The Judgment of the Court was as follows:—

The Plaintiff is the Appellant before us and the facts which have given rise to the suit, out of which this appeal has arisen, are, briefly stated, as follows:— By an agreement in writing made on the 15th day of September 1919, the Defendant agreed to sell and the Plaintiff agreed to purchase certain lands, measuring about 24½ biglias, in Tollyguaj in the subrubs of Calcutta, particularly described as plots A and B in the schedule annexed to the said agreement, free from encumbrances, for a sum of Rs. 1,53,000. The vendor agreed to deliver to the purchaser's solicitor the title deeds relating to the said plots A and B within two days from the said date and the purchaser agreed to send in his requisitions in respect of the title within 5 days from the date of the delivery of the title deeds. The requisitions were to be answered within 5 days thereafter. The vendoi agreed to make out a marketable title to the said properties, and, in case of failure, to refund to the purchaser the latter's deposit of Rs. 501 without interest. It was also agreed, inter alia; that on the vendor making out a marketable title, he should execute a proper conveyance in favour of the purchaser, causing all necessary parties to join therein, and that in the event of the purchaser failing to complete the purchase within 14 days from the date of the delivery of the title deeds, the vendor should be entitled to cancel the said agreement and to forfeit the amount of the vendor's deposit. On the 16th September, the title-deeds in respect of the properties were handed by Messrs Leslie and Hinds, the vendor's solicitors, to the Plaintiff's solicitor, Mr. Bajendra Nath De. On the 19th September, the requisitions on title were sent to the vendor's solicitors. It was pointed out therein by the Plaintiff's solicitor that it appeared from a certain conveyance bearing date the 12th July 1904, that Mrs. Kate Graham, the wife of the vendor, was the owner of one of the properties comprised in the schedule to the said agreement and an enquiry was addressed as to how the vendor proposed to sell the said property. The answer to this requisition, which was given on the 24th of September, was in these words, “Mrs. Graham will concur in the same.” Another requisition, being requisition No. 16, was in these terms:— “Is the vendor alone competent to convey an absolute title to the properties free from all encumbrances,” and the answer was, “Yes, with the concurrence of Mrs. Graham.” The answers to the requisitions were not received by the Plaintiff's solicitor till the 25th September and on that date he asked that the title deeds might be returned to him to enable him to consider the sufficiency of the answers (see Ex. 8). On the 27th September, the vendor's solicitors drew the attention of the Plaintiff's solicitor to the fact that the completion of the transaction under the agreement must take place on or before the 30th September and asked for the draft conveyance for the approval of the vendor. On the same day, the Plaintiff's solicitor again wrote to the vendor's solicitors asking for the title deeds, without which, it was pointed out, the sufficiency of the answers could not ‘be considered.’ On the 29th September, the Plaintiff's solicitor wrote a further letter to the Vendor's solicitors asking for the title deeds and protesting against the unreasonableness of the attitude taken up by the vendor's solicitors and he pointed out that some of the answers to the requisitions were unsatisfactory. However, on the 29th September, the vendor's solicitors wrote to the Plaintiff's solicitor purporting to return the title deeds to the Plaintiff's solicitor and on the 30th September they wrote the following letter to the Plaintiff's solicitor:— “According to the terms of the agreement, the conveyance of the above premises should have been executed to-day. As your client failed to do this, we have been instructed by our client to give you notice that the agreement is cancelled and the deposit money forfeited to the vendor.” It appears that on the 29th September, the Plaintiff's solicitor closed his office for the long vacation, without receiving the title deeds in question, and on the 30th September he left town. What happened subsequently was this—the title deeds in question were brought to the clerk of the Plaintiff's solicitor, after the latter had left town and he, the clerk, at first refused to receive the same, but on the vendors solicitors' clerk refusing to take back the title deeds, the Plaintiff's solicitors clerk kept the same with him, without the knowledge of the Plaintiff's solicitor. Meanwhile on the 6th and 17th October the vendor's solicitors kept on asking for tin return of the title deeds. These letters, however, were, returned by the Plaintiff's solicitor's durwan on the ground that the office was closed. On the 28th October the Plaintiff's solicitor, having returned to town, asked for the title deeds to enable him to deal with the sufficiency of the answers. Thereafter a controversy arose as to whether the title deeds had not been returned to the Plaintiff's solicitor and whether the contract had not already been cancelled. The question about the title deeds was not settled until the 4th November, when it was discovered that the title deeds had been left with the clerk of the Plaintiff's solicitor. On that date, further requisitions ion title were sent by the Plaintiff's solicitor. On the 5th November, the vendor's solicitors returned these further requisitions and declined to answer them on the ground that the contract had already been cancelled by reason of breach of contract on the part of the Plaintiff. The Plaintiff thereupon on the 10th November, having regard to the attitude of the vendor, instituted the present suit against the vendor, claiming specific performance of the said contract, or, in the alternative, damages, which he assessed at Rs. 1,00,000. The Defendant in his written statement contended that time was of the essence of the contract and that the transaction had to be completed, under the terms of the agreement between the parties, within 14 days from the date of the delivery of the title deeds to the Plaintiff's solicitor and that as the Plaintiff had failed and neglected to complete the transaction within the time limited as above, the Defendant was within his rights in cancelling the agreement. The Defendant maintained that he had performed his part of the contract and although it was the Plaintiff who was not ready and willing to perform his part of the said agreement, the Defendant was willing to return to the Plaintiff the amount of the said deposit. The learned Subordinate Judge, who tried the suit, held by his judgment, dated the 27th November 1920, that time was not of the essence of the contract, but that inasmuch as it appeared that one of the two properties mentioned in the schedule to the said agreement belonged to the wife of the Defendant, who was not a party to the said agreement, and as the Defendant had no authority to enter into any agreement in respect of the said property on her behalf, the Plaintiff could not get any decree for specific performance of the contract so far as that property was concerned. As regards the question as to whether the Plaintiff could enforce partial performance of the contract in respect of the property which belonged to the Defendant, it was held that although under sec. 15 of the Specific Relief Act the Plaintiff could claim such a right, provided the Plaintiff was willing to pay the price agreed upon and take the properly which belonged to the Defendant, waiving all riffht to compensation either for the deficiency or for loss sustained by him through the Defendant's neglect or default, yet no such case was made by the Plaintiff and therefore the learned subordinate Judge dismissed the entire suit.

On behalf of the Plaintiff-Appellant it has been contended by Dr. Dwarka Nath Mitter before us that although the Court will not specifically enforce part of a contract, except where that part can be separately enforced without any possible injustice to the Defendant, where property 18 sold in distinct lots, there is a separate contract for each lot, and, secondly, that the principle that the Court will not perform part of a contract if it cannot perform all, did not apply to cases where the impossibility of carrying a part into execution was due to the default of the Defendant who set up this defence, for to permit it to prevail would be opposed to the maxim that no man shall take advantage of his own wrong. The learned Advocate-Gencral on behalf of the Defendant-Respondent maintained, however, that the Plaintiff's case came within the four corners of sec. 15 of the Specific Relief Act and that inasmuch as the Plaintiff had not complied with the provisions of that section, the entire suit had been rightly dismissed. To this the Plaintiff-Appellant replied that his case wda governed by sec. 15 of the Specific Relief Act and that sec. 15, on which the Defendant relied, had no application whatsoever to the facts of this Case.

The learned Advocate-General admitted before us that time was not of the essence of the contract in this case, nor had time been subsequently made of the essence of the contract by notice on the part of the Defendant. It was also admitted on behalf of the Defendant that at the time of the agreement between the parties he had not disclosed that one of the lots comprised in the schedule to the agreement belonged to his wife. The Defendant stated in his evidence that without consulting his wife he had entered into the agreement, as he was sure that his wife would join with him in executing a conveyance in favour of the Plaintiff. Thus, it was that he had said in the replies to the requisitions that his wife would concur in the sale. He had no power, however, over his wife and if she refused, he could not make her join with lam in the conveyance. Asked about whether the replies to some of the requisitions might not have been more satisfactory, the Defendant seemed to imply that they might have been.

According to the learned Advocate-General, the mere fact that there were two plots specified in the schedule to the agreement did not show that the contract could be treated as divisible into two separate and independent parts. He further contended that the parties contemplated one and indivisible agreement, one lump sum price being fixed for the two plots, and in the circumstances it, was impossible to assess the prices of the two plots separately. He suggested that sec. 16 of the Specific Relief Act applied only where the part sought to be enforced was a separate, independent and self-contained contract.

Now, plot A in the schedule to the agreement relates to an area containing by estimation 11 bighas 13 cottas, bounded on the north by the garden land of Shahebjada Mahomed Haider Sultan, on the west portly by the vendor's land purchased front Nvantara Dasi and Kliayrennessa Begum, on the south by a public road and on the east by a dwelling house and garden of Babu Mulla. Plot B relates to an area containing by estimation 11 bighas 4 cottas and 2 chataks and bounded on the north partly by the purchased land of Amirannessa Begnro, now the dwelling house of Shahajada Naymat Shaheb, partly by the garden land of the late Panchcowrie Doctor and partly by the land of the Tramway Depot, on the east by the garden of Shahajada Moujaddin Shaheb, now the tank and land belonging to Panchcowrie Doctor, on the south by a public road, on the west by a land and jhil belonging to the daughter of Shahajada Mahomed Anwar Shah, now the land and tank belonging to the Tramway Company. Plot B is the property, which is the subject-matter of the conveyance, dated the 12th July 1904, referred to in requisition No. 9, and is alleged to belong to the wife of the Defendant.

From the descriptions of the two plots, there seems to be little doubt that they are two distinct and independent lots and it is impossible to come to the conclusion that one is important for the enjoyment of the other. In other words, it cannot be predicated that plot B is important for the enjoyment of plot A or that the transaction relating to plot A is dependent on the transaction relating to plot B. It would, therefore, appear that the performance of the contract, so far as it relates to plot A, which belongs to the Defendant, is both practicable and proper, whereas the performance of the contract, so far as it relates to plot B, which belongs to the wife of the Defendant, who was not a party to the agreement, is at once impracticable and improper. No doubt it is of the essence of specific performance that part only of an agreement should not be performed; this is the general rule and the exceptions to this general rule all embodied in secs. 14, 15 and 16 of the Specific Relief Act. In our opinion, the present case does not come within the purview of secs. 14 and 15 of the Specific Relief Act, but it does come within the purview of sec. 16. Under sec. 14, performance of a contract may be enforced by either the promisor or promisee, provided (i) the part which cannot be performed (a) is inconsiderable and (b) may be compensated for in money, and (ii) provided that such compensation is made. Under sec. 15, the party in default may claim specific performances without compensation, where the part left unperformed is small in value and it admits of compensation, but he cannot have specific performance where such part is considerable and does not admit of compensation; the party not in default, however, may have specific performance with compensation in the first case, but specific performance without compensation in the second case. Under sec. 16, where a contract consists of several parts, which are separate from, and independent of, one another, and some of which cannot and ought not to be performed, such part or parts, as can and ought to be performed, may alone be specifically enforced. This is on the principle that such a contract, though nominally one, is actually divisible, and when the Court enforces what is apparently a part of the contract it really enforces an entire and complete contract. The question, therefore, whether a contract is divisible or indivisible is one of construction, depending upon the nature and circumstances of each individual contract.

In the case of Rutherford v. Avion Adams , the principles on which the Court will act in a suit for specific performance are thus stated by their Lordships of the Judicial Committee of the Privy Council:— “In exercising its jurisdiction over specific performance, Court of Equity looks at the substance and not merely at the letter of the contract. If a vendor sues and is in a position to convey substantially what the purchaser has contracted to get, the Court will decree specific performance with compensation for any small and immaterial deficiency, provided that the vendor has nut, by misrepresentation or otherwise, disentitled himself to his remedy. Another possible case arises where a vendor claims specific performance and where the Court refuses it unless the purchaser is willing to consent to a decree on terms that the vendor will make compensation to the purchaser, who agrees to such a decree on condition that he is compensated. If it is the purchaser who is suing, the Court holds him to have an even larger right. Subject to considerations of hardship he may elect to take all lie can get, and to have a proportionate abatement from the purchase-money. But this right applies only to a deficiency in the subject-matter described in the contract. It does not apply to a claim to make good a re-presentation about that subject-matter made not in the contract but collaterally to it. In the latter case the remedy is rescission, or a claim for damages for deceit where there has been fraud, or for breach of a collateral contract, if there has been such a contract.”

The principle is well-settled and it was held as early as in Mortlock v. Buller that—“If a man, having partial interest in an estate, chooses to enter into a contract, representing it and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable interests, he has not the entirety; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under these circumstances is bound by the assertions in his contract; and if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement; and the, Court will not hear an objection by the vendor that the purchaser cannot have the whole.”

It has been even held that though the difference between the property contracted to be sold and that which the vendor can actually convey may be great the Court will generally, notwithstanding this circumstance, enforce the contract where the vendee is willing to take whatever interest the vendor has [See Jones v. Evans , Barnes v. Wood and Hooper v. Smart ]. No doubt if the vendee is, from the first, aware of the vendor's incapacity to convey the whole of what he has contracted for, he cannot, generally, insist on having, at an abated price, what the vendor can convey. In this case, however, it is not suggested that the vendee was aware of the Defendant's incapacity to convey the whole of what was contracted for; indeed we have, as has already been pointed out, the Defendant's own statement that he did not disclose that one of the properties belonged to his wife. The representation, such as it was, therefore, by the Defendant was that the entirety of the properties mentioned in the schedule to the agreement belonged to him. The learned Advocate-General, however, argues that there can be no abatement of the price in a case under sec. 16 of the Specific Relief Act and that if the vendee wishes to take plot A then he must pay the entire sum mentioned in the contract. We are unable to take such a restricted view of the scope of sec. 16 of the Specific Relief Act as has been suggested to us by the learned Advocate-General. The inability on the part of the Defendant to make a good title as regards plot B of the schedule to the agreement is a legal, and not a physical, inability to perform the contract; it would, therefore, follow that it does not lie in the mouth of the Defendant to urge that he is unable to do all the physical acts necessary for the performance of the contract, as far as it related to plot A. There is nothing of which the Defendant can complain. It is his own fault if lie has assumed an obligation which he cannot fulfil; and in our opinion, it cannot be inequitable to require him to perform, as far as it is in his power, so much of the contract as relates to plot A. In no just sense can it be said that in requiring the Defendant to perform the contract with reference to plot A, a new contract is being made by the Court for the parties. The Defendant is not compelled to convey anything which he did not agree to convey and the vendee pays for what he gets according to the rate established by the agreement between the parties. The conclusion, therefore, to which we have conic on the facts of this case is that the Defendant ought to be compelled to convey to the Plaintiff plot A of the schedule to the agreement with an abatement in the price agreed upon.

It has been said that in circumstances, like the present, the principle on which the abatement in price is calculated is prima facie acreage. Having regard to the view which the learned Subordinate Judge took in this case, he felt that it was not necessary for him to go into any question of abatement in the price and consequently there are no data in the evidence on record from which the amount of compensation, i.e, abatement in the price, can be ascertained. Even in cases where the ascertainment of the amount of abatement cannot be Qertam or exact, the Court proceeds to grant abatement, if it can reasonably estimate the amount of abatement from the evidence of competent persons. We have on the present record no materials and we are, therefore, constrained to direct a remand in this case to the lower Court for the purpose of assessing the abatement in the price which should be allowed to the Plaintiff or such evidence an may be adduced by the parties.

The order, therefore, will be that it is declared that the Plaintiff is entitled to specific performance of the agreement, dated the 15th September 1919, in the pleadings in this suit mentioned to the extent of all the interest of the Defendant in the property particularly described as plot A in the schedule, to the said agreement with a, proportionate abatement of the purchase-money in, respect of the property particularly described as plot B in the said schedule and alleged to belong to the wife of the Defendant; and it is ordered that the case be remanded to the lower Court for determining the amount to be paid by the Plaintiff for the purchase-money of the said property, plot A, mentioned in the said schedule, having regard to the declaration aforesaid, and it is further ordered that the Defendant do execute and register a proper conveyance of the said property being plot A mentioned in the said schedule in favour of the Plaintiff or such person as be may direct in terms of the said agreement on making out a good title to the said plot A and do deliver up to him possession of the said property within a time to be fixed by the lower Court, the Plaintiff' paying to the Defendant the amount of the purchase-money as may be determined by the lower Court and also all costs and expenses necessary to conveyance and obtain the conveyance of the said property.

The result, therefore, is that the judgment and decree of the lower Court are set aside and this appeal is allowed with costs.

Let the records be sent down to the lower Court without delay.

J.N.R

Appeal allowed:

Case remanded.