1. This is a Special Appeal on behalf of the defendants and arises out of a suit for specific performance of a contract of resale. One Ali Bux was originally the owner of the house in suit. He sold it to defendants Nos. 1 and 2 now the appellants on the 6th of March, 1938 for a consideration of Rs. 1,000/-. On the same date the vendees, i.e., defendants Nos. 1 and 2 executed in his favour an agreement by which they agreed to re convey the property to him if within a period of ten years from the date of the sale he paid back to them the consideration of Rs. 1,000/-. Ali Bux subsequently died leaving a number of heirs including the plaintiffs. The defendant no. 1 was the husband of one of the daughters of Ali Bux. On the death of that daughter he along with defendants Nos. 8 to. 13 too inherited a share in Ali Bux's properties. The plaintiffs who were two of the sons of Ali Bux instituted the suit out of which this appeal has arisen for specific performance of the contract of resale that had been entered into between Ali Bux and the defendants Nos. 1 and 2 on the 6th of March, 1938. They offered the sum of Rs. 1,000/- as consideration for the property. The other persons to whom the property of Ali BUX had descended were defendants Nos. 3 to 17.
2. The suit was contested mainly on two grounds by the defendant No. 1 and Nos. 8 to 13 the children of defendant No. 1. The share which the plaintiffs claimed in the property was disputed and it was also pleaded that the plaintiffs alone could not enforce the contract of resale. The trial court dismissed the suit. The lower appellate court held that the plaintiffs had by inheritance and purchase from some of the heirs of Ali BUX acquired 38 1/12 Sihams out of 48 Sihams of the property and that the defendants Nos. 1 and 8 to 13 owned the remaining 9 11/12 Sihams out of 48 Sihams. The leaned Civil Judge was of opinion that the plaintiffs having a larger share were entitled in law and in equity to get the specific performance of the contract of resale so far as their share was concerned on PAYMENT of the proportionate price. He, therefore, decreed the suit for specific performance of the contract of resale to the extent of 38 1/12 Sihams out of 48 Sihams on payment of the preportionate amount out of the sum of Rs. 1,000/-. He direct-ed the defendants Nos. 1 and 2 to execute the sale deed in respect of that share in favour of theplaintiffs within a period of two months of the date of his decree and provided that in case of default the plaintiffs shall be entitled to get the sale deed executed through court on payment of the proportionate amount.
3. The defendants NOS. 1 and 3 to 8 came up in Second Appeal against that decree to this Court. The appeal was heard by a learned single Judge of this Court. He upheld the finding that the plaintiffs owned 38 1/12 Sihams out of the property and defendant Nos. 1 and 8 to 13 own-ed the remaining 9 11/12 Sihams. He however allowed the appeal to this extent that the defendants NOS. 1 and 2 were directed in their capacity of promisors under the contract to reconvey and execute the sale deed in respect of the whole property in favour of the plaintiffs and defendants Nos. 8 to 13. The plaintiffs or any or all of the defendants entitled to have the sale deed were to pay a total sum of Rs. 1,000/- together with the costs of and incidental to the conveyance either alone or together before the execution of the sale deed by the defendants Nos. 1 and 2 to them. In case the defendants Nos. 1 and 2 as promisors under the contract did not execute the sale deed as aforesaid within three months, the plaintiffs or defendants 8 to 13 (inclusive) either alone or together were to be entitled to get the sale executed as aforesaid through court in favour of all on payment of Rs. 1,000/- by such of them as applied for execution of the sale deed through court either alone or together. The learned Judge granted leave to appeal to a Division Bench. Hence the defendants Nos. 1 and 8 to 13 have filed the present appeal.
4. It is not disputed now that the plaintiffs by inheritance and purchase have, acquired 38 l/12 Sihams out of 48 Sihams in the right of repurchase which Ali Bux had in respect of the property in dispute. It is also not disputed that the remaining 9 11/12 Sihams out of 48 Sihams out of that right belonged to the defendants Nos. 1 and 8 to 13. The defendant No. 1 has through the daughter of Ali Bux succeeded to a portion of the estate of Ali Bux. Defendant No. 1 and his children defendants Nos. 8 to 13 were the heirs of one of the daughters of Ali BUX and succeeded to that portion of the property of Ali Bux which his daughter had inherited. The extent of the share thus inherited was 9 11/12 Sihams out of 48 Sihams. The defendants Nos. 1 and 2 are the purchasers of the property and were under contract liable to resell it to Ali BUX.
5. Three contentions have been pressed on behalf of the appellants in support of the pre-sent appeal. The first is that the plaintiffs having not filed any cross-objection or cross-appeal the learned single Judge was not justified in modifying the decree passed by the lower appellate court in their favour and directing the specific performance of the entire contract when the lower appellate court had directed the specific performance only to the extent of 38 1/12 Sihams out of 48 Sihams. The second contention is that the con-tract of resale was really a personal contract between Ali BUX ON the one hand and the defendants Nos. 1 and 2 on the other. It was not enforceable by the heirs of Ali Bux and there was therefore no question of its being enforced to the extent of the plaintiff's share or as a whole. The plaintiffs had no right to enforce it at all. The third contention is that the plaintiffs being only two of the heirs of Ali Bux could not get the entire contract enforced specifically particularly when some of the other persons who had succeeded to the estate of Ali BUX were objecting to that enforcement.
6. In respect of the first contention, learned counsel for the respondents pointed out that the point raised was one relating only to form and not to substance. The plaintiffs were interested only in getting their own 38 1/12 Sihams out of 48 Sihams of the property in dispute. The remaining share of the property admittedly belonged to the defendants Nos. 1 and 3 to 8. Even if the sale was executed in respect of the entire property those defendants would remain the owners of that share. The plaintiffs were therefore not much concerned whether the sale was directed to be made in respect of the plaintiffs' share. In the view that we are inclined to take of the matter, this question loses all importance because we think the sale in favour of the plaintiffs can only be directed to be made in respect of their own share and not in respect of the whole property.
7. A copy of the agreement entered into between Ali Bux and the defendants Nos. 1 and 2 has been made available to us and we have read it. A perusal of it shows that the appellants' contention that it was a personal covenant between Ali Bux and tile defendants 1 and 2 is not correct. There are indications in the deed to show that the covenant was intended to be enforceable by and against the heirs and legal representatives of the contracting parties. It is specifically provided in the agreement:
'Iqrarnama haza ki pabendi ham aur hamare warisan wa qaimmukaman par aur bayan mazkur aur uske warisan par tamiyad das sal mazkur wa-jib aur lazim hoga.'
Translated freely the provision made was that the covenant was to be bidding on the heirs and representatives of the vendors as well as the heirs and representatives of the vendees for a period of ten years. Had the contract been personal, Unenforceable after the death of vendors or the vendeess this provision would not have found place in the agreement. Learned counsel wanted to interpret this clause of the agreement as meaning that if the contract was performed the heirs and legal representatives of the vendors and the vendees will not be entitled to object to it. But if the contract was actually performed, no question of the contract being binding on the heirs and legal representatives could arise. The clause we have quoted clearly showed that the indention of the parties was that the contract should be enforceable by the heirs and legal representatives of the vendors also against the heirs and legal representatives of the vendees if that became necessary. The second contention must therefore be rejected.
8. The validity of the third contention depends on the interpretation that has to be put on some of the provisions of the Specific Relief Act. The agreement in the present case was entered into on the 6th of March, 1938 between Ali Bux on one side and the defendants NOS. 1 and 2 on the other. The parties contemplated that death of any of the three persons concerned may intervene and it may become necessary to enforce the contract against the heirs and legal representatives of one of the vendees or if the vendor died the heirs and the legal representatives might have to enforce the contract. Ali BUX actually died after the contract before the period of ten years had expired and as a result of the law of inheritance to which he was subject his estate which included the right to get back property on payment of Rs. 1,000/- by the enforcement of the contract in question, got vested in the plaintiffs and the defendants Nos. 1 and 3 to 18. The plaintiffs have by purchase acquired rights of the defendants NOS. 14 to 18 also. The result is that the right to get back property by enforcement of the contract now vests to the extent of 38 1/12 Sihams out of 48 Sihams in the plaintiffs and to the extent of 9 11/12 Sihams out of 48 Sihams in the defendant No. 1 and the defendants Nos. 8 to 13. The question is whether in these circumstances it was open to the plaintiffs to insist on the specific performance of the con-tract of resale whether in whole or in part.
9. As a result of the fact that a part of the right to enforce the contract of re-sale got vested by process of law in the defendant No. 1 both the right to enforce the contract and the liability to have the contract enforced against him became vested in the defendant No. 1. To that extent therefore the right and the liability got merged in each other and the liability of re-selling the share which thus got vested in the defendant No. 1 has, in our opinion, came to an end and here can be no question of that part of the liability being enforced by the plaintiff.
10. So far as the defendants Nos. 8 to 13 are concerned, being the heirs of the daughter of Ali Bux they have also inherited a part of the right which Ali Bux had, to get back property. They are, however, not inclined to enforce that right against their own father and are objecting to the specific performance of the contract. They are naturally siding their father and as they are not lanxious to enforce their right against their father it is neither proper nor desirable to direct that a sale must be executed in respect of their share of the property also.
11. The question of specific performance of a contact can in the above circumstances arise only in respect of 38 1/38 Sihams out of 48 Sihams share of the plaintiffs who are some of the persons in whom the right to claim specific performance of the contract has devolved. Learned counsel for the appellants urges that no specific performance of the contract so far as the plaintiffs' share is concerned can be directed because the case will be for the specific performance of a part of the contract and will not be coveredby Sections 14, 15 and 16 of the Specific Belief Act.
12. Under Section 23 (b) of the Specific Relief Act specific performance of a contact may be obtained by the representative in interest of any party thereto. The plaintiffs, being representatives-in-interest of Ali Bux can therefore enforce the contract. They wanted to enforce the whole contract and they are prepared to pay the whole price but as we have shown in the present case it is not possible to enforce the whole contract. Under Section 17 of the Specific Relief Act a part of the contract can be directed to be enforced only if the case is covered by one of the three Sections 14, 15 and 16. Sections 14 and 15, have not been held to be applicable to the present case. The learned single Judge was of the view that Section 16 was also apt applicable. With great respect, however, we are unable to say why Section 16 would not, cover the present case. It reads:
'When a part of a contract which, taken by itself, can and ought to be specifically enforced stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of ........the former part.'
Analysing the provisions of the section the Privy Council observed in William Graham, v. Krishna Chaudra Dey :
'To make this section applicable it had to be shown that there was a part of the contract which (a) 'taken by itself could and ought to be Specifically performed' and (b) 'stood on a Separate and independent footing'' from the other part of the contract, which admittedly could not be performed.'
In that case it was noted by their Lordships that materials before the court were not sufficient to enable it to record a definite finding in respect of either of the two ingredients. We have to see whether materials before us are sufficient for the purpose or not.
13. The contract in the present case was certainly a single contract which was entered into between Ali Bux and the defendants 1 and 2. It was, however, under contemplation that an occasion may arise for the enforcement of the con-tract by or against the heirs and legal representatives of the contracting parties. The parties were Mohammedans. If anyone died the estate was to go to his heirs in specific shares. Ali Bux haying died, the right to get back property devolved in specific shares on his heirs and the plaintiffs are two of the heirs who are now seeking to enforce that right. We have already indicated the circumstances in which the contract so far as it relates to the share inherited by the defendant No. 1 and the defendants Nos. 8 to 13 cannot and ought not to be specifically performed. That part of the contract, in our Opinion, stands on a Separate and independent footing as compared to the other part of the contract which is there in favour of the plaintiffs.
The shares of the property which are involved in the two parts of the contract are known. The consideration can also be calculated proportionately. The parties in whose favour the contract is to be enforced and the parties who are to perform the contract are also known and specified. It is, therefore, clear that this is a case in which the contract has by the death of Ali BUX and his daughter got split in two portions which can be independently and separately performed and stand on different footings. In respect of one portion it is not possible or desirable to direct specific performance but as the other portion stands on a separate and independent footing there is no reason why it should not be directed to be specifically enforced. The case thus appears to he clearly covered by Section 16 and the plaintiffs can therefore enforce the contract in part.
14. Learned counsel referred to Safiur Rah-man v. Moharamunnessa Bibi, ILR 24 Cal 832. In that case there was a contract which provided that the appellant in that case would on receipt of Rs. 500/- as profit in addition to the price paid by him for the property execute separate documents of Sale in favour of several persons. Some of the persons were not prepared to pay the price and get their share of the property and were also not prepared to join the others inspecifically enforcing the contract. Those whowere anxious to get their portion of the propertysued and impleaded the others as defendants. Thesuit was, however, dismissed on the short groundthat:
'The question therefore, is, can some of theparties to a single contract enforce specific performance against their adversary and the otherpersons who are defendants? We think, on principle, that they cannot, and that in a suit for theperformance of a single contact the parties on each side must he marshalled as plaintiffs and defendants. We therefore, decree the appeal, and dismiss the suit with costs in all the courts.'
It was clearly said that the decision arrived at was based on principles but the principles were not indicated and no reasons were given. No reference was made to the relevant provisions of the Specific Relief Act and the applicability of Sections 14, 15 and 16 of the Act was not considered. With great respect to the learned Judges who decided the case, we are unable to share their opinion.
15. In Jagdeo Singh v. Bishambhar, AIR 1937 Nag 186, there were several persons who were entitled to get the sale deed executed. One of them filed a suit and impleaded the others who were not joining the suit as defendants. The question arose as to whether the suit for specific performance could foe decreed. There was a difference of opinion between the two learned Judges and the case was referred to Mr. Justice Vivian Bose. He held that:
'The plaintiffs had a right to sue for specific performance even though one of their co-contractors had refused to join them. The only thing necessary was that they should be made partiesto the suit and should be present before the court.'
In similar circumstances, a suit for specific performance was decreed in Secretary of State v. Volkart Brothers, ILR 50 Mad 595 : (Am 1927 Mad 513).
16. The plaintiffs cannot, therefore, be non-suited simply because some of the other heirs and legal representatives of Ali Bux are not prepared to join them in enforcing the contract of resale. In equity as well as in law, in our opinion, they are entitled to get back their share of the property on payment of the proportionate consideration.
17. Learned counsel urged that the plaintiffs must give up their right of compensation and relinquish all their claim to further relief. That would have been necessary if the case was covered by Section 15 of the Specific Relief Act. That Section is really not applicable and no question of relinquishment of any claim or assessment of compensation therefore arises aS the learned counsel for the plaintiffs has told us, the plaintiffs are only interested in getting their share of the property on payment of the proportionate price and do not lay any claim to the share of the property which now vests in the defendants Nos. 1 and 8 to 13.
18. The result is that the decree passed bythe learned Judge should be modified. It ismodified to this extent that the suit of the plain-tiffs for the specific performance of the contractof re-sale shall stand decreed to the extent of38 1/12 Sihams out of 48 Sihams only. If theplaintiffs deposit in Court RS. 793.40 nP. withinthree months from today in favour of the defendants NOS. 1 and 2 the latter must execute a saledeed in favour of the plaintiffs in respect of theabovementioned share of the property. The plaintiffs must also provide the costs of and incidentalto the conveyance. In case the defendants Nos.1 and 2 do not execute the sale deed the samecan be done by the court for them. After thesale deed is executed the plaintiffs will get possession over the share that is sold to them. In thecircumstances of the case the parties will beartheir own costs throughout.