6.1977. According to them, the rice mill business belonged to their mother and the saw mill building also belonged to her, though the municipal assessment stood in the name of the first defendant, their father. It was their further case that the first defendant did not have any authority to agree to sell the 6/7th share belonging to them. They admitted that the saw mill business belonged to the first defendant. They prayed for the dismissal of the suit.

3a. The plaintiffs power of attorney agent gave evidence in support of the plaintiffs case and on the side of the defendants, the first defendant alone entered the witness box. He admitted in the cross-examination that he agreed to sell the property and he expressed his willingness to execute a document for the share in the property, in favour of the plaintiff. He deposed that the saw mill was put up by him and the said business belonged to him. He deposed that his children had no share in the saw mill. The other defendants did not let in any evidence.

4. The trial court held that the entire suit property belonged to the first defendants wife and on her death it devolved on all the defendants. It held that though defendants 2 to 7 were not parties to the agreement, the first defendant acted as family Manager and they were bound by the agreement. Consequently, the trial court gave a decree in favour of the plaintiff, for specific performance.

5. The finding of the trial court that the entire property belonged to the wife of the first defendant is erroneous. Even the agreement-Exhibit A1 reads that the land alone was purchased by the wife of the first defendant and it belonged to her absolutely. It is also recited that the saw mill was constructed by the first defendant with his own funds. The evidence on record is also to the same effect. Defendants 2 to 7 have not adduced any evidence to prove that they own any interest in the saw mill. Hence there is no difficulty in holding that the first defendant owns 1/7th share in the land and the entirety of the saw mill.

6. The other fin