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Case Number

Appeal No. 21 of 1922.

Attorney(S)

Messrs. A. Krishnaswami and S. Duraiswami Aiyar for the Appellants.
Mr. K. Rajah Aiyar for the Respondents.

Judges

Phillips
Devadoss, JJ.

Acts

Sect. 27 of the Specific Relief Act,
SPECIFIC RELIEF ACT

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Smart Summary

Judgment Summary — Phillips, J. (Devadoss, J. concurring)

Factual and Procedural Background

The plaintiff contracted with the first defendant for the sale of his lands and brought suit seeking specific performance of that agreement. The first defendant pleaded that the contract had been rescinded, but he died shortly afterwards. His sons — defendants 2 to 4 (the fourth defendant being a minor) — were impleaded and a decree for specific performance was sought against them. These defendants adopted their father's written statement insofar as it did not conflict with their interests and also pleaded that the suit was not maintainable against them.

The Subordinate Judge found that the contract was not rescinded and further held that defendants 2 to 4 were liable to perform their father’s contract. That finding that the contract was not rescinded was accepted on appeal, but the appellate court examined whether the decree for specific performance could properly be given against defendants 2 to 4 under Section 27 of the Specific Relief Act and other legal principles.

Legal Issues Presented

Whether defendants 2 to 4 (sons and co-parceners of the contracting father) are persons against whom specific performance can be enforced under Section 27 of the Specific Relief Act.
Whether members of an undivided Hindu family take "under" the deceased co-parcener by a title arising subsequently to the contract (relevance to Sect. 27(b)).
Whether co-parceners can be reached under Sect. 27(c) — i.e., whether they claim under a prior title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant — particularly in cases of family necessity or benefit.
Whether, absent evidence, a court may presume that a purchase of immovable property by a member of a trading Hindu family was for the benefit of the family.
Whether co-parceners can be compelled to perform a contract on the basis of a pious or Hindu-law obligation to repay their father's debts.
Whether specific performance may be enforced against a minor (the fourth defendant) when there is any possibility of detriment to the minor.

Arguments of the Parties

Appellants' (Defendants 2–4) Arguments

Members of an undivided Hindu family (co-parceners) do not fall within the definitions contained in Section 27 of the Specific Relief Act and therefore specific performance cannot be enforced against them.
Specifically, they do not "claim under" their father by a title arising subsequently to the contract (relevant to Sect. 27(b)), because in a joint family a co-parcener takes by survivorship rather than by inheritance.
If the obligation of the father to pay purchase money is a mere potential debt, co-parceners cannot be compelled to perform the particular contract (the suit is for specific performance, not for damages or for recovery of debt).
The fourth defendant as a minor cannot be compelled to perform unless the court is satisfied the act would be for the minor's benefit; any possibility of detriment bars compulsion.

Plaintiff's Arguments

The sons (defendants 2–4) do claim "under" their father by a title arising subsequently to the contract (invoking Sect. 27(b)).
Alternatively, defendants 2–4 fall under Sect. 27(c) because the contracting father's title to family property, which might be displaced, is a prior title known to the plaintiff; the purchase should be deemed for the benefit of the family and therefore enforceable against co-parceners.
There is a pious-Hindu-law obligation on co-parceners to repay the father's debts; accordingly, the father's liability to pay the purchase money should be considered a debt binding the family members.
Implicitly, because the contract was for purchase of immovable property, the plaintiff contended that this purchase must be presumed to be for the benefit of the family (no evidence was led on benefit, but the plaintiff relied on the presumption).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Venkateswara Aiyar v. Raman Nambudri	Recognition (by Coutts Trotter, J.) that a co-parcener might be treated as coming within Sect. 27(b) and discussion in terms of Hindu law; requirement that to enforce a contract against a co-parcener it must be shown to be beneficial or necessary.	The court noted that Coutts Trotter, J. accepted the contention but also held enforcement required proof of benefit or necessity; Phillips, J. regards that limitation as effectively bringing such cases under clause (c) (i.e., cases of benefit or necessity).
Shunmugam Chetty v. Subba Reddi	Instances where decrees for specific performance were given against minor members of an undivided family when the contract was for sale of land for family necessity.	The court treated this as an example where co-parceners have been held to fall within Sect. 27(c) in cases of family necessity; noted that some decisions did not explicitly cite Sect. 27(c) but rested on the proposition that a contract that would be binding when executed must be honoured after the contracting party's death.
Ramachandra Aiyar v. Sundaramurthi Mudali	Another reported instance of enforcement of specific performance against family members in family-necessity contexts.	Used similarly as an example to show that where purchase is for family necessity or benefit, co-parceners have been treated as falling within clause (c).
Krishna Aiyar v. Shamanna	Reported decision of enforcement in family-necessity situations against co-parceners or minors.	Again cited as a case where co-parceners were treated as within clause (c) when the purchase was for family necessity or benefit.
Rangayya Reddy v. Subramania Aiyar (Full Bench)	Authority where two judges (Wallis, C.J., and Sadasiva Aiyar, J.) expressed the opinion that co-parceners could not be compelled to perform a contract entered into by another co-parcener.	The court relied on this Full Bench view as supporting the proposition that co-parceners are generally not to be compelled to perform contracts entered into by another co-parcener, absent the special circumstances discussed in the judgment.
Bhagwan v. Krishnaji	Bombay High Court decision holding that Sect. 27(c) includes members of a joint Hindu family; apparently based on illustrations to clause (c) rather than the clause's language.	Phillips, J. recorded and disagreed with this approach: he considered it impossible to bring co-parceners within either clause (b) or (c) except where the contract is by a manager for necessity or benefit of the family.

Court's Reasoning and Analysis

The court began with the proposition that the Specific Relief Act is an exhaustive code defining the classes of persons against whom specific performance may be enforced; hence Section 27 must be read as exhaustive in this respect. The key question was whether defendants 2 to 4 fell within any of the classes enumerated in Section 27, and in particular within clauses (b) or (c).

On Sect. 27(b) — "any other person claiming under him by a title arising subsequently to the contract" — the court analyzed Hindu-law succession and survivorship in joint families. It observed that a co-parcener does not “inherit” under his father but takes by survivorship; on birth a co-parcener acquires a right in the whole family property rather than acquiring it subsequently. Thus it is difficult to say that a son of the contracting father claims under him by a title arising after the contract. The court therefore rejected the contention that defendants 2–4 fall within clause (b).

On Sect. 27(c) — "any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant" — the court accepted that clause (c) covers the class of cases where a manager contracts for family necessity or benefit, and that in such cases co-parceners (including minors) have been held liable where the contract was beneficial or necessary for the family. The court cited authorities in which specific performance was decreed against minor members when the sale was for family necessity or where a manager acted for the family.

The court rejected the plaintiff's attempt to treat the present case as falling within clause (c) by presuming that every purchase of immovable property is for the benefit of the family. The court held there is no such legal presumption; if treated as a presumption of fact it depends upon the circumstances of each case. Because no evidence had been led to show that the purchase was for family benefit, and because the defendants were a trading family who might reasonably prefer other investments to immovable property, the court would not make the necessary presumption. Consequently the plaintiff had to prove benefit by evidence if he relied on that ground.

The court also analyzed what "title" is referred to in clause (c), concluding that it means title to the subject-matter of the contract (here, the property contracted for). In the present case the subject-matter was payment of money (purchase money), not a specified item of property already in the family's ownership. There was no evidence that a definite sum of money existed in the father's hands or that the money would necessarily come from family property; thus defendants 2–4 could not be said to claim under any prior title to the purchase-money. On that basis the court concluded defendants 2–4 do not fall within clause (c).

The court gave a broader policy-based explanation: contracts for purchase (i.e., contracts to buy) are not naturally included among contracts enforceable against persons other than the contracting party, whereas contracts to sell land (where the vendor's interest in land is unique) are more readily subject to specific performance. The vendor can seek damages against the contracting party if payment is not obtained from others, so the vendor is not uniquely prejudiced when money comes from a third person.

Addressing the plaintiff's other points, the court rejected the pious-obligation argument under Hindu law (that co-parceners must repay a father's debts) as irrelevant to a suit for specific performance; even if the father's obligation were a debt, the present suit was not one for recovery of debt or damages. Finally, as to the minor (fourth defendant), the court applied the equitable principle that a court will not compel a minor to act unless satisfied the act will be for his benefit; where there is any possibility of detriment the court will not compel performance. On this ground also the court refused to enforce the contract against the minor.

Taking those points together, the court concluded that defendants 2–4 cannot be brought within the definitions of Section 27(b) or 27(c) and therefore no decree for specific performance could be given against them.

Holding and Implications

Holding: Appeal allowed; the suit for specific performance against defendants 2 to 4 is dismissed with costs throughout.

Implications:

Direct effect: The plaintiff's suit for specific performance against the sons (defendants 2–4) fails, and the decree sought against them is not granted. The appeal in favour of the defendants is allowed and the suit is dismissed with costs.
Statutory interpretation: The court emphasized that Section 27 of the Specific Relief Act is exhaustive with respect to the classes of persons against whom specific performance may be enforced, and that co-parceners of a Hindu joint family do not ordinarily fall within clauses (b) or (c) of that section except in established categories (notably where a manager contracts for family necessity or benefit and the contract displaces a prior title to the subject-matter).
Evidence requirement: The court rejected any general presumption that a purchase of immovable property is necessarily for the benefit of a family; proof of benefit or necessity is required to bring a case within clause (c).
Minor protection: The judgment reiterates the equitable principle that a minor will not be compelled to perform unless the court is satisfied the act will be for the minor’s benefit; the mere absence of shown detriment is insufficient where any possibility of detriment exists.
No new expansive precedent beyond these points was established; the court applied and reconciled earlier authorities and stated its view that co-parceners should not be treated as within Sect. 27(b) or (c) except in the limited circumstances described.

Disposition in text: "In this view the appeal must be allowed and the suit dismissed with costs throughout." Devadoss, J. concurred.

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Bappu v. V.A. Annamalai Chettiar

Phillips, J. — In this case the plaintiff entered into a contract with the first defendant for the sale of his lands and brought this suit for specific performance of the agreement. The 1st 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 4th 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 Sect. 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 Sect. 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.

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 Sect. 27. The two clauses of the section which it is contended for respondents, are applicable are (b) and (c). Ch. (b) read 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, 1st 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 co-parcenary 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 co-parcener 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 Venkateswara Aiyar v. Raman Nambudri(1), Coutts Trotter, J., appears to have accepted the contention that a co-parcener in a joint Hindu family does come under the definition in Sect. 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 coparcener would probably come under Cl. (c), because the contracting party has a right to displace his title in cases of benefit or necessity.

Coming to the definition of Sect. 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 Shunmugam Chetty v. Subba Reddi(2), Ramachandra Aiyar v. Sundaramurthi Mudali(3) and Krishna Aiyar v. Shamanna(4), and there are many others. The Courts have not in all cases referred in terms to Sect. 27 (c) 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 Cl. (c).

It is now contended for the plaintiff that the same principle must be applied to the present case and that, this being a case of purchase of immoveable property the contract can be enforced against the co-parceners, because the purchase must be deemed to be for the benefit of the family. This argument is based on an alleged presumption that every purchase of immoveable property must be for the benefit of the family, for no evidence has been let in on this point. There is no such presumption in law, and if we look on it as a presumption of fact, it must depend upon the circumstances of each case. Here the defendants are a trading family whose interest might be better served by the investment of any surplus cash in their trade rather than in purchase of immoveable property. There are many other conceivable circumstances in which a purchase of land would not be for the benefit of the family. We cannot therefore in the absence of evidence make any such presumption, and consequently it is necessary for plaintiff to prove this benefit by evidence, if he claims a decree on that ground. Returning to the question of whether defendants 2 to 4 come within the definition of Cl. (c), we have to consider what is the title under which they can be said to claim. It is, I think, clear that the title referred to there is title to property, which is the subject matter of the contract. Here the property is merely a sum of money which the father had promised to pay. It is not in evidence that there was any definite sum of money lying in his hands nor the manner in which the father was going to obtain it. He might have intended to obtain the money by begging, borrowing, or even stealing, in which case these co-parceners could not possibly claim under a prior title. It is argued that the purchase money must eventually come out of the family property or at least out of the father's share of the property and that, therefore, the title in question is the title to the family property. As I pointed out above, it is not necessary that the money should come from any family property but might have been obtained by the father from some outside source. In this view defendants 2 to 4 would not claim under any title to it. If that is so, it would appear that these defendants do not come within the definition in Cl. (c). Looking broadly at Sect. 27, it would appear that contracts for purchase are not included amongst the contracts which can be enforced against persons other than the contracting party himself. Sect. 23 which specifies the persons, who can enforce specific performance includes “the representatives in interest of the parties to the contract and is consequently very much broader than Sect. 27 which makes no mention of such representatives. As regards contracts for purchase, it is not difficult to suggest a reason for their exclusion from contracts of which specific performance can be decreed, for it is of no special benefit to the vendor to get his money from the contracting party rather than from some one else, and, even though the price from the other person may be less than the agreed price, he always has his remedy against the contracting party in damages, so that he will suffer no loss from the reduction in price. On the other hand when the property to be transferred is land, nothing else can adequately be substituted for it, and consequently a suit for the specific performance of a contract to sell land is more freely allowed, as no other remedy would be adequate. However this may be, I think it is quite clear that we cannot bring defendants 2 to 4 within the definitions in Sect. 27 (b) or 27 (c). If that is so, no decree for specific performance can be given against them. I now refer to some cases cited firstly, to the Full Bench decision reported in Rangayya Reddy v. Subramania Aiyar. There the real question at issue was not identical, but Wallis, C.J, and Sadasiva Aiyar, J., were both of opinion that co-parceners could not be compelled to perform a contract entered into by another co-parcener. There is a case in Bhagwan v. Krishnaji, in which a Bench of the Bombay High Court has held that Sect. 27 (c) does include the members of a joint Hindu family, and this decision appears to be based not on the language of the section itself, but from the illustrations to Cl. (c), the reason given being that, unless those illustrations are to be made applicable to a joint Hindu family, the large majority of Hindus would be excluded from the benefits of the section. With all respect I am unable to agree with this view, as it seems to me impossible to bring co parceners within the definition in either clause, except in the cases I have referred to, namely, when the contract is by a manager as such for necessity or for the benefit of the family.

It is next argued for the plaintiff that defendants 2 to 4 are liable under the pious obligation imposed by Hindu law to repay their father's debts, that the father's liability to pay the purchase money must be considered to be a debt. Even if the obligation undertaken by the father can be said to be a debt, and I do not think it can, for it was at best a potential debt, we are not here concerned with their liability to repay it, but with the question whether they can be made to perform a particular contract, for this suit is not one for damages in which other circumstances might possibly have to be considered.

There is yet another broad principle of equity upon which the refusal to allow specific performance can be based and that is, that, when one of the parties is a minor, a Court will not compel him to do anything unless it is satisfied that such act is for the benefit of the minor. It is argued that it has not been shown that this contract would be detrimental to the minor, but that it is not sufficient, for, if there is any possibility of there being any detriment, the Court will require to be satisfied that the possibility no longer exists before it takes action. For this reason also, I think the contract could not be enforced against the 4th defendant.

In this view the appeal must be allowed and the suit dismissed with costs throughout.

Devadoss, J.—I concur.

K.V.SAppeal allowed..

Bappu v. V.A. Annamalai Chettiar

Judgment Summary — Phillips, J. (Devadoss, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Defendants 2–4) Arguments

Plaintiff's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bappu v. V.A. Annamalai Chettiar

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