SHEIKH MAHMUD ALI Vs. MIRZA YAWAR BEG

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract to sell a house. The house belonged to Sheikh Muhammad Ali and Sheikh Muksud Ali, the defendants Nos. 1 and 2. It is alleged that the defendant No. 1 on behalf of himself and as agent of defendant No. 2 agreed to sell the house to the plaintiff, that then in breach of the agreement the house was sold to defendant No. 3, the sale being taken fictitiously in the name of his wife, defendant No. 4.

(2.) The Court below has found that the contract was entered into but that defendant No. 1 had no authority to sell his brother s share of the house. The Court accordingly made a decree for specific performance in respect of the half of the house which belonged to defendant No. 1, at half the price agreed upon.

(3.) In second appeal it is contended on behalf of the defendants that the Court ought not to have decreed specific performance of half the house. Section. 15 of the Specific Relief Act is relied upon, and it is contended that the plaintiff was only entitled to a decree for specific performance for half the house on condition of paying the.full price agreed upon for the entire house. On the other hand, the plaintiff relies on the provisions of Section 16. The Court below considered that this section applied The section is as follows: When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part."