ORAL JUDGMENT: This is a second appeal by the original plaintiff. The facts giving rise to the appeal are as follows: Respondent-defendant is the owner of the field Survey No. 14/2 measuring 1 Hectare 35 Ares of village Hiwra Khurd. Defendant respondent is the exclusive owner of the suit property. On 24.06.1989 the defendant entered into a contract of sale of the suit property with the plaintiff. Price of the suit property was settled at Rs. 45,000/-. Plaintiff paid Rs. 40,000/- to the defendant-respondent as earnest. It was agreed that balance of consideration of Rs. 5000/- would be paid at the time of execution of the sale deed. The sale deed was to be executed on 01.01.1990 and the defendant was to bear the expenses of registration of the sale deed. The defendant delivered the possession to the plaintiff of the suit property and plaintiff is in cultivating possession since then. On 29.12.1989 defendant approached the plaintiff and requested him to extend the date of execution of the sale deed. Respondent-defendant told the plaintiff that he was in need of money and therefore plaintiff again paid Rs.2000/- to the defendant. The defendant made an endorsement on the said agreement of sale to that effect. Date was extended till 01.02.1990. On 01.02.1990 also the defendant avoided to execute the sale deed on the pretext that he had some other important work. The defendant once again requested the plaintiff to extend the time and got the time extended from plaintiff. Defendant however did not keep his promise and execute the sale deed. Hence the plaintiff issued notices to the defendant. The defendant still did not execute the sale deed. Plaintiff contends that he was all the while ready and willing to perform his part of the contract and he is still ready. He, therefore, instituted a suit for specific performance of the contract. 2. The defendant though duly served, did not appear before the trial Court. The suit proceeded ex-parte against the defendant. 3. The learned Judge of the trial Court recorded the evidence of the plaintiff. Trial Court found that since the defendant-respondent was not the owner of the entire field but was the owner of only 3/4th share therein, plaintiff was not entitled to performance of part of the contract. The suit proceeded ex-parte against the defendant. 3. The learned Judge of the trial Court recorded the evidence of the plaintiff. Trial Court found that since the defendant-respondent was not the owner of the entire field but was the owner of only 3/4th share therein, plaintiff was not entitled to performance of part of the contract. He also found that defendant would not be in a position to convey the title of the entire field, hence refused decree for specific performance and ordered refund of the earnest money. 4. Plaintiff, therefore, preferred an appeal before the District Judge. District Judge found that the plaintiff had instituted a suit for specific performance of contract as a whole and had not sought specific performance of part of the contract. Since the defendant was not the owner of the entire field and the plaintiff has not pleaded that he is ready to purchase part of the field he was not entitled to a decree in respect of the part of the contract. Holding so he dismissed the appeal. Being aggrieved by this dismissal this Second Appeal has been preferred by the plaintiff. This Court admitted the Second Appeal on the following two substantial questions of law: 1. Whether under Section 12 of Specific Relief Act if prospective vendee is ready to accept the property in part by paying full agreed consideration, can the decree for specific performance be passed? 2. The Courts below failed to take into consideration the provisions of Section 44 of the Transfer of Property Act which empowers Sheshrao to elinate his share without the consent of other cosharer and such sale will be operative only to the extent of this share even though such co-sharer has agreed to elinate entire share and same principle will apply to the suit for specific performance where Courts only acts for and on behalf of prospective vendor for the purpose of executing sale deed? 5. I have heard the learned counsel for the appellant and the respondent. 6. Learned Civil Judge has observed that defendant-respondent had agreed to sale the entire field Sur.No. 14/2 admeasuring 1 Hectare 35 Ares when in fact he had only 3/4th share in the field. 5. I have heard the learned counsel for the appellant and the respondent. 6. Learned Civil Judge has observed that defendant-respondent had agreed to sale the entire field Sur.No. 14/2 admeasuring 1 Hectare 35 Ares when in fact he had only 3/4th share in the field. He also observed that even if decree for specific performance is passed the defendant will not be in a position to pass a title in respect of the entire field and therefore ordered a refund of the earnest money and refused to pass decree for specific performance. Learned District Judge dealt with the provisions of Section 12 of the Specific Relief Act. He observed that case falls under Section 12 of the Specific Relief Act and the frame of the suit for specific performance of the whole contract is distinct from that for specific performance of part of the contract. He held that since suit is not framed alternatively for specific performance of part of contract the plaintiff was not entitled to a decree of part of the contract. 7. In the instant case defendant did not file any Written Statement nor did he contest the suit at all. Learned Judge of the trial Court found from the 7/12 extract Ex. 16 that the plaintiff was owner of 3/4th share out of the total area of 1 hectare 35 ares and some other persons were the owner of 1/4th share in the field. It appears therefore that the defendant was and is the owner of 3/4th share in the suit field. Yet he has entered into contract of sale of whole field pretending or representing to be the owner of the entire field. Obviously defendant can transfer his interest alone in the property and nothing more. Learned counsel for the respondent contended that plaintiff has not made any averment in the plaint that if for any reason the whole of the contract cannot be enforced the decree to the extent of enforceability as is possible may be passed. He submitted that unless such case is pleaded plaintiff would not be entitled to any relief at all. It is not in dispute that plaintiff does not come out with such a case. Learned counsel for the respondent relied on the same decision which is referred in the judgment of the District Judge. He submitted that unless such case is pleaded plaintiff would not be entitled to any relief at all. It is not in dispute that plaintiff does not come out with such a case. Learned counsel for the respondent relied on the same decision which is referred in the judgment of the District Judge. Learned District Judge on the basis of the judgment of this Court in Bhaurao Shamrao Bhalme and others ..Vs. Mahadeo Raghu Yelekar A. I. R. 1979 Bombay 208 held that the plaintiff could not ask for a decree for a part, since the suit is not framed in that fashion. This Court had observed as follows in Bhaurao's case: In this view of the matter, it is not necessary to consider whether the Courts below should have directed specific performance of the agreement in so far as it related to the share of the respondent in the suit field. In this connection it may be pertinent to note that sub sect (3) of S. 12 of the Specific Relief Act, 1963 provides that where a party to a contract is unable to perform the whole or his part of it, he is not entitled to obtain a decree for specific performance if the part which must be left unperformed forms a considerable part of the while, though admitting of compensation in money or if the part which must b e left unperformed does not admit of compensation in money. However, at the suit of the other party, the Court may direct such a party in default to perform specifically so much of his part of the contract as he can perform if the party bringing the suit that is the plaintiff, fulfills the conditions laid down in cls. (i) and (ii) of that sub section. These conditions are firstly that in the case in which the part which must be left unperformed forms a considerable part of the whole and admits of compensation in money, the plaintiff must pay the agreed consideration for the while of the contract reduced by the consideration for the part which must b e left unperformed while in the case in which the unperformed part does not admit of compensation in money, the plaintiff must pay consideration for the while of the contract without any abatement. The second condition is that in either of the above two cases, the plaintiff must relinquish all claims to the 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. It would be thus evident that a party to a contract which brings the suit under the provisions of sub-sec. (3) of S. 12 of the Specific Relief Act, 1963, for specific performance of part of the contract, must frame its suit in the light of that sub section incorporating the required a averments to bring its case within its four corners. In other words, the frame of a suit for specific performance of the while contract is distinct from that for specific performance of part of it, as different considerations arise in the two suits. Moreover the defendant must have an opportunity by pleading and if necessary by adducing evidence, to show that the plaintiff is not entitled to specific performance of part of the contract. This he can do if there is a pleading on the part of the plaintiff bringing his case within the purview of the said sub section. It may be that the plaintiff can make and alternate claim for specific performance of the whole contract or only for a part of it, but if he intends to do so it must be clear from the plaint so as to give notice of it to the defendant, he cannot bring the suit merely for specific performance of the whole contract and realising at the conclusion of the trial that that is not possible turn round and tell the Court that he may be granted decree for specific performance of that part only which is possible. This is what the appellants want to do in the matter and that too at the stage of second appeal. In my opinion, for the reasons stated above, the appellants could not press for the specific performance of the agreement in so far as it relates to the share of the respondent in the suit property. This is what the appellants want to do in the matter and that too at the stage of second appeal. In my opinion, for the reasons stated above, the appellants could not press for the specific performance of the agreement in so far as it relates to the share of the respondent in the suit property. The ratio of the decision is that the plaintiff cannot merely file a suit for specific performance of the whole contract and resile at the conclusion of the trial that if that is not possible, turn around and say that he may be granted decree of that part only which is possible. This Court further observes that there has to be atleast an alternative case to that effect. It appears from the pleadings as well as evidence that plaintiff seeks enforcement of the whole contract and there is no pleading about the part. 8. Shri Khapre learned counsel for the plaintiff-appellant contends that there is nothing which prevents enforcement of the part of the contract and Section 12 of the Specific Relief Act infact permits enforcement of the part of the contract. Shri Khapre also submits that respondent-defendant has 3/4th share is not disputed. Since such extent of share is defined he submits that decree to that extent can be passed and contract can be enforced. Shri Khapre learned counsel for the appellant relied on the decision of the Supreme Court in Kartar Singh Vs. Harjinder Singh and others A. I. R. 1990 Supreme Court 854. The Supreme Court has observed as follows: We are afraid that the very foundation of the reasoning of the Division Bench of the High Court is defective. It was never disputed that the respondent and his sister had each half share in the suit properties. Hence a mere failure to mention in the agreement that they had such share in the property would not entitle one to come to the conclusion that they did not have that share. When the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the joint owners owns a moiety of the property. In the present case, there is neither a pleading nor a contention that the respondent and his sister did not own the property in equal shares. When the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the joint owners owns a moiety of the property. In the present case, there is neither a pleading nor a contention that the respondent and his sister did not own the property in equal shares. Secondly, the agreement of sale clearly mentions that respondent was entering in to the agreement both on behalf of himself and his sister, and that he was, under the agreement, selling the whole of his share and also the while of the share of his sister in the property. Further in the agreement itself he had stated that he was responsible to get the sale deed executed by his sister and that he would pursuade her to do so. This being the case, the properties agreed to be sold were clearly distinguishable by the shares of the respective vendors. In the circumstances when the absentee vendor, for some reason or the other, refused to accept the agreement there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share. We are, therefore, of the view that this is not a case which is covered by S. 12 of the Act. It is clear from S. 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party namely, the respondent is concerned. Under the agreement, he had contracted to sale whole of his property. The two contracts viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property. The facts of the reported case were that one person had agreed to sale his share and that of his sister to the plaintiff. He also undertook to see that his sister sells her share to him but she however refused to endorse the contract entered into by her bother. The facts of the reported case were that one person had agreed to sale his share and that of his sister to the plaintiff. He also undertook to see that his sister sells her share to him but she however refused to endorse the contract entered into by her bother. Plaintiff, therefore, instituted a suit for specific performance of whole of the contract and made both brother and sister party to the suit. Supreme Court said that there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property was identifiable by specific share but the Supreme Court further observed that the case does not fall under Section 12 of the Specific Relief Act as it is not a case of performance of part of contract but whole of the contract so far as the contracting party viz. respondent was concerned. It is observed that defendant had agreed to sale whole of his property. In the instant case also the defendant had agreed to sale whole of his property. Further in the instant case defendant has not filed any Written Statement and has not resisted the suit. In the first appellate Court he did not pray that the suit should be remanded and he should be allowed to file Written Statement and contest the suit. Therefore, there is no rebuttal. There is not denial. It appears as said earlier that trial Court upon perusal of the Revenue Record Ex. 16 found that it contains an endorsement that defendant had 3/4th share and some other persons had 1/4th share. He, therefore, observed that decree for part could not be passed as defendant would not be in a position to convey the title of the entire suit field. It is very much clear that defendant has 3/4th share in the field. Thus it is also clear from this that the share of the defendant is large and the left out is a small portion. In the instant case defendant does have a right to sale his 3/4th share. The law is infact well settled that even an undivided share in the property can be sold. In the instant case defendant has a specific 3/4th share. There is, therefore, no impediment in directing the defendant to sale his 3/4th share. In the instant case defendant does have a right to sale his 3/4th share. The law is infact well settled that even an undivided share in the property can be sold. In the instant case defendant has a specific 3/4th share. There is, therefore, no impediment in directing the defendant to sale his 3/4th share. The Supreme Court as stated earlier has specifically observed that there is no reason why agreement should not be enforced against a vendor who had signed the agreement and whose property is identifiable by specific share. Property in the instant case is identifiable. The present case it seems to me falls in both categories i.e. Sec. 12(2) and 12(3). We have seen that defendant can perform the contract to the extent of 3/4th and the portion that would be left unperformed would be only 1/4th. Thus major portion of the contract can be performed. The learned counsel for the appellant also contended that the appellant is ready to pay full price and does not claim any damages for the unperformed part. He further submits that even if the case is held to be falling under Section 12(3) still the appellant does not claim any reduction in price payable nor does he claim any compensation. Thus Section 12 is no bar to the enforcement of this contract. 9. Next question is of want of pleading to the effect that plaintiff is ready to have part of the property. We have seen that there is no pleading or evidence but then it appears from the judgment of the first appellate Court that the plaintiff did raise an argument that he is entitled to have a decree for 3/4th share. In the decision in Bhaurao's case this Court certainly says that there has to be pleading to that effect, but from the decision of the Supreme Court it appears to me that even though there is no pleading and the plaintiff sought to enforce the whole contract a decree in respect of the part could be passed. The Supreme Court had decreed the suit in respect of the half share of the brother and it determined the consideration proportionate to that share even though there was no pleading. Obviously, therefore, there is no necessity that the plaintiff should plead so. Even in the absence of the pleading a decree in respect of the part could be passed. The Supreme Court had decreed the suit in respect of the half share of the brother and it determined the consideration proportionate to that share even though there was no pleading. Obviously, therefore, there is no necessity that the plaintiff should plead so. Even in the absence of the pleading a decree in respect of the part could be passed. Plaintiff has stated on oath that he was ready and willing to perform his part of the contract . He has even pleaded so. There is no challenge to the evidence of the plaintiff and there is no denial to the averments made in the plaint. It must therefore be said that plaintiff was and is ready and willing to perform his part of the contract. On the other hand the defendant has not filed any Written Statement and has not put forth any ground for not granting a decree for specific performance. In such circumstances in fact I see no reason in not exercising the discretion in favour of the plaintiff. Shri Khapre learned counsel for the appellant submitted that plaintiff is ready to pay full agreed consideration even for 3/4th share. In view of this I find that the plaintiff was entitled to a decree for specific performance of the contract i.e. in respect of 3/4th share. The substantial questions of law are answered accordingly. Result is appeal must succeed. Appeal is allowed. Judgments and decrees passed by the Courts below are set aside. The suit is decreed. Defendant do execute a sale deed in favour of the plaintiff on plaintiff's depositing in the Court a sum of Rs. 3000/- within one month. If the amount of Rs.3000/- is not deposited in the Court within a period of one month the suit shall stand dismissed. If the defendant fails to execute the sale deed even after deposit of the amount the plaintiff shall be at liberty to apply to the Court for execution of the sale deed in his favour. In the circumstances of the case I leave the parties to bear their own costs. Appeal allowed.