BAPPU ALIAS VENKATARAMIER Vs. VAANNAMALAI CHETTIAR

JUDGEMENT

(1.) In this case the plaintiff entered into a contract with the 1 defendant for the sale of his lands and brought this suit for specific performance of the agreement. The 1 defendant, who agreed to purchase the property, pleaded that the contract had been rescinded, but died shortly afterwards, and his sons defendants 2 to 4, the 4 defendant being a minor, were impleaded, and a decree for specific performance was prayed for as against them. These defendants adopted their father's written statement, so far as it was not opposed to their interests, and also pleaded that the suit was not maintainable against them. The Subordinate Judge has found that the contract was not rescinded and this finding is accepted in appeal. He has also found that defendants 2 to 4 are liable to perform the contract entered into by their father. He has come to this conclusion on broad grounds which he sums up as follows: "The price is not inadequate. The assent was not obtained by questionable means. Plaintiff has a clear and marketable title. It would cause no hardship on the defendants. Plaintiff has gained no unfair advantage by the transaction. Viewed from any aspect, the contract for specific performance can be enforced against defendants 2 to 4 who are bound to execute the contract, in place of their father who is now dead ". In coming to this conclusion, he has made no reference to Section 27 of the Specific Relief Act, which specifies the persons against whom specific performance of a contract can be enforced. The Specific Relief Act is an exhaustive code, for it is an Act "to define and amend the law relating to certain kinds of specific relief obtainable in Civil Suits, "and consequently we must read this Section 27 as defining every class of persons against whom specific performance may be enforced. Unless, therefore, defendants 2 to 4 can be brought under this section, there will be no right to enforce specific performance against them. The plaintiff in this case has not claimed damages for breach of covenant, and consequently we need not consider against whom he can bring such a suit for damages.

(2.) It is argued for the appellants that the defendants, who are members of an undivided Hindu family, do not come under any of the definitions in Section 27. The two clauses of the section which, it is contended for respondents, are applicable are (b) and (c). Clause (b) reads as follows: "any other person claiming under him by a title arising subsequently to the contract..." Here it is suggested that the sons, defendants 2 to 4, do claim under their father, 1 defendant, by a title arising subsequently to the contract. It is however well settled that a member of a joint family does not inherit under his father but takes by survivorship, for, on his birth he obtains a right in the whole family property and not merely in a portion of it. No doubt when one member of the coparcenary dies his share passes to the others, but it is more a question of lapse of the title of the deceased person rather than an acquisition of title in the survivors, for even before the death of the one coparcener they had a right in the whole of the property including the share of the deceased member. It is therefore difficult to hold that, even as regards their father's share defendants 2 to 4 claim under him by a title arising subsequently to the contract. No doubt in Venka-leswara Aiyar V/s. Raman Nambudri (1916) 3 I.W. 435, Coutts Trotter, J appears to have accepted the contention that a co-parcener in a joint Hindu family does come under the definition in Section 27(b) and treated the matter as a question of Hindu Law without discussing the meaning of the words of the section, but. he also held that, in order to enforce a contract against a. co-parcener, it must be shown to be beneficial or necessary and this principle has been adopted in all cases of necessity in which cases the co-parcener would probably come under Clause (c), because the contracting party has a right to displace his title in cases of benefit or necessity.

(3.) Coming to the definition of Section 27(c), we find that it includes "any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant."This clause undoubtedly would apply, as suggested, above, to the many cases in which a decree for specific performance has been given even against minor members of an undivided family, when the contract was for sale of land for family necessity. In such a case, the manager of the family has a right to displace the title of the other members in the family property when it is requisite to do so for purposes of family necessity. Cases of this kind are reported in Shanmugam Chetly V/s. Subba Reddi (1915) 31 I.C. 1, Ramachandra Aiyar V. Sundaramurthi Mudali (1893) 4 M.L.J. 9 and Krishna Aiyar v. Shamanna , and there are many others. The Courts have not in all cass referred in terms to Section 27 as covering the case, but have based their decision on the proposition that, if a contract when executed would be binding on the minor members of the family, it is incumbent on them to fulfil it after the contracting party's death. However in all these cases the co- parceners come within the definition in Clause (c).