1. Plaintiff 1 was desirous of acquiring a house site belonging to defendants l to 7, a family of Mahomedans. The father was dead. Defendant 2 is the mother. Defendants l and 3 are sons, defendant l being the elder. Defendants 4 to 7 are daughters. Defendant l, purporting to act on behalf of the whole family, entered into an agreement, Ex. G, to convey certain property; and on 10th May 1934, a registered sale deed (Ex. G-l) was executed by all the adult members of the family, purporting to act on behalf of themselves and the minors, defendants 4 to 7. The plaintiff says that owing to the insistence of the municipality on a margin around the property being left for passages, he found that the area conveyed to him was insufficient for his purposes. So he entered into negotiations with the major members of the family for the conveyance of a further area of land. On 2nd October 1934, Ex. A was drawn up, by which defendants 1 and 3 purported to agree to the conveyance of the area of 44 sq. yards with which we are now concerned; but only defendant 1 signed it. On 3rd November 1934, a sale deed Ex. B, was drawn up, but not executed by all the members of the family. It was signed only by defendants 1 and 3 and was not registered. Sometime after this, a much larger area of land, including the 44 sq. yards was conveyed on 18th November 1934 by Ex. I to the father of defendants 8 to 11. It has been found by the Courts below that the father of defendants 8 to 11 had notice of the earlier agreements to sell. The plaintiff brought the present suit for the enforcement of the agreement to sell. The question is what relief, if any, can be granted to him.
2. The trial Court found that the agreement was not binding on the mother, defendant 2, or upon the minors; but that the plaintiff was entitled to enforce his agreement against the shares of defendants 1, 3 and 4. As the plaintiff would then in equity be able to bring a suit for partition of the whole site and, subject to other equities, have the 44 sq. yards allotted to him, the District Munsif saw no reason why the whole process should not be completed in this suit. He therefore passed a decree granting the plaintiff the relief he asked for. The lower appellate Court confirmed the decree of the first Court and dismissed the appeal. Both the lower Courts thought that because defendant 4 was ex parte, the plaintiff was entitled to relief as far as her share is concerned; but I am unable to discover on what principle the lower Courts acted; for, we are not now concerned with defendant 4's rights, which have disappeared by virtue of the sale to the father of defendants 8 to 11, in which she joined. As defendants 8 to 11 now own her share, they are at liberty to show that the share of defendant 4 was not legally conveyed. It has not been proved that defendant 4 knew anything about the contract Ex. A; and so one must presume that as it was entered into only by defendant 1 and ratified by defendant 3, those two persons are alone bound by the contract. The argument for the appellant is that as the contract cannot be enforced in its entirety, because the parties bound by the contract do not possess more than a portion of the land, specific performance can only be granted with regard to their shares in the 44 sq. yards of land, and then only on payment by them of the full consideration. That is the principle laid down in Baluswami Iyer v. Lakshmana Iyer A.I.R. 1921 Mad. 172 The learned Subordinate Judge's argument was that as defendants l and 3 were entitled not only to a share in the 44 sq. yards but in the whole of the site and as they had a right to partition, the Court could consider the partition to have been effected and the 44 sq. yards to have fallen to the share of defendants 1 and 3 and to be therefore available for the satisfaction of the plaintiff's contract. That cannot, however, be done. As was pointed out in Rangayya Reddi v. Subramania Iyer A.I.R. 1918 Mad. 681 the right to partition only accrues after the land has been conveyed, i. e., after the suit for specific performance has been decreed and executed. Moreover, the only proper parties to a suit for specific performance are the persons bound by the contract; and it would be an unwarranted expansion of such a suit to add as parties persons who are not bound by the contract and become proper parties only when the property is to be divided.
3. The claim of the defendants can however be looked upon in a slightly different way. If defendants 1 and 3 had acquired the right to sell all this 44 sq. yards during the continuance of the contract there can be no doubt that although the plaintiff would not have been able to enforce the contract against the whole of the 44 sq. yards at the time the contract was entered into, he would be able to do so as soon as defendants l and 3 had obtained possession of the whole of the 44 sq. yards. That a contract which cannot be enforced in full at the time the contract was entered into may nevertheless be enforced if it can be fulfilled at the time of the filing of the suit, has been settled by Adinarayana v. Venkatasubbayya A.I.R. 1940 Mad. 625 Since defendants 8 to 11 had notice of the contract and are as bound by it as their transferors, defendants 1 and 3, they, too, are bound to fulfil the contract if it lies within their powers to do so. Section 27, Specific Relief Act, makes a contract enforceable not only against the party, but against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid the consideration in good faith and without notice of the original contract. Defendants 8 to 11 were therefore proper parties to the suit as transferees from defendants 1 and 3 against whom the contract can be directly enforced. As they are in a position to fulfil the contract in its entirety, the contract can and must be enforced. The appeal is therefore dismissed with costs, except that the decree will require defendants 8 to 11 to fulfil the contract and not defendants 1 and 3, who have no interest in the property and have therefore nothing to convey.