JOSE Vs. JOSEPH

JUDGEMENT

(1.) JOSE Varkey, the petitioner in C. M. P. 1083/1993 and the Appellant in the Second Appeal No. 563/1991 is the Plaintiff in O. S. 226/1982 out of which the Second Appeal arises. JOSEph, Rockey and Abraham the respondents Nos. 1, 2 and 3 respectively herein, were the Defendant Nos. 1, 2 and 3 in the aforesaid suit. The remaining Defendants in the suit are not parties to these petitions. C. M. P. No. 1083/1993 is for bringing on the record of the second appeal, the legal representatives of the deceased Defendant No. 1 JOSEph. The legal representatives sought to be impleaded are Mrs. Mercy JOSEph and Mrs. Leela Abraham. The C. M. P. Nos. 943/1993 is by Rockey and CD. Abraham, the defendant Nos. 2 and 3 respectively in the suit and the Respondent Nos. 2 and 3 in the Second Appeal. According to them, the cause of action did not survive after the death of JOSEph, the deceased Respondent No. l. They pray that the second Appeal be dismissed. Petitioner in C. M. P. Nos. 1083/1993 is, in this judgment, referred to as the plaintiff. The petitioners in C. M. P. No. 943/1993 are referred to as the Defendants.

(2.) THE land in dispute belongs to the Defendants 4 to 7 in the suit. In 1980, the Defendants 1 to 3 agreed to purchase the property from the Defendants 4 to 7 and are in possession of the land in pursuance of the agreement of sale. By an agreement dated 23-7-1981, the Defendants 1 to 3 agreed to sell the same property to the plaintiff. THE Plaintiff filed the Suit for a permanent injunction restraining the Defendants from selling the land or delivering its possession to any one except the Plaintiff. THE Additional Sub judge, Ernakulam made a decree of permanent injunction as prayed. THE District judge, Ernakulam allowed the Defendants' Appeal Suit No. 292/1985 and dismissed the Original Suit No. 226/1982.

(3.) IT is urged on the doctrine of action personal is moratorium persona, that upon the death of the Defendant No. 1 the right to the injunction stood extinguished. In order to decide this question, the relevant provisions of the Contract Act and the Indian Succession Act need to be considered. The rules of devolution of joint liabilities under the la w of Contract do not support the Defendants' contentions. Where, as in this case, two or more persons have made a joint promise all such persons during their joint lives and after the death of any of them, his representative jointly with the survivor or survivors, and after the death of the last survivor the representatives of all jointly must fulfil the promise (S. 42 of the Contract act ). Thus, under this rule, after the death of Joseph, the defendant No. l, his representatives proposed to be joined as the respondents in the appeal arc bound to perform the contract jointly with the Defendants 2 and 3. Even if it is assumed that the liability to perform the contract does not devolve on the legal representatives of the Defendant No. l, yet, the cause survives against the Defendants 2 and 3. Another principle of law which comes into play is this. Where there are two or more promisors - like the Defendants in this case - the promisee, the plaintiff, has the right to compel any one or more promisors to perform the contract (S. 43 of the Contract act ). On this principle of law it is clear that the plaintiff can, compel the defendants 2 and 3 to perform the whole of the contract. Therefore, the right to compel the performance of the contract survives against the Defendant Nos. 2 and 3, also.