C V MUNI SAMAPPA Vs. KOLALA GURUNANJAPPA DEAD

JUDGEMENT

(1.) This is an appeal by defendant 1 in O. S. No. 50 of 1944 in the Court of the Subordinate Judge of Anantapur against a decree granting specific performance of an agreement to sell executed by the appellant and respondent 2 (defendant 2) on 3rd July 1944. There is no dispute as to the execution of the agreement. The two defences in the lower Court were (1) that as there were four sons of defendant 1, he-could not convey anything more than his share and (2) that the breach was on the part of the plaintiff, as time was of the essence of the contract. The learned Subordinate Judge held that as the agreement did not Page 1 of 3 C.V. Muni Samappa vs. Kolala Gurunanjappa (dead) and Ors. (18.04.1949 - MADHC) 6/19/2007 make any reference to the sons of defendant 1 or the binding nature of the - alienation such pleas need not be gone into in this suit. He also held that time was not of the essence of the contract and the breach was by the defendants. He, therefore, held that the plaintiff was entitled to specific performance.

(2.) The learned counsel for the appellant has pressed before us only one of the points, and that is that the suit for specific performance must fail so far as defendant 1 at least is concerned, because be could not be compelled to convey his sons' shares and the agreement to sell the entire house is not valid and binding on his sons. He cited to us the ruling of the Full Bench in Balusami Iyer v. Lakshmana Iyer, 44 Mad 605 : (A. I. R. (8) 1921 Mad. 172 F. B.). What happened in that case was that a suit was brought by certain plaintiffs to enforce specific performance of a contract to sell a house and ground in Madras made by defendant 1 alone. The plaintiffs claimed that defendant 1's son defendant 2, who was not a party to the contract was nevertheless bound by the agreement entered into by the father, because he had assented to it and also because the sale was for the benefit of the family. These pleas were denied, and the learned trial Judge held that the pleas were not established, and the suit was dismissed against the son. The question for decision was whether in such circumstances specific performance could be decreed against defendant 1 alone, and if it could be, on what terms. The learned Judge's answer to the question was that specific performance could not be granted of the contract so as to direct execution of the conveyance of the entire property but it was open to the purchaser to get specific performance so far as the share of the vendor was concerned on payment of the consideration agreed upon without any abatement. It will be noticed that the facts are entirely different in this case. There is no allegation in the plaint that the agreement to sell executed by defendant 1 was binding on his sons. In fact, the plaint does not make any reference to any sons of defendant 1. The plaint contains the bare allegation of the execution of the agreement by the defendants and the usual allegations of default on the part of the defendants and the readiness and willingness on the part of the plaintiff to perform the contract. To such a case as this, the following observations of Kumaraswami Sastri J. in Balusami Iyer v. Lakahmana Aiyar, 44 Mad. 605 at p. 620 : (A. I. R. (8) 1921 Mad. 172 F. B.) directly apply :

(3.) The appeal fails and is dismissed with costs of the plaintiff's legal representatives.