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. 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, specific performance will not be granted against him as to his share. The contract was after ratification a concluded contract in regard to the shares of the ratifying Defendants and as such specific performance could be granted of the same. 6. The contract was after ratification a concluded contract in regard to the shares of the ratifying Defendants and as such specific performance could be granted of the same. 6. In the present case, the shares of the parties were ascertained as hereinbefore stated although there was no partition by metes and bounds. In this view of the position on facts, do not think that the contract is of such indivisible character that no specific performance could be ordered with variation. 7. In these circumstances, the proper order is to allow a decree to the Plaintiff not in respect of the entire disputed properties but in respect of the share of Defendants 1 and 3 which comes to eight annas six pies of the suit land. Thus even assuming that Defendant No. 2 was not a party to the contract as found by the courts below, there is no bar to grant a decree in favour of the Plaintiff for specific performance against Defendants 1 and 3 in respect of their separate shares and also for joint possession along with Defendant No. 2. The Plaintiff- Appellants is accordingly directed to deposit in Court the proportionate consideration, namely Rs. 511.65 paise out of which Rs. 285.93 paise be paid to Defendant No. 1 and Rs. 225.72 paise be paid to Defendant No. 3. This deposit is to be made in Court within three months from the date of receipt of the records in the trial Court. Defendants 1 and 3 upon receiving notice from the trial Court about the deposit will execute the sale deeds in favour of the Plaintiff in respect of their respective separate shares in the disputed lands within one month from the date of receiving the notice from the trial Court. In default of their executing the sale deeds, the Court will execute the same on behalf of Defendants 1 and 3 in favour of the Plaintiff at their cost. 8. In the result, therefore, the Plaintiff's second appeal is dismissed without costs against Respondent Defendant No. 2 and is allowed as against Respondents-Defendants 1 and 3 in terms of directions for specific performance as aforesaid. Defendant No. 2 is entitled to costs of the Courts below. As regards costs of this Court, there will be no order for costs. Appeal dismissed. Final Result : Dismissed