KANDASWAMI AND ORS. Vs. VENKATACHALA KANDAR AND ORS.

JUDGEMENT

(1.) THE defendants 2 to 4 in O.S. No. 639 of 1964 on the file of the Court of the District Munsif, Namakkal, who succeeded before the trial Court but lost before the first appellate Court are the appellants herein. The suit was instituted by the respondents 1 to 3 herein for specific performance of an agreement to sell certain immovable property to them and defendants 2 and 3 entered into by the 4th respondent herein on 3rd September, 1964. Pending the suit, the appellants herein purchased the property from the 4th respondent herein. The fourth respondent in the written statement filed by him denied the existence of any such agreement between him and the plaintiffs and defendants 2 and 3. Similarly, defendants 2 and 3 also filed a common written statement denying the existence of the agreement. The fourth defendant who had also filed a written statement also denied the existence of the agreement. The learned District Munsif who tried the suit found that such an agreement existed between the parties. Notwithstanding this conclusion, by judgment and decree, dated 17th January, 1966, he dismissed the suit holding that when the agreement was entered into by the first defendant with the three plaintiffs and defendants 2 and 3, it is not open to the three plaintiffs alone to institute a suit for specific performance and for this purpose, he relied on a decision of this Court in Karipalli Ramiah v. Sajja Subbiah, (1912) M.W.N. 415. As against this judgment and decree the plaintiffs preferred an appeal to the learned Subordinate Judge of Salem and the learned Additional Subordinate Judge on 31st January, 1967 in A.S. No. 31 of 1966 allowed the appeal and decreed the suit instituted by the plaintiffs. In support of his conclusion he relied on another decision of this Court in Abdul Shakur Sahib v. Abdul Rahman Sahib : AIR 1923 Mad 284 It is against this judgment and decree of the learned Additional Subordinate Judge, the present second appeal has been preferred by the defendants 2 to 4 in the suit.

(2.) IN view of the concurrent finding of the Courts below that the agreement on which the suit was instituted was entered into by the first defendant on the one hand and the plaintiffs and the defendants 2 and 3 on the other, the learned Counsel for the appellants very rightly did not challenge the correctness of that conclusion. However, he repeated the basis for the dismissal of the suit mentioned by the learned District Munsif, viz., that the agreement having been entered into between the first defendant On the one hand and the plaintiffs and defendants 2 and 3 on the other, the plaintiffs alone could not have instituted the suit for specific performance even though the other two persons have been impleaded as defendants to the action. Consequently, the sole question for consideration is whether in a case like this where an agreement to sell immovable property has been entered into by the first defendant in the suit with the three plaintiffs and defendants 2 and 3, the plaintiffs 1 to 3 alone can institute the suit for specific performance of the agreement not only in their favour, but jointly in their favour along with the defendants 2 and 3. Before I proceed with the matter I must refer to one aspect of the case. The plaintiffs in their plaint expressly stated that the defendants 2 and 3 had colluded with the first defendant and were seeking to obtain a sale deed in their favour in respect of the suit property. This allegation stands established by the findings of the Courts below that there was an agreement as contended by the plaintiffs between the first defendant on the One hand and the plaintiffs and defendants 2 and 3 on the other. When such an agreement was in existence if defendants 2 and 3 had taken up the plea that there was no such agreement in existence and had purchased the property from the first defendant, the collusion between the defendants 2 and 3 and the first defendant becomes self -evident. One other fact which has to be noticed is that after the suit was Instituted the first defendant has actually sold the properties to the appellants herein. Only because of this, the decree was passed by the learned Subordinate Judge against these defendants as a whole compelling them to execute a sale deed in favour of the plaintiffs and defendants 2 and 3. There is nothing in the Specific Relief Act preventing such a suit. As a matter of fact, the provisions of the Specific Relief Act do contemplate a suit being instituted by only some of the beneficiaries to a contract or even in respect of a part of a contract under certain circumstances, j, However, reliance was placed solely on Section 45 of the Indian Contract Act in support of the contention that such a suit was not maintainable. Section 45 of the Indian Contract Act states, "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 representative of such deceased person jointly with the survivor or survivors, and after the death of the last survivor with the representatives of all jointly". The object of this section is not to subject the other party to the contract to repeated claims or different claims by the joint promisees at different stages. But, once all the parties to the agreement are before the Court, whether as plaintiffs Or defendants, I am unable to see anything in Section 45 of the Indian Contract Act making a suit instituted by only some of the parties to the contract as not maintainable. As far as a suit for specific performance of a contract is concerned, there have been a few decisions of this Court as well as other Courts. The earliest decision in this behalf is the decision in Safer Rakiman v. Maharamunnissa Bibi, I.L.R. (1897)Cal. 832. The judgment is a very short one and the same is as follows: