Judgment : Plaintiff in O.S.No.94 of 1979, on the file of Subordinate Judge, Karur, is the appellant. 2. Suit properties which are two shop rooms originally belonged to one Syed Ahamad Sahib, and on his death the properties devolved on his son Syed Gulam Rasool Sahib and two daughters Isathunnissa Begum (5th defendant) and Sathunnissa Begum. A partition was effected between the legal heirs of the original acquirer, and the suit properties were allotted to the two daughters. Sathunnissa Begum died, and her share in the property has devolved on defendants 1 to 4. 1st defendant is the husband of Sathunnissa Begum. Defendants 2 and 3 are the sons and fourth defendant is the daughter of Sathunnissa Begum. 3. Plaintiff came to know that the schedule shop rooms are for sale, and sometime during the third week of October, 1978, along with one broker Murugavel, he contacted defendants 1 and 5. They informed the plaintiff that they were willing to sell the suit properties and they further represented that defendants 2 to 4 also may not have any objection for the sale at a price fixed by them. With a view to ascertain the views of defendants 2 to 4, plaintiff and the broker approached each one of defendants 2 to 4 and when they were informed about the talks which plaintiff had with defendants 1 and 5, defendants 2 to 4 expressed their willingness to sell their respective shares along with defendants 1 and 5, and since first defendant is managing their behalf, they are willing to accept the price that was agreed by him. Plaintiff and P.W.2 approached defendants 1 and 5 for further negotiation, and it was agreed that the price of the suit property was Rs.48,600; advance of Rs.10,000 will be paid; sale deed should be executed free of all encumbrances within two months; an agreement will be written at first and registered sale deed will be executed thereafter. Plaintiff and P.W.2 met defendants 2 to 4 at their respective residence to inform about the terms of agreement, price fixed and time of execution. All the defendants accepted the terms and agreed to execute an agreement for sale and also for execution of the sale deed. This, according to the plaintiff, was effected on 110. 1978. Plaintiff and P.W.2 met defendants 2 to 4 at their respective residence to inform about the terms of agreement, price fixed and time of execution. All the defendants accepted the terms and agreed to execute an agreement for sale and also for execution of the sale deed. This, according to the plaintiff, was effected on 110. 1978. Plaintiff further says that when all the defendants confirmed the terms, there was a concluded oral agreement for sale of the property. On the basis of the terms, plaintiff purchased necessary stamp papers for writing a formal deed of sale agreement on 110. 1978, and went defendants 2 to 4, plaintiff and the broker approached each one of defendants 2 to 4 and when they were informed about the talks which plaintiff had with defendants 1 and 5, defendants 2 to 4 expressed their willingness to sell their respective shares along with defendants 1 and 5, and since first defendant is managing on their behalf, they are willing to accept the price that was agreed by him. Plaintiff and P.W.2 approached defendants 1 and 5 for further negotiation, and it was agreed that the price of the suit property was Rs.48,600 advance of Rs.10,000 will be paid; sale deed should be executed free of all encumbrances within two months; an agreement will be written at first and registered sale deed will be executed thereafter. Plaintiff and P.W.2 met defendants 2 to 4 at their respective residence to inform about the terms of agreement, price fixed and time of execution. All the defendants accepted the terms and agreed to execute an agreement for sale and also for execution of the sale deed. This, according to the plaintiff, was effected on 110. 1978. Plaintiff further says that when all the defendants confirmed the terms, there was a concluded oral agreement for sale of the property. On the basis of the terms, plaintiff purchased necessary stamp papers for writing a formal deed of sale agreement on 110. 1978, and went with broker and document writer Muthusamy Chettiar of Karur to Palakode on 210. 1978. A formal agreement embodying the terms of agreement was written, on 210. 1978 in the house of fifth defendant. An advance of Rs.10,000 was paid by plaintiff to defendants 1 and 5, and each took Rs.5,000 and they signed the agreement on 210. 1978. 1978. A formal agreement embodying the terms of agreement was written, on 210. 1978 in the house of fifth defendant. An advance of Rs.10,000 was paid by plaintiff to defendants 1 and 5, and each took Rs.5,000 and they signed the agreement on 210. 1978. Plaintiff thereafter wanted to meet defendants 2 to 4. But they were not available. They were intimated about the agreement and they were asked to go over to Karur for signing the agreement of sale. Thereafter, plaintiff did not hear anything from defendants 2 to 4. He was also informed by first defendant that there cannot be any difficulty in getting the signature of defendants 2 to 4 in the agreement and asked him to meet his sons. On 12. 1978, plaintiff met second defendant, At that time, 12. 1978, plaintiff met second defendant. At that time, plaintiff was informed that there was some dispute among themselves, and defendants 3 and 4 were not willing to sign, and if they are willing, he had no objection even for writing a sale deed straightaway. Plaintiff thereafter met defendants 3 and 4. According to plaintiff, they have also given their consent, and they have been marked as Exs.A-4 and A-5. It is also said that subsequent to 210. 1978, fifth defendant received a further sum of Rs.500 as advance with respect to her share. Therefore, the balance of sale price is Rs.38,100. Plaintiff is always ready and willing to pay the said amount. He has also purchased necessary stamp papers for writing sale deed. Even though plaintiff was ever ready and willing to perform her part of the contract, defendants 1 to 5 were not prepared to receive the balance sale consideration, which necessitated the filing of the suit. Before suit, plaintiff issued legal notice to defendants 1 to 5 calling upon them to receive the balance sale consideration and to have the sale deed executed. Second defendant has sent a reply denying the entire transaction, and, according to him, he has not executed any agreement. It is also averred in the plaint that the sixth defendant has been added as he is in occupation of the building in question as a tenant. In the reply, it is said that there is a prior oral agreement for sale with fifth defendant and predecessor of defendants 1 to 4 even in the year 1975. It is also averred in the plaint that the sixth defendant has been added as he is in occupation of the building in question as a tenant. In the reply, it is said that there is a prior oral agreement for sale with fifth defendant and predecessor of defendants 1 to 4 even in the year 1975. According to plaintiff, there is no such agreement and plaintiff is entitled to ignore the claim of 6th defendant. 7th defendant has taken a document for a portion of the property subsequent to the institution of the suit. Therefore, he has also been impleaded as additional defendant. Cause of action for the suit is said to have arisen on 210. 1978, the date of agreement to sell to plaintiff, by defendants 1 to 5 and on subsequent dates when plaintiff was ready and willing to perform his part of the agreement, and when defendants failed to perform their part of the contract. The suit was, therefore, laid for the following reliefs: (1) To pass a decree and judgment in favour of plaintiff that defendants 1 to 5 should receive the balance of sale price, namely, Rs.38,100 and execute and register a sale deed in favour of plaintiff regarding the suit property within a period by court, and (2) in case the court holds that second defendant has not consented to the agreement, plaintiff in the alternative prayed that defendants 1, 3 and 5 should be directed to receive the balance sale consideration of Rs.38,100 and execute a sale deed in respect of their legitimate shares. Plaintiff prayed for a further alternative relief, namely, that in case the court finds that the plaintiff is not entitled to specific performance, defendants should be compelled to pay plaintiff a sum of Rs.10,500 being the amount paid as advance with interest. 4. Defendants 1 and 5 have filed a joint written statement. Defendants 2, 3, 6 and 7 have filed separate written statements. 5. Inthe written statement filed by defendants 1 and 5, they denied that there is a concluded agreement on 110. 1978. According to them, there was no concluded agreement at all at any point of time. They have said that plaintiffs broker approached them at Palakode and proposed a sale negotiation for the suit properties. 5. Inthe written statement filed by defendants 1 and 5, they denied that there is a concluded agreement on 110. 1978. According to them, there was no concluded agreement at all at any point of time. They have said that plaintiffs broker approached them at Palakode and proposed a sale negotiation for the suit properties. They informed him that both items 1 and 2 of the suit properties, which are shops are in the occupation of tenants, namely, 6th defendant and one Balusami, for a long time. It was also represented to him that second defendant alone had been collecting rent, and that these defendants were not prepared to sell the suit properties. At that time, it was represented through the broker that plaintiff was an influential person and through his influence, he can settle the rights of sixth defendant, and if sixth defendant is not purchasing the property, and, for the purpose of influencing the sixth defendant, he wanted some record, for which he deposited a sum of Rs.10,000 with defendants 1 and 5. It was never treated as advance, and there was no agreement when the sum of Rs.10,000 was given. These defendants had also no intention to sell at that time, and no price was fixed. Thereafter, the defendants did not hear anything from plaintiff, nor did the plaintiff come back to get refund of the sum of Rs.10,000 deposited with them. There was no concluded contract, and the so called agreement dated 210. 1978 cannot be said as a concluded contract. It is also said that defendants 1 and 5, along with second defendant, have sold their share to the sixth defendant for a sum of Rs.30,000 and he has also received the entire consideration. It is also said that sixth defendant has been in possession of the schedule mentioned property from 1920 onwards, and, taking into consideration his long enjoyment, it was thought that his possession should not be disturbed. 6. Second defendant, in his written statement, has said that plaintiff never met him, and he also never represented that he was prepared to execute a document in his favour, nor are defendants 1 and 5 his agents, and, even if they had made any representation, it is not binding on him. According to him, he is the person managing the suit property and collecting the rents. He prayed for dismissal of the suit. 7. According to him, he is the person managing the suit property and collecting the rents. He prayed for dismissal of the suit. 7. Third defendant also supported the other defendants and contended that the suit is liable to be dismissed. In regard to Ex.A-4, third defendant has stated that he had given such a letter on 112. 1978 to his father, first defendant, only to inform his father to have the terms, the date by which execution of sale should be fixed and also wanted that if and when such agreement is finalised, the agreement should be registered. In accordance with that understanding, he gave the letter Ex.A-4, asking his father to proceed with the further talks. He had asked his father only to have the original document written and kept for registration in terms of the agreement. He prayed for dismissal of the suit. 8. Sixth defendant has said that he is a bona fide purchaser for value in respect of shop No.1. 9. 7th defendant who is a purchaser after suit, also supported the claims of other defendants. Seventh defendant also claims that he is entitled to protection under the City Tenants Protection Act. 10. On the above pleadings, trial court took oral and documentary evidence. 7th defendant filed I.A.No.443 of 1980 for enforcing his claim under the City Tenants Protection Act. Common evidence was recorded in both the suit and the application. 11. By a common judgment dated 4. 1982, in the suit as well as Interlocutory Application, the lower court found that there was no concluded agreement on 110. 1978. The agreement dated 210. 1978 is not complete since the same has not been signed by other owners of the property, that even in regard to the claim of defendants 1 and 5, the contract cannot be specifically enforced since the intention was that all the parties should join in the agreement and the agreement was to sell the property as one lot. In regard to Exs.A-4 and A-5, which according to plaintiff amount to a consent, the lower court found that the same cannot be treated as agreement enforcible as an agreement for sale. Therefore, the prayer for granting specific performance was refused. The trial court found that plaintiff is entitled only for the return of the advance amount paid, and a decree was granted. Therefore, the prayer for granting specific performance was refused. The trial court found that plaintiff is entitled only for the return of the advance amount paid, and a decree was granted. It is against the said judgment, plaintiff has preferred this appeal. 12. Learned counsel for appellant submitted that the finding of the trial court that there was no concluded contract on 112. 1978 is not correct. He further submitted that Ex.A-3 is only affirming the earlier concluded contract entered into between the parties on 112. 1978, and, even if the same is not signed by defendants 2 to 4, decree for specific performance could be granted against all the defendants in view of the earlier oral agreement. Alternatively, it is contended that on the basis of Exs.A-4 and A-5, defendants 3 and 4 are bound to execute the sale deed along with defendants 1 and 5 who are signatories to Ex.A-3. It is further submitted that all these defendants are having separate and definite shares and when defendants 1 and 3 to 5 express their willingness to execute the document in respect of the plaint property, it cannot be said that the plaintiff is seeking enforcement of part of the agreement as against defendants 1 and 5 who are signatories to Ex.A-3 and against defendants 3 and 4 who have executed Exs.A-4 and A-5. The contract is fully executable and there is no scope for invocation of Sec.12 of the Contract Act. At least in respect of those defendants decree for specific performance should have been granted. 13. As against the said contention, learned counsel for respondents submitted that whether it is under Ex.A-3 or Exs.A-4 and A-5, the question of specific performance will arise only if there is a concluded contract. According to learned counsel, there is no concluded contract at all and, therefore, there is no scope for enforcing any contract, and the decision of the trial court is only to be confirmed. 14. On the basis of the above submissions, the following points arise for determination in this appeal: .• (1) Whether there is a concluded contract on 110. 1978 as alleged by plaintiffe and .• (2) Whether plaintiff is entitled to get specific performance on the basis of Exs.A-3 to A-5 as against defendants 1 and 3 to 5e 15. 14. On the basis of the above submissions, the following points arise for determination in this appeal: .• (1) Whether there is a concluded contract on 110. 1978 as alleged by plaintiffe and .• (2) Whether plaintiff is entitled to get specific performance on the basis of Exs.A-3 to A-5 as against defendants 1 and 3 to 5e 15. Point 1: In paragraphs 5 and 6 of the plaint, plaintiff alleges that in the third week of October 1978, he contacted defendants 1 and 5, and even at that time, they represented that there are other heirs, and they may not have any objection for the sale of the properties at price fixed by them. At any rate, in the plaint, plaintiff has no case that defendants 1 and 5 were acting agents or representatives of defendants 2 to 4. It is also clear from paragraph 5 of the plaint that the representation made by defendants 1 and 5 that defendants 2 to 4 may not have any objection for the sale at a price fixed by defendants 1 and 5 was not accepted by plaintiff, and that is why he wanted to ascertain the views of defendants 2 to 4. Plaintiff thereafter ascertained the views of defendants 2 to 4 also, and it is stated in the plaint that they also expressed their willingness to sell their respective shares along with defendants 1 and 5. It is also stated by plaintiff that the price may be fixed by defendants 1 and 5 and defendants 2 to 4 will abide by the terms which they have agreed. It is further said in paragraph 6 that on 110. 1978 the plaintiff further approached defendants 1 and 5 for negotiation and it was agreed that the price of the suit properties was Rs.48,600 and an advance of Rs.10,000 should be paid, as sale deed should be executed free of all encumbrances within two months (Italics) and an agreement will be written at first, and sale deed will thereafter be executed and registered. This arrangement, plaintiff wanted to inform defendant 2 to 4, and it is his case that defendants 2 to 4 were informed about the terms of the agreement and they also accepted the same. It is on the basis of these allegations, plaintiff alleges that there is a concluded oral agreement on 110. 1978. This arrangement, plaintiff wanted to inform defendant 2 to 4, and it is his case that defendants 2 to 4 were informed about the terms of the agreement and they also accepted the same. It is on the basis of these allegations, plaintiff alleges that there is a concluded oral agreement on 110. 1978. When plaintiff was examined as P.W.1, in his cross-examination on 12. 1981, he has said thus: Little down, he says thus: From the above statement, it is clear that the parties intended to execute a formal agreement for sale. There are various sharers, and even accepting the case of plaintiff, first defendant was the person who is fixing the price and other terms of the sale. Under normal circumstances, that representation by first defendant must be accepted by all the other co-sharers in the form of a written document. That is why plaintiff himself wanted a formal agreement to be taken and thereafter a sale deed was to be executed. The subsequent conduct also shows that the parties wanted a formal agreement to be taken from all the persons. Ex.A-3 is the formal agreement signed by defendants 1 and 5. It is written as if al the sharers have executed a deed, but it has been signed only by defendants 1 and 5. Sufficient space is also provided for getting the signatures of defendants 2 to 4. Immediately, after getting the signatures of defendants 1 to 5, plaintiff wanted to meet defendants 2 to 4 at their residence and he took Ex.B-2 agreement also with him. But he could not meet them. As per the evidence of P.W.1, he gave instructions asking defendants 2 to 4 to go over to Karur for affixing their signatures in Ex.A-3. But thereafter there is no evidence in the case to show whether, either plaintiff met defendants 2 to 4 or an attempt was made by plaintiff for getting the signatures of these defendants. In the meanwhile one of the tenants of the building, namely, 6th defendant also wanted to purchase the property and he issued notice to other defendants as well as the plaintiff, that they should not execute any document. In spite of the same, plaintiff was not taking action to have the sale deed executed by defendants 2 to 4. On 12. In spite of the same, plaintiff was not taking action to have the sale deed executed by defendants 2 to 4. On 12. 1978, plaintiff again went to Palakkode only to enquire as to what was the reason for defendants 2, 3 and 4 not affixing their signatures in the agreement, for sale. 16. When a property belongs to more persons than one, merely on the basis of a negotiation with one of those persons, normally an agreement for sale is not taken. Representation made by one of the owners, if accepted by others, will be put down in writing so as to bind all the owners. The execution of Ex.A-3 only confirms that presumption. The parties who have to execute the sale deed are Muslims, and, what ever be the relationship between them, it is settled law that one sharer cannot represent the other. Plaintiff is also well aware of this legal position, and that is why he wanted an agreement for sale to be executed. 17. In K.Sriramulu v. Aswatha Narayanan K.Sriramulu v. Aswatha Narayanan K.Sriramulu v. Aswatha Narayanan , A.I.R. 1968 S.C. 1028 in paragraph 3 of the judgment, it was held thus: “We proceed to consider the next question raised in these appeals, namely, whether the oral agreement was ineffective because the parties contemplated the execution of a formal document or because the mode of” payment of the purchase money was not actually agreed upon. It was submitted on behalf of the appellant that there was no contract because the sale was conditional upon a regular agreement being executed and no such agreement was executed. We do not accept this argument as correct. It is well established that a mere reference to a future formal contract will not prevent a binding bargain between the parties. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. There are, however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. As observed by the Lord Chancellor (Lord Cranworth) in Ridgway v. Wharton Ridgway v. Wharton Ridgway v. Wharton , (1857)6 H.L.C. 238 at 263 the fact of a subsequent agreement being prepared may be evidence that the previous negotiation, did not amount to a concluded agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement. In Von Hatzeddtiwiledenburg v. Alexander , (1912)1 Ch. 284 at 288 it was stated by Parker, J. as follows: ‘It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored. In other words, there may be a case where the signing of a further formal agreement is made a condition or term of the bargain, and if the formal agreement is not approved and signed there is no concluded contract. In Rossiter v. Miller , (1878)3 A.C. 1124 Lord Cairns said: “If you find not an unqualified acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parties, and until the condition is fulfilled no contract is to arise then you cannot find a concluded contract.” In Currimbhoy and Co. Ltd. v. Creet Currimbhoy and Co. Ltd. v. Creet Currimbhoy and Co. Ltd. v. Creet , 64 MLJ. 103: 60 I.A. 297: A.I.R. 1933 P.C. 29. Ltd. v. Creet Currimbhoy and Co. Ltd. v. Creet Currimbhoy and Co. Ltd. v. Creet , 64 MLJ. 103: 60 I.A. 297: A.I.R. 1933 P.C. 29. the Judicial Committee expressed the view that the principle of the English Law which is summarised in the judgment of Parker, J., in , (1912)1 Ch. 284 was applicable in India. The question in the present appeals is whether the execution of a formal agreement was intended to be a condition of the bargain dated July 6, 1952 or whether it was a mere expression of the desire of the parties for a formal agreement which can be ignored. The adduced on behalf of respondent No.1 does not show that the drawing up of a written agreement was a pre-requisite to the coming into effect of the oral agreement. It is therefore not possible to accept the contention of the appellant that the oral agreement was ineffective in law because there is no execution of any formal written document. “As regards the other point, it is true that there is no Specific agreement with regard to the mode of payment but this does not necessarily make the agreement ineffective. The mere omission to settle the mode of payment does not affect the completeness of the contract because the vital terms of the contract like the price and area of the land and the time for completion of the ale were all fixed. We accordingly hold that Mr.Gokhale is unable to make good his argument on this aspect of the case.” 18. In H.G.Krishna Reddy v. M.M.Thimmiah and another H.G.Krishna Reddy v. M.M.Thimmiah and another H.G.Krishna Reddy v. M.M.Thimmiah and another , (1983)1 MLJ. 467 : A.I.R. 1983 Mad. 169 our High Court has followed the above decision of the Honourable Supreme Court, In para 9 of the judgment, it has been held thus: “It is now well-settled that if a document which is entered into between two parties and which is relied on as constituting a contract contemplates the execution of a further regular agreement between the parties. It is a matter of construction whether the execution of a further contract is a condition of the terms of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement should be performed. It is a matter of construction whether the execution of a further contract is a condition of the terms of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement should be performed. In the former case, there cannot be any enforceable contract unless the condition is fulfilled or on the ground that law does not recognise a contract to enter into a contract. In Ridgway v. Wharton Ridgway v. Wharton Ridgway v. Wharton , (1857)6 H.L.C. 238 Lord Cranworth observed that the fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to an agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement.” 19. In ‘Chitty on Contracts’ 25th Edition (1983), in paragraph 104, the learned author has said thus: “The question whether the parties have reached a complete agreement frequently arises where there has been an agreement in general terms but the parties have stipulated for the execution of some further formal document.” The problem then is whether the agreement is too general to be valid in itself and is depend on the making of formal contract, or whether the parties have in fact completed their agreement so that the execution of a further formal contract is intended only as a solemn record of the already completed agreement, This is a question of construction for the court. In the words of Parker, J. in Van Hatzfeldt Wildenburg v. Alexander Van Hatzfeldt Wildenburg v. Alexander Van Hatzfeldt Wildenburg v. Alexander , (1912)1 Ch. 284 at 288: “It appears to be well-settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored.” [Italics supplied] The representation made by defendants 1 and 5 at the most can be taken only as a provisional arrangement, to be put down in writing, to be signed by all the persons. 20. In ‘Pollock & Mulla - Indian Contract and Specific Relief Acts’, 11th Edition 1995, at page 124, Commenting on Sec.7 of the Indian Contract Act, the learned Author has said thus: “Although there can be no contract without a complete acceptance of the proposal, it is not universally true that complete acceptance of the proposal makes a binding contract; for one may agree to all the terms of the proposal, and yet decline to be bound until a formal agreement is signed, or some other act is done. An absolute acceptance of an offer does not make a binding contract if it does not extend to all the terms under negotiation or it is merely a provisions arrangement subject to a further agreement to be executed between the parties. .” [Italics supplied] 21. Along with the same, the evidence of P.W.2 also supports the inference that the execution of a formal agreement was contemplated and that alone was treated as a bargain. In the cross-examination, it is stated thus: Therefore, for the above reasons, the finding of the lower court, that on 110. 1978, there was no concluded contract is only to be confirmed. 22. Point 2: The trial court has made a statement page 27 of the printed judgment, line 14, as follows: “As against the share of the second defendant,” the plaintiff has given up the relief. Therefore, the sale of 30/200 share of second defendant in favour of 6th defendant is valid.“ In view of the said statement, the lower court has also entered a finding that the sale deed in favour of the sixth defendant to the extent of the second defendants share is valid. 23. The further question that requires consideration is, whether on the basis of Ex.A-3, specific performance can be decreed against defendants 1 and 5. I will come to the question regarding the effect of Ex.A- A-5 later. 23. The further question that requires consideration is, whether on the basis of Ex.A-3, specific performance can be decreed against defendants 1 and 5. I will come to the question regarding the effect of Ex.A- A-5 later. 24. Admittedly, Ex.A-3 has been signed by defendants 1 and 5. The question is, whether specific performance can be had as against them. 25. Even in regard to the said claim, learned counsel for respondents submitted that Ex.A-3 cannot be said as a concluded contract, the reason being that wherein five persons have right over the property, if some of them have not signed the document, even as against the other persons, the same cannot be enforced. 26. The lower court has accepted the said contention of the respondents. 27. From the description of properties, it is clear that these are two small buildings. The side measurements are: 11 ft. × 43 ft. (Item No.1) and the shed touching item No.1 (Item No.2) Admittedly these two shop rooms are enjoyed by sixth defendant and another person. 7th defendant has purchased Item No.2, and 6th defendant has purchased a share in Item No.1. The lower court has found that the sale in favour of sixth defendant in regard to second defendants share is valid. 28. While considering the intention the parties, we have to look into Ex.A-3 alone since the same has been put down into writing. It is clear from Ex.A-3 that all the parties wanted to sell the property as one unit, and plaintiff also wanted to get the property as one unit. The sharers among themselves have not divided or apportioned the price, nor fixed their share. It is true that under Mohameddan Law, the share can be fixed immediately on the death of the previous owner, and the lower court has also quantified the share of each and every sharer. merely because each sharer has got a separate share, that cannot be a ground to hold that each of the sharers is entitled to sell the property separately. All of them wanted to sell the property as one unit. From the evidence of P.W.1 also, it is clear that he wanted all the sharers to join in the execution of the document. If the intention was that all should join, and the same is not complied with, what is the effecte 29. All of them wanted to sell the property as one unit. From the evidence of P.W.1 also, it is clear that he wanted all the sharers to join in the execution of the document. If the intention was that all should join, and the same is not complied with, what is the effecte 29. In Mayawanti v. Kaushlya Devi Mayawanti v. Kaushlya Devi Mayawanti v. Kaushlya Devi , (1990)3 S.C.C. 1 the question posed before the Honourable Supreme Court was, whether the second alternative would automatically follow or option was reserved by the vendor either to sell her own share or to pay back the advance and the compensation in the same amount/ In paragraph 15, it was held thus: “Applying the principle to the instant case, on proper construction of Ex.P.W.11/A, can it be construed that there was not one obligation to be performed in alternative ways but one obligation to be performed in one way unless the promissor chose to substitute another waye In other words, the primary obligation being impossible was the promissor bound to exercise the option for the benefit of the other partye It would be reasonable to construe that if Lajwanti failed to sign the sale deed then the promissor would either execute the sale deed in respect of her share, or in the alternative, pay back the advance and compensation in the same amount, and the buyer would have to take the advance, Lajwanti having refused to sell her share, the first alternative became impossible. The question then was whether the second alternative would automatically follow or option was reserved by the vendor either to sell her own share or to pay back the advance and the compensation in the same amount. The first alternative failing, if the promissor decided in favour of the other alternative, it could not be said that there was any breach of any obligation under the agreement, and if that was so, there could arise no question of specific performance of the contract.” Then, in paragraph 17, their Lordships have considered the question as to how halt share cannot be allowed to be sold, even though there was an agreement to that effect. Paragraph 17 reads thus: “We may also refer to another element of uncertainty or ambiguity in the contract in the event that has happened viz., Lajwantis refusal to part with her share in the property. Paragraph 17 reads thus: “We may also refer to another element of uncertainty or ambiguity in the contract in the event that has happened viz., Lajwantis refusal to part with her share in the property. Ex.P.W.11/A says that, in that event, Kaushalya Devi should execute the sale deed of “my one of the two shares”. The share is undefined and the consideration for the sale price for the half share is also unspecified. This is of importance because portions of the property are not equally valuable due to the situation of the kohus, flour mill, etc. on a part thereof. It is true that, eventually there was a partition between kaushalya Devi and Lajwanti and the vendee may have had no difficulty in working out the portion that should come to her towards the half share agreed to be sold by Kaushalya Devi. But the question is whether the words would be read into Ex.P.W.11/A to spell out an agreement, on the date of that exhibit, that, in case Lajwanti backed out, Kaushalya Devi would sell her half share to the appellant for one half of the total consideration. It seems difficult to say that the answer should necessarily be in the affirmative. There are too many is to be dotted and ts to be crossed before a clear and unambiguous contract, on the terms sought to be enforced, could be spelt out of the language of Ex.-11/A. “ [Italics supplied] Item No.1 is a fully constructed shop building, and Item No.2 is shed with asbestos sheet. The value of these buildings cannot be the same. Naturally, the value of the shares also will be different though the sharers will have a fixed proportionate share. That was also an added reason to hold that all these persons wanted to sell the property as one block. Being two small shop buildings, it may not be easy to enjoy if they are divided. 30. It is at this juncture, learned counsel for appellant submitted that subsequent to the agreement, the parties have sold their shares only. I do not find any merit in the submission since plaintiff has come to this Court for specific performance on the basis of agreement of sale as evidenced by Ex.A- 3. We have to only interpret Ex.A-3 and the intention of the parties at the time when they executed the document. 31. I do not find any merit in the submission since plaintiff has come to this Court for specific performance on the basis of agreement of sale as evidenced by Ex.A- 3. We have to only interpret Ex.A-3 and the intention of the parties at the time when they executed the document. 31. P.W.2 has written the document as if all the five sharers have joined in the execution of the deed. As I said earlier, the consideration is also not apportioned and the entire property is described as one block even without defining their shares. A reading of Ex.A-3 also makes it clear that all of them are in common enjoyment. It is also in evidence that the second defendant was receiving rent on behalf of all plaintiff also wanted to take the agreement of defendants 2 to 4 is clear from his own evidence. The discussion with the first defendant and the subsequent representation by him as stated in the plaint also show that the bargain was for a single plot and not for each and every share. If that be so, as held by this Court in an earlier decision of this Court reported in Sivasami Chetti v. Sevugan Chetti , 12 MLJ. 17: I.L.R. 25 Mad. 389 specific performance cannot be ordered even in regard to persons who have signed the document. The facts in that case are similar to the one on hand. In that case, it was held thus: ”The document constituted merely a proposed agreement which had never been perfected, the plaintiff having contracted and the eldest brother having executed it, upon the understanding that the two younger brothers would join in its execution; and that neither the elder nor the younger defendant was liable.“ It was further held thus: ”It the parties intended that all the members of the family should execute the document it could not take effect by reason that the person who had alone executed it happened to be the managing member, and that the debt was recited to have been incurred for the benefit of the family.“ 32. In ‘S.C.Banerjees Law of Specific Relief’ -10th Edition (1996) (Tagore Law Lectures), at page 155, Commenting on Sec.12 the learned Author has said thus: ”The nature of a contract, whether it be divisible or not must be determined upon the facts and circumstances of each particular case, the question is essentially a question of fact, If the contract is divisible, the case may fall under Sec.12(4) of the Act. “ At page 177 of the same book, the learned Author has said thus: ”A contract for sale of property is one lot is generally considered indivisible for the reason that there is obvious injustice in compelling the purchaser of the entirety to take undivided parts or shares of the estate.“ 33. If it is a question of fact, the lower court has considered the surrounding circumstances and has come to a conclusion that these are not divisible contracts. Learned Counsel for appellant argued that defendants 1 and 5 together are managing the major shares and if defendants 2 to 4 are holding a minor share, even in that case, specific performance could be ordered. This Court is not concerned with the question whether the parties are holding major share or minor share. The question for decision is, what was the intention of the parties at the time of executing Ex.A-3 or at the time when plaintiff bargained for purchasing the property. If that be so, if the bargain is for purchasing the entire property and if that was not possible, specific performance cannot be ordered. 34. Learned counsel for a appellant relied on various decisions in support of his plea that at least in respect of shares of defendants 1 and 5, specific performance could be ordered. I am not considering this contention in view of my above finding. 35. In view of my above finding, I do not think that any purpose would be served by discussing the effect of Exs.A-4 and A-5. But, to have a finality, I am considering the same. Ex.A-54 is written by the husband of fourth defendant. It is the case of plaintiff that on 112. 1978, he met the husband of fourth defendant and informed him what the second defendant told him about the agreement for sale when he sent him on 12. 1978. It is his case that when plaintiff met the second defendant on 12. Ex.A-54 is written by the husband of fourth defendant. It is the case of plaintiff that on 112. 1978, he met the husband of fourth defendant and informed him what the second defendant told him about the agreement for sale when he sent him on 12. 1978. It is his case that when plaintiff met the second defendant on 12. 1978, second defendant told him about some misunderstanding among the brothers and sisters, and defendants 3 and 4 were not willing to sign, and if they are willing, he had no objection even for writing a sale deed straightaway. This fact was informed to the fourth defendants husband the next day. It is in that context, Ex.A-4 was written. It reads thus: Fourth defendant, even according to plaintiff, is not a Pardanashin lady. Therefore, her husband cannot act as her agent. Hence, Ex.A-4 letter cannot bind the fourth defendant. Even otherwise, the letter only says that they are prepared to proceed with the sale. There is no statement that the terms of Ex.A-3 have been accepted by them or that Ex.A-4 amounts to an agreement. The finding of the lower court in that regard is only to be confirmed. On the back side of Ex.A-4, there is a note signed by third defendant. Third defendant writes his father, the first defendant, wherein he has said thus: ”As I told you at Palakode on 12. 1978, I have no objection over the agreement made by you to N.M.Ragunathan Chettiar. Fix up a date within the agreement period. I will go over to Registrar Office to sign. “ This also does not amount to agreeing to the terms of Ex.A-3. Exx.A-4 and A-5 only show that all these sharers knew that there was some move for selling the property, and they all wanted to sell the property along with first defendant, and they have no objection for selling it. Exs.A-4 and A-5 cannot help the plaintiff, and on that basis, he is also not entitled to get the shares of defendants 3 and 4. 36. The lower court has already granted a decree for return of the earnest money. Thus, the lower court has done justice to both parties. 37. In the result, confirming the judgment and decree of the lower court, the appeal is dismissed. No costs.