JUDGMENT S.R. Das Gupta, J. - This suit has been instituted by the Plaintiff for specific performance of an agreement for sale of the premise No. 15, Teliparha Lane, Calcutta, damages and for other reliefs. 2. The Plaintiff's case is as follows:--The Plaintiff, having received certain information's that the premises in suit was intended to be sold, inspected the said house and approved of the same and thereafter informed his legal advisers about it. Upon that, certain correspondence passed between his solicitor, Mr. G.B. Dhar and Mr. G. Dutt, who was then acting as solicitor or the Defendants other than the Defendants Nos. 7 and 8. Ultimately, on September 28, 1945, an agreement for sale was entered into between the Defendants other than the Defendants Nos. 7 and 8 on one part and the Plaintiff on the other part. Under the said agreement, the Defendants Nos. 1 to 6 agreed to sell the premises No. 15, Teliparha Lane to the Plaintiff for the cum of Rs. 29,000. In the course of investigation of title, it transpired that the said premises belonged to one Ashutosh Mitra, who died intestate on or about April 15, 1935, leaving him surviving his sons, the Defendants Nos. 1 to 7 and one Bishnupada Mitra since deceased and by a conveyance dated November 28, 1935, the Defendant No. 7 conveyed his 1/8th share in the said premises to the Defendant No. 1. The said Bishnupada Mitra died intestate and unmarried, on or about May 26, 1945, leaving turn surviving his mother, the Defendant No. 8 as his sole heiress. On coming to know this, Mr. G.B. Dhar, by his letter to Mr. G. Dutt, dated January 21, 1946, insisted that there should be surrender by Defendant No. 8 of her widow's estate. Mr. G. Dutt, by his letter dated January 25, 1946, informed Mr. G.B. Dhar that the widow and Harendra Nath Mitra (Defendant No. 7) will join in the conveyance to be executed in favour of the Plaintiff. Thereafter, on February 6, 1946, Mr. G.B. Dhar sent to Mr. G. Dutt the draft conveyance to be executed by the Defendants in favour of the Plaintiff. The said draft conveyance was approved by Mr. G. Dutt on behalf of all the Defendants on March 11, 1946 and returned to the Plaintiff's solicitor Mr. G.B. Dhar on March 12, 1946. On March 12, 1946 Mr. G.B. Dhar sent to Mr. G. Dutt the draft conveyance to be executed by the Defendants in favour of the Plaintiff. The said draft conveyance was approved by Mr. G. Dutt on behalf of all the Defendants on March 11, 1946 and returned to the Plaintiff's solicitor Mr. G.B. Dhar on March 12, 1946. On March 12, 1946 Mr. G. Dutt also returned the engrossed conveyance and wrote to Mr. G.B. Dhar that his clients were searching for a, suitable accommodation in order to vacate the premises and they will complete the transaction as soon as they secure such suitable accommodation. Thereafter Mr. G.B. Dhar wrote several letters to Mr. G. Dutt asking for completion of the conveyance, but Mr. G. Dutt on behalf of his clients answered by saying that his clients were trying to secure a suitable accommodation in order to vacate the premises and in his letter, dated May 7, 1946, he states his clients' hope that the transaction would be completed in the course of that month. But, as nothing was done, Mr. G.B. Dhar again gave reminders and asked for completion of transaction and threatened that a suit would be filed for specific performance and damages. The last of such letters was written by Mr. Dhar on November 29, 1946, in which he gave final notice that, if Mr. Dutt's clients failed to complete the sale by December 13, 1946, a suit for specific performance of contract and damages would be filed without further reference. No reply was given to this letter and on December 29, 1946, this suit was filed. 3. The Plaintiff's claim is contested by Defendants Nos. 1 to and also by Defendant No. 8. The Defendant Nos. 1 to 6 filed joint written statement, in which they have taken the defence the the time to complete the sale was extended up to January 31, 1948 and although the time so extended was the essence of the contract between the parties, the Plaintiff willfully failed an neglected to complete the transaction within January 31, 1946 and thereby committed the breach of contract. Then in para. Then in para. 6 (sic) their written statement they set up the plea that, inasmuch a the Plaintiff failed to complete the transaction within January 31 1946, they refused to extend further time or to complete the transaction until the Plaintiff agreed to wait and not to insist (sic) completing the transaction until these Defendants found a suitable house. It is further stated in the said paragraph that the said Defendants agreed with the Plaintiff to extend the time for completion until such time when these Defendants found such house accommodation as aforesaid. In the premises, they stated that this suit was not maintainable. This defence set up in the written statement was not pressed at the trial. 4. The case made out by the Defendant No. 8 is that she never entered into any contract for sale of her interest in the premises and she never authorised Mr. G. Dutt or her sons to enter into any such contract for the sale of her share or interest on her behalf nor did she give any instruction to Mr. G. Dutt in the matter. It appears that, in the draft conveyance which was approved by Mr. G. Dutt on behalf of all the Defendants, the Defendant No. 8 is also made a party as a vendor along with other Defendants and it is stated there that, in consideration of the sum of Rs. 29,000, the vendors and each of them granted, transferred, sold and the Defendant Harendra Nath Mitra confirmed unto the purchaser the sale by the said vendor Sm. Sarojini Mitra (Defendant No. 8) and the said Sm. Sarojini Mitra released all her rights of maintenance and residence whatsoever in favour of the said purchaser. Thus it appears from the said draft conveyance, which was approved by Mr. G. Dutt, that the Defendant No. 8 also agreed to sell her share in the said premises. The main question for determination is whether Mr. G. Dutt, who was acting for her as well, had authority to do so. The following issues were raised at the trial: 1. Is the Plaintiff entitled to specific performance of the agreement as alleged in para. 1 of the plaint? 2. Was the Plaintiff ready and willing to complete the sale in terms of the said agreement? 3. Was there any agreement between Plaintiff and Defendant No. 8 as alleged in para. The following issues were raised at the trial: 1. Is the Plaintiff entitled to specific performance of the agreement as alleged in para. 1 of the plaint? 2. Was the Plaintiff ready and willing to complete the sale in terms of the said agreement? 3. Was there any agreement between Plaintiff and Defendant No. 8 as alleged in para. 5 of the plaint? 4. Was any draft conveyance caused to be sent and/or approved by any attorney of Defendant No. 8? 5. To what relief is the Plaintiff entitled? 6. Is the suit bad for misjoinder of the cause of action and of parties? 5. The Plaintiff has given evidence in this case, but his evidence lone does not establish that the Defendant No. 8 had authorised (sic) G. Dutt or her sons to enter into any agreement for sale of her share. Obviously he could not say what transpired amongst Defendant No. 8 and her solicitor and her sons regarding sale of (sic) share and he has not attempted to establish it. 6. On behalf of the Defendants, Mr. G. Dutt and Birendra Nath Matra,. Defendant No. 3 and Sm. Sarojini Mitra, Defendant No. 8 herself, have given evidence. Although the evidence of these persons is very unsatisfactory, still, having regard to the fact hat there is no positive evidence on behalf of the Plaintiff to the effect that the Defendant No. 8 actually authorised either her sons or the solicitor to enter into an agreement for sale of her share to the Plaintiff, I would not be justified in holding that such authority was in fact given. Although I am very much Suspicious about the Defendant's case, still I would not be justified in acting merely on such suspicion. Mr. S.K. Basu appearing for the Plaintiff has frankly confessed that he can not ask me to hold that the Defendant No. 8 gave such authority, even if I do not believe the evidence of the witnesses called on behalf of the Defendants, as there is no positive evidence on his behalf and he says that it is not possible for his client to give such positive evidence. 7. According to the evidence of Mr. G. Dutt, the Defendant Birendra Nath Mitra had sent to him his agent, who informed Mr. 7. According to the evidence of Mr. G. Dutt, the Defendant Birendra Nath Mitra had sent to him his agent, who informed Mr. Dutt that the mother would join in the conveyance and it was upon such instruction that he wrote the letter of January 25, 1946. When asked as to under whose authority he approved of the draft he said that it was under the instructions of Birendra Nath Mitra. It is very strange that, although, according to him, the agent came four or five times with the instructions from Birendra, he does not remember his name. He said that he made no attempt to contact the mother although he realised that, in the draft conveyance which he approved, the mother was parting with all her interest. He said that the agent told him that the mother was out of Calcutta and that he asked Birendra to give him her address, but he did not give it to him. 8. If the evidence of the witnesses called on behalf of the Defendants is unsatisfactory, the conduct of Mr. G. Dutt and of the Defendant Birendra Nath Mitra is still worse. Mr. G. Dutt, in his evidence, admitted that he realised the seriousness of the position, namely, that, on his representation that the mother would join in the conveyance, the other party was prepared to enter into the transaction and he induced Mr. Dhar to believe that his instructions are correct and that the mother would convey, yet he made no serums attempt at any time to contact the mother or to get instructions from her direct. He asked Birendra to give her address twice or thrice but Birendra did not give it to Mm. He knew full well, as admitted by him in his evidence, that the mother was going to convey her interest to the purchasers independently of the sons, yet he approved of the draft under instruction of Birendra, although Birendra Nath Mitra did not give him the address of his mother though asked for (sic) several occasions by Mr. Butt. He made no attempt to find (sic) where she was, he did not go to the premises No. 15, Teliparhs Lane, he never asked the Defendant liabindra and Santosk as to where the mother was, although admittedly he had no difficult; in communicating with them. In none of the letters which (sic) wrote to Mr. Butt. He made no attempt to find (sic) where she was, he did not go to the premises No. 15, Teliparhs Lane, he never asked the Defendant liabindra and Santosk as to where the mother was, although admittedly he had no difficult; in communicating with them. In none of the letters which (sic) wrote to Mr. Dhar he gave any indication that he was acting merely on the instruction of the alleged agents of Birendra, no did he ever inform Mr. Dhar that the mother was not in Calcutta and that he had difficulty in contacting her or getting direct communication from her. Again, although he came to know (sic) May and June, 1946 that the mother was denying the son's authority, yet even after that he did not say a word about it to Mr. G.B. Dhar. As I have said that, even in November, 1946. Mr. G.B. Dhar wrote to Mr. Dutt giving final notice to Mr. Dutt's client that unless the conveyance was executed within (sic) date mentioned therein Mr. Dhar's client would file a suit for specific performance and for damages but Mr. Dutt gave no reply to that letter nor did he inform Mr. Dhar that the mother was not willing to join in the conveyance. He did not care even to ascertain from the mother herself the true position although it is admitted by the mother herself that she came down to Calcutta sometime in March, 1946. To my mind, it seems that if the solicitor or his client, the Defendant Birendra Nath Mitra, had acted in a different manner then in all probability this suit would not have come into existence at all. Birendra in his evidence at first said that he does not exactly remember whether Mr. Dutt asked from him the address of his mother but later on he said that if Mr. Dutt had asked from him the address of his mother he would not have given the address to him because he "thought that if he gave the address to him Mr. Dutt would write to her. Then he said that Mr. Dutt asked him for the address and he did not give it to him. Dutt had asked from him the address of his mother he would not have given the address to him because he "thought that if he gave the address to him Mr. Dutt would write to her. Then he said that Mr. Dutt asked him for the address and he did not give it to him. His evidence shows that he was deliberately making a false representation to his solicitor, namely, that his mother was willing to join in the conveyance and at the same time not giving him the address of the mother so that the falsity of his statement may not be found out. I am left with the impression, that, but for the conduct of these two witnesses, this suit would not have in all probability come into existence at all. I need not deal in details with the evidence of the Defendant No. 8 Sin. Sarojim Mitra. It was equally unsatisfactory and she did not seem to me to be a witness of truth. But, as I have said, in the absence of any positive evidence to the contrary, I shall not be justified in coming to the conclusion that it has been proved before me that Mr. G. Dutt was acting under instructions from the Defendant No. 8 when he wrote the letter of January 25, 1946, in which he informed Mr. G.B. Dhur that the mother would join in the conveyance or when Mr. Dutt approved the draft conveyance under which the Defendant No. 8 was selling' all her interest in the said premises. 9. This being the position in fact, the question that arises for my determination is what relief is the Plaintiff entitled to, even if I bold that there was no binding agreement with the Defendant No. 8 to sell her interest in the said premises. Mr. S.K. Basu has contended before me that, in any event, his client is entitle to specific performance of the contract as against the Defendants other than the Defendant No. 8 and for that purpose he relied on Section 16 of the Specific Relief Act and a decision., Harendra Chandra Das v. Nanda Lal Roy (1932) 36 C.W.N. 1002. Mr. Mr. S.K. Basu has contended before me that, in any event, his client is entitle to specific performance of the contract as against the Defendants other than the Defendant No. 8 and for that purpose he relied on Section 16 of the Specific Relief Act and a decision., Harendra Chandra Das v. Nanda Lal Roy (1932) 36 C.W.N. 1002. Mr. Hazra, on the other hand, contends, firstly, that Section 16 of the Specific Relief Act does not apply to this case, because no part of the contract for sale stands on a separate and independent footing from another part of the same contract and that, if any section at all applies, it would be Section 15 of the Specific Relief Act. Secondly, he contends that even Section 15 would not apply, because the Plaintiff is not ready and willing to perform his part of the contract so far as it relates to the agreement for sale by his client and for this proposition he relies on an answer given by the Plaintiff in his cross-examination to question No. 63. Mr. Hazra placed before me the cases, Graham v. Krishna Chunder Dey ILR (1924) Cal. 335; Panchananda. Kundu v. Rajani Kanta Pal (1930) 35 C.W.N. 40 and (Kolleppa) Seshayya Vs. Vedumada Hammayamma and Others, AIR 1927 Mad 1109 in, support of his aforesaid contentions. 10. In my view Section 16 of the Specific Relief Act is applicable to the present case and not Section 15 as has been contended by Mr. Hazra. 11. Section 16 of the Specific Relief Act 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. 12. Section 15 of the Specific Relief Act is as follows: Where a party to a contract is unable to perform the whole of his part of it and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform provided that the Plaintiff relinquishes all claim to further performance and all right to compensation either for the deficiency, or for loss or damage sustained by him through the default of the Defendant. 13. It appears from the wordings of the two sections and from the illustrations given u/s 15 of the Specific Relief Act that the two sections relate to two different sets of facts. Section 15 applies to a case where a person has entered into a contract to do certain things, but owing to some reason is unable to perform his entire promise but only a part of it. Then in that case the court may direct such party to perform specifically such part of his contract as he can perform. This section, to my mind, is not applicable to a case where two persons enter into a contract to do certain things each and then it transpires that one of such persons is unable to perform his part of the promise, but the other is. As in this case, if several co-sharers enter into a contract with a purchaser to sell their respective shares to the purchaser and then if it transpires that one of such co-sharers cannot perform his part of the promise but the others can, then in such case Section 16 is applicable. In other words, if two parts of a contract stand on a separate and independent footing from each other then Section 16 would apply. The decision, Harendra Chandra Das v. Nanda Lal Roy (supra), supports this proposition. In that case, the facts being similar to the facts of the present case, two persons acting as agents of five other persons entered into a contract with the Plaintiff for sale of the share of four of these persons in certain immovable properties and of the ijdrd interest of the fifth, but it was found that they have acted beyond the scope of their authority and three of those principals ratified the contract but two did not and it was held that the contract was a divisible one and could be specifically performed against the shares of the ratifying principals. In the course of their judgment their Lordships held as follows: It may be noticed that 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 was essentially a question of fact. The contract, entered into by the agents in the case before us, was one in regard to the distinct and different shares of co-sharers Defendants Nos. 2 to 5 in the joint property and in respect of which shares only, taken separately, there could be a conveyance of title, so far as any of the co-sharers was concerned. 14. These observations, to my mind, apply with equal force to the present case. The decision, Panchananda Kundu v. Rajani Kanta Pal (supra) cited by Mr. Hazra is clearly distinguishable from the case before me and also from the case, Harendra Chandra Das v. Nanda Lal Boy (supra). In the case, Panchananda Kundu v. Rajani Kanta Pal (supra) one member of a Hindu joint family purported to sell not only his own share hut those of his co-parceners in a joint family property and the vendor was unable to give good title to any thing more than his own share and it was held that Section 15 of the Specific Belief Act applies. My view also is that in such a case Section 15 would apply. In fact in the case Harendra Chandra Das v. Nanda Lal Roy (supra), their Lordships also considered such a position and held as follows: It was, therefore, an agreement between the Plaintiff and the Defendant Nos. 2, 4 and 5 for sale and does 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, specific performance will not be granted against him as to his share. 15. The decision Pramathanath Mitra v. Gosthabihari Sen ILR (1931) Cal. 1025 : L.R. 59 IndAp 47, cited by Mr. Hazra is also distinguishable from the facts of the present case. There the 12 as co-sharers of certain lands having been approached by the Plaintiff for a lease agreed to entertain the proposal if the Plaintiff could obtain the consent of remaining 4 as co-sharers. 1025 : L.R. 59 IndAp 47, cited by Mr. Hazra is also distinguishable from the facts of the present case. There the 12 as co-sharers of certain lands having been approached by the Plaintiff for a lease agreed to entertain the proposal if the Plaintiff could obtain the consent of remaining 4 as co-sharers. The Plaintiff then approached the latter and thought that he obtained their consent whereupon a document, signed by 12 as co-sharers alone but not by the Plaintiff, was drawn up in which it was said that the lease of a land on the terms next following was approved of. The Plaintiff having brought a suit against all the co-sharers it was held that there was no concluded contract in the absence of the consent of the other co-sharers. In the case before me it can not be said that the Defendants other than the Defendants Nos. 7 and 8 consented to sell their shares only if the Plaintiff could obtain the consent of the Defendant No. 8 and only on that footing. I, therefore, hold that Section 16 of the Specific Relief Act applies to the present case and I can direct specific performance of the contract for sale so far as it relates to the shares of the Defendants other than the Defendants Nos. 7 and 8. I should add that Mr. Basu submitted before me that even if I come to the conclusion that Section 15 of the Specific Relief Act applies to the present case his client was prepared to relinquish all claim to further performance and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the Defendant. Mr. Hazra on the other hand contends that Mr. Basu is not entitled to specific performance tinder Section 15 of the Specific Relief Act, firstly, because the Plaintiff did not allege in his plaint that he was ready and willing to accept specific performance only as to the share of his clients or that he was relinquishing all claim to further performance and all right to compensation as contemplated by Section 15 of the Specific Relief Act. In other words, according to Mr. Hazra, the relinquishment as contemplated u/s 15 of the Specific Relief Act must be at the date of the institution of the suit. In the second place, Mr. In other words, according to Mr. Hazra, the relinquishment as contemplated u/s 15 of the Specific Relief Act must be at the date of the institution of the suit. In the second place, Mr. Hazra relies on the answer given by the Plaintiff to question No. 63 in cross-examination and says that the Plaintiff even now is not willing to take a conveyance in respect of his client's share. I am unable to accept Mr. Hazra's contentions on these points. In my view, if the Plaintiff at the hearing and before a decree is passed expresses his willingness to relinquish all claim to further performance and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the Defendant he would be entitled to get specific performance u/s 15 of the Specific Relief Act. As to the answer given by the Plaintiff to Q. 63 Mr. Basu rightly contends that the said answer relates to a period prior to date of the trial and even such answer conveyed his intention, as on the date when his evidence was given there is nothing to prevent him from relinquishing his claim as contemplated by Section 15 of the Specific Relief Act before the decree was passed and he was instructed by his client to state before me that he was willing to so relinquish. Both Mr. Basu and Mr. Hazra agreed on their submissions before me that if Section 15 applied there would be no question of paying proportionate share of the total consideration money, but if Section 16 applied then the Plaintiff would get specific performance as to the share of Mr. Hazra's client by paying a share of the total sum of Rs. 29,000 representing value of the share of the Defendants other than Defendants 7 and 8. 16. I shall now answer the issues which have been raised at the trial. Issue No. 1 : I hold that the Plaintiff is entitled to specific performance of the agreement for sale so far as it relates to the share of the Defendants other than the shares of Defendants Nos. 7 and 8. Issue No. 2 : I hold that the Plaintiff was ready and willing to complete the sale in terms of the said agreement. 7 and 8. Issue No. 2 : I hold that the Plaintiff was ready and willing to complete the sale in terms of the said agreement. Issue No. 3 : The Plaintiff has failed to establish that the Defendant No. 8 authorised Mr. G. Dutt or her sons to enter into any agreement for sale of her share in the premises in suit. I therefore hold that there was no agreement between the Plaintiff and the Defendant No. 8 as alleged in para. 5 of the plaint. Issue No. 4 : In view of my finding that the Defendant No. 8 did not authorise Mr. Dutt to approve any draft conveyance on her behalf I answer this issue in the negative. Issue No. 5 : I hold that the Plaintiff is entitled to specific performance of the agreement for sale so far as the share of the Defendants other than the Defendants Nos. 7 and 8. Issue No. 6 : This issue was not seriously pressed before me. In any event I hold that the suit is maintainable as framed and is not bad for misjoinder of parties and/or causes of action. 17. I, therefore, hold that the Plaintiff is entitled to specific performance of the agreement for sale so far as it relates to the share of the Defendants other than the Defendants Nos. 7 and 8 upon payment of 7/8th share of the total sum of Rs. 29,000 and there will be a decree for such specific performance and the Plaintiff will be entitled to costs of this suit against the Defendants other than the Defendants Nos. 7 and 8. This suit as against the Defendants Nos. 7 and 8 will stand dismissed. But, as for the costs of the Defendant No. 8, having regard to the circumstances of this case and the conduct of the Defendant Birendra Nath Mitra, I direct that the said Defendant would pay the costs of the Defendant No. 8. I should add that, even if I had dismissed this suit against all the Defendants, I would have made an order that the Defendant Birendra Nath Mitra would pay the costs of the Plaintiff as also the costs of the Defendant No. 8. I certify that this case is fit for employment of two counsel. The Plaintiff will be entitled to get possession of the share of the vendor. I certify that this case is fit for employment of two counsel. The Plaintiff will be entitled to get possession of the share of the vendor. The Plaintiff will be entitled to retain out of the purchase money 7/8th share of mortgage amount and the costs of the mortgage for payment to the mortgagee and pay the balance to the Defendants Nos. 1 to 6. Liberty to the parties to apply.