A contract for the sale of land by joint owners may be divisible and specifically enforceable against some of the owners, even if one of the owners refuses to participate in the contract.

JUDGMENT :

Barman, J. - This appeal arises out of a suit filed by the Plaintiff for specific performance of an agreement by the Defendants to the suit land to the Plaintiff in circumstances hereinafter stated.

2. The vendor-Defendants belong to a Hindu family said to have been long separated. Defendants 2, 3, Basudeb and Janardan were four brothers. Defendant No. 1 is the son of Basudeb who is now dead. Defendants 4 to 6 are sons of Janardan who is also dead. The respective shares in the suit land which was agreed to be sold under an agreement dated September 14, 1958 are these; Defendant No. 1 had 4 annas and 9 pies, Defendant Nos. 2 and 3 annas and 9 pies, Defendant No. 3 had 3 annas and 9 pies. Defendants 4 to 6 together had 3 annas and 9 pies. The suit was filed on November 1, 1958. Defendant No. 2 denied his having participated in the contract. Defendants 1 and 3 supported the Plaintiff's case. Defendants 2 and 4 to 6 contested the Plaintiff's claim. Defendants 4 to 6 subsequently compromised with the Plaintiff during the pendency of the suit before the trial court and executed a sale deed (ext. 4) in favour of the Plaintiff in respect of their respective shares.

3. It is the concurrent finding of both the courts below that Defendant No. 2 did not participate in the contract. The trial Court accordingly dismissed the suit as against Defendant No. 2. He, however, decreed the suit against Defendants 1 and 3 on admission. There was a direction given by the trial Court for payment by the Plaintiff of the consideration money to be made within 4 months as mentioned therein. The Plaintiff having not paid the consideration money within the time, the suit stood dismissed also as against Defendants 1 and 3. As regards Defendants 4 to 6, the suit was decreed in favour of the Plaintiff on compromise against them. The Plaintiff appealed to the lower appellate Court being Title Appeal No. 72 of 1961 in which Defendants 1, 2 and 3 alone were Respondents. The learned lower appellate Court found that the trial Court was wrong in decreeing the suit against Defendants 1 and 3 on the reasoning hereinafter dealt with, and dismissed the Plaintiff's suit altogether. Hence this second appeal by the Plaintiff. Defendants 1 and 3 though made Respondents in the second appeal did not enter appearance. Defendant No. 2 alone contested the second appeal.

4. The reasoning on which the learned lower appellate Court dismissed the Plaintiff's suit, as quoted from his judgment is this:

I am, however, unable to see how the suit can be partly decreed against some of the Defendants, though on admission. The contract, according to the Plaintiff's case, is by the whole body of the Defendants. It is not the Plaintiff's case that each branch contracted to sell its separate share. So the contract should be performed or not in its entirety. No direction can be given specifically to enforce only a part of the contract. So the learned Additional Munsif is wrong in decreeing the suit as against Defendants 1 and 3.

5. The nature of a contract, whether it was divisible or not, must be determined upon the facts and circumstances of each particular case; and the question is essentially a question of fact. In almost similar circumstances as in the present one, the Calcutta High Court in Harendra Chandra Das and Others Vs. Nanda Lal Roy and Others had found that the contract was, on the face of it, and in view of the conduct of the parties and the intention to be gathered from such conduct, divisible in its nature, and was, in point of fact separated and divided by Defendants therein ratifying the contract, and by the refusal of one of the Defendants to do so, in respect of his own share in the joint property. It was also held that it was an agreement between the Plaintiff and the ratifying Defendants for sale of the suit land, and did not come within the general rule that where a person is jointly interested in an estate with another person, and purports to deal with the entirety