JUDGMENT - Waikar M.R. J.-The question involved for consideration is whether on the death of one of the two defendants, the suit abates in its entirety, or in other words, whether the right to sue survives in respect of money claim as against the surviving defendant. 2. The suit was filed by the present non-applicant for specific per-formance of a contract in respect of a field property and in the alternative, for refund of the earnest money against the two defendants, Pandurang Patil (the present applicant) and his brother Kashiram, since deceased. 3. During the pendency of the suit, Kashiram died on 15–12–1977 and his legal representatives were not brought on record. The plaintiff then filed a pursis on 17–10–1978 stating that the right to sue in the case survives to him as against the surviving defendant and the suit be-proceeded against him. This pursis was opposed by the present applicant contending that the field in ques- tion was owned jointly by the two brothers and the right to sue never surviv- ed in favour of the plaintiff as against one of the joint owners of the property. The suit, therefore, must abate in its entirety. 4. The learned trial Judge relying upon (R. P. Gupta v. Murli Prasad)1. (Sri Chand v. Jagdish Pershad)2 and (State of Punjab v. Nathtt Ram)3, upheld the contention of the present applicant so far as the claim of specific perform- ance of the contract was concerned. Since the property belonged jointly to both the brothers who had jointly entered into an agreement to sell the pro- perty to the plaintiff, the right of specific performance, in his opinion, would not survive against the surviving brother alone and it .could not be enforced against him. The suit, therefore, abated as a whole so far as the claim for specific performance was concerned. 5. However, so far as the alternative claim for refund of the earnest money was concerned, he held that out of the total amount of Rs. 3,000, the plaintiff could claim half the consideration from the present applicant and the suit could proceed for refund of half the amount of the earnest money from the present applicant. 6. Feeling aggrieved by this order, the original defendant No. 1 pre- ferred the present revision. 7. 3,000, the plaintiff could claim half the consideration from the present applicant and the suit could proceed for refund of half the amount of the earnest money from the present applicant. 6. Feeling aggrieved by this order, the original defendant No. 1 pre- ferred the present revision. 7. Having heard Shri B. S. Deshpande, the learned counsel for the applicant and Shri B. T. Patil, the learned counsel for the non-applicant, I find that even the alternative claim of the plaintiff for refund of the earnest money must also abate in its entirety. One of the tests laid down by theSupreme Court in State of Punjab v. Nathu Ram, and also in R. P. Gupta v. Murli Prasad, while considering such an issue is whether the appellant could have brought an action for necessary relief against the respondents who are still before the Court. 8. Here the two brothers who were the joint owners had entered into an agreement with the plaintiff to sell their property. The suit was founded upon the said agreement, whether for specific performance or for the alter- native relief of refund of earnest. The interest of the two brothers was joint and indivisible in the field in question-the extent of the share or interest of each being unknown. Could the plaintiff maintain the suit, initially, only against one of the joint owners for any one of the two reliefs? Certainly No. Can it be said that on the death of one of the two joint owners the right to sue survived against the surviving defendant alone? The answer again must be in the negative. Whether a suit abates in its entirety or not always depends upon the nature of the suit and also the nature of the interest of the deceased in the subject matter. When the interest of the two defendants in the property promised to be sold was joint, indivisible and undefined, on the death of one of them, the suit could not proceed either for specific perform-ance or for refund of the earnest-in the absence of the legal representatives of the deceased. The abatement of the suit was total and the trial Court was clearly in error in splitting up the interest of the two joint owners and permitting the plaintiff to proceed with the moiety of a claim in respect of the earnest money as against the surviving defendant. 9. The abatement of the suit was total and the trial Court was clearly in error in splitting up the interest of the two joint owners and permitting the plaintiff to proceed with the moiety of a claim in respect of the earnest money as against the surviving defendant. 9. In the result, the revision is allowed with costs throughout. The order of the trial Court is hereby set aside and the suit filed by the present non-applicant stands abated. Revision allowed. -----