JUDGMENT Balakrishna Menon, J. 1. The 2nd defendant is the appellant. The suit is for specific performance of Ext. A-1 agreement, dated 29th September, 1963 between the plaintiff and the 1st defendant for sale of the suit property, a residential building and its site for a price fixed at Rs. 9,250. A sum of Rs. 1,000 was paid as advance on the date of the agreement. A further sum of Rs. 250 was paid subsequently and endorsed on Ext. A-1. As per the terms of the agreement the balance consideration is to be paid and the sale deed is to be executed on or before 31st March, 1964. Time for performance was later extended till 30th May, 1964. The suit is filed on 15th March, 1965 on the failure of the 1st defendant to perform his part of the contract. The 1st defendant contended that he was always ready and willing to receive the balance consideration and execute the sale deed, and it was for the failure of the plaintiff to pay the balance consideration that the document could not be executed. The suit happened to be dismissed for default of appearance of the plaintiff and he filed an application for restoration of the suit. Pending the application for restoration the 1st defendant sold the property to the 2nd defendant as per Ext. B-2, dated 11th February, 1970 for a sum of Rs. 13,000. The suit was restored and the 2nd defendant was impleaded on 7th August, 1980. He filed a written statement adopting the contentions of the 1st defendant. The Trial Court found that the 1st defendant was entitled only to half the right he had agreed to convey and decreed the suit directing the execution of a sale deed in favour of the plaintiffs, conveying the right, title and interest of the defendants in the suit property for half the price fixed in Ext. A-1, less the sum of Rs. 1,250 already paid in two instalments. Since the decree relates only to a fractional share the plaintiff was directed to file a separate suit for partition and recovery of possession of the share due to him as per the decree. The 2nd defendant was held entitled to value of improvements effected subsequent to Ext. B-2, but his rights in that behalf are directed to be worked out in the partition suit to be filed by the plaintiffs. The 2nd defendant was held entitled to value of improvements effected subsequent to Ext. B-2, but his rights in that behalf are directed to be worked out in the partition suit to be filed by the plaintiffs. In an appeal by the 2nd defendant and a memorandum of cross objection by the plaintiff, the lower appellate court has confirmed the decree for specific performance and has further directed the defendants to deliver possession of the property to the plaintiffs on execution of the sale deed in their favour. The 2nd defendant is held entitled to remove the improvements alleged to have been effected by him in case the plaintiffs do not want to pay for and retain the same in the property. It is against this decree of the lower appellate court that the 2nd defendant has come up in second appeal. 2. During the pendency of the second appeal the 1st defendant died, and the second defendant appellant has filed a memo stating that the 1st defendant has no legal representatives to be impleaded in the second appeal. 3. The second appeal is admitted on questions of law Nos. 1 and 2 formulated in the memorandum of second appeal extracted below: "1. Has the court jurisdiction to grant a decree for specific performance after entering a finding that one of the contracting parties has no right to execute the sale deed, since he has got only half right in the property agreed to be sold. 2. If the contract of sale is for the entire suit property can the court grant a decree compelling one party to execute a sale deed in respect of his 1/2 share after receiving 1/2 of the amount shown as consideration in the agreement for sale. Will it not amount to substitution of a new contract, for which the court has no power". To consider these questions it is necessary to advert to the 1st defendant's title to the plaint schedule property. The property belonged to one Janaki Ammal and her daughter Sokkammal. Sokkammal had two daughters Bhageerathi Ammal and Parvatha Vardhini Ammal and a son, the 1st defendant. The half share due to Janaki Ammal was purchased by Subramania Pillai, the husband of 1st plaintiff. The remaining half share of Sokkammal being her Sthreedhanam property devolved equally on her two daughters Bhageerathi Ammal and Parvatha Vardhini Ammal. The 1st defendant as per Ext. The half share due to Janaki Ammal was purchased by Subramania Pillai, the husband of 1st plaintiff. The remaining half share of Sokkammal being her Sthreedhanam property devolved equally on her two daughters Bhageerathi Ammal and Parvatha Vardhini Ammal. The 1st defendant as per Ext. A-7, dated 28th February, 1962 took assignment of an undivided half share in the property from Bhageerathi Ammal, as though she was the sole heir of Sokkammal. In Ext. A-7 assignment deed there is no reference to Parvatha Vardhini Ammal who was also an equal heir as Bhageerathi Ammal herself to the assets of Sokkammal. It was on the strength of Ext. A-7 assignment in his favour that the 1st defendant entered into Ext. A-1 agreement for sale of an undivided half share in the property to the plaintiffs. There is no dispute that Parvatha Vardhini Ammal was alive on the date of death of Sokkammal and she was entitled to a half share in the half right of Sokkammal in the suit property. Parvatha Vardhini Ammal also died leaving behind a son Krishnamurthi and on the date of Ext. A-1 agreement Krishnamurthi was entitled to a one-fourth share in the suit property. As earlier stated a half share in the suit property came to vest in Subramania Pillai as the assignee from the legal heirs of Janaki Ammal and the remaining 1/4 share devolved on the 1st defendant under Ext. A-7 assignment from Bhageerathi Ammal. The agreement Ext. A-1 was for sale of an undivided half share in the suit property even though the 1st defendant as the assignee of Bhageerathi Ammal's share was entitled only to 1/4 right in the property. The price Rs. 9,250 agreed to between the parties was for the undivided half share in the suit property. The plaintiffs issued Ext. A-2 notice to the 1st defendant on 27th May, 1964 calling upon him to receive the balance price and execute the sale deed. In Ext. The price Rs. 9,250 agreed to between the parties was for the undivided half share in the suit property. The plaintiffs issued Ext. A-2 notice to the 1st defendant on 27th May, 1964 calling upon him to receive the balance price and execute the sale deed. In Ext. A-2 notice it is also stated that the plaintiffs had come to know that the 1st defendant had made a false representation that he is entitled to a half share in the suit property as the assignee of the rights of Bhageerathi Ammal, as though she is the sole heir of Sokkammal that Sokkammal had another legal heir Parvatha Vardhini Ammal who had left behind a son Krishnamurthy and that Krishnamurthi is entitled to a one-fourth share in the suit property. The 1st defendant was therefore requested to get Krishnamurthi also to execute the sale deed to complete the title agreed to be conveyed to the plaintiffs. Ext. A-3, dated 16th June, 1964 is the reply by the 1st defendant to Ext. A-2 notice wherein he has raised a contention that the agreement was only for the sale of his interest in the property and he was not obliged to get Krishnamurthi to join the sale deed and convey a larger title than he himself had in the property. He did not however deny that Parvatha Vardhini Ammal was also a legal heir of Sokkammal and that her rights in the suit property had devolved on her son Krishnamurthy. The substance of the reply is that the price fixed as per Ext. A-1 was for the right title and interest that the 1st defendant was capable of conveying to the plaintiffs. There is a subsequent notice Ext. A-4, dated 28th August, 1964 by the 1st defendant to the plaintiffs, stating that for the failure of the plaintiffs to comply with the terms of Ext. A-1 agreement, the contract has come to an end and that they have forfeited the advance amount of Rs. 1,250 paid to the 1st defendant. Ext. A-5, dated 14th September, 1964 is the reply by the plaintiffs asserting that the agreement is still subsisting, that the plaintiffs are ready and willing to abide by its terms and that the 1st defendant is bound to execute the sale deed in terms of Ext. A-1. 4. 1,250 paid to the 1st defendant. Ext. A-5, dated 14th September, 1964 is the reply by the plaintiffs asserting that the agreement is still subsisting, that the plaintiffs are ready and willing to abide by its terms and that the 1st defendant is bound to execute the sale deed in terms of Ext. A-1. 4. Both the courts below have concurrently found that the 1st defendant on the date of Ext. A-1 was entitled only to a one fourth undivided share in the suit property, and that he had no title to convey an undivided half share as per the terms of Ext. A-1. This finding is not challenged before me by the learned counsel for the appellants. On the facts adverted to above, it is also clear that the 1st defendant had only a one-fourth undivided share in the suit property. The learned counsel for the appellant has no case that time is of the essence of the contract, nor is there anything in the context of Ext. A-1 to infer that the parties had agreed that the time fixed to be the essence of the contract. In the decision of the Supreme Court in Govinda Prasad Chaturvedi v. Hari Dutt Shastri and another ( AIR 1977 SC 1005 ) it is stated: "It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract". The 1st defendant had contracted to convey an undivided half share in the suit property and for the reason of his having only a one-fourth share he was not in a position to convey the title agreed to between the parties. The stand of the 1st defendant in Ext. A-4 notice that the contract is for sale of his interest in the land, that for the failure of the plaintiffs to comply with its terms it has come to an end and that the plaintiffs have forfeited the advance paid cannot therefore be supported in law. 5. The learned Counsel for the appellant has raised two contentions on the basis of S.12 of the Specific Relief Act. Sub-s.1, 2 and 3 of S.12 are extracted below: "12. 5. The learned Counsel for the appellant has raised two contentions on the basis of S.12 of the Specific Relief Act. Sub-s.1, 2 and 3 of S.12 are extracted below: "12. (1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) 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 either " (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) 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, if the other party " (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to performance of the remaining part of the contract and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant". Sub-s.(3) of S.12 applies to the facts of the case for the reason that the 1st defendant who is a party to the contract is unable to perform the whole of his part and the part to be left unperformed forms a considerable part of the whole. Sub-s.(3) of S.12 applies to the facts of the case for the reason that the 1st defendant who is a party to the contract is unable to perform the whole of his part and the part to be left unperformed forms a considerable part of the whole. According to learned Counsel for the appellant, the part that will be left unperformed does not admit of compensation in money, and hence under clause (b) of sub-s.(3) unless the plaintiffs pay the whole consideration, and relinquish all claims to the performance of the remaining part of the contract, and all rights to compensation thereto, they are not entitled to a decree for specific performance of the contract. The learned Counsel further submits that there is no specific plea for relief under S.12 of the Act; and for that reason also the plaintiffs are not entitled to any relief in the suit. Reliance is placed on the decision of this Court in Balakrishnan v. Kunhikrishnan ( 1981 KLT 463 ) wherein a Division Bench of this Court stated in Para.11 of the judgment: "If the whole of a contract could not be performed and the part to be left unperformed bears only a small proportion to the whole in value and admits of compensation in money specific performance could be directed of that portion of the contract as can be performed. For the non performance in regard to the balance the court could award compensation in money. [Sub-s.(2)]. But where the part which a party to a contract is unable to perform is a considerable part of the whole and the portion left unperformed admits of compensation money specific performance may be granted by the court if the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed is paid. If the portion left unperformed does not admit of compensation money the decree for specific performance could be granted on the consideration for the whole contract without any abatement being made. There is a further provision that in either case parties seeking specific performance relinquish all claim to the performance of the remaining part of the contract and all rights to compensation [sub-s.(3)]". There is a further provision that in either case parties seeking specific performance relinquish all claim to the performance of the remaining part of the contract and all rights to compensation [sub-s.(3)]". Again in Para.12 it is stated as follows: "If the plaintiff seeks performance, in the alternative of that part of the contract that could still be performed however small that part be, he must plead appropriately, for, it is only on such pleadings that questions calling for decision within the scope of S.12(3) can be decided by the court." The plaintiffs have raised a specific plea in Para.4 and 5 of the plaint that the 1st defendant is incapable of performing the whole of the contract for the reason that he is entitled only to half the interest he had agreed to sell. The part left unperformed is valued at half the price fixed and a decree is prayed for directing the 1st defendant to convey his interest in the suit property for half the price agreed to between the parties. It cannot therefore be contended that there is no pleading for relief under S.12(3) of the Specific Relief Act. On the facts admitted it is clear that the 1st defendant is unable to perform the whole of the contract, the part left unperformed forms a considerable part of the whole, and it admits of compensation in money. The 1st defendant had agreed to sell an undivided half share in the suit property for a price fixed at Rs. 9,250. It is found in the suit that he is capable of conveying only a one fourth undivided share. The courts below are therefore right in holding that the part left unperformed admits of compensation in money at half the price fixed between the parties. On the facts proved the case falls under clause (a) of sub-s.(3) of S.12 of the Specific Relief Act. The plaintiffs have pleaded that the 1st defendant is incapable of performing the whole of the contract, that they are entitled to a decree for specific performance of that part of the contract capable of performance, on payment of the proportionate price and that they are giving up all right to compensation for the remaining part. The plaintiffs have pleaded that the 1st defendant is incapable of performing the whole of the contract, that they are entitled to a decree for specific performance of that part of the contract capable of performance, on payment of the proportionate price and that they are giving up all right to compensation for the remaining part. They are therefore entitled to a decree for the conveyance of a one-fourth undivided share in the suit property for the price fixed under the contract 'reduced by the consideration for the part which must be left unperformed'. The price fixed for an undivided half share is Rs. 9,250, the part left unperformed being half of that was correctly valued by the courts below at Rs. 4,625 and the decree passed directing the defendants to convey an undivided one-fourth share in the suit property at the aforesaid price less the advance already paid is in accordance with law and does not call for interference by this court. 6. The further question urged by the learned Counsel for the appellant is that the lower appellate court is wrong in decreeing recovery of possession of the suit property on execution of the sale deed in favour of the plaintiffs. The lower appellate court has found that the 1st defendant was in possession of the suit property and as per Ext. A-1 agreement, he had agreed to deliver possession to the plaintiffs on execution of the sale deed. He had during the pendency of the suit transferred possession of the property to the 2nd defendant as per Ext. B-2 sale deed in his favour. It was for these reasons that the lower appellate court has decreed specific performance as well as recovery of possession of the property in favour of the plaintiffs. In the decision of the Supreme Court in Babulal v. M/s. Hazari Lal Kishori Lal and others ( AIR 1982 SC 818 ), it is stated in Para.11: "S.22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession". There is specific prayer in the plaint for possession of the property. The Supreme Court in the decision cited above has stated in Para.13: "13. The expression in sub-s.(1) of S.22 'in an appropriate case' is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. As pointed out earlier, in view of S.2, R.2 of Civil Procedure Code some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two relief could not be combined in one suit. Similarly, a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree holder. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree holder. This is in consonance with the provisions of S.55(1) of the T. P. Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits". 7. The decree of the court below directing the defendants to put the plaintiffs in possession of the property is perfectly legal, and does not also call for interference by this Court. 8. The learned Counsel for the appellant submits that since the 1st defendant had during the pendency of the suit conveyed his right, title and interest in the suit property to the 2nd defendant as per Ext. B-2 sale deed, the latter is entitled to the balance consideration directed to be deposited by the plaintiffs. I make it clear that the 2nd defendant is entitled to withdraw the sum of Rs. 3,375 directed to be deposited by the plaintiffs as per the decree of the court below. Subject to the above modification, the Second Appeal is dismissed. No costs.