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Luckumsey Ookerda v. Fazulla Cassumbhoy

Bombay High Court

Dec 20, 1880

Judgment

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CITATION CODES

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CASE NO.

Suit No. 208 of 1879

Attorney(S)

Inverarity (with Lang), for the third defendant, objected that the plaintiff could not obtain the relief he sought against the third defendant in a suit for specific performance against the first defendant. He relied on Tasker v. Small(1) and De Hoghton v. Money(2) and sections 44 and 45 of the Civil Procedure Code, Act X of 1877.

Farran (Jardine with him) for the plaintiff.—I admit that, unless this case can be distinguished from the cases of Tasker v. Small(3) and De Hoghton v. Money(4), the suit as against the third defendant cannot proceed. The objection now taken is, that the plaintiff cannot sue the third defendant, because he has not yet got the legal title to the lands. That objection is based on the decisions in the two cases cited. But in those cases the plaintiff was seeking to get possession, while in this case the plaintiff has had possession since February, 1879, and has paid part of the purchase-money. Section 42 of the Specific Relief Act I of 1877, illustration (8), seems to show that in this country possession by the plaintiff entitles him to sue, thus going further than the English cases, which require the conveyance of the legal estate. See also the section itself. The parties here are not subject to English law; the vendor (i.e, the first defendant) being a Mahomedan and the vendee (the plaintiff) a Hindu. By Mahomedan and Hindu law possession is the important point. No conveyance is required.

The Court can, under section 44 of the Civil Procedure Code, Act X of 1877, give permission to the plaintiff to join the two causes of action in one suit. The question here relates to the same land, and could not properly be heard and decided at the same hearing.

JUDGES

Sir C. Sargent

Kt., J.

ACTS

Specific Relief Act I of 1877, section 42, illustration (a),

SECTION 45 CIVIL PROCEDURE CODE

section 373 of the Civil Procedure Code,

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Sargent, J.:— I do not think that this suit can proceed against the third defendant. It has long been an established rule of the Court of Chancery, as stated by Lord Justice Turner in De Hoghton v. Money, that a mere stranger cannot be a party to a suit for specific performance, and the same rule has always been followed in this Court, as appears from the observations of the Chief Justice in Naoroji v. Rogers(5). In the present suit the plaintiff seeks specific performance of a contract against the first defendant, and also asks for a declaration that the third defendant is not entitled to a certain equitable charge claimed by him against the estate which is the subject-matter of that contract.

But Mr. Farran has contended that the plaintiff being in possession he was entitled under the Specific Relief Act I of 1877, section 42, illustration (a), by virtue of his possession, to a declaratory decree as against the third defendant independently of his established right to a specific performance of the contract with the first defendant.

I do not express any opinion as to the effect of that section of he specific Relief Act, as I think that the plaintiff is precluded by section 45 of the Civil Procedure Code, Act X of 1877, from joining two distinct causes of action against the first and third defendants in the same suit. It was said, indeed, that these two sections must be read with section 28, which provides that “all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative in respect of the same matter.” But it cannot, I think, be said that in this case the relief claimed against the first defendant and the declaration sought against the third defendant, are in respect of the same matter. The right to the relief prayed for against the first defendant is in respect of the non-fulfilment of the contract. The right to the declaration sought against the latter, must be deemed to be in respect of a threatened disturbance of his possession.

I am, therefore, of opinion that the third defendant is not a proper party to this suit. I will, however, allow the plaintiff to withdraw the suit against him, with liberty to bring a fresh suit under section 373 of the Civil Procedure Code, but the plaintiff must pay the third defendant's costs.

Attorneys for the plaintiff.— Messrs. Crawford and Boevey.

Attorney for the third defendant.— Mr. H.W Payne.