1. This appeal arises out of a suit for specific performance of a contract.
2. The plaintiff's case is, that it was agreed that the defendant No. 1 and the defendant No. 2, together, would sell a 2-annas share of a tank and an entire plot of land to the plaintiff. A further agreement was set up, viz., that if the defendant No. 2 did not consent to sell his share, the defendant No. 1 would sell his own moiety share.
3. The defendant No. 2, it is found, had never agreed to sell his share. Both the Courts below have come to the conclusion that the plaintiff was not entitled to specific performance of the contract.
4. The only question raised before us is, whether the plaintiff was entitled to specific performance of the contract so far as the share of the defendant No. 1 was concerned.
5. In the present case, there was no agreement by defendant No. 1 to sell on behalf of defendant No. 2. He did not profess to have any authority to do so and there was no contract that he would sell the property for self and on behalf of defendant No. 2. The Courts below have come to the conclusion that there was no COmpleted contract which could be enforced.
6. It appears from the judgment of the Munsif that, when the proposal was male, the defendant No. 1 told the plaintiff that he would consult his mother, brother and co-sharers and would then let the plaintiff know. The Munsif points out that, though the defendant No. 1 probably held out some hope to the plaintiff that his brother would agree, the plaintiff knew very well that without consulting his brother, the defendant No. 1 could not give his final word. The learned Subordinate Judge in one place of his judgment says that it was agreed between the plaintiff and defendant No. 1 that the latter and defendant No. 2 would sell the property to him, but further on he says that it was a contract which could be enforced. This is explained by what we have stated from the judgment of the Munsif, The agreement proposed was between the plaintiff, on the one hand, and the defendants Nos. 1 and 2 on the other, but the defendant' No. 2 did not agree. That being so, we think that the Courts below were right in holding that there was no completed contract.
7. It has been pressed upon us that the question of intention ought to have been gone into. But the plaintiff set up an alternative case, viz., that there was an agreement that the defendant No. 1 would sell his own share even if the defendant No. 2 did not agree. That case has been found against the plaintiff by both the Courts. But the fact that such an alternative case was set up indicates how the agreement was understood by the parties. Besides, the plaintiff did not invite either of the Courts below to go into the question of intention. In both the Courts below he insisted upon the alternative case, namely, that there was an agreement that the defendant No. 1 would sell his own share even if the defendant No. 2 did not agree; and both the Courts below have found against the plaintiff.
8. The Court of first instance found that the plaintiff never tendered any consideration money to the defendants. The lower Appellate Court has not come to any finding on the point. It is unnecessary, however, to consider the point.
9. The appeal fails and is dismissed. We make no order as to costs in this Court.