1. The plaintiffs in this case Bisambhar, Derha and Manbodhia, who are the appellants before me sued for specific performance of an agreement to sell a three pies village share in patti No. 2 of mouza Kanteli together with 24 acres of sir land. Their case is that defendant 1, Jagdeo, acting on behalf of himself and as a guardian of his minor sons Lachhan Singh and Bahal Singh, defendants 2 and 3, agreed to sell the property to the three plaintiffs, and defendant 4, Anantram, on 14th June 1932 under Ex. P-1, Anantram refused to join them and so he was added as defendant 4. The first question which arises is whether specific performance can be decreed in such cases. It was argued that it cannot unless all the vendors are arrayed as parties on the one side and all the vendees on the other. This was the decision in 24 Cal 832.1 The ruling is a short one and no reasons are given. All that the learned Judges say is that ‘we think, on principle, that they cannot’. With all due respect I am unable to agree. Section 23 of the Specific Relief Act, sets forth the persons who may obtain specific performance. It says:
Except as otherwise provided by this Chapter the specific performance of a contract may be obtained by (a) any party thereto.
2. That would certainly appear to cover a case where one or more co-contractors want to enforce the contract against the will of the others. The wording is not ‘either side thereto’ or even ‘either party thereto’, but ‘any party thereto’. The word ‘any’ indicates one out of a number of persons more than two. If only two parties are contemplated the correct adjective would be ‘either’ or at the most ‘both’. The argument advanced was that the contract cannot be enforced piecemeal and that the Courts cannot make a new contract for the parties. Of course not; but the plaintiffs are not doing that. They want the original contract enforced just as it was made. They want to buy the property and want the Court to compel their co-contractors Anantram to buy it along with them just as he had promised to do, and ask the Court to compel the defendants to sell it to all four in exact accordance with the agreement. That is not a variation of the contract.
3. So long as the plaintiffs are willing to pay the vendors the full price bargained for and ask them to sell to the very persons with whom they had contracted I am unable to see how there is any variation. Any quarrel the purchasers may have among themselves is not being introduced into this suit. Each party is getting exactly what he bargained for and it is no concern of the vendors how these purchasers choose to arrange about the payment of the purchase price as between themselves. That is not a part of the agreement. All that the purchasers undertook to do was to pay the money to their vendors and that is being done. There is no section in the Act which prohibits this. Therefore I am clear that the plaintiffs have a right to sue for specific performance even though one of their co-contractors now refuses to join them. Of course it is essential in such a case that all the parties to the contract should be before the Court. If any are omitted then I can understand difficulties arising. But when as here they have all been joined on one side or the other I am of opinion the suit can proceed.
4. The next question is whether specific performance can be enforced where minors are involved. I need not discuss the effect of the Privy Council ruling in 39 Cal 2322 for their Lordships pointed out there that there is a difference between the position and powers of a manager and those of a guardian. The same distinction is made in 18 NLR 673 where Hallifax, A.J.C held that when the agreement is made by the managing member of a joint Hindu family it can be specifically enforced even if there are minor members in the family, provided of course the transaction is of such a nature that it would have bound the minors if complete. I respectfully agree. In the present case the agreement was by the father. The family consisted of himself and his two minor sons, who have been described in the plaint as aged 7 and 3 years respectively. Prima facie these facts in themselves would imply a joint family with the father as manager. In the written statement defendant 1, Jagdeo pleaded on behalf of the lot of them even though a separate guardian ad litem was appointed for the minors. The written statement commences ‘the defendant abovenamed etc.’ and para. 5 states that ‘the minor defendants cannot be forced to perform the contract adversely to their interest’. The only plea on behalf of the minors by their guardian is that they have no knowledge about the transaction in suit. They do not plead that they are separate from their father. In the circumstances I am not prepared to consider technical quibbles. The pleadings are neither careful nor artistic—they seldom are—and the mere fact that the word guardian has been used instead of the word manager is not enough to non-suit the plaintiffs, when the facts pleaded on both sides make it clear that the family was joint and that Jagdeo was the manager and could have been nothing else. Therefore I am of opinion that the minority of defendants 2 and 3 is not a bar to the specific performance of the agreement in this case.
5. Another transaction also took place on the same day as the agreement for sale between these parties on 14th June 1932. The first three defendants sold their absolute occupancy land to the plaintiffs and Anantram, defendant 4 for Rs. 300. This sale forms the subject matter of the suit out of which the connected appeal, Second Appeal No. 303 of 1934, arises. It was argued that the two transactions are inseparable and that the plaintiffs cannot enforce a part of them only as they form a whole, otherwise that would make a variation in the contract of a kind which the law does not permit. I confess I find it difficult to understand the argument. There are separate documents for the two transactions with separate considerations. One is an agreement to sell for a consideration of Rs. 1,300 and the other is an actual sale for Rs. 300. Even defendant 1 Jagdeo, admits this in para. 2(c) of his written statement dated 22nd November 1932. There is no plea anywhere that the transactions are one and inseparable. The finding of the lower appellate Court is that the agreement in this suit is to sell the property mentioned in Ex. P-1 for Rs. 1,300 and the case of the defendant that the real agreement was to sell for Rs. 2,200 and not for Rs. 1,300 has been disbelieved. It follows there is nothing in this contention. The judgment of the lower appellate Court is right and I dismiss the appeal with costs.
K.B/A.L
6. Appeal dismissed.