' M. S. H. QURESHI, J.-Record received and seen.
2. This Regular First Appeal, preferred by the plaintiff, arises from his suit for possession through specific performance of an agreement of sale dated 10th January, 1974. The plaintiff's case was that Bash' Ahmad, Mst. Khadija Bibi and Mst. Shahnaz Bibi, defends respondents 1 to 3, had agreed to sell the suit-land in his favour consideration of Rs, S0,C(0, of which they had received Rs, 8,000 as part payment, that under the agreement a sale-deed was to be executed and registered by 25th February, 1974 on payment of the balance amount of the consideration but that the said defendants had failed to fulfil their part of the agreement whereas he himself had arranged for the money and had been waiting for the completion of the transaction. Defendants Nos, 4 to 6 had been impleaded because according to the plaintiff, they had in spite of knowledge of the agreement, purchased the suit land from defendants 1 to 3. Defendants 1 to 3 in their written statement, jointly filed, had contested the suit and had contended that defendants 2 and 3, who are pardanashin ladies, had not entered into any agreement for sale of the land and that the plaintiff had failed to fulfil his part of the contract. Defendants 4 to 6 in a separate written statement had asserted that they were bona fide purchasers for value without notice. The following issues were thereupon framed :- "(l) Whether defendants Nos, 1 to 3 had entered into an agreement of sale of the suit land in favour of plaintiff, if so, what are the terms of the said agreement ? 0. P. D.
(2) Whether defendants Nos, 2 and 3 had not executed any agreement on sale in favour of the plaintiff? 0. P. D.
(3) Whether the plaintiff himself failed to perform his part of the agreement of sale, if so, its effect ?
'O. P. D.
(4) Whether defendants Nos, 4 to 6 are the bona fide purchasers for value without notice, if so, its effect ? 0. P. D.
3. The plaintiff produced the agreement (Exh. P. 1) and the receipt (Exh. P. 2) in respect of the payment of Rs, 8,030. He also produced Zaheer-ud-Din (P. W. 1) the scribe of, and Khurshid Ahmad (P. W. 2) a marginal witness to these documents. The witnesses supported the plaintiff except that, according to them, defendants 2 and 3 had neither been present nor had signed or thumb- marked the agreement or the receipt. There was no evidence that defendant No, 1, who had executed the document, had any power-of-attorney authorising him to act on behalf of defendants Nos, 2 and 3. The trial Court, therefore, held that only defendant No, 1 had been a party to the agreement and that he alone was bound by it to the extent of his share in the suit land. It had been argued before the trial Court by the defendants that even if the execution of the document was proved, a specific performance could be ordered only to the extent of the share of defendant No, 1 and that, too, on payment of the entire sale consideration provided the plaintiff also gave up all claim arising out of the agreement. The plaintiff, thereupon, made an application on 17th January, 1979 stating that if he could be held entitled to the share of Bashir Ahmad (defendant No, 1), he was willing to take the same on payment of "URDU TEXT". On the back of this application, the statement of the plaintiff's counsel to the same effect is o recorded. Bashir Ahmad's share was found to be one-half of the trial Court, accordingly, held the plaintiff entitled to the performance of the agreement to the extent of Bashir Ahmad's of the suit-land on payment of the balance of the entire consideration. This finding disposed of Issues 1 and 2. Issue No, 3 was decided against the defendants while on issue No, 4, it was held that the sale effected in favour of defendants 4 to 6 was subject to the principle of lis pendens and was accordingly ineffective against the right of the plaintiff to the extent of one-half share of defendant No,
1. In the result of these findings, the trial Court decreed the plaintiff's suit to the extent of half-share in the suit land on his payment of the balance of the consideration amount, i,e,, Rs, 82,000, which was directed to be deposited by 18th March, 1979, failing which the suit would stand dismissed with costs.
4. The grievance of the plaintiff, who is appellant before us, is that the application dated 17th January, 1979, and the statement of his counsel recorded on that date to take defendant No, l's share on payment of the full price had been made on the instigation and inducement of the trial Court who had threatened that the suit would otherwise be dismissed. It has been urged that the impugned judgment kas unwarranted by law and was not binding on the appellant and that the same be modified in this appeal by reducing the sale price from Rs, 90,000 to Rs, 45,000 minus the earnest money already paid.
5. Learned counsel for the appellant has also contended that section 15 of the Specific Relief Act was not applicable to the case and as such the appellant could not be required to pay the full price of the transaction for half the share of the property. Reliance was placed on Mrs. Anwara Chowdhury v. M. Majid and others. In this cited case, the property was shared equally by Surendra Mohan and his mother Sukumari Devi. Surendra Mohan had executed the agreement of sale in favour of M. Majid in the following terms : "That the first party doth hereby agree and bind himself to convey the property himself and will also get the property duly and legally conveyed in favour of the vendee second party by his mother."
' The trial Court decreed the suit, but in appeal the High Court dismissed it as to the half share of Sukumari Devi and also made consequential amendment in the decree by confining the amount to half the sale price. In repelling the argument that although M. Majid was to get conveyance of1 only Surendra Mohan's share, yet as required by section 15 of the Specific Relief Act, he should pay the full amount of the agreed price, the Supreme Court observed :- "On a proper reading of section 15 of the Specific Relief Act, it becomes plain that it would have had application if Surendra Mohan had expressly purported to sell the whole property to the plaintiff, making no reference to any co-sharer. Here on the contrary, the agreement expressly says that Surendra Mohan undertakes to `get the property duly and legally conveyed in favour of the vendee second party by his mother'. This make it clear that he was not entering into an agreement by which was obliging himself to convey the whole property plaintiff. In the circumstances, the rule contained in of the Specific Relief Act has no application to this case. Where the vendor contracts on his behalf and on behalf of somebody else and it is found that the contract is not enforceable in law so far as that somebody is concerned, section 15 is not attracted. See also Babu Rameshwar Prasad Sahi v. Mst. Anandi Devi and another.
6. It would, however, be different if the vendor made any representation that the whole of the property, the subject-matter of the contract, belonged to him or misrepresented that he had the authority to sell the whole of the property. In the matter before us, the agreement executed by Bashir Ahmad purported to sell the entire property. The relevant portion of the agreement reads :- {{URDU TEXT}} ' The recital in the agreement further says that Bashir Ahmad had transacted the deed in accordance with the instructions of the other owners. As Bashir Ahmad had, in fact, no authority to represent the other owners, section 15 would be attracted. The plaintiff who had sued all the three owners i,e,, defendants 1 to 3, could. Not succeed unless he relinquished all claim to further performance and all right to compensation. In Promatha Nath Mittra and others v. Goshta Behari Sen and others where a co-sharer professed to grant a lease of the entire estate in a property of which he held a share only, in the belief that the other party had already obtained the consent of the other co-sharer, it was held that it could not be deemed that there was a concluded contract whereby the co-sharer undertook a binding obligation on behalf of himself and the other co- sharer obtain the lease of the property, and even though such co-sharer may have received the salami fixed, no suit for specific performance to execute a kabuliyat and give possession could lie against the entire body of the proprietors. A similar view had been taken in Mohammad Khan Najjumiya and others v. Bapumiya Mahabubmiya Musalman in which it had been held that where some of the co-sharers entered into a contract to sell certain site belonging jointly to other co- sharers also, the vendee could not obtain specific performance of the contract unless he relinquished all claim to anything more than the vendors share in the site. In Sita Ram v. Bal Kishan where a person had agreed to sell an undivided plot of land owned by himself and a stranger to the agreement who subsequently declined to join in the sale, it was held that specific performance under section 15 could not be directed in respect of the agreement to sell the whole plot but could be directed in respect of so much of his part of the contract as he performed. In other words, the ruling goes on to say, he could be directed to sell his half share of the land to the plaintiff but this could be done provided the latter relinquished all claim to further performance and also all right to compensation for the deficiency and if the plaintiff cared to purchase the share of the promisor alone, he would be bound to pay the full price that he had agreed to pay for the whole tot. In another Lahore authority reported as Imam Din v. Muhammad Din and another, where a major agreed to sell property belonging to himself and his minor nephew whose property he had no right to sell, and consequently the agreement with regard to which was void, the purchaser was held, in a suit for specific performance, entitled on offering to pay the whole purchase money, to a decree directing the adult party to convey all his interest in the property. See also Anant Ram v. Surja Prasad.2 3 4 5 6 7
7. On the facts of the case and in the light of the above-cited authorities, we are of the firm view that plaintiff-appellant's case fell] under section 15 of the Specific Relief Act and he could not succeed unless he agreed to abide by the conditions imposed by that section Even otherwise, the appellant who had himself sought the decree in terms granted, cannot now agitate against it.
8. Although we are reluctant to dismiss a first appeal in limine but as we find the present appeal devoid of merit, we see no purpose in issuing notice to the other side. The record has been before us and we have made use of the same. The appeal is, therefore, dismissed in limine. PLD 1964 SC 807 AIR 1956 Pat. 53 AIR 1932 P C 43 AIR 1943 Nag. 313 AIR 1925 Lab. 465 AIR 1926 Lah. 136 AIR 1935 Oudh 453