B.B. Ghose, J.
1. This is an appeal which arises out of a suit for specific performance of a contract for sale of 8-annas share of certain properties entered into by the defendant No. 1 in favour of the plaintiffs. In the agreement for sale the defendant No. 1 purported to have agreed to execute a kabala for 8-an-nas of the property, one-half of which, that is to say, 4-annas share, belonged to the defendant No. 1 and the other half belonged to his infant nephew defendant No. 2. The plaintiffs, brought the suit against the defendant No. 1 as well as his nephew. Prior to the suit, the disputed property had been purchased by the Kundus who were added as defendants under an order of the Court but the plaint was not amended and it was not stated on what ground they were sued, or the grounds on which relief was claimed against them.
2. The Court of first instance dismissed the suit with regard to the share of defendant No. 2 but decreed it with regard to the 4-annas share of defendant No. 1 on payment of the full price agreed to have been paid for the shares of both the defendants. This was evidently done in accordance with Section 15 of the Specific Relief Act. Both the plaintiffs and the defendants appealed from that decree. The plaintiffs claimed specific performance with regard to the share of defendant No. 2 also and the defendants urged that the whole suit ought to have been dismissed. The learned Subordinate Judge dismissed the appeal of the plaintiffs and decreed that of the defendants. His ground was that the express stipulation in the contract was for selling the 8-annas share of both the defendants by a joint deed of sale and as that could not be carried into effect on account of the minority of the defendant No. 2, the whole contract should' fail. The contract according to the learned Subordinate Judge was an entire indivisible contract and not capable of performance in part. It seems to me, however, that the defendant No. 1 was perfectly entitled, to enter into an agreement with respect to his own share of the property, without reference to the interest of his infant nephew; and that being so, there is nothing in law to prevent the plaintiffs from enforcing the contract as against the defendant No. 1 with regard to his share of the property. The provisions of Section 15 of the Specific Relief Act would, therefore, apply to the present contract. With regard to this point the decision of the learned Munsif is correct as he decreed specific performance on the plaintiff paying the entire purchase-money which he contracted to pay for the shares of both the defendants Nos. 1 and 2. The difficulty, however, arises with reference to the Kundus, the subsequent purchasers. The plaint did not allege that they were purchasers with notice of the agreement entered into by the defendant, No. 1 with the plaintiffs. In the absentee of such an allegation or proof of the fact' that the Kundus had purchased with notice, the suit for specific performance was liable to be dismissed whatever other remedy' the plaintiffs (sic) have as against the defendant No. 1. The Trial Court, however, raised an issue on Trial question of the bona fides of the purchase of the Kundu defendants and whether they had purchased with notice. That such an issue was allowed to be raised supplies the deficiency in the plaint. The Trial Court found that the Kundu defendants had purchased with notice. There is no finding, however, of the Subordinate Judge on that point. He simply decided the point on the ground that the plaint was not amended showing the accrual of a cause of action as against the Kundus when they were added as defendants and he considered it unnecessary to discuss the points raised concerning them. As we have held that the decision of the Subordinate Judge With regard to the question of the divisibility of contract is erroneous it must be decided whether the plaintiffs are entitled to a decree as against the Kundu defendants and it is, therefore, necessary to decide the questions which affect them.
3. The judgment and decree of the Subordinate Judge are, therefore, set aside except with regard to the dismissal of the suit against defendant No. 2, and the case is sent back to his Court for a hearing of the appeal and deciding the 12th issue raised in the Court of the Munsif. If he finds that the Kundu defendants were bona fide purchasers without notice the suit for specific performance must fail. In that case the Court will consider whether the plaintiffs are entitled to damages as against defendant No. 1. If he finds that the Kundus had purchased with notice of the agreement entered into with the plaintiffs, a decree for specific performance as passed by the Munsif on the terms set forth above must be made as against all the defendants except defendant No. 2. The decree in favour of defendant No. 2 will stand.
4. The costs of the hearing of this appeal and the costs of the Courts below will abide the result.
5. I agree.