JUDGMENT : The defendants 1 and 2 are the appellants. 2. The 1st respondent was the plaintiff. The 2nd respondent was the 3rd defendant. 3. The property in dispute is described in the plaint schedule as follows: “‘A’ SCHEDULE-Open site situate in Kurnool District Nandyal Sub-District, Nandyal town, within the municipal limits of Nandyal in Street No.2: East :Plots of Annajirao, Pedda Siva Rao, Mhendrakar Subbarao bathroom. West : Sreenivasanagar Road, North: Drainage channel, South: Musala Pedda Eswararao and others site Measurements ‘E X W : 45’ N X S : 26’ ‘B’-SCHEDULE: The portion which the plaintiff had taken in division with Pothula Guramma, Wife of Veeraiah in respect of half of ‘A’ schedule property (situate in street No.2) East : Site of Annajirao son of Pedda Eswara Rao West : Site of Pothula Guramma North: Drainage Channel South: Rastha” 4. B-schedule property stated above is part of plaint ‘A’ schedule property. 5. Plaint ‘A’ schedule property belonged to the joint family property of the appellants 1 and 2 and their father Sri Chinna Eeswara Rao. There were other properties belonging to Sri Chinna Ewswara Rao and his brothers around the plaint schedule properties. 6. Both the appellants agreed to sell the plaint ‘A’ schedule property to the 1st respondent and Sri Pothula Veeraiah, husband of the 2nd respondent, according to the case of the 1st respondent, on 13.02.1983 under an agreement for sale, for Rs.10,000/- and that they received Rs.1,000/- as advance on the same day thereunder. His further case is that the balance sale consideration was agreed to be paid within two (02) years from the date of agreement and to obtain a regular registered sale deed at his expense. 7. It is also the case of the 1st respondent that he was in possession of this property under this agreement and earlier to it, it was leased out to him as well as Sri S.Narayana from February, 1981 on a monthly rent of Rs.40/-, where they were carrying on their carpentry workshop. It is further case of the 1st respondent that his share, which is ‘B’ schedule, was divided from the property covered by this agreement for sale, where he began to run his carpentry workshop after obtaining permission from Nandyal municipality. 8. It is further case of the 1st respondent that his share, which is ‘B’ schedule, was divided from the property covered by this agreement for sale, where he began to run his carpentry workshop after obtaining permission from Nandyal municipality. 8. It is also the case of the 1st respondent that Sri Pothula Veeraiah died intestate nearly 1 ½ years after entering into the afore-stated agreement for sale and thereafter his wife, namely the 2nd respondent expressed her inability to continue this contract, who executed a relinquishment deed in favour of the appellants. It is the further case of the 1st respondent that he demanded the appellants to receive balance sale consideration of Rs.4500/- towards his share and called upon them to execute a regular registered sale deed and who did not respond in spite of issuance of a legal notice dated 05.12.1988. In those circumstances, the 1st respondent claimed that he is entitled for relief of specific performance under the afore-stated contract under this agreement for sale in respect of plaint ‘B’ schedule property, directing the appellants to execute a regular registered sale deed in his favour upon receiving the balance sale consideration or else to get the same executed in his favour through process of Court. 9. The appellants resisted the claim of the 1st respondent. They admitted execution of the agreement for sale dated 13.02.1983 and the terms set out thereunder. However, they denied that possession of plaint ‘A’ schedule property was delivered either to the 1st respondent or to the husband of the 2nd respondent thereunder. They further contended that the 2nd respondent relinquished her right under this agreement by executing a deed on 20.06.1986 and that the 1st respondent also expressed his desire to abandon this agreement. 10. The appellants also contended that it is not open for the 1st respondent to split up the agreement for sale nor a suit filed on such basis is maintainable. They further contended that this suit claim stood barred by time and that the plaint ‘A’ schedule being joint property, in which their father Sri Chinna Eeswar Rao had only undivided 1/4th share, the contract under this agreement for sale cannot be enforced. 11. On the pleadings, the trial Court settled the following issues: “1. Whether the suit is barred by time? 2. Whether the plaintiff can enforce a part of sale agreement dated 13.02.1983? 3. 11. On the pleadings, the trial Court settled the following issues: “1. Whether the suit is barred by time? 2. Whether the plaintiff can enforce a part of sale agreement dated 13.02.1983? 3. Whether the suit schedule property is undivided joint family property of father of defendants 1 and 2 and cannot be alienated? 4. Whether the plaintiff is entitled to specific performance of sale agreement dated 13.02.1983? 5. To what relief?” 12. The parties went to trial. Evidence was let-in on behalf of both the parties, both oral and documentary. A commissioner was also appointed during trial, who visited the property in dispute, recorded his observations relating to possession of plaint ‘B’ schedule property in his report and filed a plan along with it that were also marked at the trial. 13. Basing on the material and evidence, the learned trial Judge rejecting the defence of the appellants, held that this suit claim is within time, it being a part of joint family property is not a bar to direct specific performance in favour of the 1st respondent under the suit agreement for sale dated 13.02.1983 and thus directed specific performance of this contract by executing a regular sale deed in favour of the 1st respondent by the appellants within a definite time frame. 14. The appellant preferred an appeal against the decree and judgment of the trial Court where the findings recorded by the learned trial Judge were confirmed leading to its dismissal. 15. In these circumstances, this second appeal is preferred by the appellants. 16. This second appeal was admitted on the following substantial questions of law: “1. Whether the Courts below were correct in ordering specific performance of a part of a contract for an agreement of sale without giving a specific finding that the case falls under one of the exceptions contemplated under Section 12 of the Specific Relief Act? 2. Whether the Courts below erred in giving a finding that time is not the essence of the contract in spite of the fact that a specific time of two years was fixed under the contract?” 17. Heard Sri K.Sitaram, learned counsel for the appellants and Sri M.Balasubrahmanyam, learned counsel for the 1st respondent. 18. 2. Whether the Courts below erred in giving a finding that time is not the essence of the contract in spite of the fact that a specific time of two years was fixed under the contract?” 17. Heard Sri K.Sitaram, learned counsel for the appellants and Sri M.Balasubrahmanyam, learned counsel for the 1st respondent. 18. In the course of hearing this second appeal, Sri K.Sitaram, learned counsel for the appellants, fairly conceded that the question of bar of limitation did not apply to the given facts and circumstances of the case and therefore, such question need not be considered. 19. Sri K.Sitaram, learned counsel for the appellants, however strenuously contended that this is a clear case where bar under Section 12 of the Specific Relief Act applied and exceptions envisaged thereunder cannot be overlooked nor can be disregarded as was done by both the Courts below, that did not record any finding thereon in their respective judgments. 20. Referring to material on record, Sri K.Sitaram, learned counsel for the appellants, further contended that when the entire plaint ‘A’ schedule property is in one block, in respect of which an agreement was entered into under Ex.A1 on 13.02.1983 by the 1st respondent and husband of the 2nd respondent-Sri Veeraiah, it is not open for both the Courts below to direct specific performance of contract in respect of a part of it, which otherwise belonged to the joint family of the appellants, where there is no proof of division of the properties among the father of the appellants and his brothers by metes and bounds. 21. In support of his contention, Sri K.Sitaram, learned counsel for the appellants, relied on a Division Bench judgment of this Court in S. Nagulal Rao vs. Medam Jayaramaiah and others, 1996(2) ALT 995 contending that Section-12 of the Specific Relief Act could be applied to this case on hand and in the light of the observations of this ruling, the Courts below could not have exercised discretion in favour of the 1st respondent. 22. 22. Sri M.Balasubrahmanyam, learned counsel for the 1st respondent, referring to the material on record and drawing attention of this Court to the particular observations of the learned appellate Judge in the judgment accepting the claim of the 1st respondent, strenuously contended that both the Courts below are right in exercising discretion, mainly relying on Kartar Singh v. Harjinder Singh, (1990)3 SCC 517 and that it is a case where Section 10 of the Specific Relief Act that provided for enforcing specific performance of contract under Ex.A1 agreement is established. Thus, the learned counsel for the 1st respondent contended that Section 12 of this Act is not applicable to this case on hand. Thus, Sri M.Balasubrahmanyam, learned counsel for the 1st respondent, requested not to interfere with the concurrent findings recorded by both the Courts below and further contending that this case is purely based on fact where there is no substantial question of law involved. 23. The contention of the appellants that the property covered by Ex.A1 agreement for sale is a joint family property, which was not subject matter of division by metes and bounds among his father Sri Chinna Eeswara Rao and his brothers and that it is only a part of this joint family where their father Chinna Eeswara Rao has only 1/4th share, cannot stand. The reason is that the appellants admitted execution of Ex.A1 agreement for sale in favour of the 1st respondent and Sri Pothula Veeraiah as well as its terms. Ex.A1 has specifically set out the nature and extent of this property in Nandyal town with specific boundaries. Thus, it is clearly identified. 24. When the appellants themselves had chosen to sell such property to the 1st respondent and Sri Pothula Veeraiah, it is not open for them to resile therefrom objecting specific performance thereunder on this premise. It is not the case of the appellants that they did not have any subsisting right or interest in this property. As observed by both the Courts below not only the appellants but also brothers of Sri Chinna Eeswara Rao went on selling different plots around the plaint ‘A’ schedule property in specific boundaries. It is not the case of the appellants that they did not have any subsisting right or interest in this property. As observed by both the Courts below not only the appellants but also brothers of Sri Chinna Eeswara Rao went on selling different plots around the plaint ‘A’ schedule property in specific boundaries. The learned trial Judge also considered the material on record and observed that the appellants themselves sold a plot adjoining plaint ‘B’ schedule property to the wife of the 1st respondent in the year 1977, where he constructed a house where he has been living since then. 25. The evidence on record is further making out that part of the plaint ‘A’ schedule property claimed by the 1st respondent described in the ‘B’ schedule in the plaint is an independent entity, which apparently could be severed from the plaint ‘A’ schedule property. Report of the commissioner in Ex.C1 and his plan Ex.C2 proved the location as well as possession and enjoyment of this plaint ‘B’ schedule property by the 1st respondent that stood separated from other part of the property, which is subject matter of the contract under Ex.A1. 26. Nature of this property being severable is also demonstrated by the very fact that the appellants could get a relinquish agreement executed by the 2nd respondent as per Ex.B3 on 20.06.1988 in respect of their share since she was disinclined to pursue this contract citing financial stringency. Therefore, the objection of the appellants of this nature that the entire property contracted for sale under Ex.A1 being in one block, which is impartible disabled the 1st respondent to assert his claim for specific performance, cannot stand. 27. The 1st respondent had deposited balance sale consideration during trial, which fact is stated in the judgment of the appellate Court. 28. In these circumstances, as rightly contended for the 1st respondent by Sri M.Balasubrahmanyam, learned counsel, this is a clear case where specific performance of contract in terms of Ex.A1 in respect of part of the property is enforceable. 29. The observations in Katar Singh were considered by both the Courts below in this context and rightly. In the given facts and circumstances, when there was an agreement executed by the brother without participation of sister, who were admittedly owners of the property, Hon’ble Supreme Court held that specific performance of the contract is permissible. 29. The observations in Katar Singh were considered by both the Courts below in this context and rightly. In the given facts and circumstances, when there was an agreement executed by the brother without participation of sister, who were admittedly owners of the property, Hon’ble Supreme Court held that specific performance of the contract is permissible. Relevant observations in this ruling are in Paras-4 and 5 based on facts and they are extracted hereunder, for convenience: “4. 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 has 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. Secondly, the agreement of sale clearly mentions that respondent was entering into 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 whole 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. 5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from section that it relates to the specific performance of a part of a contract. 5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from section 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.” 30. Kartar Singh was also considered by Division Bench of this Court in Nagulal Rao. It was a case where both the Courts below declined to exercise discretion, directing specific performance of the contract under agreement for sale and in the given facts and circumstances with reference to application of Section-12 of the Specific Relief Act, in paras 10 and 11, the observations recorded are as under: “10. Coming to the more important question whether a decree for specific performance can be granted in favour of the plaintiff at least for the share of the first defendant in the suit land, it is necessary to notice Section 12 of the Specific Relief Act, which reads as under: “12 Specific Performance of Part of Contract:- (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), pay or has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes 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. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part. Explanation:-for the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance.” 11. Sub-section (3) to Section 12 of the specific relief act, 1363 (for short “the present Act”) corresponds to section 15 of the Specific Relief Act, 1877 (for short “old Act”). Sub-section (3) to Section 12 of the specific relief act, 1363 (for short “the present Act”) corresponds to section 15 of the Specific Relief Act, 1877 (for short “old Act”). But there is one difference between the two provisions, whereas under Sec. 15 of the old Act, the party seeking specific performance of a part of a contract was required to pay the entire sale consideration stipulated under the contract, under Sec. 12 of the present act, the specific performance of a part of the contract can be granted on payment of proportionate consideration, provided the plaintiff relinquishes 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 in the default of the defendant. In Kartar Singh v. Harjinder Singh (1 supra), the property in question was the joint property of brother and sister, each having half a share therein. The brother contracted to sell the entire property including his sister's share, but the sister refused to accept the agreement. The Supreme Court held in that case that a decree for specific performance in respect of the brother's half share in the property could be granted in favour of the plaintiff and the provisions of Sec. 12 of the present Act are not attracted to the case, as it was 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 is concerned. The said decision of the Supreme Court is distinguishable on facts.” 31. The ratio in Kartar Singh was thus distinguished on facts. 32. It is the strain of Sri K.Sitaram, learned counsel for the appellants, that there are exceptions for grant of relief of specific performance under Section 12 of the Specific Relief Act more particularly under Section 12 (3)(b)(i) and (ii) and in the given facts and circumstances of the case, both the Courts below should have recorded specific findings, if this case is governed by these exceptions. 33. Section 12(1) of this Act directs that the Court shall not direct specific performance of a part of contract except as provided in this Section. These exceptions enable the Court to direct specific performance of part of the contract. 33. Section 12(1) of this Act directs that the Court shall not direct specific performance of a part of contract except as provided in this Section. These exceptions enable the Court to direct specific performance of part of the contract. If Section 12(3)(b)(i) and (ii) of this Act are applied in fact grant of relief under Ex.A1 agreement for sale is clearly discernible and permissible. 34. Reasons are assigned supra that property described in plaint ‘B’ schedule is clearly identified and that there is proof that the 1st respondent is in occupation of this property. As already stated, obtaining relinquishment deed for other part of the property concerned to Ex.A1 agreement by the appellant is a specific pointer in this direction, that this property is amenable for division and thus supporting the contention of the 1st respondent. It is not the case of either party that there is a claim to the property covered by Ex.B3-relinquishment agreement by the 1st respondent. Possession of the property by the 1st respondent, which he claimed as a lessee earlier along with P.W.3 to run their carpentry workshop, stood established. When these are all the positive circumstances available on record, when this claim of the 1st respondent, as a matter of fact, is supported by the conduct of the appellants themselves in dealing with this property in such manner, there cannot be justification to reject specific performance of the contract under Ex.A1. 35. These factors were rightly considered by both the Courts below and though they did not specifically advert to the effect of Section 12 of the Specific Relief Act, it cannot be a reason to interfere with discretion exercised by the trial Court and confirmed by the appellate Court. The observations in Nagulal Rao in para-11, to the effect that specific performance of part of contract can be granted on payment of proportionate consideration provided the plaintiff relinquishes all his claims in respect of remaining part including compensation and damages, supports the contention of the 1st respondent. 36. Basing on the material and evidence, both the Courts below appreciated this situation and when the relief so granted by the trial Court, the appellate Court upon reappraisal of the material confirmed the same. 37. 36. Basing on the material and evidence, both the Courts below appreciated this situation and when the relief so granted by the trial Court, the appellate Court upon reappraisal of the material confirmed the same. 37. In these circumstances, finding no such questions that require consideration in this second appeal, much less substantial questions of law nor as pointed out for the appellants, this second appeal has to be dismissed. This Court is satisfied that this is not an instance where Section 100 CPC has to be applied nor interference is warranted with the decree and judgment of the appellate Court that confirmed the decree and judgment of the trial Court. 38. In the result, this second appeal is dismissed. In the circumstances, there shall be no order as to costs. The appellant shall execute a regular sale deed and register it in favour of the 1st respondent on or before 31.01.2022 upon receiving the balance sale consideration already deposited by the 1st respondent to the credit of the suit in the trial Court. Otherwise, the 1st respondent is at liberty to take recourse to process of law as is open to him for getting a regular sale deed through the process of the Court. As a sequel, pending miscellaneous petitions, if any, stand closed. Interim Orders, if any, stand vacated.