C. Nagappan JUDGMENT
M.Y. Eqbal, J.
1. I have had the advantage of going through the order proposed by my esteemed Brother C. Nagappan, J. While I entirely agree with the conclusion that the Appellant must succeed to the extent indicated in the order, I wish to add a few lines of my own.
2. The Court will not as a general rule compels specific performance of a contract unless it can execute the whole contract. This principle is based on the general law that the Court cannot specifically perform the contract in piecemeal, but it must be performed in its entirety if performed at all. In a case where he had held himself contracted out as the owner of the whole, the case would have been different. But in the absence of misrepresentation or misconduct, the general rule is that where a person is jointly interested in an estate with another person and purport to deal with the entirety, the specific performance will not be granted against him as to his share.
3. English law on grant of specific performance to the extent of ownership/interest in joint property has been elaborately dealt with in a number of cases. In Jenkins v. Hiles 6 Ves. 646, the Court of Chancery observed as under:
I also agree, if a man, having partial interests in an estate, chooses to enter into a contract, representing it, and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable interests, he has not the entirety; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances, is bound by the assertion in his contract; and, if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement; and the Court will not hear the objection by the vendor, that the purchaser cannot have the whole.
4. The Rule of the Court and the principle upon which it is founded are very distinctly reiterated by Lord Eldon in Mortlock v. Duller 10 Ves. 315.
5. The principle of law so stated by Lord Eldon has been several times adverted to in subsequent cases, but never questioned and now treated as a settled rule.
6. The Author of the Book "Fry on Specific Performance", 6th Edition (1921), page 582 para 1257, says: "There is no reason why an innocent person who gives consideration for the promise of a charge on the whole should not be in a position equivalent to that of a purchaser and thus secure an order of partial performance. The Doctrine of Partial Performance has been discussed in the book "Fry on Specific Performance" at page 588 paragraph 1270. The Author says:
It is well established principle of equity that where, in the course of concluding a contract, a person has represented that he can grant a certain property, or is entitled to a certain interest in that property, and it later appears that there is a deficiency in his title or interest, the other party can obtain an order compelling him to grant what he has got, and in an appropriate case, to submit to a reduction of the consideration for the grant: (See Fry on Specific Performance (6th Edition) paragraph 1257 and 1259 and the case there cited). We will call this "the doctrine of partial performance.
7. Under the o........