T RANGAYYA REDDY Vs. VSSUBRAMANYA AIYAR

JUDGEMENT

(1.) As regards the second question my answer is that, in a suit for specific performance of a contract by a member of an undivided Hindu family to sell his share, it is not permissible to join the other members of the family as defendants merely with a view to obtaining partition and possession of the alleged vendor s share as against them. It may, I think, be taken as the settled and salutary practice of this and other Courts in India, where parties properly sued for specific performance of a contract for sale of land are in possession of the land, to allow a prayer for possession to be added to the prayer for specific performance, thereby obviating the necessity for filing s fresh suit for possession to which there could be no defence. Bugata Appala Naidu v. Ghengalvala Jogiraju 32 Ind. Cas. 237 : (1916) 1 M.W.N. 77. It is, however, in my opinion quite a different thing to allow a stranger to make the members of a joint Hindu family defendants in a suit for a partition, until he has established his right to sue for partition by obtaining a transfer from one of the members of the family.

(2.) The other members of the family were no parties to the alleged contract and, therefore, were not proper parties to the suit in so far as it is a suit for specific performance, and it would, in my opinion, be a distinct hardship to them to force them to defend a suit for partition which would not lie if the plaintiff failed to prove his contract. Partition suits often involve a great variety of complicated questions and it would not be satisfactory to deal with such a suit as a mere appendage to a suit for specific performance of a contract by a co-sharer to sell his share. The rule in Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212 is not merely technical but well founded in principle. In De Hoghton v. Money (1867) 2 Ch. 164 : 15 L.T. 403 : 15 W.R. 214. Turner, L.J. observed: I here again his case is met by Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212 in which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions which might never arise, as it might appear that the contract either ought not to be, or could not be performed. Other cases in which the same rule was applied are Wood v. White (1839) 4 My. & Cr. 460 : 2 Keen 664 : 7 L.J. Ch. (N.S.) 203 : 8 L.J.Ch. (N.S.) 209 : 3 Jur. 117 : 41 E.R. 178 : 48 R.R. 152; Chadwick v. Maden (1851) 9 Hare 188 : 21 L.J. Ch. 876 : 68 E.R. 469 : 89 R.R. 391 and West Midland Railway Co. v. Nixon (1863) 1 H. & M. 176 : 71 E.R. 77 : 136 R.R. 79. We have not been referred to any authority to show that these authorities are no longer applicable under the existing rules of procedure, or in support of the proposition that it is permissible to bring suits against persons against whom there is no cause of action at the date of suit. On the other hand the judgment of Lord Parker in Howard v. Miller (1915) A.C. 315 at p. 318 : 84 L.J.P.C. 49 seems to be in accordance with the view I have taken.

(3.) As regards Bishop of Winchester v. Mid-Hants Railway Company (1868) 5 Eq. 17 : 37 L.J. Ch. 64 : 17 L.T. 161 : 16 W.R. 72 which was cited before us, that was a suit by an unpaid vendor to obtain specific performance by payment and to enforce his vendor s lien by obtaining possession of the property and by sale, if necessary, and for a Receiver, and it was held that the London and South Western Railway who were in possession as lessees from the defendants were properly joined, as their possession would be affected by the decree sought for. In that case, the plaintiff claimed as on the date of suit to be entitled to recover possession both against his vendees and their lessees by reason of his vendor s lien. They were necessary parties to the suit only in so far as it included a claim to enforce the lien, a necessity which is clearly explained by, Lord Romilly in Attorney-General v. Sittingbourne and Sheerness Railway Company (1866) 1 Eq. 636 : 35 L.J. Ch. 318 : 14 L.T. 92 : 14 W.R. 414.