1. These two appeals arise out of connected suits O.S. No. 1440 of 1919 was a suit brought by M. Guravayya and the minor sons of his deceased brother Ramaguruvayya to recover possession of lands in the possession of the defendant. O.S. No. 199 of 1920 is a suit by the defendant in O.S. No. 1440 for specific performance of a contract to sell entered into by Ramaguruvayya, father of plaintiffs 2 and 3 in O.S. No. 1440. In the first of these suits the plaintiffs alleged that the suit lands were taken on lease by one Nowlpor Periah, that the defendant got into possession and was paying rent for some years but afterwards refused to pay rent or to surrender possession. Both the Lower Courts found against the truth of the alleged lease in favour of the defendant. The District Munsif found that the father of plaintiffs 2 and 3, Ramaguruvayya, had purchased the suit lands under Ex. II from Nowloor Periah, to whom the family had previously sold the same property, in discharge of debts and cash received at purchase. Afterwards, Ramaguruvayya contracted to sell the suit property to the defendant and gave him a receipt (Ex. I) for payment of the purchase money Exs. I and II were executed in 1911. After this the two minor plaintiffs were born. Both the Lower Courts have taken it as proved that Ramaguruvayya became divided in status from his brother, the first plaintiff, before the minor plaintiffs were born and that they kept the suit lands undivided for future partition by metes and bounds.
2. The District Munsif dismissed the suit for possession on the finding that Ramaguruvayya entered into, a contract to sell the property to the defendant. In the other suit he gave the plaintiff a decree for specific performance and directed the guardian of the minor defendants to execute a sale deed within four months.
3. The District Judge on appeal found that the suit lands formed part of the ancestral property of the joint family and that Ex. A, a sale deed of 1903, formed the root of title in the joint family of the plaintiffs. He also found that there was no satisfactory evidence that the first plaintiff and Ramaguruvayya had sold the property to Nowloor Periah, and therefore Nowloor Periah could not pass any valid title to Ramaguruvayya. Then, as regards the contract to sell, Ex. I, he held that this was only evidence of an agreement to sell and did not operate as a transfer of title. There is no discussion of the sections of the Transfer of Property Act or the Specific Relief Act in the judgment, but the District Judge was appa-, rently referring to Section 54 of the Transfer of Property Act and the provision therein contained that a contract for the sale of immoveable property does not of itself create any interest in or charge on such property. At the time when the District Judge gave his judgment the decision of the Full Bench of this Court in Vizagapatam Sugar Co. v. Muthurama Reddi (1923) 45 MLJ 538 had not been pronounced. That Full Bench dissented 'from the previous rulings of two Full Benches in Kurri Veerateddi v. Kurri Bapireddi ILR (1880) M 336 and Ramartathan v. Ranganathan and pronounced that part performance of a contract by way of delivery of possession coupled with an enforceable night to specific performance was a good defence to an action for ejectment.
4. In this view of the law, the defendant who has been in possession of the property since 1911 and has paid the price can successfully plead his possession and the contract for sale as a defence to the suit of the two minor plaintiffs who claim under Ramaguruvayya. As these two plaintiffs were born after the date of the contract to sell by their father they could not acquire at birth any interest in the property to which their father had already parted with his title.
5. The respondents vakil relies on some observations in Ponnambala Pillai v. Sundarappayyar : (1897)7MLJ240 to the effect that a purchaser from a coparcener of an undefined share takes subject to the chance of the vendor's share being diminished before the partition takes place. In that case the plaintiff's father and uncle contracted to sell certain properties as soon as they got possession of the same. Before they got possession the plaintiff was born and his father's brother who was a party to the contract died. The learned Judges observed that there was no authority for the position that a contract to sell made by a Hindu before a son has been born to him is binding on the son who is born before the transfer of the property takes place. There was a suit for specific performance to which the plaintiff was not made a party before he brought his suit for partition, and it was held that he was not bound by the decree for specific performance obtained against his father. In their observations as the binding character of a contract for sale made by a Hindu upon his afterborn sons, the learned Judges make no direct reference to the provisions of the Specific Relief Act or to those of the Transfer of Property Act.
6. In Chinnu Pillai v. Kali Muthu Chetti (1911) 35 MLJ 346 (FB) the test applied to find the quantum of interest vesting in the alienee was to ascertain the state of the family at the time when the alienation was made. In the present case plaintiffs 2 and 3 were born both after the contract to sell was entered into and after the possession was transferred.
7. In Bappu v. Annamalai Chettiar (1922) 44 MLJ 226 the co-parceners were apparently all born by the time that the contract was en-tered into by their father. The plaintiff, who sued after the father's death for specific performance of the contract to sell property in which the sons took an interest at birth had to show that the transaction was for the benefit pf the joint family.The fact that here the sons were not born at the time of the contract for sale distinguishes this case from that.
8. Kuralia Nanubhai v. Mansukhram ILR (1900) Bom 400, Ram Baksh v. Mughlani Khdtiam ILR (1903) A. 266 and Salamat-uz-Zamin Begam v. Masha Alla Khan ILR (1917) A. 187 are all instances where Section 54 of the Transfer of Property Act is held to be inapplicable to cases where possession has been given and part of the purchase money has been paid. In venkata Reddi v. Yellappa Chetty (1916) 5 LW 234. Abdur Rahim and Srinivasa Aiyangar, JJ., held that Section 54 of the Transfer of Property Act did not affect equitable rights arising under a contract of sale.
9. The contentions of the respondents' pleader (1) that the defendant cannot put forward the defence of part performance of the contract except against a party to the contract (2) that possession has not been found to be referable to the contract and (3) that the defendant as an alienee from a co-parcener has no remedy except to ask for partition of the undivided share of his vendor, may be answered briefly as follows: (1) that the legal representatives of a party to the contract, such as plaintiffs 2 and 3 are, are bound by the contract and, under Section 27(b) of the Specific Relief Act, specific performance may be enforced against them. (2) Ex. I speaks of possession having been handed over. The possession thus is referable to the same contract under which the purchase money was paid. Even otherwise, possession coupled with an agreement to sell and payment of the price are good defences against an action for possession. (3) Ramaguruvayya having become divided in status from the first plaintiff, the defendant is an alienee from a tenant-in-common, not from a coparcener. He has no equity to ask for a general partition of the family property against a tenant-in-common. This distinguishes Subba Goundan v. Krishnamachari ILR (1921) M. 449 : 42 MLJ 372 from the facts of the present case.
10. In the result, Second Appeal No. 1803 will be allowed in part and in modification of the Lower Appellate Court's decree the first plaintiff will get a preliminary decree for the recovery of a moiety of the suit property, the claim of plaintiffs 2 and 3 being dismissed. Each party will bear their costs throughout as each side has only partially succeeded.
11. Second Appeal No. 1804 is allowed. The defence of limitation was raised in this suit (O.S. No. 199 of 1920) but no issue was framed on the question whether the suit was in time, there was no contest on the point, and the respondents cannot be allowed in second appeal to press the point when the appellant has not been called on during the trial to show that his suit was in time. The sale deed to be executed will of course pass only the interest of defendants 1 and 2 who were directed by the decree of the first Court to execute it as the suit was only against those two represented by their mother las guardian. The decree of the District Judge is set aside and the decree of the District Munsif is restored with costs throughout. Time for execution of the sale deed will he extended to four months from the present date.