1. The suit was for specific performance of a contract for the sale of land. The plaint alleges that the first defendant, as the managing member of a family consisting of himself and his son, the second defendant, entered into a contract to sell the land to the plaintiff and agreed to obtain the consent of his son to the sale and to induce him to join in the execution of the deed of conveyance. Accordingly he placed the plaintiff in possession of the land. The plaint also alleges sub-sequent ratification by the second defendant.
2. It is found that the second defendant had not authorized the first defendant to enter into the contract and that he has not ratified it. The suit against him was rightly dismissed.
3. The lower Courts have, however, passed a decree directing the first defendant to sell his share, i.e., half the land on payment to him of half the purchase money. The first defendant appeals against this decree.
4. Under Section 17 of the Specific Relief Act, the Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections, and it is the appellant's contention that under Section 15 the plaintiff, is entitled to obtain a decree for half the land only on payment of the entire purchase money. If he is unwilling to pay it, the suit must be dismissed.
5. The case of Kasuri Ramaraju v. Ivalury Ramalingam 26 M. 74 is on all fours with the present case. There, it was held by the learned judges that the plaintiff was clearly entitled to a decree for specific performance against the first defendant therein, without determining whether the sale by him would or would not bind the interest of any other member of the family in the property agreed to be sold. It is urged by the pleader for the appellant that the effect of Section 15 and illustrations (a) and (b) were not then considered and the ruling is opposed to that section. We do not agree with the appellant's contention. Section 15 would be applicable only if the first defendant had no interest in any portion of the property agreed to be conveyed as in illustration (a) or is unable to convey such portion as in illustration (b) to that section. In this case, it cannot be said that the first defendant is not interested in any portion of the land. He is entitled as managing member to convey it for certain purposes or the land may be allotted to him on partition between himself and his son and he has already put 'the plaintiff in possession of the entire property.
6. Following, therefore, the decision in Kosuri Ramaraju v. Ivalury Ramalingam 26 M. 74 we direct the decree of the lower Court to be modified as therein by decreeing specific performance of the contract to sell the whole of the plaint land against the first defendant, without determining whether such sale would bind the second defendant. The respondent's pleader consents to this modification. The appellant will pay the respondent's costs.
7. The time is extended to 30 days from this date.