Madhavan Nair, J.:— This Civil Revision Petition has arisen in a suit for specific performance of a contract for sale of landed property, 16 acres odd in extent, belonging to the Hindu coparcenary of defendants 1 to 3. The suit was contested by the 1st defendant. On December 26, 1957, the 2nd defendant died intestate, leaving behind a widow, two daughters and two sons. As none had been impleaded as his legal representative, the 1st defendant on December 10, 1960, filed C.M.P No. 4514 of 1960 for a declaration that the entire suit had abated, and a copy of that petition was given to counsel for the plaintiff. The same day, the Plaintiff filed C.M.P No. 4516 of 1960 stating that, though the case stood adjourned to that day for impleading the legal representatives of the 2nd defendant, it was not necessary to implead any in place of the deceased as he was only a pro forma party and the 1st defendant was competent to represent the entire family in the suit. Those two petitions were disposed of by the Subordinate Judge by a common order accepting the plaintiff's plea. The 1st defendant seeks revision of that order. When the C.R.P came before a Single Judge it was adjourned to be heard by a Bench; and subsequently a Division Bench referred it to a Full Bench.
2. Supporting the order of the court below counsel for the plaintiff-respondent contended that defendants 2 and 3 are not necessary parties to the suit, but have been impleaded only as pro forma parties. That the suit property belongs to a Mitakshara coparcenary is not in dispute here. The plaint is clear that the suit is against the coparcenary and that the 1st defendant is sued as the Karta thereof.
3. But, the contract for sale having been entered into by defendants 1 to 3 as the representatives of the family, the suit on the contract must be against all the three. The contention of Shri Krishnamoorthy Iyer that, even though the defendants 1 to 3 have jointly made the suit-contract on behalf of the family, the 1st defendant alone might have been sued on the contract for a decree against the family, is not acceptable. No authority thereto is cited before us; and the observations in, Kishen Parshad v. Har Narain Singh (38 Ind. App. 45) seem to be against it. See the Principles of Hindu Law by Mulla, 12th Edn. Pages 377 & 378.
4. But the question here is not of the constitution of the suit at its institution but of the effect of the death of the 2nd defendant pending suit. He died intestate in 1957, that is, after the commencement of the Hindu Succession Act, 1956. Section 6 of that Act provides:
“When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that if the deceased bad left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.—For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.—Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”
5. The 2nd defendant having left behind him a widow, two sons and two daughters, the aforesaid proviso and the Explanations are attracted in his case; and the result is that his share in the coparcenary property must be deemed to have been partitioned out immediately before his death and to have devolved on his heirs. That share, being no more part of the coparcenary property, is not within the competence of the 1st defendant as the Karta of the joint family to represent in the suit. Faced with this obvious difficulty, counsel contended that the partition deemed to have taken place in the lifetime of the 2nd defendant must be deemed to be a partition inter vivos and therefore affected by lis pendens not making it obligatory on the plaintiff to take note of the same, and relied on Lekshmanan v. Kamal (1958 K.L.J 901 F.B) The argument is no doubt ingenious but bears little substance. What is provided in Section 6, Hindu Succession Act, is not a partition at all but devolution of interest of a person in coparcenary property. The notional partition mentioned therein is solely for the purpose of ascertaining the extent of such interest as would be the subject-matter of the devolution when the deceased Hindu died undivided from his coparceners. The case is not one of partition inter vivos to attract Section 52 of the Transfer of Property Act, or the dictum in 1958 K.L.J 901 F.B, but of death of a party resulting in abatement, partial or entire, of the suit under Order 22 C.P.C The 2nd defendant's share in the suit property cannot be represented after his death by the 1st defendant as has been mentioned above; and the plaintiff has failed to implead his legal representatives for about three years after date of death of the 2nd defendant. Even when the matter was brought to his express notice, he filed C.M.P No. 4516 of 1960 to say that he did not want to bring in any in the place of the 2nd defendant. Under Order 22, Rule 4, C.P.C the suit had abated as regards the 2nd defendant and therefore as respects his share in the property. It is so declared hereby.
6. The next question is whether such abatement affects the maintainability of the entire suit as contended by counsel for the 1st defendant or only part of the suit as concerns the 2nd defendant's share in the property. We think that the matter has to be viewed in the light of Section 15, Specific Relief Act, even though the impossibility to the performance of the whole contract was brought about by the fault or default of the plaintiff himself. That section reads:
“15. Specific performance of part of contract where part unperformed is large.—Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation, either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.”
7. “The party in default” in the above Section, in our opinion, is the party who is ‘unable to perform the whole of his part of’ the contract, and not the party by whose default the inability was caused. Counsel for the plaintiff has submitted that, if the suit be found to have abated as regards the 2nd defendant's share in the property the plaintiff is relinquishing all his claim to the performance of the contract as concerns that share as also all right to compensation for the deficiency or for loss or damage in regard thereto. In the circumstances, we, in exercise of our discretion under the latter part of Section 15, Specific Relief Act, hold the plaintiff entitled to prosecute his suit subject to the limitations and restrictions indicated above. In other words, the abatement caused by the 2nd defendant's death is declared confined to his interests in the suit property.
8. The Civil Revision Petition is allowed in terms mentioned above with costs inclusive of counsel's fee Rs. 100/-.