1. In this case the plaintiff entered into a contract with the 1st defendant for the sale of his lands and brought this suit for specific performance of the agreement. The 1st defendant, who agreed to purchase the property, pleaded that the contract had been rescinded, but died shortly afterwards, and his sons defendants 2 to 4, the 4th defendant being a minor, were impleaded, and a decree for specific performance was prayed for as against them. These defendants adopted their father's written statement, so far as it was not opposed to their interests, and also pleaded that the suit was not maintainable against them. The Subordinate Judge has found that the contract was not rescinded and this finding is accepted in appeal. He has also found that defendants 2 to 4 are liable to perform the contract entered into by their father. He has come to this conclusion on broad grounds which he sums up as follows: 'The price is not inadequate. The assent was not obtained by questionable means. Plaintiff has a clear and marketable title. It would cause no hardship on the defendants. Plaintiff has gained no unfair advantage by the transaction. Viewed from any aspect, the contract for specific performance can be enforced against defendants 2 to 4 who are bound to execute the contract, in place of their father who is now dead '. In coming to this conclusion, he has made no reference to Section 27 of the Specific Relief Act, which specifies the persons against whom specific performance of a contract can be enforced. The Specific Relief Act is an exhaustive code, for it is an Act 'to define and amend the law relating to certain kinds of specific relief obtainable in Civil Suits, 'and consequently we must read this Section 27 as defining every class of persons against whom specific performance may be enforced. Unless, therefore, defendants 2 to 4 can be brought under this section, there will be no right to enforce specific performance against them. The plaintiff in this case has not claimed damages for breach of covenant, and consequently we need not consider against whom he can bring such a suit for damages.
2. It is argued for the appellants that the defendants, who are members of an undivided Hindu family, do not come under any of the definitions in Section 27. The two clauses of the section which, it is contended for respondents, are applicable are (b) and (c). Clause (b) reads as follows: 'any other person claiming under him by a title arising subsequently to the contract...' Here it is suggested that the sons, defendants 2 to 4, do claim under their father, 1st defendant, by a title arising subsequently to the contract. It is however well settled that a member of a joint family does not inherit under his father but takes by survivorship, for, on his birth he obtains a right in the whole family property and not merely in a portion of it. No doubt when one member of the coparcenary dies his share passes to the others, but it is more a question of lapse of the title of the deceased person rather than an acquisition of title in the survivors, for even before the death of the one coparcener they had a right in the whole of the property including the share of the deceased member. It is therefore difficult to hold that, even as regards their father's share defendants 2 to 4 claim under him by a title arising subsequently to the contract. No doubt in Venka-leswara Aiyar v. Raman Nambudri (1916) 3 I.W. 435, Coutts Trotter, J appears to have accepted the contention that a co-parcener in a joint Hindu family does come under the definition in Section 27(b) and treated the matter as a question of Hindu Law without discussing the meaning of the words of the section, but. he also held that, in order to enforce a contract against a. co-parcener, it must be shown to be beneficial or necessary and this principle has been adopted in all cases of necessity in which cases the co-parcener would probably come under Clause (c), because the contracting party has a right to displace his title in cases of benefit or necessity.
3. Coming to the definition of Section 27(c), we find that it includes 'any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant.'This clause undoubtedly would apply, as suggested, above, to the many cases in which a decree for specific performance has been given even against minor members of an undivided family, when the contract was for sale of land for family necessity. In such a case, the manager of the family has a right to displace the title of the other members in the family property when it is requisite to do so for purposes of family necessity. Cases of this kind are reported in Shanmugam Chetly v. Subba Reddi (1915) 31 I.C. 1, Ramachandra Aiyar V. Sundaramurthi Mudali (1893) 4 M.L.J. 9 and Krishna Aiyar v. Shamanna : (1912)23MLJ610 , and there are many others. The Courts have not in all cass referred in terms to Section 27(<: ) as covering the case, but have based their decision on the proposition that, if a contract when executed would be binding on the minor members of the family, it is incumbent on them to fulfil it after the contracting party's death. However in all these cases the co-parceners come within the definition in Clause (c).
4. It is now contended for the plaintiff that the same principle must be applied to the present case and that, this being a case of purchase of immoveable property the contract can be enforced against the co-parceners, because the purchase must be deemed to be for the benefit of the family. This argument is based on an alleged presumption that every purchase of immoveable property must be for the benefit of the family, for no evidence has been let in on this point. There is no such presumption in law, and if we look on it as a presumption of fact, it must depend upon the circumstances of each case. Here the defendants are a trading family whose interests might be better served by the investment of any surplus cash in their trade rather than on purchase of immoveable property. There are many other conceivable circumstances in which a purchase of land would not be for the benefit of the family. We cannot therefore in the absence of evidence make any such presumption, and consequently it is necessary for plaintiff to prove this benefit by evidence, if he claims a decree on that ground.
5. Returning to the question of whether defendants 2 to 4 come within the definition of Clause (C), we have to consider what is the title under which they can be said to claim. It is, I think, clear that the title referred to there is title to property which is the subject-matter of the contract. Here the property is merely a sum of money which the father had promised to pay. It is not in evidence that there was any definite sum of money lying in his hands nor the manner in which the father was going to obtain it. He might have intended to obtain the money by begging, borrowing or even stealing, in which case these coparceners could not possibly claim under a prior title. It is argued that the purchase money must eventually come out of the family property or at least out of the father's share of the property and that, therefore, the title in question is the title to the family property. As I pointed out above, it is not necessary that the money should come from any family property but might have been obtained by the father from some outside source. In this view defendants 2 to 4 would not claim under any title to it. If that is so, it would appear that these defendants do not come within the definition in Clause (c). Looking broadly at Section 27, it would appear that contracts for purchase are not included amongst the contracts which can be enforced against persons other than the contracting party himself. Section 23 which specifies the persons, who can enforce specific performance, includes 'the representatives in interest ' of the parties to the contract, and is consequently very much broader than Section 27 which makes no mention of such representatives. As regards contracts for purchase, it is not difficult to suggest a reason for their exclusion from contracts of which specific performance can be decreed, for it is of no special benefit to the vendor to get his money from the contracting party rather than from some one else, and, even though the price from the other person may be less than the agreed price, He always has his remedy against the contracting party in damages, so that he will suffer no loss from the reduction in price. On the other hand when the property to be transferred is land, nothing else can adequately be substituted for it, and consequently a suit for the specific performance of a contract to sell land is more freely allowed, as no other remedy would be adequate. However this may be, I think it is quite clear that we cannot bring defendants 2 to 4 within the definitions in Section 27(b) or (c). If that is so, no decree for specific performance can be given against them. I now refer to some cases cited firstly, to the Full Bench decision reported in Rangayya Reddy v. Subramania Aiyar I. L. R. (1916) Mad. 365:32 M.L.J. 575. There the real question at issue was not identical, but wallis C. J: and Sadasiva Aiyar J. were both of opinion that coparceners could not be compelled to perform a contract entered into by another coparcener. There is a case in Bhagwan v. Krishnaji : (1920)22BOMLR997 , in which a Bench of the Bombay High Court has held that Section 27(c) does include the members of a joint Hindu family, and this decision appears to be based not on the language of the section itself, but from the illustrations to Clause (c) the reason given being that, unless these illustrations are to be made applicable to a joint Hnidu family, the large majority of Hindus would be excluded from the benefits of the section. With all respect 1 am unable to agree with this view, as it seems to me impossible to bring coparceners within the definition in either clause, except in the cases I have referred to, namely, when the contract is by a manager as such for necessity or for the benefit of the family.
6. It is next argued for the plaintiff that defendants 2 to 4 are liable under the pious obligation imposed by Hindu law to repay their father's debts, and that the father's liability to pay the purchase money must be considered to be a debt. Even if the obligation undertaken by the father can be said to be a debt, and I do not think it can, for it was at best a potential debt, we are not here concerned with their liability to repay it, but with the question whether they can be made to perform a particular contract, for this suit is not one for damages, in which other circumstances might possibly have to be considered.
7. There is yet another broad principle of equity upon which the refusal to allow specific performance can be based and that is, that, when one of the parties is a minor, a Court will not compel him to do anything unless it is satisfied that such act is for the benefit of the minor. It is argued that it has not been shown that this contract would be detrimental to the minor, but that is not sufficient, for, if there is any possibility of there being any detriment, the Court will require to be satisfied that the possibility no longer exists before it takes action. For this reason also, I think the contract could not be enforced against the 4th defendant.
8. In this view the appeal must be allowed and the suit dismissed with costs throughout.
9. I concur.