1. This appeal is by the plaintiff.
2. The suit was instituted for specific performance of an agreement (Exhibit P-1, dated 5-11-1942 against the respondent (defendant). Under the agreement the defendant agreed to sell occupancy fields of a total area of 80.34 acres for Rs. 7,500. Rs. 50 were paid as earnest money and the sale deed was to be executed on 31-3-1945 on payment of the balance of consideration, Rs. 7,500. The case of the plaintiff was that the defendant purchased the land in suit (18 occupancy fields, total area 80.34 acres) from one Kasturbai under a registered sale deed (Exhibit D-1) on 9-5-1942 and since that date he (the defendant) was recorded as an occupancy tenant of the land. The main defence was that the defendant and his sons agreed to purchase the land and the defendant as manager of the joint family purchased it for Rs. 7,500. The defendant pleaded that the ‘kararnama’ was executed because of coercion and undue influence by the plaintiff and it was accordingly not binding.
3. It was further pleaded that the property was joint Hindu family property and could not be sold in the absence of necessity and the agreement could not bind the interests of the sons. The defendant, however, concluded by saying that he could not represent the family to which the property belonged, and unless the plaintiff was willing to take the defendant's interest only and gave up all rights to compensation and damages, the agreement could not be enforced specifically.
4. The learned trial Judge negatived the defence based on the ground of coercion and undue influence by the plaintiff. He however found that the purchase by the defendant from Kasturbai was in his capacity as manager of the family.
5. On the question whether the agreement by the plaintiff bound the family or not the learned trial Judge found that in the absence of legal necessity the contract did not bind the interests of the sons. He accordingly held that the defendant alone was not competent to sell the whole of the land. According to the learned Judge the case was governed by Section 15 of the Specific Relief Act. Though the plaintiff was given an opportunity to apply under the proviso to that section, he did not do so: Vide order-sheet dated 25-6-1946.
6. The claim for specific performance was therefore dismissed.
7. In appeal, the learned counsel for the appellant contends that the purchase from Kasturbai was itself subject to a term of reconveyance and, therefore, even if the property be held to be that of the joint Hindu family the family was bound to reconveyit. This argument cannot be permitted, because it was not the case of the plaintiff that the sale dated 9-5-1942 and the agreement dated 5-11-1942 were, in fact, part and parcel of the same transaction, viz., a sale subject to a term of reconveyance. Such a case did not arise on the plaint and was not tried. So, we do not think the appellant cap be allowed to succeed on a ground which was not raised in the Court below.
8. The learned counsel, however, contended that the property was not joint Hindu family property. It is well settled that property acquired by or with the aid of coparcenary property itself becomes coparcenary property: — ‘Umrithnath v. Gourneenatn’, 13 Moo Ind App 542 (PC) (A); — ‘Bajirao v. Ramkrishna’, AIR 1942 Nag 19 (B) and — ‘Ratanlal v. Ashoka’, AIR 1950 Nag 259 at p. 262 (FB) (C). The learned trial Judge Held on this point in favour of the defendant.
9. The defendant deposed as D.W 1 that he and his three sons Parasram, Gyaniram and Kuwarlal constituted a joint Hindu family. There is also the evidence of the first son of the defendant as D.W 2 and that of D.Ws 3 and 4 in support of the fact that the defendant and his sons formed a joint Hindu family and that the estate was joint. The plaintiff admitted in cross-examination that the defendant and his sons were joint. The consideration for the sale was paid out of the proceeds of the sale of grain belonging to the family and the funds that were available in the family. In view of all this the finding of the learned trial Judge that the property was joint family property is correct.
10. The question then is whether the plaintiff is entitled to specific performance of the contract in the absence of proof that the sale was for a binding purpose. The appellant does not suggest that there was any necessity for the alienation by the family or that the agreement was binding on the family. But the appellant contends that the agreement did not purport to be on behalf of the family but was only by the father and the plaintiff would be content with a decree for specific performance against the father.
11. Whether the interest of the sons be bound or not the appellant submits that the interest of the father at any rate was bound under the agreement and specific performance ought to be decreed against him leaving the plaintiff to work out his remedy against the sons. To this the respondent replies that the suit should have been thrown out on the ground that there was no averment of continuous readiness and willingness on the part of the plaintiff to perform the contract, and, in any case, the learned trial Judge rightly dismissed the suit applying S. 15.
12. Before we deal with the question of the applicability of S. 15 of the Act, it will be convenient to dispose of the respondent's contention that the suit must fail because of a defect in the plaint. It is true that the averment in the plaint does not contain the set words, “readiness and willingness”.
13. But the plaintiff did assert that he had been unnecessarily put to loss in keeping the amount of Rs. 7450/- ready for payment from the time of the agreement. When the time for completing the contract arrived, he demanded the execution of the sale deed by the defendant. He alleged that he had sent a notice to the defendant, one through his pleader on 13-10-1944 calling upon the defendant to execute the sale deed and receive the balance of the consideration. On 16-3-1945 the plaintiff sent a telegram to the defendant asking him to receive the balance of the consideration and execute the sale by coming over to Gondia where the stamp would be kept ready. The defendant sent a reply to the notice alleging misrepresentation and undue influence and denying liability under the agreement. But to the telegram he did not send any reply.
14. The plaintiff asserted that he was, therefore, required to file the suit for specific performance and that he was ready to perform his part of the contract. Reading the averments in paragraph 1(c) as a whole, we have no doubt that they complied in substance with the requirement as to the essential averment in a suit for specific performance. As observed by Lord Campbell in — ‘Cort v. Ambergate, etc., Railway Co.’, (1851) 117 ER 1229 at p. 1236 (D):
“In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants” (see — ‘Arjunsa Raghusa v. Mohanlal Harakchana’, AIR 1937 Nag 345 at p. 349 (E)).
15. If that be the true test, the suit could not be thrown out on the ground that there was absence of the necessary averment in a suit for specific performance as laid down by their Lordships of the Privy Council in — ‘Ardeshir Mama v. Flora Sassoon’, AIR 1928 PC 203 (P).
16. The defendant denied the allegations of the plaintiff in para. 1(c) of the plaint. But on looking into the evidence there is no manner of doubt that the contract could not be completed not because the plaintiff was not ready and willing to carry out his part of the contract but because of the repudiation of the contract by the defendant in his reply to the first notice and by his silence after the second.
17. The point however remains for consideration whether Section 15 of the Specific Relief Act, governed the case and the plaintiff was not entitled to specific performance because of his insistence on performance of the whole of the contract, instead of partial performance of the contract in respect of the interest of the defendant alone and relinquishing, 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.
18. In — ‘Singhai Ramlal v. Kanhayalal’, AIR 1926 Nag 493 (G) it was held following the Full Bench decision of the Madras High Court in — ‘Baluswami Aiyar v. Lakshmana Aiyar’, AIR 1921 Mad 172 (H) that the managing member of a joint Hindu family who, for purposes not binding upon the other coparcener and without their concurrence, agreed to convey a specific item of the joint family property, could not perform the contract in its entirety and the case fell within the purview of S. 15 of the Act. It was ruled that the purchaser in such a case could not enforce specific performance of the entire contract without satisfying the conditions laid down in the proviso to that section. To the same effect is the decision, in — ‘Panchananda v. Rajani Kanta’, AIR 1931 Cal 463 at p. 487 (I) though it was given under the Dayabhaga.
19. Our attention is drawn by the appellant to a decision of a learned single Judge of this Court reported in — ‘Radhelal v. Subhadrabai’, AIR 1950 Nag 78 (J). It may be observed that in the case cited unlike in the present case no question was raised whether the purpose for which the property had been agreed to be sold was binding upon the family or not. The learned Judge held that it could not be assumed either that the father intended to bind his son or that he intended to sell the property for a purpose not binding upon the family. The facts are thus distinguishable.
20. It may however be observed that the learned Judge expressed agreement with the decision in — ‘Srinivasa Reddi v. Sivarama Reddi’, 32 Mad 320 (K). That decision is to the effect that Section 15 of the Specific Relief Act, does not apply to a sale of undivided property by the manager of the joint family because the manager has an interest in and in certain circumstances power of disposal over every portion of the family property.
21. The decision in — ‘Srinivasa Reddi v. Sivarama Reddi (K)’ (supra) was dissented from in — ‘Nagiah v. Venkatarama Sastrulu’, AIR 1914 Mad 456 (L) by Wallis and Ayling, JJ. The learned Judges observed:
“To us, however, it appears that the consideration that an undivided father has an interest in every part of the undivided property in no way takes the case out of the operation of the section which runs thus: ‘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, …… he is not entitled to obtain a decree for specific performance’. We think the words of the section apply where a member of an undivided family agrees to sell part of the joint property in which he has only a share; and the present case is a particularly plain one, because according to the plaintiff's own evidence the first defendant agreed to get the other members of the family to execute the sale deed. Further the contract has been decided in the present suit not to be binding on the other members of the family; and to decree specific performance against the first defendant only would be merely encouraging useless litigation.”
22. The question again came up for consideration before the Full Bench in — ‘AIR 1921 Mad 172 (H)’. Wallis, C.J with whom Oldfield J. agreed adhered to the conclusion arrived at in — ‘Nagiah v. Venkatarama Sastrulu (L) (supra)’. The third Judge Kumaraswami Sastri also agreed with that view:
“With all deference I am unable to follow the reasoning of Sankaran Nayar, J. in — ‘32 Mad 320 (K)’, to the effect that S. 15 would have application only when the person agreeing to sell has no interest in any portion of the property agreed to be sold. No such restriction appears in the section and the language applies to all cases where a party cannot perform the whole of what he contracts to do, whether such inability is due to his not having a good title to the property agreed to be conveyed or has a good title over only a part of the property.
The section only reproduces the English Law with the difference that where the party elects to take what he can get he can only do so by giving up claims to compensation; and I can find no such distinction in any of the cases though joint tenants are entitled ‘per tout et per mie’ in the joint property. I agree with — ‘AIR 1914 Mad 456 (L)’ that S. 15 is applicable to cases where a father or a member of a joint family agrees to sell an item of joint property under circumstances that would not bind the other members.”
23. It is true that each co-parcener is seized ‘per mie et per tout’ of the coparcenary property. Each has interest in and possession of every parcel as of the whole. But that rule does not and cannot enlarge his power of alienation because each coparcener has an undivided moiety of the whole and not the whole of an undivided moiety. The power of alienation even in States where it is countenanced must in the absence of necessity or other cause binding the family be necessarily restricted to the interest of the alienating coparcener. He can in such a case alienate only his interest even though it be in every portion of the undivided property. The essence of Mitakshara coparcenary is aggregate ownership. The members of the coparcenary are not fractional owners of the undivided property. ‘Ratanlal v. Ashoka (C) (supra)’.
24. No doubt, according to the prevailing law as interpreted in Madras and Bombay and accepted in this State, an alienation by a coparcener of his undivided interest in the coparcenary is countenanced. But the rule which has been gradually developed by modern jurisprudence is, in fact, inconsistent with the strict theory of a joint undivided Hindu family and is really founded upon the equity under which a purchaser for value has to be allowed to stand in his vendor's shoes to work out his rights by means of a partition.
“The question, therefore is not so much whether an admitted principle of Hindu law shall be carried out to its apparently logical consequences, as what are the limits of an exceptional doctrine established by modern jurisprudence.” Per Sir James Colvile in — ‘Lakshman Dada Naik v. Ramchandra Dada Naik’, 7 Ind App 181 at p. 195 (PC) (M).
25. Since what the alienee obtains is but an equity to secure the interest of the alienating coparcener by a suit for partition, it does not seem right to us that the rule based on “an exceptional doctrine” should be extended so as to involve a right to specific performance of an agreement to convey his undivided interest by the coparcener.
26. If the agreement was not for a purpose binding on the coparcenary, then the alienating coparcener when he purports to alienate the whole of the property must be held to be a person unable to perform the whole of his part of the contract within the meaning of S. 15.
27. As observed by Kumaraswami Sastri, J.:
“The chance of his getting the properties allotted on partition is not in such cases equivalent to his ability to perform the contract.”
28. The Court cannot act on the chance of the alienating coparcener or his alienee getting the property alienated in a suit for partition. Such a course would not only result in perfecting a breach of duty on the part of the karta to the other coparceners in making an alienation not binding of them, as here, but would also expose the latter to avoidable litigation. Besides, the chance of the alienating coparcener or his alienee getting the alienated item allotted to his share may or may not materialise either because of a suit for partition of the particular item by any of the non-alienating coparceners or because of their superior equities even in a suit for partition by the alienating coparcener or his alienee: See — ‘Atmaram v. Anandrao’, AIR 1953 Nag 241 at p. 242 (N); — ‘Rajah of Vizianagram v. Rajah Setrucherla Somasekharaz’, 26 Mad 686 at pp. 718-719 (FB) (O) and — ‘Sabapathi Pillay v. Thandavaroya Odayar’, AIR 1920 Mad 316 at p. 317 (P).
29. In conclusion, we cannot, if we may say in all respect, subscribe to the view indicated in ‘Radhelal v. Subhadrabai (J) (supra)’ about S. 15 agreeing with the decision in ‘Srinivasa Reddi v. Sivaram Reddi (K) (supra)’. The true view is that taken in ‘Singhai Ramlal v. Kanhayalal (G) (supra)’ following ‘Baluswami Aiyar v. Lakshman Aiyar (H) (supra)’. The learned trial Judge was therefore right in holding that the case was governed by S. 15 of the Act and that the plainttiff did not bring himself within the conditions laid down in the proviso thereto. The relief was rightly refused. In the result, we affirm the decree of the Court below and dismiss the appeal with costs.
30. Appeal dismissed.