23. Now, I would like to turn to the provisions of the Act. Sections 43 and 45 of the Act are the relevant provisions applicable to the present situation. According to Section 43 of the Act, when two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise. Similarly, Section 45 of the Act deals with devolution of joint rights. According to it, when a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representatives of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly. On a co-joint reading of Sections 43 and 45 of the Act, defendants 1 to 4 are both promisors and promisees and, similarly, the plaintiff is also promisor and promise since the obligations under Ex.A1 are mutual or reciprocal. Thus, the defendants occupied the position of both promisors and promisees vice versa the plaintiff. In such case, in view of Section 43 of the Act, the plaintiff may compel any one of the joint promisors to perform his obligation. If the principle laid down under Sections 43 and 45 of the Act is applied to the present facts of the case, the 3rd defendant, who is claiming to be exclusive owner of schedule property in view of the alleged partition, is bound to perform his obligation admittedly having received substantial amount under Ex.A1 from the plaintiff. Similarly, according to Section 17 of the Act of 1963, a person who had no title cannot be compelled to perform his obligation but Section 17 of the Act of 1963 has no application for the reason that the 3rd defendant is the absolute owner even according to pleadings and evidence adduced by the defendants and the 3rd defendant, being one of the joint promisors, is, therefore, under obligation to perform his part of obligation under Ex.A1 agreement of sale. Hence, the 3rd defendant can be compelled to execute registered sale deed receiving balance of sale consideration. Merely because the other defendants i.e. defendants 1, 2 and 4 have no title or interest in the property, the agreement cannot be said to be unenforceable since one of the joint promisors i.e. the 3rd defendant is the owner of schedule property even according to their own pleadings and evidence adduced by the defendants.
