John Wallis, C.J.
1. The facts have been fully set out in the Judgment of Coutts Trotter, J., and again by my learned brother. After hearing the case very fully argued I am unable to differ from the finding of the learned Judge that the second defendant's consent to the contract of sale entered into by his father has not been proved. T.V. Subbayyan, the second witness examined for the plaintiff on commission, merely speaks to the second defendant's presence at a meeting at Madura when the sale was discussed, but admittedly no agreement was come to with the first defendant on that occasion. He does corroborate the first plaintiff's statement that at that meeting the second defendant consented to the sale for not less than Rs. 30,000. It is said for the plaintiffs that when the agreement was concluded in Madras a telegram mentioning the fact was sent to second defendant, but the telegram has not been produced as it might have been. All that plaintiff's witness No. 3 says is that such a telegram was written out and given to the first defendant to send. It is not shown that it was ever sent. I agree with the learned trial Judge that the consent of the second defendant has not been proved.
2. The next question is whether the first defendant as managing member of a joint trading family consisting of himself and the second defendant had power to sell without the second defendant's consent the suit house. The case now made for the plaintiffs is that the joint family of the first and second defendants advanced money to one Kuppusami in the course of the Money-lending business carried on by them and that the suit house was acquired by them as the readiest means of realizing their debt, and that in these circumstances it was within the power of the managing member of the joint family as an incident of the joint family business to reconvert the property so acquired into money for the purposes of the joint family business. Coutts Trotter, J., regards this as tantamount to saying that the old rules of Hindu Law as to the alienation of family property have no application to trading families. I am not prepared to go so far. It may be that the purchase and resale of immoveable property may be an incident of a joint family business, and as such an incident within the competence of the managing member of the family without the consent of the other co-parceners, and my learned brother has called my attention to a recent decision of the Allahabad High Court, Pahalwan Singh v. Jiwan Das (1919) I.L.R., 42 All., 109 (P.C.) which appears to support this view. No attempt was made by the plaintiffs to support the suit contract on this ground either in the plaint or in the issues, and in these circumstances I am not prepared to differ from the conclusion of the learned trial Judge, that it is not shown that the facts of the present case bring it within the proposition. As I have already said, this question was not raised in the pleadings or issues. If it had been, we might have had much fuller evidence as to the nature of the business carried on by the defendants' family and the circumstances which led the first defendant to enter into the suit contract. In the present state of the pleadings and evidence I am not prepared to hold that the facts necessary to raise this question have been established. In other respects also, I agree with the conclusions of my learned brother.
3. This is an appeal by the first defendant against the judgment of Coutts Trotter, J., in a suit brought by the plaintiffs to enforce specific performance of a contract to sell a house and ground in Madras made by him with them, and in the alternative for damages. His son, the second defendant, was not a party to the contract and did not sign it, but he was added as a party defendant as the plaintiffs claimed that the contract was nevertheless binding on him on two grounds, namely, that he assented to it and authorized his father to sell the whole property, including his own share, and that the father himself had authority under the Hindu law to sell the whole property, as the sale must be taken to have been for the purposes of the family trade carried on by him for the benefit of the family. These pleas were denied by the defendants, and the learned trial Judge has held that they have not been established and has dismissed the suit against the son. The first defendant also raised some pleas against the validity of the agreement in so far as he was concerned, but they were rejected by the trial Judge and have not been raised again before us, and it is not therefore necessary to state them in detail. The contention of the plaintiffs that the property was the self-acquisition of the father was also rejected by the trial Judge and it is also not now raised before us. The learned Judge gave a decree against the first defendant directing him to convey the whole property, including the son's half share in it, to the plaintiffs on their paying the balance of the purchase money due. In Appeal it is contended before us that on the finding of the learned Judge the contract was not binding on the second defendant, that no decree for specific performance should have been passed at all, even as against the first defendant, that the plaintiffs' remedy, if any, was only a claim for damages, and that in any event the decree for specific performance should have been confined to the first defendant's half share in the property under Section 15 of the Specific Relief Act.
4. The plaintiffs, whilst maintaining that the decree of the learned Judge was right in law on the findings, have further tried to support that decree by attacking the finding against the binding character of the agreement on the son. They are clearly entitled to do so Under Order XLI, Rule 2, Clause (1), of the Code of Civil Procedure, and we must consider the correctness of that finding oven though the plaintiffs have not appealed themselves. The son had not been made a party to the appeal in which the finding in his favour has been attacked and if in his absence from the record we were to differ from the trial Judge, it would lead to the anomaly of there being conflicting findings on the same point in the same case as between plaintiffs and first defendant on the one hand and between them and the second defendant , on the other hand. We, therefore, acceded to the application of the plaintiffs that the second defendant should be added as a party-respondent to enable him to be heard in support of that finding and to bind him by our own findings. He was accordingly made a party-respondent and has been heard by us in appeal.
5. It was contended that we had no power to add him as a party to the appeal, as he was not interested in the result of the appeal and that Order XLI, Rule 20, did not apply to this case. The words of that rule are, however, wide enough to cover the present case; but, even if they were not, our powers to add parties in appeal are not exhausted by that rule, as Order I, Rule 10, also applies to appeals by force of Section 107, of the Code of Civil Procedure. In the present case, it is manifestly desirable to have the second defendant before us to enable us properly and effectually to settle the question whether the plaint agreement is binding on him or not, a question which we have to decide in any case for the disposal of the first defendant's Appeal. We must now consider that question.
6. As already stated, the agreement to sell is sought to be made binding on the son on two grounds. Taking the first ground alleged, namely, that he had assented to the first defendant's selling the whole property and had authorized him to sell it, I am not prepared to differ from the view taken by the learned trial Judge that there is not sufficient reliable and relevant evidence on record to support a positive finding in plaintiffs' favour on the point. Both the defendants deny any such assent or authorization, and the most that the plaintiffs have been able to prove is that the second defendant knew of the negotiations for sale and that he remained silent without objecting to the sale of his share. I am not able to hold that mere silence in such circumstance can be held to amount to assent in law, as there was no legal duty on his part to interpose. On the other hand, the attempt on the plaintiffs part to obtain his consent after the contract was concluded, and which failed, would seem to show that there was no real antecedent consent by him and that this plaintiffs understood this. It is not necessary to deal with this point at length as I agree with the judgment of the trial Judge on it; and the plea based on second defendant's assent or authorization by him must thus be rejected.
7. The next question is whether the agreement can be held to be binding on the son on the second ground alleged, namely, that it was entered into by the father as the manager of the family trade of money-lending and for the purpose of carrying on that trade for the benefit of the family. The argument is set out in detail in the judgment under Appeal. It raises an important question as to how far the ordinary rule of Hindu Law, that a managing member of a joint Hindu family cannot deal with joint family property by himself except for a family purpose and for the necessity or benefit of the family, should be modified or extended in the case of trading families. Chandavarkar, J., has discussed this question at some length in Raghunathji Tarachand v. The Bank of Bombay I.L.R., (1910) 34 Bom., 72, and has held that in the case of trading families 'a trading purpose or purpose incidental to it must be treated as a family purpose' within the rule above stated. A similar view has also been taken in Allahabad very recently in Pahalwan Singh v. Jiwan Das (1919) I.L.R., 42 All, 109 (P.C.). Though I am inclined to follow this view, it is not necessary to discuss and decide the question in this case, as I consider plaintiffs have failed to allege and prove the facts necessary to raise it.
8. Assuming in the plaintiffs' favour that they have shown that the first defendant did carry on a family trade of money-lending, they have further to show that the plaint agreement was connected with that trade. No doubt they now allege that the defendants purchased the property to liquidate a debt due to their money-lending business, which otherwise could not have been recovered and that the subsequent arrangement to sell was fur the purpose of getting the cash back for the business. This suggestion looks plausible, but as pointed out by the learned trial Judge there is no reliable evidence enabling us to come to a positive conclusion on the point in plaintiffs' favour. It was not contended that there was any pressure for cash in the money-lending business at the time of this agreement; the learned Advocate-General for the plaintiffs merely suggested that it would be important for a money-lending business to have its assets in liquid form. This may be so, but from mere general considerations of the kind we cannot draw the inference that the present sale was for any trade purpose. Defendants deny that it had anything to do with any money-lending business and point out that if the idea was to reconvert immoveable property into cash for money-lending purposes the first defendant would not have waited as long as he did to do it, the agreement to sell having been entered into a considerable time after the purchase. Except that for the purchase some money due to the business by one of their debtors, the original owner of the property, was taken as part of the purchase money there is, nothing to show that the property was treated or kept as part of the assets of the business, or was used for its purposes. There is thus nothing to connect the agreement to sell with any purpose connected with the trade. Defendants deny that there was any such connection, and, in the absence of reliable evidence on the point on plaintiffs' side, we must hold that it is not proved that the plaint agreement was entered into for any trading purpose; on this finding the question of Hindu Law argued does not arise. Both the grounds alleged for making the contract binding on the second defendant thus fail and we must accept the view of the learned Judge that it is not binding on that defendant.
9. We have thus before us a case of a managing member of a joint Hindu family entering into an agreement to sell an item of family property, which is not proved to be binding on the other member. Can a decree for specific performance be given against him in such a case; and if so what should be the form of the decree? Different opinions have been expressed on this question by different benches of this Court: see Kosuri Ramaraju v. Ivalury Ramalingam I.L.R., (1903) Mad., 74, Srinivasa Reddi v. Sivarama Reddi I.L.R.,(1909) Mad., 320, Poraka Subbarami Reddy v. Vadlamudi Senhachalam Chetty I.L.R (1910) Mad., 360, Nagiah v. Venkatarama Sastrulu , and Subba v. Venkatrami (I.L.R.,(1914) Mad., 387I.L.R., 1915) Mad., 1187. In view of this difference of opinion in the above cases, and of the general importance of the question, it seems desirable to have it settled by a Full Bench. I would therefore refer the following question to a Pull Bench:
10. Where the managing member of a joint Hindu family enters into a contract to sell an item of family property, and that contract is not proved to be binding on the other members, can specific performance of it be decreed against him, and if so, on what terms?
On This Reference.
11. A. Krishnaswami Ayyar and M. Bhaskara Ayyar for appellant.--My contention is, that with regard to a family house, a member of a joint Hindu family cannot sell his share and he cannot give a good title. If the Court holds that defendant can perform a certain part of the contract, then the illustrations to Section 15, Specific Relief Act, come into effect. If the Court holds the contract cannot be performed by defendant, then plaintiffs will be entitled only to damages. A member of a joint family, is not in a position to sell a specific share in an item of joint family property. Equities may arise at time of partition. I first contend that there can be no specific performance and secondly if specific performance is to be decreed, then I contend that it . can be only against the share of the father, i.e., half share on plaintiff paying the full consideration. Reference made to Subba v. Venkatrami I.L.R., (1915) Mad., 1187, Section 27, Specific Relief Act, illustration (a). In England there is a conflict of opinion. Reference made to Thomas v. Dering (1837) 1 Kee, 729, Fry's Specific Performance of Contract, page 1259, Naylor v. Goodall (1877) 47 L.J. ch., 53, Lumley v. Ravenscroft (1895) 1 Q.B., 683, Price v. Griffith (1851) 1 De G.M. & G., 80, Horrocks v. Digby (1878) 9 Ch.D., 180 , and Hooper v. Smart (1874) L.R., 18 Eq., 683, But we are governed by Section 15 of the Specific Relief Act. Nagiah v. Venkatarama Sastrulu I.L.R., (1914) Mad., 387 is decisive on the point that a decree cannot be passed for the entire property. It certainly left open the question as to whether plaintiff can claim specific performance of the share of the vendor. I contend that even if plaintiff is willing to pay the fall price for half the share in the house, he cannot claim specific performance: Castle v. Wilkinson (1870) 5 Ch. App., 534, Hezter v. Pearce (1900) 1 Oh., 341 and Rutherford v. Acton-Adams (1915) A.C., 866 . Durham v. Legard (1865) 34 Beav., 611 is in terms of Section 15 of the Act.
12. The interest which a member of a joint family has in any particular item is a right in personam. It is only, an equity: Manjayya v. Shanmuga I.L.R., (1915) Mad., 684, Subba v. Venkatrami I.L.R., (1915) Mad., 1187, Dhadha Sahib v. Mahomed Sultan Sahib : AIR1921Mad384 , Sabapathy Pillay v. Thandavaroya Odayar I.L.R., (1920) Mad., 309, Aiyyagari Venkataramayya v. Aiyyagari Ramayya (1902) I.L.R., 25 Mad., 690 (F.B.) and Subbiah v. Venkatasubbiah (1919) 10 L.W., 449. If at all a decree is to be granted, it is to be on condition of plaintiff paying the full consideration for half the share: see I Gurusami v. Ganapathia (1882) I.L.R., 5 Mad., 337(F.B.), which though not under the Act deals with an agreement to sell by a Hindu father, Kosuri Ramaraju v. Ivalury Ramalingam I.L.R., (1903) Mad, 74 , Srinivasa Reddi V. Sivarama Reddi I.L.R.,(1909) Mad., 320, Poraka Subbarami Reddy v. Vadlamudi Seshachalam Chetty I.L.R.,(1910) Mad., 359, Najiah v. Venkatarama Sastrulu I.L.R., (1914) Mad., 387 and Govinda Naicken v. Apathsahaya Iyer I.L.R., (1914) Mad., 403. Subba v. Venkatrami I.L.R., (1915) Mad., 1187 lays down that there can be no specific performance because he cannot perform. This is the only authority which considers 'can perform.'In all the other cases it is assumed that defendant can perform. A member of a joint family cannot predicate any particular item of property or sell any specific item or a part of any specific item. He can sell his undivided share in the joint family property or a part of it, and certain equities arise. But he cannot sell his interest in a particular item. If he did, equities helped on by various limitations would arise. The section does not contemplate something nebulous. The general effect of the decisions in the other Courts is that there cannot be specific performance: Baikuntha Barik v. Sahib Dass (1905) 2 C.L.J., 321, Shama v. Kumed (1918) 27 C.L.J., 611, Mahmud All v. Yawar Beg (1915) 13 A.L.J., 739, Bhagwan Bhan v. Krishnaji Janoji I.L.R.(1920) 44 Bom., 967. If a decree is to be given in favour of plaintiff, it must not state 'the right title and interest' is to be handed over. The form of the decree here will be 'half the house, the share of the first defendant, for the full amount of consideration': Suraj Bunsi Koer v. Sheo Persad Singh (1880) I.L.R., 5 Calc., 148 (P.C.) , Deendyal Lal v. Jugdeep Narain Singh (1878) I.L.R., 3 Calc., 198 (P.C.) and Hardi Narain Sahu v. Ruder Perkash Misser (1884) I.L.R., 10 Calc., 626 (P.C.).
13. T.M. Krishnaswami Ayyar for respondent.--Sections 14 to 17 relate to cases where the entire contract cannot be performed. Assuming for the sake of argument that a member of a joint family can assign his share in a specific item, before Section 15 can apply, it must be shown that he cannot perform the contract. A vendor is bound to perform the contract. He agreed to confer on me an absolute title. If he cannot what is the next best thing he can do? If in a suit for partition this property is allotted to him he can transfer the property to me. Vendor cannot be heard to say he will not execute such a document. Section 15 is not intended as a defence to the vendor. It applies when the vendor has no title.
John Wallis, C.J.
14. Does not Section 15 apply?
15. No. It is too late to question the fact that a member of a joint family can alienate a specific property. I contend that a Hindu can convey his share in the joint family property, or his share in a specific property. Inability to perform would depend on other circumstances. Section 18 applies to imperfect title, Section 15 to non-existent title. What is there to prevent the vendor executing a document to me saying 'I convey the right title and interest in the property' and when that is materialised it may end in my getting the property. No further act is necessary for the vendor. I will realize by a suit: Pandu Vithoji v. Goma Ramji (1919) L.R., 43 Bom., 473 .
16. What do you mean by 'perform'?
17. Give a sale deed for all he can convey.
18. That is not the sense in which it is used in Section 14 and first part of, Section 15.
John Wallis, C.J.
19. I agree with the answer proposed by Kumaraswami Sastri, J., which is in accordance with the view taken in Nagiah v. Venkatarama Sastrulu I.L.R., (1914) Mad., 387 , to which I was a party and also, in my opinion, with the earlier decision of White, C.J., and Krishnaswami Ayyar, J., in Poraka Subbarami Reddy v. Vadlamudi Seshachalam Chetti I.L.R., (1910) Mad., 369 , when those learned Judges observed at page 360:
The plaintiff asks for a decree against the shares of the first and fourth defendants at least. This we think; he cannot have.
20. All they meant, as appears from the rest of the judgment, was that he could not have a decree directing these defendants, who were parties to the agreement, to convey their own interest at a reduced price. This might have been granted in England, but in cases governed by Section 15 of the Specific Relief Act a plaintiff can only have part performance if he is willing to pay the full contract price and to waive all claims for compensation. As the plaintiff in that case expressed his willingness to comply with these conditions, the learned Judges at the close of their judgment gave him decree as regards the shares of the first and fourth defendants. This amounts to a clear ruling that a case such as the present is governed by Section 15 of the Specific Relief Act. This was the conclusion at which I arrived in Nagiah v. Venkatarama Sastrulu I.L.R., (1814) Mad., 887, and after careful re-consideration I think it was right.
21. I agree.
Kumaraswami Sastri, J.
22. The question referred to us for decision is:
Where the managing member of a joint Hindu family enters into a contract to sell an item of family property, and that contract is not proved to be binding on the other members, can specific performance of it be decreed against him, and if so, on what terms?
23. The answer to the question depends on the provisions of Sections 15 and 17 of the Specific Relief Act, and the extent and nature of the powers of alienation possessed by a member of a joint and undivided family.
24. Section 15 of the Specific Relief Act provides that:
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, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes 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.
25. It is argued for the appellant that an undivided co-parcener professing to sell the whole of an item of joint family property for purposes not binding on the other co-parceners cannot perform the whole of his contract, as he has only a share in the property, that he cannot give a good title even to his share, as his right to it would be contingent on his getting it in a suit for partition, and that in any event all that he can get is a decree for the share belonging to his vendor on payment of the full consideration under the latter part of the section. For the respondent it is argued that, as Courts in working out the equities between the purchaser and the other co-parceners in a suit for partition would allot to the vendor the property conveyed by him, it cannot be said for certain that the vendor is unable to perform his contract and that consequently the purchaser is entitled to a decree directing the vendor to convey the property, leaving it to the purchaser to realize it as best he can.
26. There is a conflict of authority on the point. In Gurswami v. Ganapathia (1882) I.L.R., 5 Mad., 337 (F.B.), it was found that the agreement by the father to sell was not for necessity and was not binding on his minor son. Sir Charles Turner who delivered the judgment of the Full Bench observed that imperfection of title in the seller is not sufficient by itself to justify the Court in refusing to award specific performance of a contract of sale. If the title be such as the seller can legally convey, the purchaser has the right to claim the completion of the bargain, although the title he may thereby acquire may not be indefeasible if a claim be brought by a third party. But the Court may not grant specific performance of the contract, if the contract be made by a trustee in excess of his power or involves a breach of trust. The Full Bench called for a finding as to necessity and held that there was no justifying necessity. A decree was passed directing a sale by the father of his half share on receipt of one-half of the purchase money, on the ground that while the Judge was unable to enforce the sale in its entirety they considered that to the extent of the father's interest the respondent was entitled to insist on it, if he thinks fit to do so. The contract was entered into before the Specific Relief Act came into force and the decision therefore does not deal with Section 15. It is, however, authority for the view that a co-parcener can perform part of the contract to the extent of his share. In Kosuri Ramaraju v. Ivalury Ramalingam I.L.R., (1903) Mad., 74, the contract to sell was by one of three members of a joint family. It was held by the Subordinate Judge that the contract was not binding on the other members of the family and the suit was dismissed against all the defendants, as he considered it impossible to apportion the consideration for the sale and the property agreed to be conveyed. In Second Appeal Bashyam Ayyangar and Moore, JJ., held that the plaint disclosed no cause of action against the brothers who were not parties to the contract but that the plaintiff was entitled to a decree for specific performance against the person who agreed to sell the property, without any determination of the question whether the sale by him would or would not bind the interests of the other defendants in the property. No authorities are cited nor is Section 15 of the Specific Relief Act considered. In Srinivasa Reddi v. Sivarama Reddi I.L.R.(1909) , Mad., 320 , the suit was for specific performance of a contract by an undivided father to sell joint property. It was found that the son was not bound by the contract, and a decree was passed directing the father to sell his half share on receipt of one half of the consideration. In Second Appeal Sankaran Nayar and Pinhey, JJ., were of opinion that Section 15 would only be applicable if the person who agreed to sell:
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 the section.
27. The learned Judges followed Kosuri Ramaraju v. Ivalury Ramalingam I.L.R.,(1903) Mad., 74 and decreed the specific performance of the contract to sell the whole of the plaint property against the first defendant (who entered into the contract) without determining whether such contract would bind his son. Justice Sankaran Nayar however took the opposite view in Subba v. Venkatrami I.L.R.,(1916) Mad., 1187 which I refer to presently. In Poraka Subbarami Reddy v. Vadlamudi Seshachalam Chetty I.L.R., (1910) Mad., 859, the contract was by an adult member of a joint family, acting for himself and as guardian of the minor co-parceners, to sell an item of joint property. It was found that the contract was not binding on the minors and the lower Court dismissed the suit for specific performance against all the defendants, including the person who entered into the contract. It was held in Second Appeal by Sir Arnold White, C.J., and Krishnaswami Ayyar, J., that Sections 14 to 16 of the Specific Relief Act do not enable such a contract to be separated as regards the person who entered into the contract and the person on whom it was not binding, that Section 17 of the Act precluded the passing of a decree against the share of the person contracting or a decree for the whole against such person, but that the purchaser if he was willing to pay the whole of the purchase money was entitled to a decree directing the contracting party to convey his interest in the property. A distinction is sought to be drawn between cases where a finding as to the binding nature of the contract on. the other parties, to the suit is or is not necessary, and no opinion is expressed as to whether the interpretation put on Section 15 in Srinivasa Reddi v. Sivarama Reddi I.L.R.,(1909) Mad., 320 by Sankakan Nayar and Pinhey, JJ., was correct. In Govinda Naicken v. Apathsahaya Iyer I.L.R.,(1914) Mad, 403 the plaintiff sued to enforce the specific performance of an agreement by one of two divided brothers, alleging that the defendant agreed to have the sale-deed executed by himself and his divided brother on his own account and as guardian of the minor son. The District Munsif dismissed the suit on the ground that Sections 15 to 17 precluded him from granting a decree for specific performance of the contract to sell the entire house, and the plaintiff did not offer to purchase the defendant's half, on paying the full purchase money. The District Judge thought that there was nothing to prevent the plaintiff from getting a decree, the plaintiff being allowed to take a sale-deed for what it was worth, but dismissed the suit on the ground of delay. In Second Appeal it was held by Sundara Ayyar and Spencer, JJ., that the Court cannot direct execution of a deed which on its execution would be useless owing to the vendor having no title over part of the property.
28. In Nagiah v. Venkatarama Sastrulu I.L.R.,(1914) Mad., 387, the contract was entered into by a father, who was the managing member of the family consisting of himself and his adult and minor sons. It was found that the contract was not binding on the sons and the suit was dismissed. It was held by Wallis and Ayling, JJ., that Section 15 of the Specific Relief Act applied to cases where a member of an undivided family agrees to sell part of the joint property in which he has only a share and that the circumstance that an undivided father has an interest in every portion of the undivided property conveyed does not take the case out of the operation of the section. After referring to Kosuri Ramaraju v. Ivalury Ramalingam I.L.R., (1903) Mad , 74, Srinivasa Reddi v. Sivarama Reddi I.L.R.,(1909) Mad., 320 , and Govinda Naicken v. Apathsahaya Iyer I.L.R., (1914) Mad., 403, 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. We may add that Barrett v. Ring (1854) 2 Sm. & Giff., 43 is no authority on the present point as the facts were entirely different. The plaintiff does not claim the benefit of the latter part of Section 15 of the Specific Relief Act and we dismiss the Second Appeal with costs.
29. In Subba v. Venkatrami I.L.R.,(1915) Mad., 1187 the contract was entered into by an undivided father and it was found that it was not binding on the son. It was held by Sankaran Nayar and Spencer, JJ., that the plaintiff was not entitled to a decree for specific performance either against the father or the son. Referring to Nagiah v. Venkatarama Sastrulu (1914) .L.R., 37 Mad., 387 Sankaran Nayar, J., observed:
A person is entitled to specific performance of a contract by a member of the Hindu family to sell is share of the Family property. But there is no question of part performance in that case. If the learned Judges intended to go further and lay down that if a junior member of a Hindu family agrees to sell any specific property belonging to his family a decree may be passed against him to sell his share of that specific property, I am unable to agree with that view. Because the junior member is unable to perform the whole of his part of the contract by conveying the entire property agreed to be sold and for the same reason that he is not entitled to claim any specific property till partition, conveyance of a portion is not a part of the contract 'as he can perform' in the terms of Section 15 of the Specific Relief Act. On the view that a co-parcener cannot alienate any specific property no specific performance can be decreed.
30. Where a person sues for specific performance of an agreement to convey and simply impleads the party bound to carry out the agreement there is no necessity to determine the question of the vendor's title, and the fact that the title which the purchaser may acquire might be defeasible by a third party is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. But where a party seeking specific performance seeks to bind the interests of persons not parties to the contract, alleging grounds which under Hindu Law would bind their interests and enable the vendor to give a good title as against them and makes them parties, it is difficult; to see how the question as to the right of the contracting party to convey any interest except his own can be avoided and a decree passed, the effect of which will merely be to create a multiplicity of suits. As pointed out in Govinda Naicken v. Apathsahaya, Iyer (1914) I.L.R., 37 Mad., 403 the execution of a sale-deed by a person in respect of property which he has no right to alienate:
would be an act improper in itself as it is calculated to throw a cloud over the title of the other parties entitled to shares in the property and would give them a cause of action for a suit.
31. With all respect it seems to me that Kosuri Ramaraju v. Ivalury Ramalingam I.L.R.,(1903) Mad., 74 and Srinivasa Reddi v. Sivarama Reddi I.L.R., (1909) Mad., 320, which decide that under such circumstances a decree should be passed against the contracting party even if the transaction has been found not to be binding on his co-parceners, would afford no protection to any of the parties, and as pointed out in Nagiah v. Venkatarama Sastrulu I.L.R., (1914) Mad., 387, would be merely encouraging useless litigation. I may add that Sankaran Nayar, J., who was a party to Srinivasa Reddi v. Sivarama Reddi I.L.R.,(1909) Mad., 320 refused to pass such a decree when the same question came up before him for decision in Subba v. Venkatrami I.L.R., (1915) Mad., 1187. I do not think the Court ought to pass a decree directing a sale of the property ordered to be conveyed when it finds that the person agreeing to convey was only a co-parcener with others and the agreement would not bind their interests. Where the person contracting is the father or managing member of the family he stands in a fiduciary relationship to the other members [Annamalai Chetty v. Murugesa Chetty (1903) I.L.R. ,26 Mad., 541 (P.C.) , Sahu Ram Chandra v. Bhup Singh I.L.R., (1917) All., 437 (P.C.)] and his contract to sell the entire item of joint family property for purposes not binding on them is a breach of duty, and I do not think the Court ought to compel execution of a sale-deed in such cases of the entire item of property leaving it to the other members to incur the expense and go through the trouble of filing a suit to protect their interests. [See Gurusami v. Ganapathia (1882) I.L.R., 5 Mad., 337 (F.B.) and Baikuntha Barik v. Shib Dass (1905) 2 C.L J., 321 ] There is, however, no objection to the share of the vendor being ordered to be conveyed in cases where he can dispose of his share, as he will then only be exercising his right without detriment to anybody else.
32. I am also of opinion that Section 15 of the Specific Relief Act applies to such cases. With all deference I am unable to follow the reasoning of Sankaran Nayar, J., in Srinivasa Reddi v. Sivarama Reddi I.L.R., (1909) Mad., 320, to the effect that Section 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 be 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 Nagiah v. Venkatarama, Sastrulu I.L.R.,(1914) Mad., 387 that Section 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.
33. There are no texts which deal with the question of a member of an undivided family alienating property for his own private and individual purposes and there can be little doubt that such an alienation is inconsistent with the strict theory of a joint and undivided family governed by the Mitakshara. As pointed out by Mayne:
if any member were allowed from time to time to sell his share in the joint family property without severing himself from the family by partition he would be getting the advantages of a partition without submitting to its inconveniences. It would be like the case of partner who claimed the rights to withdraw his capital from the concern at pleasure without withdrawing himself.
34. It is necessary to bear this aspect in mind when considering whether the same principles and equities should be applied where the matter rests on a contract as where the conveyance has been perfected.
35. The recognition of the rights of a purchaser for value has been, as pointed out by their Lordships of the Privy Council in Suraj Bunsi Koer v. Sheo Persad Singh (1880) I.L.R, 5 Calc., 148 (P.C.) ,
of gradual growth founded on the equity which the purchaser for value has to be allowed to stand in his vendor's shoes and work out his rights by means of a partition.
36. So far as this Presidency is concerned it has been settled by a series of decisions, commencing from Virasvami Gramini v. Ayyaswami Gramini (1808) 1 M.H.C.R., 471, that a co-parcener can alienate for value not only his share in the entire joint family properties but also his share in a specific item. It was held in Venkatarama v. Meera Lubai I.L.R.(1890) , Mad., 275 that a purchaser from a member of an undivided Hindu family cannot sue for a partition of the item sold to him and obtain an allotment by metes and bounds of his vendor's share in that portion of the property; This decision was followed in Polani Konan v. Masakonan I.L.R.,(1897) Mad., 243. His remedy is therefore a suit for general partition. When, however, the other co-parceners have alienated their shares also the purchaser from one of the co-parceners can sue and get his share by partition of the item in which only other purchasers are interested: Iburamsa Rowthan v. Theruvenkatasami Naick (1911) I.L.R., 34 Mad., 269(F.B.). So far as the other co-parceners are concerned it is open to them to accept the transfer as valid and seeking a, partition with the purchaser of the only property in which such purchaser is interested: Subramanya Chettyar v. Padmanabha Chettyar I.L.R., (1896) Mad., 267, Iburamsa Rowthan v. Theruvenkatasami Naick (1911) I.L.R., 34 Mad., 269(F.B.),
37. As regards the share to which the alienee would be entitled, the view taken by the Full Bench in Rangasami v. Krishnayyan (1891) I.L.R., 14 Mad., 408 (F.B.) was that the share should be computed with reference to the share of the joint family at the date of the suit for partition filed by him and not the state of things that existed at the date of the alienation; but a subsequent Full Bench of this Court in Chinnu Pillai v. Kalimuthu Chetti (1813) I.L.R., 35 Mad., 47 (F.B.) has taken the contrary view. It may therefore be taken as settled that there is no fluctuation in the share to which the alienee is entitled and that his share will be the share of the vendor at the date of the alienation, subject of course to the equities in favour of the other members of the family against the transferor.
38. The preponderance of authority is in favour of the view that the purchaser of the undivided share of a member of a joint family does not become a tenant in common with the other members. In Subba Row v. Annathanarayana Aiyar : (1912)23MLJ64 , Sundara Ayyar and Benson, JJ., were inclined to the view that when a co-parcener alienates his share in joint property, the alienee holds the share as tenant in common with the other coparceners who, as between themselves, are joint tenants with respect to their own shares, and Krishnaswami Ayyar, J., was inclined to this view in Chinnu Pillai v. Kalimuthu Chetti (1813) I.L.R., 35 Mad., 47 (F.B.). A contrary view was taken in Maharaja of Bobbili v. Venkataramanjulu Naidu I.L.R.,(1916) Mad, 265 and Manjayya v. Shanmuga I.L.R., (1915) Mad., 684 , which were referred to with approval by the Full Bench of this Court in Kota Balabhadra, Patro v. Khetra Doss : (1916)31MLJ275 , where it was held that an alienee from a member of a joint Hindu family was not entitled to possession of the alienor's share as a tenant in common and that his only remedy was to obtain by partition the share to which the alienor was entitled.
39. As regards the nature of the equity which is recognized in favour of a purchaser for value of a co-parcener's share it is purely a personal right and is subject to any superior equities which the co-parcener may have against the alienor. In Dudha Sahib v. Mahomed Sultan Sahib : AIR1921Mad384 , it was held that a purchaser from the purchaser of the share in the joint family properties cannot enforce the equities which his vendor could have enforced, and in Sabapathi Pillay v. Thandavaroya Odayar I.L.R., (1820) Mad., 809 it was held that a purchaser in Court sale cannot claim a right of substitution but was only entitled to the properties which were comprised in the sale certificate and which fell to the share of the co-parcener whose interests were sold in Court auction. As between the original parties the purchaser has been held to be entitled to the share which the vendor may get in a suit for partition even though the property may not be the property sold but another property which the vendor got for his share.
40. I am unable to accept the contention that a co-parcener who agrees to sell an item of joint family property, and not merely his share in it, is able to perform the contract merely because on the execution of a sale-deed the vendee will be in a position to file a suit for general partition and would, other things being equal, have the chance of getting the property sold allotted to the share of his vendor. The mere execution of a sale-deed is no performance when the vendor has no exclusive title and cannot put the purchaser in possession owing to the superior claims of his co-parceners. When a person agrees to sell property professing to have an absolute power of disposal over it and it is found that it is joint-family property in which he as a co-parcener has only got a share and that the agreement is not binding on the other co-parceners, I do not think he can perform the contract in its entirety. His chance of getting the property may be defeated by the other co-parceners suing for a partition of the particular item alienated and in a suit for partition they may have superior claims or there may not be other properties which can be given to the co-parcener in lieu of their shares in the property alienated. The view that the alienee from a co-parcener becomes a tenant-in-common with the other co-parceners has not been accepted in the decisions I have referred to, and it is now settled that the alienee of a share has only an equity to work out his rights by partition. Having regard to the fact that the alienation of a share by a coparcener without the consent of the others is opposed to the spirit of the joint family system, and that it places the other members in a disadvantageous position as the alienor still remains a member of the joint family while conveying his share as also to the fact that it gives the right to an alienee of a small item of family property to disrupt the family by filing a suit for general partition, I do not think Courts ought to put a person whose claim rests on a purely executory contract in the position of a person who by reason of an executed conveyance and the payment of consideration has acquired rights which on equitable grounds Courts consider it desirable to work out in a suit for partition. Then the matter rests merely on a contract which under Section 55 of the Transfer of Property Act gives a person no interest in the immovable property. The hardship to the other members of the family is an element to be taken into consideration in the exercise of the discretion. Moreover, the Court ought not to hold the vendor capable of performing, where all that can be predicated is that if the other co-parceners do not file a suit for partition of the item alienated or there exist other properties which can be allotted to him on a general partition, so that without defeating any equities between the alienor and the other members the Court can allot the alienated properties to the vendee.
41. The preponderance of authority is against the view contended for by the respondent. In Nidamarthi Mukkanti v. Thammana Ramayya I.L.R.,(1903) Mad., 76, and Srinivasa Reddi v. Sivarama Reddi I.L.R., (1909) Mad., 320, the effect of Section 15 of the Specific Relief Act is not considered and the Court thought that his right to convey need not be gone into, In cases where relief was given in respect of contracts prior to the Specific Relief Act the direction was to convey the share of the vendor on an abatement of the price if the purchaser so desired, and in subsequent cases his right to convey was left either for determination in another suit or, when it was held to be wanting, his suit was either dismissed or if he so chose the share of the vendor was decreed on payment of the full consideration.
42. It is conceded that a co-parcener who agrees to sell joint property cannot enforce specific performance against the purchaser where the agreement is not binding on the other coparceners, as he has not the title to convey the entire property. The chance of his getting the properties allotted on partition is not in such cases equivalent to his ability to perform the contract. It is difficult to see how in the converse case it can be held that the person agreeing can perform the contract in its entirety.
43. I am of opinion that a co-parcener who agrees to convey an item of joint family property for purposes personal to himself and not binding on the other co-parceners cannot perform his contract in its entirety, and that the case falls within the first portion of Section 15 of the Specific Relief Act.
44. The next question is whether specific performance can be decreed if the plaintiff is willing to take a conveyance of the share of the co-parcener on his paying the full consideration. I am of opinion that there is nothing to prevent the Court from doing this. The decision of the Full Bench in Chinnu Pillai v. Kalimuthu Chetti (1913) I.L.R., 85 Mad., 47(F.B.) has finally settled that the share of the alienee from the co-parcener is fixed with reference to what it was at the date of the alienation and is not fluctuating with reference to subsequent events. The co-parcener has a share in each item of the joint family property and there is no difficulty in determining the share of a co-parcener on a given date. Joint tenants are seized per mie et per tout and as between themselves have separate rights. On the date of the agreement to convey the person contracting to sell would have a share determined by the number of the co-parceners, and, the authorities in this Presidency having given the co-parcener a right to alienate his share in a specific item of property, there is no reason why he should not be directed to sell his share especially as that share is not subject to subsequent fluctuation. If the purchaser is willing to pay the full consideration, waive all claim to compensation or damage, and take only the share which his vendor is entitled to, nobody can possibly be prejudiced; while on the other hand it may be distinctly to the advantage of the vendor and co-parcener. Moreover, there is nothing to prevent the person in whose favour the agreement is entered into from filing a suit for damages, obtaining a decree and attaching and bringing to sale the share of the person who contracted to sell; thereby effecting indirectly what could be done directly if the Court grants him the share.
45. The English decisions on the subject of specific performance where a party is only entitled to a share are not uniform and the latter part of Section 15 of the Specific Relief Act is a clear departure from the English rule as to abatement or compensation when specific performance of part of a contract is decreed.
46. In Lumley v. Ravenscroft  1 Q.B., 683, Lord Lindley stated the general rule to be that, in the absence of misrepresentation or misconduct, when a person is jointly interested in an estate with another person and purports to deal with the entirety specific performance will not be granted against him as to his share and that the only remedy was by way of damages. But in Hexter v. Pearce  1 Ch. 341, specific performance was granted of a contract relating to an undivided moiety of mineral property. In Burrow v. Scammell (1881) 19 Ch.D., 175 , a defendant who was entitled only to a moiety of the premises agreed to be sold was directed to perform specifically so much as she was able to perform with a proportionate abatement in the consideration. In Hooper v. Smart (1874) L.R., 18 Eq., 683, it was held that where the vendors were entitled only to a moiety of the property agreed to be sold specific performance should be decreed of the moiety with the abatement of one-half of the purchase money.
47. So far as the decisions in India go, specific performance has been decreed of the share to which the vendor was entitled if the purchaser would take it. In Gurusami v. Ganapathia (1882) I.L.R., 5 Mad., 337, a decree was passed directing conveyance of the half share to which the party contracting was entitled. The fact that Section 15 would be a bar to the abatement in the price ordered does not affect the granting of the relief as to the share if the purchaser is willing to take it without claiming any abatement in the price. In Poraka Subbarami Reddy v. Vadlamudi Seshachalam Chetty I.L.R., (1910) Mad., 359, it was held that the plaintiff was entitled to a decree for specific performance directing the conveyance of the vendors' share if he paid consideration. In Shama v. Kumed (1918) 27 C.L.J., 611, where a member of a family governed by the Mitakshara purported to sell the whole property and the agreement was found not to be binding on the other members, specific performance of the contract in respect of the one-fourth share of the defendant was ordered without any abatement in the price. In Deendyal Lal v. Jugdeep Narain Singh (1878) I.L.R., 3 Cal 198 (P.C.), their Lordships of the Privy Council, while directing possession of property sold in execution of a decree to be given back to the co-parceners, added a declaration that the appellant as purchaser in execution sale acquired the share and, interest of the judgment-debtor in that property and was entitled to take proceedings to have that share ascertained. They only refrained from specifying the share as the wife of the judgment-debtor and mother of plaintiff might have been entitled to a share. In Suraj Bunsi Koer v. Sheo Persad Singh (1880) I.L.R., 6 Calc., 148 (P.C.), the decree setting aside the execution sale in its entirety was set aside and a declaration granted:
that by virtue of the execution sale to them the respondents acquire only the third undivided share, . . which belonged to Adit Sahai with such power of ascertaining the extent of such third part of a share by means of partition as Adit Sahai possessed in his lifetime.
48. I am of opinion that in all cases where the plaintiff elects to take the share on payment of the full consideration agreed upon the share of the vendor on the date of the contract should be specified.
49. My answer to the question is that Section 15 of the Specific Relief Act applies to cases covered by the Order of Reference and that specific performance cannot be granted of the contract so as to direct execution of a conveyance of the entire property, but that it is open to the purchaser to get specific performance so far as the share of the vendor is concerned on payment of the consideration agreed upon without any abatement.