Judgment :- dismissed. But he was given a decree for refund of the advance amount with interest. First defendant is the owner of the property, who entered into the agreement with the appellant not only to sell his right, but the life interest of his mother, the second defendant, also. First defendant died after decree and appeal. Respondents 3 to 6 are his legal representatives. Among them, third respondent is the widow and others the children. Fourth respondent, after he attained majority, filed a memorandum of cross objection challenging the decree for refund of the advance amount and contending that the agreement itself is not valid as the first defendant had no alienable right since it is a joint family property. 2. Fourth respondent was impleaded in the appeal after the death of the first respondent only as his legal representative. Under Order XXII Rule 4(2), he can make his defence only appropriate to his character as legal representative of the first respondent He cannot set up new or individual rights not set up by or not available to the first respondent or in consistent with the defence taken up by the first respondent. It is open to the court to allow a legal representative to be impleaded in his own personal capacity, in which case he could set up his own independent title. That is not the case here. The agreement was executed and the suit was contested by the first defendant as if the suit property belonged exclusively to him on partition. Now the fourth respondent says that the first respondent had no such rights and it is joint family property. In this suit, he cannot be heard to say so. For that, he must seek independent reliefs, if so advised. 3. Ext.A1 is the agreement dated 10-3-1981. Second defendant was not a party to it. But first defendant agreed to see that she is also joined as one of the executants. On that agreement, sale consideration was fixed at Rs. 45,000/- and Rs. 20.001/- was received as advance. Time stipulated was six months. The suit was filed on the allegation that though the appellant was ready and willing to perform his part of the contract and issued notice on 27-8-1981, the defendants were not prepared. Contention is that second defendant, who was not bound by Ext. 45,000/- and Rs. 20.001/- was received as advance. Time stipulated was six months. The suit was filed on the allegation that though the appellant was ready and willing to perform his part of the contract and issued notice on 27-8-1981, the defendants were not prepared. Contention is that second defendant, who was not bound by Ext. Al, was unwilling to join the sale deed and first defendant offered to sell his rights, but plaintiff backed out. 4. Trial court found that plaintiff was always ready and willing to perform his part of the contract, but the breach was committed by the first defendant. Specific performance was refused for the sole reason that performance of a part alone of the contract is not permissible, as the case will not come under any of the exceptions in S.12 of the Specific Relief Act. After hearing the case and considering the pleadings and evidence carefully, I do not find any reason to differ from the conclusions of the trial court that plaintiff was always ready and willing and break was committed by the first defendant alone. No reply was sent to Ext. B2 notice issued on 27-8-1981 requiring specific performance. Receipt of notice was delayed upto 5-9-1981 in order to gain time to plead that time is expiring. The contention that he met the plaintiff at his residence and informed about the unwillingness of the second defendant and his preparedness to sell his right is far from convincing. He has also a case that plaintiff was asked to come for measurement on 8-9-1981 and for execution of the sale deed on 9-9-1981, but he did not turn up though the first defendant was present. 5. DW 2 is the scribe of Ext A1 and DW 3 is the person alleged to have been engaged by the first defendant for measuring the property. Their evidence that first defendant appeared for measurement and execution of the sale deed cannot be swallowed easily, especially in the absence of any supporting document. On the other hand, the case of the plaintiff and his evidence that he appeared on 8-9-1981 and 9-9-1981 as desired in Ext. B2 notice are supported by Exts. A4 to 8. The probabilities are also that the first defendant was interested in shirking liability. It is true that the second defendant is not bound by the contract and she cannot be compelled. B2 notice are supported by Exts. A4 to 8. The probabilities are also that the first defendant was interested in shirking liability. It is true that the second defendant is not bound by the contract and she cannot be compelled. But the position is that if the first defendant wants, she will join and she refuses only because first defendant wants her to do so to help his contentions. The attitude of the first defendant and the legal representatives appears to be that Ext. Al agreement was a folly because the property was worth ten or twelve times the price agreed in Ext. Al. That contention is not factually substantiated, but it reveals the mind working behind the contentions. Plaintiff has deposited the balance amount along with the plaint and his attitude, evidenced by the facts and circumstances, clearly indicates that he was always ready and willing to take the sale deed, but he could not only because the defendants did not co-operate. 6. Except the rule against part performance, there is no legal or equitable consideration in refusing specific performance. Though performance of the contract as a whole is the rule and performance in part is only an exception, it is necessary to see whether the case in hand comes under any exception. We are concerned only with sub-sections (3) and (4) of S.12 of the Specific Relief Act. First I shall consider subsection (4) itself. That sub-section is not concerned with the question whether the part of the contract incapable of performance bears only a small proportion or large proportion. It concerns only with the question whether that part incapable of performance stands on a separate and independent footing from the other part. Life estate and reversion or vested remainder is independent rights standing on separate footings. A vested remainder subject to an intervening life estate is a right, which is capable of being transferred in itself (See Budhiraju Seethayamma and others v. Vullipalem and others - AIR 1939 Mad. 802). The transferee gets right to the property and on determination of the life estate, he gets full right also because the life estate will terminate with the death of the holder and it will not devolve on anybody else. 7. Even under sub section (3) of S.12, the position may not be different. 802). The transferee gets right to the property and on determination of the life estate, he gets full right also because the life estate will terminate with the death of the holder and it will not devolve on anybody else. 7. Even under sub section (3) of S.12, the position may not be different. It is true that normally the plaintiff may not be entitled to specific performance if the part of the contract incapable of performance forms a considerable part of the whole and does not bear only a small proportion. Whether it admits of compensation in money or not. But, in such cases also, the court can direct specific performance of the part capable of performance. In such a situation, if the part of the contract incapable of performance is capable of being compensated in money, the plaintiff will have to pay the consideration reduced by that of the part incapable of performance. If it does not admit of compensation in money, the entire compensation without any reduction has to be paid. In either case, the plain tiff must relinquish all claims of performance of the remaining part and all rights to compensation. 8. It is true that the appellant was seeking enforcement of the entire claims without any relinquishment. Before me, the counsel made it clear that the appellant wants specific performance of the contract only to the extent of conveying the rights of the first defendant and that he is relinquishing his claim to get the life estate of second defendant and- any compensation on that account. Such relinquishment can be had at any stage of the litigation, including the appellate stage. It is not necessary that such relinquishment should be in writing incorporated in the plaint or set forth in the trial court itself. (T.K. Santha and others v. A.G. Rathnam and others - AIR 1990 Kerala 69). 9. The person affected by the non-performance of the contract to the extent of the life estate of the second defendant is the plaintiff and none else. When that right minus the life estate is capable of specific performance, it may defeat the ends of justice, if the defendants are allowed to set up such a defence to negative a legitimate claim. When that right minus the life estate is capable of specific performance, it may defeat the ends of justice, if the defendants are allowed to set up such a defence to negative a legitimate claim. If specific performance of the contract of sale of the right of the first defendant could be had, then the challenge in the cross objection regarding the decree for refund of the advance amount, on the ground of want of plea and the prayer based on S.52 of the Specific Relief Act, need not be considered. 10. Appeal is allowed. Decree and judgment under appeal are set aside. Instead, there will be a decree directing respondents 3 to 6 to execute and register a sale deed conveying the entire rights in the suit property excluding only the life estate of the second respondent in favour of the appellant within a period of four months from today. The appellant will meet the expenses of the sale deed. He will produce a draft sale deed before the trial court and after it being accepted with or without modification by the trial court after hearing both sides, respondents 3 to 6 will execute and register the same. If not, the trial court will execute and register the sale deed and convey the rights on behalf of respondents 3 to 6. Respondents will be entitled to draw the amount in deposit only after execution of such a document conveying rights to the appellant and after satisfying that the right of the first respondent is not encumbered or alienated. Respondents 3 to 6 will pay the costs of the appellant In both courts and it will be adjusted from the balance sale consideration in deposit.