PONNUSWAMI GOUNDER Vs. RAMA BOYAN

JUDGEMENT

(1.) The first defendant is the appellant. The second plaintiff and the third defendant are the sons of the first plaintiff and the second defendant is the wife of the first plaintiff. The suit properties were originally owned by the plaintiffs and defendants 2 and 3. They sold them for a sum of Rs. 2500 under a sale deed dated 6-5-1969. On the date of sale itself, the first defendant executed an agreement to reconvey the properties to the plaintiffs and defendants 2 and 3 within five years from the date of sale on receipt of the consideration of Rupees 2500. It is to enforce this agreement to reconvey, the plaintiffs filed the present suit. The plaintiffs tendered the entire consideration within the time stipulated and demanded the execution of the sale deed by the first defendant. They also issued a notice demanding the specific performance, but the first defendant refused to execute the same. Since defendants 2 and 3 did not co-operate with the plaintiffs, the suit was filed by the plaintiff alone for specific performance of the agreement to reconvey. The plaintiffs had deposited the entire amount of Rs. 2500 in Court. The main contention of the first defendant was since the agreement to reconvey was in favour of the plaintiffs and defendants 2 and 3 the suit by the plaintiffs is not maintainable and in any case since the second and third defendants did not want any reconveyance of the properties, the decree for specific performance could not be granted in favour of the plaintiffs. It was further contended that in any case, the plaintiffs would be entitled only to half of the properties to be reconveyed and not the entirety. It may be mentioned that the second and third defendants filed a written statement stating that they did not want any reconveyance, that they have no money to pay and that they give up the right under the contract. The trial court dismissed the suit following the decision of this court in Koripalli Ramiah v. Sajja Subbiah, 1912 Mad WN 415. But, on appeal, the learned District Judge came to a different conclusion and held that the suit was maintainable, that the plaintiff is entitled to specific performance of the entirety of the contract. In coming to this conclusion, the learned District Judge followed the two later judgments of this court in Kondapanei Kottaya v. Gangaru Seshayya 1913 Mad WN 995 and Abdul Shaker Sahib v. Abdul Rahiman Sahib ILR 46 Mad 148 : (AIR 1923 Mad 284), in preference to the decision in Koripalli Ramiah v. Sajja Subbiah 1912 Mad WN 415 and the Calcutta decision in Safiur Rahiman v. Maharamunnissa Bibi (1897) ILR 24 Cal 832. It is against this judgment the first defendant has preferred the second appeal.

(2.) The question of law that arises for consideration in this second appeal is whether the suit could be maintained by some only of the promisees as plaintiffs in a case where the relief asked for is specific performance of the contract, specially, when the others do not want to specifically enforce the contract. Section 45 of the Contract Act was relied on in Safiur Rahman v. Maharamunnissa Bibi (1897) ILR 24 Cal 832 and Koripalli Ramiah v. Sajja Sabbiah 1912 Mad WN 415 in support of the view that the suit is not maintainable. Section 45 of the Contract Act reads as follows :-

(3.) The Privy Council also considered the question in the decision reported in Monghibai v. Cooverji Umersey AIR 1939 PC 170 and it was held therein