T. Rangayya Reddy v. V.R. Subramania Ayyar

This Civil Miscellaneous Appeal and the Memorandum of Cross Objections came on for hearing in the first instance before Oldfield and Sadasiva Ayyar, JJ., who delivered the following Orders of Reference to a Full Bench:—

Oldfield, J.:— Plaintiffs claim in this suit, first, specific performance of a contract by first defendant to sell and secondly, as consequential relief, possession of the property sold by means of a partition, to which defendants Nos. 1 to 5, the members of the joint family it belonged to at the date of the contract, will be necessary parties. The main question argued is whether this constitutes misjoinder. The Subordinate Judge held that it did, gave plaintiffs an opportunity to withdraw their consequential claim and, as they did not do so, dismissed the suit. The District Judge in the Order under appeal directed separate trials of two claims under Order II, rule 6, and then struck out the prayer for partition without, as I understand him, making it plain that it was reserved for separate disposal.

The matter is further complicated by the fact that the contract is alleged as being for the sale, not of first defendant's unascertained share or any particular part of it, but of his share in certain specified lands, which of course may or may not fall to him, when the partition takes place. It will be simplest to deal first with the question raised in its more general form, whether claims for specific performance against a vendor and possession by means of partition against him and his co-parceners can be made in one suit. If the answer is in the affirmative, it will be necessary secondly to decide whether such a suit is sustainable, when it is brought in respect of the sale of and for possession of specified properties, and whether any amendment of the plaint can make it so.

Firstly as regards misjoinder, we have no doubt been shown no decision, in which such a suit as this was permitted expressly. But this and other High Courts have held, as for instance in Bugata Appla Naidu v. Chengalvala Jogiraju(1) and Madan Mohan Singh v. Gaja Prasad Singh(2) that a suit against a vendor for both specific performance and possession is sustainable; and it is well established (Mayne's Hindu Law, Eighth Edition, page 488) that a suit will lie against a vendor and his co-parceners for partition and possession by the purchaser of an unascertained share of family property or a portion of one. It is then difficult to understand why all these reliefs should not be asked for in one suit. For, the purchaser's right to sue for possession as well as specific performance once recognized, if the objection is only that the right to sue the vendor for possession involves none to sue others, who claim jointly with him, the contrary is entailed by the second principle just referred to. And again with reference to the wording of Order I, rule 3, and such cases as Sri Raja Simhadri Appa Rao v. Prattipati Ramayya(3), Aiyathurai Ravuthan v. Santhu Meera Ravuthan(4) and Kovvuri Basivi Reddi v. Tallapragada Nagamma, I should be inclined to hold that there is no misjoinder in the present case, the claim to relief against all the defendants arising in respect of the same transaction, plaintiffs' purchase, and the common question between them and each of the defendants being of the share, to which they through first defendant would be entitled on a fair partition.

Defendants' objection to this conclusion is based mainly on the character of the transaction, on which the suit is founded, as a contract, specific performance of which is asked for, and the particular rule alleged by them to be applicable to such suits, that strangers to the contract cannot be parties to them; and this general principle is no doubt laid down at page 94, Fry on Specific Performance, Fifth Edition, and in numerous cases, the most apposite being Tasker v. Small and Bugata Appla Naidu v. Chengalvala Jogiraju already referred to. But defendants' argument takes no account of the circumstances, in which the principle was applied in these cases or the exceptions to it allowed in others. In each of the cases cited the stranger in question held, as defendants do here, under a title, which originated prior to the contract of sale. But he was a mortgagee and, as was pointed out in Tasker v. Small, he would not be bound to surrender the property on that contract being enforced or until he was redeemed, which might never happen, and he had no concern with the adjudication between the plaintiff and the mortgagor on the question which would be entitled to redeem him. So also in Narasinga Row Gaday Row Sahib v. Rangasami Thevan referred to by my learned brother, the third persons in question were sued as tenants, who could be ousted from possession, only when their tenancy expired, and who had no direct interest in the decision of the suit for specific performance. In the case before us the plaintiffs' claim to possession against the stranger defendants is not contingent on anything except the enforceability of the contract of sale. For, when that is declared, the former's right to possession will arise immediately, not the less because it can be made effective only by the legal method, a partition to which defendants Nos. 1 to 5 are parties and which, first defendant could at any time have demanded.

Reference postponed to the plaint allegations regarding the partition, which has actually been made, the foregoing entails that second to fifth defendants' title, though prior to the contract and known to plaintiffs, might have been displaced by first defendant; and then reference to section 27(c) of the Specific Relief Act affords an answer to second to fifth defendants' objection. That this clause applies to contracts for the sale of the unascertained share of a joint tenant appears from the second illustration to it. The illustration is no doubt to the case of a vendor, who might have displaced his joint tenant's title but for his death, not as here, of one who has evaded his duty to displace it. That may be because the two English cases, referred to at page 1031, Dart on Vendors and Purchasers, Seventh Edition, Volume II, as authority for the doctrine, deal only with its application to a surviving joint tenant. But it is stated by the learned author, as it is in the Act, without qualification; and it must therefore be applied to the case before us.

It is not the less applicable, because the plaint contains an admission that a suit for a partition, brought by first defendant against second to fifth defendants, was in progress when the contract to sell was made. For, if that suit was contested honestly, second to fifth defendants can claim at most the plaintiffs' right under their contract is restricted to receiving whatever they are entitled to from the property awarded to first defendant under the decree, which has been passed. Plaintiffs however allege (it must be assumed for the present purpose, truly) that the suit was not contested honestly and that the compromise decree, in which it ended and which awarded to first defendant a large proportion of his share in cash and a small proportion in land, was intended to defraud them and to defeat their rights under their contract, of which second and fifth defendants had known throughout. They therefore contend in accordance with Fateh Chand v. Narsing Das that the partition under that decree should not prejudice them and that a fresh partition should be made. These allegations afford additional ground for the application of section 27(c), since they justify reference in support of it to Mokund Lall v. Chotay Lall, which was apparently, though not statedly, decided under it. There the stranger defendant was held to be a proper party, because he had combined with the vendor to defeat the purchaser's rights; and it cannot be a valid ground of distinction that there the device employed was possession under a benami title, whilst here it is the use of fraud affecting the fairness of the partition, by which the purchaser's rights are to be worked out. I therefore hold that in the circumstances stated there is no objection to a suit for specific performance, partition and possession against all these defendants.

The second question above stated calls for decision, because plaintiffs' contract was for the sale only of first defendant's share in certain specified items of property, not directly or in the alternative of his share, as it might be ascertained; and it may be mentioned that one part of the fraud imputed to defendants in connection with the partition above referred to is that they excluded all those items from first defendant's share. Their present contention however is that, as laid down in Duvvur Subba Reddy v. Kakuturu Venkatrami Reddy: “On the view that a co-parcener cannot alienate any specific property, no specific performance can be decreed” of a contract to alienate such property. The dictum was however obiter; and, with all respect, I can accept it only on the assumption that the learned Judge concerned was referring to a decree, not only for specific performance proper by execution of a conveyance, but also for possession, the two cases cited by him dealing with claims only to the latter. It is true that an alienee of specified property does not as of right acquire any interest in it. But it is well settled, and it was held by the same learned Judge in Manjaya v. Shanmuga, that his conveyance enables him to demand a partition of the family property and entitles him either to the specified property, if that can equitably be assigned to his vendor's share, or to its equivalent from such other property as that share may include. The rights conferred by such a document, though not necessarily those expressed in it, are not unsubstantial; and there is no reason why the law should refuse to enforce the contract to transfer them by compelling the execution of a sale deed in accordance with it. The plaint before us no doubt is defective in so far as it asks for possession under the sale deed to be executed only of the specified properties. But Mr. Govindaraghava Ayyar on behalf of plaintiffs has undertaken to make any necessary amendment, and his clients would probably have amended in the lower Courts, if they had been asked to do so. The proper form of prayer is that given in the statement of facts in Aiyyagari Venkataramayya v. Aiyyagari Ramayya and the plaint, amended in accordance with it, would in my opinion be open to no objection.

I would therefore set aside the decrees of the lower Courts and remand the suit to the Subordinate Court with directions to restore it and

(1) To give plaintiffs a reasonable opportunity to amend as directed above.

(2) If such amendment is made, to dispose of the suit according to law.

(3) If it is not made, to dismiss the suit so far as it relates to partition and possession and dispose of it so far as it relates to specific performance. In accordance with the foregoing I would dismiss the appeal against order and allow the memorandum of objections.

As however my learned brother differs, we refer to a Full Bench the questions:

(1) Whether 2 to 5 defendants are proper parties to the suit?

(2) Whether the relief of partition and possession can be claimed by plaintiffs in one suit as well as execution of a sale deed?

Sadasiva Ayyar, J.:— The facts have been set out in the judgment of my learned brother which I had the advantage of studying before writing my own.

I am unable to distinguish on principle Tasker v. Small from the present case in respect of the question whether in a suit for specific performance a claim for possession against persons other than the vendor could be joined. Tasker v. Small was recognized as good law in Bugata Appla Naidu v. Chengalvala Jogiraju. Bugata Appla Naidu v. Chengalvala Jogiraju was followed in the recent judgment (dated 27th July 1916) in Narasinga Row Gaday Row Sahib v. Rangasami Thevan decided by this Bench. I shall quote two sentences from our judgment in the last case: “The remaining argument is that the third and fourth defendants should not have been made parties, because the contract, to which they were strangers, between the plaintiff and the first and second defendants was for the sale of the land and did not include the giving of possession of it by the last mentioned.”. “In the absence of an agreement to give possession, there is nothing against our applying the principle enunicated in Bugata Appla Naidu v. Chengalvala Jogiraju and holding that the third and fourth defendants are not proper parties to the suit.”

As regards the argument based on Order I, rule 3, of the Code of Civil Procedure, I do not think that the act or transaction which is the plaintiffs' cause of action entitling them to claim the relief of specific performance against the first defendant gives them also the right to the relief of partition and separate possession of one-third share from the defendants Nos. 2 to 5. The transaction which would entitle them to such relief against the defendants Nos. 2 to 5 had yet to come into existence, namely the execution by the first defendant (or on behalf of the first defendant by the Court) of a proper conveyance of the first defendant's one-third share. I entirely agree with the principles of law, enunciated by Tyabji, J. in Krishnammal v. Soundararaja Aiyar. Though, where only the vendor and persons claiming by title subsequent to the plaintiffs' contract or persons whose title may be displaced by the vendor are joined as parties, the relief for the specific performance of a contract of sale can be supplemented by a prayer for possession (such joinder being allowed for the sake of convenience and to prevent useless multiplicity of suits), I do not think that the plaintiffs could be allowed to join in the same suit a future cause of action for partition against third persons (which cause of action could not vest in the plaintiffs till they get a conveyance from their vendor) along with the existing cause of action against the contractor (promisor) to obtain the specific performance of the contract, namely, the execution of the conveyance. The “right to relief” and “the same act or transaction or series of acts and transactions” mentioned in Order I, rule 3, must “exist” on the date of suit for the privilege granted by that section to be taken advantage of, whereas the right to relief of partition and possession had in this case to come into existence, even if all the plaint allegations were true. Aa Tyabji, J., puts it is Krishnammal v. Soundararaja Ayyar: “The effect of section 55(1) of the Transfer of Property Act, when read with section 54 of the same Act and with the Registration Act, is that in the absence of an express agreement to transfer possession, independently of the registered conveyance, the purchaser — (or to be accurate, the person agreeing to purchase) — has no right to the possession of the property until the conveyance is completed.” It follows a fortiori that he has no right to sue strangers to the contract for partition and possession till he gets his conveyance. Such a suit for partition and possession against strangers would clearly be premature.

As regards the contention based on section 27, clause (c) of the Specific Relief Act, I think the phrase used in that section, namely, “might have been displaced by the defendant” means “might have been displaced by the defendant according to his unilateral will and pleasure.” This, I think, is clear from the second illustration to that clause. In the present case, the first defendant could not by his own will and pleasure, without reference to the consent of the defendants Nos. 2 to 5 or without obtaining a decree of Court (the Court having the power in a partition suit to allot properties according to its sense of justice and equity) have displaced the title of the defendants Nos. 2 to 5 to their undivided joint ownership and possession in the plaint three items. Further, section 27, clause (c) relates only to the rights to the specific performance of the contract against a third person claiming title and not to the question of the right to bring a suit for recovery of possession against the persons not parties to the contract. The second illustration to section 27, clause (c) (where it said that C may enforce the contract against B) only means in my opinion that B might be directed to convey A's half share to C. If C also claims partition and possession of that half in the same suit and if B is in possession of the whole, the relief of partition and possession may also be granted (according to the practice of the Courts) in order to prevent multiplicity of suits as the possession of no third party has to be disturbed. It may be said that in Bugata Appla Naidu v. Chengalvala Jogiraju and Narasinga Row Gaday Row Sahib v. Rangasami Thevan section 27, clause (c) of the Specific Relief Act was not referred to. But for the reasons set out by me above as to the scope of that clause I do not consider it legitimate to distinguish those cases on that ground. I therefore agree with the learned Subordinate Judge that the plaintiffs ought to have amended the plaint by withdrawing the claim for partition and possession against the defendants Nos. 2 to 5 and by striking off the words in the plaint claiming partition and possession. They might, if so advised, have asked for the relief of possession as against the properties which fell to the first defendant's share in the partition decree already made as between the defendants, but they must, in that case, abandon the contention that the decree in the partition suit was collusive and fraudulent.

The next question is whether on the plaintiffs' omission to amend as directed, the suit ought to have been dismissed wholly as the Subordinate Judge did. Order VII, rule 11 of the new Civil Procedure Code does not contain the clause (d) of section 54 of the Old Civil Procedure Code which provided that if the plaint is not amended within the time fixed by the Court, it should be rejected. I think that under those circumstances the Court itself (see Order VI, rules 16 and 17) ought to have exercised the power to strike out and amend all matters in the plaint which tend “to prejudice, embarrass or delay the fair trial of the suit” and “in such manner and on such terms as may be just.” In the present case, not only is the plaintiffs' claim against the defendants Nos. 2 to 5 premature, but they make allegations as to fraud, collusion, notice, the effect of the decree in another suit (Original Suit No. 8 of 1907) to which they were not parties and other matters (see paragraphs Nos. 3, 6, 7 and 8 of the plaint) which have nothing to do with their personal right against the first defendant to get a conveyance from the first defendant of the undivided one-third share which belonged to the first defendant on the date of the contract of sale. The trial of those matters along with the matters which directly and legitimately arise out of the contract of sale (which contract does not contain any stipulation as to the giving of possession) would clearly lead to embarrassment and delay. The Subordinate Judge ought, however, not to have dismissed the suit wholly for the reasons already given by me.

On the question whether the plaintiffs as purchasers of the undivided share of the first defendant in some only of the family properties are entitled to sue for specific performance, I agree with my learned brother for the reasons stated by him and I respectfully dissent from the view propounded in Duvvur Subba Reddy v. Kakuturu Venkatrami Reddy, on that point.

In the result, I would, in modification of the lower Appellate Court's order, remand the suit; to the Subordinate Judge with directions to have the plaint amended by striking out the names of the defendants Nos. 2 to 5 and the prayers for partition and possession and by making any further consequential alterations (the amendments to be made either through the plaintiffs or by the Court itself) and to proceed with the trial of the suit as so amended, costs hitherto abiding.

On this Reference—

N.S Rangaswami Ayyangar for T. Narasimha Ayyangar for the appellant.

Oldfield, J.:— Thinks that there is no misjoinder on account Order II, rule 5. But there is a misjoinder.

[Srinivasa Ayyangar, J.:— Is there any cause of action for partition against the co-owners before one gets a decree for a share against his vendor?]

I submit there is no cause of action. See Tasker v. Small, though in a suit against the vendor alone both the reliefs can be claimed; see Bugata Appla Naidu v. Chengalvala Jogiraju. On misjoinder: see Narasinga Row Gaday Row Sahib v. Rangasami Thevan, Luckumsey Pokerda v. Fazulla Cassumbhoy(5), Ahmedbhai v. Sir Dinshaw M. Petil(6) and Davlatsinhji (Maharana Shri) v. Khachar Hamir Mon(7).

[Srinivasa Ayyangar, J., referred to the recent Privy Council case Mussammat Radha Kunwar v. Thakur Reoti Singh(8).]

Cases of reliefs alternatively against two sets of defendants are different. Reference was made to Kovvuri Basivi Reddi v. Tallapragada Nagamma and Fateh Chand v. Narsing Das. Sri Raja Simhadri Appa Rao v. Prattipati Ramayya is distinguishable.

L.A Govindaraghava Ayyar (with K.N Kumaraswami Ayyar) for the respondents Nos. 1 and 2.

A person who has got a contract in his favour has two rights which are concurrent and not consequential, (a) to get a conveyance and (b) to get possession. The right to possession springs out of the contract and not of the conveyance; see Madan Mohan Singh v. Gaja Prasad Singh. The principle is to have one suit to avoid multiplicity of suits it all cases where there is no room for embarrassment. In this case I have to prove my contract as against my vendor's co-parceners also. I rely on Fateh Chand v. Narsing Das which is exactly similar to this case. There is no multifariousness.

[Srinivasa Ayyangar, J.:— If you apply the principle of that case you can at best be entitled to joint possession but not to actual division.]

My vendor has the right to get a division, and I get it. [Srinivasa Ayyangar, J.—Suppose that one item of family property is a mortgage right, are you entitled to join the mortgagor and ask for sale.]

I am entitled to the right of my vendor.

[Wallis, C.J—A mere contract does not create an interest in the property.]

[N.S Rangaswami Ayyangar referred to Kota Balabhadra Patro v. Khetra Doss and Maharaja of Bobbili v. Venkataramanjulu Naidu and distinguished Fateh Chand v. Narsing Das.]

L.A Govindaraghava Ayyar referred to Compania Sansinena De Carnes Congeladas v. Houlder Brothers & Co., Ltd., Bishop of Winchester v. Mid-Hants Railway Company(9), Attorney-General v. Sttingbourne and Sheerness Railway Co.(10), Smurthwaite v. Hannay, Bugata Appla Naidu v. Shengalvala Jogiraju, Madan Mohan Singh v. Gaja Prasad Singh and distinguished the cases quoted by the appellant. The matter is governed by Order 1, Civil Procedure Code, and Section 27 of the Specific Relief Act. On the facts of this case, the co-parceners must be treated as subsequent transferees with notice; see also Fry on Specific Performance, section 175, et seq., and volume 27, Halsbury's Laws of England, section 141, page 79 et seq.

The Court delivered the following Opinions:—

Wallis, C.J:— 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 a fresh suit for possession to which there could be no defence; Bugata Appla Naidu v. Chengalvala Jogiraju. It is however in my opinion quite a different thing to allow a stranger to make the members of a joint Hindu family defendants parties 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 joint family.

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 is not merely technical but well founded in principle. In De Hoghten v. Money Turner, L.J, observed: “Here again his case is met by Tasker v. Small, 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, Chadwick v. Maden and West Midland Railway v. Nixen. 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 Mildred Howard v. William Miller, seems to be in accordance with the view I have taken.

As regards Bishop of Winchester v. Mid-Hants Railway Company 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. Sttingbourne and Sheerness Railway Co..

As to Section 27 of the Specific Relief Act, that section merely provides against what persons contracts may be specifically enforced. They include not only (a) the parties to the contract and (b) parties claiming under them by title subsequent other than transferees for value and without notice but also (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.” As an illustration of specific performance being enforced in this way against a person claiming under a title prior to the contract, we are given the case of two joint tenants each of whom owns an undivided moiety which he may alienate during his life-time but which in default of alienation devolves on the survivor. All that the illustration shows is that, if one of the joint tenants contracts, as he is entitled to do, to sell his share and dies before performing his contract, specific performance of that contract may be enforced against the other joint tenant. The section and the illustration, in my opinion, have no bearing on the question before us, which is whether persons who are strangers to the contract and against whom it cannot be specifically enforced can be properly joined as defendants and partition claimed against them as co-parceners of the vendor.

As regards the first question, I agree with the opinion of Srinivasa Ayyangar, J., which I have had the advantage of reading.

Abdur Rahim, J.:— The questions referred depend, in my opinion, for their answer on the provisions of Order I of the Civil Procedure Code and Section 27 of the Specific Relief Act. Rule 3 of Order I, Civil Procedure Code, which is directly applicable is in these words:—

“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if separate suits were brought against such persons any common question of law or fact would arise.”

Rule 1 relates to the joinder of plaintiffs and is in identically the same words as rule 3 with “plaintiffs” substituted for “defendants” and with necessary alterations to suit the case of plaintiffs. Comparing them with the corresponding provisions of the Code of 1882, it is clear that the legislature by replacing the words “in respect of the same matter” of the old Code with the words “in respect of or arising out of the same act or transaction or series of acts or transactions” followed by the qualifying proviso—“where if separate suits were brought against such persons any common question of law or fact would arise” has materially widened the scope of the rules relating to joinder of parties. This is evident both from the more comprehensive nature of the language of the new rules and the history of the legislation on the subject.

The new words are taken from rule 1, Order XVI of the rules of the Supreme Court of 1896 where they were introduced because of the decision of the House of Lords in Smurthwaite v. Hannay holding, in reversal of the judgments of Esher, M.R, and Kay, L.J, in the Court of Appeal, that the rule related only to joinder of parties in respect of the same cause of action and not to joinder of causes of action. This was exactly section 26 of the Indian Code of 1882 which contained the very words “in respect of the same cause of action.” The amended rule 1 of the Supreme Court Rules of 1896 was evidently intended to carry out the view expressed by Lord Esher, M.R, that if in a case like Smurthwaite v. Hannay where “the different causes of action and claims all arise out of the same transaction” more than one plaintiff was not allowed to join, it would be lamentable waste of time and money. In fact the English Rule Committee and, following them, the Indian legislature went further in permitting such joinder, not merely with respect to right to relief arising out of the same transaction but a series of transactions.

In England while rule 1 was amended rule 4, which dealt with the question of joinder of defendants, was allowed to remain as it was before 1896. Nevertheless the Court of Appeal in Compania Sansinena De Carnes Congeladas v. Houlder Brothers & Co., Ltd. holding that the alteration of rule 1 made it clear that Order XVI did not deal solely with joinder of parties and that rule 4 must be interpreted in the light of rule 1, laid down that the power to join several defendants in the same action extended to cases where the subject-matter of complaint as against the several defendants is substantially the same although the causes of action against them respectively are, technically, different in form, and the several liabilities alleged against them respectively are to some extent based on different grounds. The Indian legislature however provided against all difficulties of interpretation by enacting rule 3 in the same words as rule 1. By section 28 of the old Code the right to relief was required to be “in respect of the same matter”; under rule 3, it is sufficient if such right exists ‘in respect of or arises out of the same transaction or series of transactions subject only to the condition that there be any common question of law or fact to be decided.’ It does not matter whether there are more than one and technically different causes of action [Compania Sansinena De Carnes Congeladas v. Houlder Brothers & Co., Ltd.] or the liabilities of the several defendants are different, rule 4(b); nor is it necessary that every defendant should be interested in all the reliefs claimed in the suit: rule 5.

But it is argued that these rules do not affect the question whether to a suit for specific performance strangers to a contract may be joined as defendants and it is contended that it is governed by the rule laid down by Lord Cottenham in Tasker v. Small.

It is perfectly clear, however, that even in England where the general rule still is that the parties to the contract are the necessary and sufficient parties to the action as held in Tasker v. Small there are many real or apparent exceptions to this rule which is after all a rule of convenience and good sense (see Fry's Specific Performance, sections 176 and 192). Some of the exceptions were recognized under the former practice of the Court of Chancery itself while the rules of the Supreme Court have largely enlarged the powers of the Court in joining any party whose presence may be necessary (see Halsbury's Laws of England, volume 27, notes to section 141, page 79, and Fry's Specific Performance, section 192). It has been held in England that persons claiming adversely might be made defendants, a person who by virtue of an antecedent contract with the vendor claimed an interest in the purchase money was a proper party to a suit for specific performance, in the case of purchases from a voluntary settlor when the contract was sought to be enforced by a purchaser not only the vendor but the trustees of the settlement and the persons beneficially interested under it were properly made defendants, and in some cases where a portion of the relief claimed might affect the person in actual possession of the property that person may properly be made a party to an action for specific performance of the contract; see the Summary of Cases in Fry's Specific Performance, sections 175, 180, 181, 185, 187, 188, 189, 192 and 210, and Halsbury's Laws of England, volume 27, section 141, and notes thereto. Bishop of Winchester v. Mid-Hants Railway Company was a case of the last class where Stuart, V.C, held “Ordinarily a person not being a party to the contract ought not to be brought before the Court. But it is otherwise where possession is sought by the bill, and the person in possession will be affected by the decree.”

That in a suit to enforce specific performance of a contract for the sale of immoveable property possession can also be asked for and obtained as against the vendor is well established by the rulings of this Court as well as of the other Indian High Courts: see Bugata Appla Naidu v. Chengalvala Jogiraju, where the learned Chief Justice and Seshagiri Ayyar, J., say: “It is the practice in this and other Courts to allow a claim for possession to be included in a claim for specific performance of a contract for the sale of immoveable property and we are not prepared to question it.” And it was not argued before us that as against the vendor himself partition could not be obtained in such a suit although delivery of possession might be, at any rate any such distinction would be altogether untenable. That a buyer of a Hindu co-parcener's share cannot ask for joint possession but only for partition cannot surely make his position any worse.

The real ground on which objection to the joinder in this case of defendants Nos. 2 to 5, who are the co-parceners of the first defendant who contracted to sell his share in certain items of the family property to the plaintiff, is based, is that the right to partition does not arise until after the conveyance has been executed under the decree of the Court. This objection, it may be pointed out, primarily raises the question as to what reliefs can be obtained along with specific performance and relates to the joinder of defendants only inferentially. I do not see why we must say that the right to ask both for specific performance and for possession did not arise at the time when the vendor refused to carry out the bargain and give the vendee possession of the property.

I may observe however that it does not follow that because in a suit for specific performance the plaintiff does not ask for delivery of possession, Order II, rule 2 of the Code of Civil Procedure would be a bar to a future suit for possession. For, ordinarily, the vendor is either not interested in denying or cannot deny the plaintiff's right to obtain delivery of possession of the property if the latter has a right to enforce the contract and the question therefore of the purchaser's right to possession is seldom raised at a time when the very contract of sale or the plaintiff's right to enforce it is still in dispute.

That by virtue of section 54, Transfer of Property Act, no interest in immoveable property is created by the contract of sale itself does not at all affect the question. It is sufficient for the plaintiff to say that by the contract be obtained the right to acquire the property with the aid of the Court, the execution of a registered instrument and delivery of possession being the means by which the right is to be enforced. The decision of the Privy Council in Venkayyamma Rao v. Appa Rao is based on this principle. I think it would be unreasonable to hold that the right of possession does not arise out of the contract so as to be covered by the words of rule 3: see Madan Mohan Singh v. Gaja Prasad Singh.

Nor can it make any difference that the right to one relief, that is, possession, is contingent on the plaintiff establishing his right to another relief, namely, execution of a proper conveyance by the defendant. There are many other examples of such suits: e.g, suits for establishing right to and to recover immoveable property and for mesne profits, for setting aside alienation on ground of fraud or undue influence and other cases of that description.

I am also of opinion that section 27, clause (c), of the Specific Relief Act applies as illustrated by the two examples appended to it, especially the second case which is as follows:—

“A and B are joint tenants of land, his undivided moiety of which either may alien in his life-time, but which, subject to that right, devolves on the survivor. A contracts to sell his moiety to C, and dies. C may enforce specific performance of the contract against B.”

This illustration, which is undoubtedly covered by the terms of the section, is substantially the present case and shows that a purchaser from a co-parcener can enforce specific performance of his contract against the other co-parceners. That being so, the only question is whether the joinder of prayer for possession or partition is permissible, and I have already tried to show that it is.

As for the suggestion that the joinder of parties other than the vendor as contemplated by section 27 is for the purpose of compelling them to join in the conveyance, it is not necessary to express any opinion upon it on this reference. All that I wish to say on that point as it is raised in Sadasiva Ayyar, J.'s judgment, is that in some cases it may be necessary to order persons other than the vendor to join in the execution of the deed of sale. And that, I may observe, was the kind of question that was really mooted in Tasker v. Small and the other English decisions of that category. In Mildred Howard v. William Miller also, all that was decided was that no decree for specific performance could be given against a person who was not a party to the agreement. Anyhow, I fail to see that because defendants Nos. 2 to 5 might or might not be asked to join in the conveyance, it follows in any way that partition might not be obtained as against them in the same suit.

It is obvious that to require the purchaser first to enforce specific performance of the contract of sale and after he has obtained a decree to that effect, to institute a separate suit for partition, would be a wholly unnecessary multiplication of suits resulting in a mere waste of time and money. In some cases, where, for instance, a coparcener or tenant-in-common who had been excluded from his share sold to a bonâ fide purchaser shortly before the lapse of the period of limitation, the purchaser might lose the whole bargain through no fault of his own. As, in my opinion, the terms of Order I of the Code of Civil Procedure and Section 27 of the Specific Relief Act negative such a narrow construction and there is nothing in reason or principle to warrant it, I would answer both the questions in the affirmative. There is no decision exactly in point, but in so far as Bugata Appla Naidu v. Chengalvala Jogiraju and Narasinga Row Gaday Row Sahib v. Rangasami Thevan may be regarded as laying down any general rule that in a suit for specific performance, a person in possession other than the vendor cannot be joined as a defendant, I should hold with the greatest deference to the learned Judges concerned in those decisions, that such a general proposition is not sustainable. It is mainly based on the observations of Lord Cottenham in Tasker v. Small without sufficient regard being had to the subsequent relaxations of the old rule in later decisions of the English Courts and the changes effected in the rules of the Supreme Court of England.

If the Court thinks that the claims against several defendants should be separately tried in any cases covered by rules 3, 4 and 5 of Order I on grounds of convenience, it has ample power to order separate trials and it is the obvious intention of the legislature, as is to be collected from the provisions of Order I, that subject to this power, all claims arising out of the same transaction or series of transactions shall be tried together if they are so connected as to give rise to any common question of fact or law.

It may be pointed out that in this particular case the further allegations that the first defendant fraudulently compromised the previous suit for partition instituted by his co-parceners (defendants Nos. 2 to 5) in order to deprive the plaintiffs of the fruits of their purchase and that the defendants Nos, 2 to 5 have been acting in collusion with him with knowledge of the contract of sale, make defendants Nos. 2 to 5 necessary parties to the action.

For these reasons, I agree with the conclusion of Oldfield, J.

Srinivasa Ayyangar, J.:— As I agree generally with the judgment of Sadasiva Ayyar, J., I do not propose to discuss the question at length. The answer to the questions referred to us appears to me to depend upon well-settled principles. To a suit for specific performance of a contract the parties to the contract or their representatives are necessary parties, others bound to perform it are proper parties, and no others can be made parties—Mildred Howard v. William Miller. Section 27 of the Specific Relief Act specifies the persons against whom contracts can be specifically enforced. As a part of this rule all persons who may be affected by the enforcement of the rights of the plaintiff arising out of the contract may properly be made parties; as for example in Bishop of Winchester v. Mid Hants Railway Company, which was a vendor's suit for specific performance, where the plaintiff sought relief by way of declaration of lien for unpaid purchase money and enforcement of that lien by the appointment of a receiver and injunction, the purchaser's lessees were held proper parties. It is also settled that in a suit by the buyer for specific performance of a contract of sale of immoveable property, the plaintiff is entitled not merely to call for a conveyance from the vendor, but also seek possession of the property from the verndor, by compelling him to perform all his obligations under the contract of sale, namely, to give the buyer such possession of the property as its nature admits. Ordinarily and in the absence of a contract to the contrary the buyer would be entitled to possession at the time fixed for completion of the sale and if he accepts the title and offers to pay the purchase money he would be entitled both to call for a conveyance and to possession of the property from the vendor; and in a suit for specific performance the buyer may be entitled to damages in addition to specific performance for the failure of the vendor to give possession at the time agreed. See illustration of the third paragraph in section 19 of the Specific Relief Act—Royal Bristol Permanent Building Society v. Bomash. This right of the buyer, I apprehend, is a right in personam against the vendor and arises out of the contract for sale and is different from the title or the right of property which the purchaser obtains on the execution of the conveyance which enables him to sue in ejectment all persons in possession including his own vendor. If this is the correct view, the fact that a buyer when suing for specific performance of a contract of sale does not seek recovery of possession would not prevent him from seeking that relief on his title which gives him another cause of action. My only doubt is whether the obligation under the contract of sale to give possession is one which is capable of being specifically enforced, and whether the proper relief is not damages for breach of the contract to give possession till execution of the conveyance, after which date the purchaser would be entitled to mesne profits from the person in possession whether such person is the vendor or a stranger without title. Whether a suit for possession based on the obligation under the contract of sale can be brought against a subsequent purchaser with notice of the contract who has obtained possession as such purchaser need not be considered now. In Fateh Chand v. Narsing Das it was held, and in Gaffur v. Bhikaji it was assumed, that it can be.

In the present suit the contract of sale was to sell the first defendant's share in certain items of immoveable property which formed part of the co-parcenary property belonging in common to himself and the other defendants in the case. It is now settled so far as this Court is concerned that this contract, even if completed by a conveyance, would not entitle the plaintiff to joint possession with the other co-parceners—that, in fact, he is not entitled to any sort of possession—but that his purchase, if completed, would enable him to bring a suit for partition in which if the Court making a division considers it fair having due regard to the rights of other co-parceners to allot the property sold to the vendor, the vendee standing in his shoes may obtain that property. It is obvious that the first defendant, the vendor, was under no obligation to place the plaintiff in joint possession of any family property and no other person even if bound to perform the obligation of the contract can be under that obligation.

It was said that in the case of a contract to sell his share of the joint family property by a member of the co-parcenary, there is a contractual obligation on his part to divide himself off from the other members and place the vendee in possession of the property which may be allotted in a fair partition. Without an express stipulation in the contract, I am unable to imply any such obligation from the provisions of the Transfer of Property Act or any other law governing the relation of vendor and vendee. Even in the case of tenants-in-common, where one tenant-in-common sells his share in specific items there appears to be no such obligation: see Freeman on Co-tenancy, section 199 at page 329.

The right to sue for partition does not arise till after the legal title is transferred and when the suit was instituted in the present case there was no right to sue for partition at all. This conclusion apart from any question of joinder of parties or cause of action, which can only arise if there is a right to relief against one or more of the defendants at the time of the institution of the suit, is enough to answer the second question in the negative: see De Hoghton v. Money, especially the obervations at page 170 of the report.

The first question stands on a different footing; and an answer to that would depend on, whether defendants Nos. 2 to 5 are subsequent transferees of the property agreed to be sold to the plaintiff. The compromise in the previous litigation which is challenged in the present suit as a fraud on the rights of the plaintiff under his contract of sale, does not in terms purport to be a transfer of the first defendant's share of the property agreed to be sold to the plaintiff; he as a member of a Mitakshara joint Hindu family had no definite share in any particular item of the family property. In fact, what defendants Nos. 2 to 5 say is that they have only converted their partial interest in the whole of the family properties, into a full interest in some of them, and that no agreement by the first defendant can affect their prior rights in the family property. They in no way dispute the contract of the first defendant with the plaintiff. It is not said that the value of the property allotted to the first defendant is less than the value of his share.

But a partition involves the release of the interest of the other co-parceners in the properties allotted to one of them and though by virtue of their prior title defendants Nos. 2 to 5 may be entitled to a release from the first defendant of his interest in his properties, the subject of the present suit, if these properties were allotted to them in a fair partition without their being affected by the contract of sale which can only operate subject to their rights, yet if the partition is proved to be a fraudulent design to defeat the rights of the plaintiffs under their contract of sale, by the first defendant giving up the chance of the suit properties or a share in them being allotted to him in a fair division, I think that defendants Nos. 2 to 5 in such a case may fairly be treated as subsequent transferees with notice. In Fateh Chand v. Narsing Das, which is perhaps the nearest to the present case, under the form of a compromise one of the defendants got a transfer for money of whatever interest the other defendant had in the property agreed to be sold. It was held that he was a subsequent transferee. The difference between that case and this is obvious; but that, I think, makes no difference in principle. The answer to the first question must therefore be in the affirmative.

In the view I have taken, there is only one cause of action, namely, that for specific performance in this case, the other cause of action, viz., for partition not having accrued on the date of the suit. If there was an existing cause of action for partition on the date of the suit, the question whether the two causes of action, one for specific performance and the other for partition and possession, can be joined in one suit would depend not only on the provisions of Order I, rules 3 and 5, which primarily regulate the joinder of parties, but also of Order II, rules 3 and 4, which provide for joinder of causes of action.

N.R