BALUSWAMI AIYAR Vs. LAKSHMANA AIYAR

JUDGEMENT

(1.) I agree with the answer proposed by Kumaraswami Sastri, J. which is in accordance with the view taken in Nagiah V/s. Venkatarama Sastrulu (1912) I.L.R. 37 Mad. 387 to which I was a party, and also, in my opinion, with the earlier decision of White, C.J. and Krishnaswami Aiyar, J. in Paraka Subbarami Reddi V/s. Vadlamudi Seshachalam (1909) I.L.R. 33 Mad. 359. When these learned Judges observed at page, 360. "The plaintiff asks for a decree against the shares of the first and fourth defendants at least. This we think he cannot have," all they meant, as appears from the rest of the judgment, was that he could not have a decree directing these defendants who were parties to the agreement to convey their own interest at a reduced price. This might have been granted in England, but in cases governed by Section 15 of the Specific Relief Act a plaintiff can only have part performance if he is willing to pay the full contract price and to waive all claims for compensation. As the plaintiff in that case expressed his willingness to comply with these conditions, the learned Judges at the close of their Judgment gave him a decree as regards the shares of the first and fourth defendants. This amounts to a clear ruling that a case such as the present is governed by Section 15 of the Specific Relief Act. This was the conclusion at which I arrived in Nagiah V/s. Venkatarama Sastrulu (1912) I.L.R. 37 Mad. 387 and after careful re-consideration I think it was right. Oldfield, J.

(2.) I agree. Kumaraswami Sastriar, J.

(3.) The question referred to us for decision is "where the managing member of a Joint Hindu family enters into a contract to sell an item of family property and that contract is not proved to be binding on the other members, can specific performance of it be decreed against him and if so on what terms?