1. As regards the second question my answer is that, in a suit for specific performance of a contract by a member of an undivided Hindu family to sell his share, it is not permissible to join the other members of the family as defendants merely with a view to obtaining partition and possession of the alleged vendor's share as against them. It may, I think, be taken as the settled and salutary practice of this and other Courts in India, where parties properly sued for specific performance of a contract for sale of land are in possession of the land, to allow a prayer for possession to be added to the prayer for specific performance, thereby obviating the necessity for filing s fresh suit for possession to which there could be no defence. Bugata Appala Naidu v. Ghengalvala Jogiraju 32 Ind. Cas. 237 : (1916) 1 M.W.N. 77. It is, however, in my opinion quite a different thing to allow a stranger to make the members of a joint Hindu family defendants in a suit for a partition, until he has established his right to sue for partition by obtaining a transfer from one of the members of the family.
2. The other members of the family were no parties to the alleged contract and, therefore, were not proper parties to the suit in so far as it is a suit for specific performance, and it would, in my opinion, be a distinct hardship to them to force them to defend a suit for partition which would not lie if the plaintiff failed to prove his contract. Partition suits often involve a great variety of complicated questions and it would not be satisfactory to deal with such a suit as a mere appendage to a suit for specific performance of a contract by a co-sharer to sell his share. The rule in Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212 is not merely technical but well founded in principle. In De Hoghton v. Money (1867) 2 Ch. 164 : 15 L.T. 403 : 15 W.R. 214. Turner, L.J. observed: I here again his case is met by Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212 in which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions which might never arise, as it might appear that the contract either ought not to be, or could not be performed. Other cases in which the same rule was applied are Wood v. White (1839) 4 My. & Cr. 460 : 2 Keen 664 : 7 L.J. Ch. 203 : 8 L.J.Ch. 209 : 3 Jur. 117 : 41 E.R. 178 : 48 R.R. 152; Chadwick v. Maden (1851) 9 Hare 188 : 21 L.J. Ch. 876 : 68 E.R. 469 : 89 R.R. 391 and West Midland Railway Co. v. Nixon (1863) 1 H. & M. 176 : 71 E.R. 77 : 136 R.R. 79. We have not been referred to any authority to show that these authorities are no longer applicable under the existing rules of procedure, or in support of the proposition that it is permissible to bring suits against persons against whom there is no cause of action at the date of suit. On the other hand the judgment of Lord Parker in Howard v. Miller (1915) A.C. 315 : 84 L.J.P.C. 49 seems to be in accordance with the view I have taken.
3. As regards Bishop of Winchester v. Mid-Hants Railway Company (1868) 5 Eq. 17 : 37 L.J. Ch. 64 : 17 L.T. 161 : 16 W.R. 72 which was cited before us, that was a suit by an unpaid vendor to obtain specific performance by payment and to enforce his vendor's lien by obtaining possession of the property and by sale, if necessary, and for a Receiver, and it was held that the London and South Western Railway who were in possession as lessees from the defendants were properly joined, as their possession would be affected by the decree sought for. In that case, the plaintiff claimed as on the date of suit to be entitled to recover possession both against his vendees and their lessees by reason of his vendor's lien. They were necessary parties to the suit only in so far as it included a claim to enforce the lien, a necessity which is clearly explained by, Lord Romilly in Attorney-General v. Sittingbourne and Sheerness Railway Company (1866) 1 Eq. 636 : 35 L.J. Ch. 318 : 14 L.T. 92 : 14 W.R. 414.
4. As to seotion 27 of the Specific Relief Act, that section merely provides against what persons' contracts may be specifically enforced. They include not only (a) the parties to the contract and (6) parties claiming under them by title subsequent other than transferees for value and without notice, but also (c) any person claiming under a title which though prior to the contract and known to the plaintiff might have been displaced by the defendant, As an illustration of specific performance being enforced in this way against a person claiming under a title prior to the contract, we are given the case of two joint tenants each of whom owns an undivided moiety which he may alienate during his lifetime bat which in default of alienation devolves on the survivor. All that the illustration shows is that, if one of the joint tenants contracts, as he is entitled to do, to sell his share and dies before performing his contract, specific performance of that contract may be enforced against the other joint tenant. The section and the illustration, in my opinion, have no bearing on the question before us, which is whether persons who are strangers to the contract and against whom it cannot be specifically enforced can be properly joined as defendants and partition claimed against them as co-parceners of the vendor.
5. As regards the first question, I agree with the opinion of Srinivasa Aiyangar, J., which I have had the advantage of reading.
Abdur Rahim, J.
6. The questions referred depend, in my opinion, for their answer on the provisions of Order I of the Civil Procedure Code, and Section 27 of the Specific Relief Act. Rule 3 of Order I, Civil Procedure Code, which is directly applicable is in these words: 'All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if separate suits was brought against such persons any common question of law or fact would arise.'
7. Rule 1 relates to the joinder of plaintiffs and is in identically the same words as Rule 3 with 'plaintiffs' substituted for 'defendants' and with the necessary alterations to suit the case of plaintiffs, Comparing them with the corresponding provisions of the Code of 1882, it is clear that the Legislature by replacing the words 'in respect of the same matter' of the old Code with the words 'in respect of or arising oat of the same act or transaction or series of acts or transactions', followed by the qualifying proviso--'where if separate suits were brought against such persons any common question of law or fact would arise'--has materially widened the scope of the rules relating to joinder of parties. This is evident both from the more comprehensive nature of the language of the new rules and the history of the legislation on the subject.
8. The new words are taken from rule J, Order XVI, of the Rules of the Supreme Court of 1896 where they were introduced because of the decision of the House of Lords in Smurthwaite v. Hannay (1894) A.C. 494 : 63 L.J.Q.B. 737 : 6 R. 299 : 71 L.T. 157 : 43 W.R. 113 : 7 Asp. M.C. 485 holding, in reversal of the judgments of Esher, M.R., and Kay, L.J., in the Court of Appeal, that the rule related only to joinder of parties in respect of the same cause of action and not to joinder of causes of action. This was exactly Section 26 of the Indian Code of 1862, which contained the very words 'in respect of the same cause of action.' The amended Rule 1 of the Supreme Court Rules of 1896 was evidently intended to carry out the view expressed by Lord Esher, M.R., that if in a case like Smurthwaite v. Hannay (1894) A.C. 494 : 63 L.J.Q.B. 737 : 6 R. 299 : 71 L.T. 157 : 43 W.R. 118 : 7 Asp. M.C. 485 where 'the different causes of action and claims all arise out of the same transaction' more than one plaintiff was not allowed to join, it would be lamentable waste of time and money. In fact the English Rule Committee and following them, the Indian Legislature, went further in permitting such joinder, not merely with respect to right to relief arising out of the same, transaction bat a series of transactions.
9. In England while Rule 1 was amended, Rule 4 which dealt with the question of joinder of defendants was allowed to remain as it was before 1896. Nevertheless the Court of Appeal in Compania Sansinena v. Houlder (1910) 2 K.B. 864 : 79 L.J.K.B. 1004 : 103 L.T. 333 holding that the alteration of Rule 1 made it clear that Order XVI did not deal solely with joinder of parties and that Rule 4 must be interpreted in the light of Rule 1, laid down that the power to join several defendants in the same action extended to cases where the subject-matter of complaint as against the several defendants is substantially the same although the causes of action against them respectively are, technically, different in form, and the several liabilities alleged against them respectively are to some extent based on different grounds. The Indian Legislature, however, provided against all difficulties of interpretation by enacting Rule 3 in the same words as Rule 1. fey Section 28 of the old Code the right to relief was required to be 'in respect of the same matter,' under Rule 3 it is sufficient if such right exists in respect of or arises out of the same transaction or series of transactions' subject only to the condition that there be any common question of law or fact to be decided. It does not matter whether there are more than one and technically different causes of action Compania Sansinena v. Houlder (1910) 2 K.B. 864 : 79 L.J.K.B. 1004 : 103 L.T. 333 or the liabilities of the several defendants are different, Rule 4(6); nor is it necessary that every defendant should be interested in all the reliefs claimed in the suit (rule 5).
10. But it is argued that these rules do not affect the question whether to a suit for specific performance strangers to a contract may be joined as defendants and it is contended that it is governed by the rule laid down by Lord Cottenham in Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212.
11. It is perfectly clear, however, that even in England where the general rule still is that the parties to the contract are the necessary and sufficient parties to the action as held in Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212 there are many real or apparent exceptions to this rule which is after all a rule of convenience and good sense (See Fry's Specific Performance, Section 176 and Section 192). Some of the exceptions were recognised under the former practice of the Court of Chancery itself, while the Rules of the Supreme Court have largely enlarged the powers of the Court in joining any party whose presence may be necessary (see Halsbury's Laws of England, Volume 27, notes to Section 141, page 79, and Fry, Section 192). It has thus been held in England that persons claiming adversely might be made defendants, a person who by virtue of an antecedent contract with the. vendor claimed an interest in the purchase-money was a proper party to a suit for specific performance, in the case of purchases from a voluntary settler when the contract was sought to be enforced by a purchaser not only the vendor but the trustees of the settlement and the persons beneficially interested under it were properly made defendants, and in some cases where a portion of the relief claimed might affect the person in actual possession of the property that person may properly be made a party to an action for specific performance of the contract (see the summary of eases in Fry, Sections 175,180, 181, 185, 187, 188, 189, 192, and 210, and 27 Halsbury's Laws of England, Section 141 and notes thereto). Bishop of Winchester v. Mid-Hants Railway Company (1868) 5 Eq. 17 : 37 L.J. Ch. 64 : 17 L.T. 161 : 16 W.R. 72 was a case of the last class where Stuart, V.C. held: 'Ordinarily a person not being a party to. the contract ought not to be brought before the Court. But it is otherwise where possession is sought by the bill, and the person in possession will be affected by the decree.'
12. That in a suit to enforce specific performance of a contract for the sale of immoveable property possession can also be asked for and obtained as against the vendor is well established by the rulings of this Court as well as of the other Indian High Courts. See Bugata Appala Naidu v. Ghengalvala Jugiraju 32 Ind. Cas. 237 : (1916) 1 M.W.N. 77 where the learned Chief Justice and Seshagiri Aiyar, J., say: 'it is the practice in this and other Courts to allow a claim for possession to be included in a claim for specific performance of a contract for the sale of immoveable property and we are not prepared to question it.' And it was not argued before us that as against the vendor himself partition could not be obtained in such a suit although delivery of possession might be, at any rate any such distinction would be altogether untenable. That a buyer of a Hindu co-parcener's share cannot ask for joint possession but only for partition cannot surely make his position any worse.
13. The real ground on which objection to the joinder in this case of defendants Nos. 2 to 5, who are the co-parceners of the 1st defendant who contracted to sell his share in certain items of the family property to the plaintiff, is based is that the right to partition does not arise until after the conveyance has been executed under the decree of the Court. This objection, it may be pointed out, primarily raises the question as to what reliefs can be obtained along with specific performance and relates to the joinder of defendants only inferentially. I do not see why we must say that the right to ask both for specific performance and for possession did not arise at the time when the vendor refused to carry out the bargain and give the vendee possession of the property.
14. I may observe, however, that it does not follow that because in a suit for specific performance the plaintiff does not ask for delivery of possession, Order II, Rule 2, of the Code of Civil Procedure would be a bar to a future suit for possession. For ordinarily the vendor is either not interested in denying or cannot deny the plaintiff's right to obtain delivery of possession of the property if the latter has a right to enforce the contract and the question, therefore, of the purchaser's right to possession is seldom raised at a time when the very contract of sale or the plaintiff's right to enforce it is still in dispute.
15. That by virtue of Section 54, Transfer of Property Act, no interest in immoveable property is created by the contract of sale itself does not at all affect the question. It is sufficient for the plaintiff to say that by the contract he obtained the right to acquire the property with the aid of the Court, the execution of a registered instrument and delivery of possession being the means by which the right is to be enforced. The decision of the Privy Council in Lakshmi Venkayyamma v. Venkatanarasimha 34 Ind. Cas. 921 : 20 C.W.N. 1054 : 14 A.L.J. 797 : 31 M.L.J. 58 : (1916) 2 W.M.N. 23 : 20 M.L.T. 137 : 4 L.W. 58 : 18 Bom. L.R. 651 : 39 M. 509 : 24 Cri.L.J. 279 is based on this principle. I think it would be unreasonable to hold that the right to possession does not arise out of the contract so as to be covered by the words of Rule 3 see Madan Mohan Singh v. Gaja Prosad Singh 11 Ind. Cas. 228 : 14 Cri.L.J. 159.
16. Nor can it make any difference that the right to one relief, that is, possession, is contingent on the plaintiff establishing his right to another relief, namely, execution of a proper conveyance by the defendant. There are many other examples of such suits: e. g., suits for establishing right to and to recover immoveable property and for mesne profits, for setting aside alienation on ground of fraud or undue influence and other oases of that description.
17. I am also of opinion that Section 27, Clause (c), of the Specific Relief Act applies as illustrated by the two examples appended to it, especially the second case which is as follows: 'A and B are joint tenants of land, his undivided moiety of which either may be alien in his lifetime, but which, subject to that right, devolves on the survivor. A contracts to sell his moiety to C, and dies. C may enforce specific performance of the contract against B.' This illustration, which is undoubtedly covered by the terms of the section, is substantially the present case and shows that a purchaser from a co-parcener can enforce specific performance of his contract against the other co-parceners. That being so, the only question is whether the joinder of prayer, for possession or partition is permissible, and I have already tried to show that it is.
18. As for the suggestion that the joinder of parties other than the vendor as contemplated by Section 27 is for the purpose of compelling them to join in the conveyance, it is not necessary to express any opinion upon it on this reference. All that I wish to say on that point, as it is raised in Sadasiva Aiyar, J.'s judgment, is that in some oases it may be necessary to order persons other than the vendor to join in the execution of the deed of sale. And that, I may observe, was the kind of question that was really mooted in Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212 and the other English decisions of that category. In Howard v. Miller (1815) A.C. 315 : 84 L.J.P.C. also, all that was decided was that no decree for specific performance could be given against a person who was not a party to the agreement. Anyhow, I fail to see that because defendants Nos. 2 to 5 might or might not be asked to join in the conveyance, it follows in any way that partition might not be obtained as against them in the same suit.
19. It is obvious that to require the purchaser first to enforce specific performance of the contract of sale and after he has obtained a decree to that effect, to institute a separate suit for partition, would fee a wholly unnecessary multiplication of suits resulting in a mere waste of time and money. In some cases where, for instance, a co-parcener or tenant-in-common who had been excluded from his share sold to a bona fide purchaser shortly before the lapse of the period of limitation, the purchaser might lose the whole bargain through no fault of his own. As, in my opinion, the terms of Order I of the Code of Civil Procedure and Section 27 of the Specific Relief Act, negative such a narrow construction and there is nothing in reason or principle to warrant it, I would answer both the questions in the affirmative. There is no decision exactly in point, but in so far as the cases in Bugata Appall v. Chengalvala Jogiraju 32 Ind. Cas. 237 : (1916) 1 M.W.N. 77 and Narasinga Row v. Rangasami Thevan 35 Ind. Cas. 871 : (1916) 2 M.W.N. 191 : 4 L.W. 397 may be regarded as laying down any general rule that in a suit for specific performance, a person in possession other than the vendor cannot be joined as a defendant, I should hold with the greatest deference to the learned Judges concerned in those decisions, that such a general proposition is pot sustainable. It is mainly based on the observations of Lord Cottenham in Tasker v. Small (1837) 3 My. & Cr. 63 : 6 Sim. 625 : 5 L.J. Ch. 321 : 40 E.R. 848 : 45 R.R. 212 without sufficient regard being had to the subsequent relaxations of the old rule in later decisions of the English Courts and the changes effected in the rules of the Supreme Court of England.
20. If the Court thinks that the claims against several defendants should be separately tried in any cases covered by Rules 3, 4 and 5 of Order I on grounds of convenience, it has ample power to order separate trials and it is the obvious intention of the Legislature, as is to be collected from the provisions of Order I, that subject to this power, all claims arising out of the same transaction or series of transactions shall be tried together if they are so connected as to give rise to any common question of fact or law.
21. It may be pointed out that in this particular case the further allegations that the 1st defendant fraudulently compromised the previous suit for partition instituted by his co-parceners (defendants Nos. 2 to 5) in order to deprive the plaintiffs of the fruits of their purchase and that the defendants Nos. 2 to 5 have been acting in collusion with him with knowledge of the contract of sale, make defendants Nos. 2 to 5 necessary parties to the action.
22. For these reasons, I agree with the conclusion of Oldfield, J.
Srinivasa Aiyangar, J.
33. As I agree generally with the judgment of Sadasiva Aiyar, J., I do not propose to discuss the question at length. The answer to the questions referred to us appears to me to depend upon well settled principles. To a suit for specific performance of a contract the parties to the contract or their representatives are necessary parties, others bound to perform it are proper parties, and no others can be made parties, Howard v. Miller (1915) A.C. 315 : 84 L.J.P.C. 49. Section 27 of the Specific Relief Act specifies the persons against whom contracts can be specifically enforced. As a part of this rule all persona who may be affected by the enforcement of the rights of the plaintiff arising out of the. contract may properly be made parties; as for example in Bishop of Winchester v. Mid-Hants Railway Co. (1868) 5 Eq. 17 : 37 L.J. Ch. 64 : 17 L.T. 161 : 16 W.R. 72 which was a vendor's suit for specific performance, where the plaintiff sought relief by way of declaration of lien for unpaid purchase-money and enforcement of that lien by the appointment of a Receiver and injunction, the purchaser's lessees were held proper parties. It is also settled that in a suit-by the buyer for specific performance of a contract of sale of immoveable property, the plaintiff is entitled not merely to call for a conveyance from the vendor, but also seek possession of the property from the vendor, by compelling him to perform all his obligations under the contract of sale, namely, to give the buyer such possession of the property as its nature admits. Ordinarily and in the absence of a contract to the contrary, the buyer would be entitled to possession at the time fixed for completion of the sale and if he accepts the title and offers to pay the purchase money, he would be entitled both to call for a conveyance and to possession of the property from the vendor; and in a suit for specific performance the buyer may be entitled to damages in addition to specific performance for the failure of the vendor to give possession at the time agreed [see illustration of the third paragraph in Section 19 of the Specific Relief Act. Royal Bristol Permanent Building Society v. Bomash (1887) 86 Ch. D. 390 : 68 L.J. Ch. 840 : 57 L.T. 179. This right of the buyer, I apprehend, is a right in personam against the vendor and arises out of the contract for sale and is different from the title or the right of property which the purchaser obtains on the execution of the conveyance, which enables him to sue in ejectment all persons in possession including his own vendor. If this is the correct view, the fact that a buyer when suing for specific performance of a contract of sale does not seek recovery of possession would not prevent him from seeking that relief on his title which gives him another cause of action. My only doubt is whether the obligation under the contract of sale to give possession is one which is capable of being specifically enforced, and whether the proper relief is not damages for breach of the contract to give possession till execution of the conveyance, after which date the purchaser would be entitled to mesne profits from the person in possession, whether such person is the vendor or a stranger without title. Whether a suit for possession based on the obligation under the contract of sale can be brought against a subsequent purchaser with notice of the contract who has obtained possession as such purchaser need not be considered now. In Fateh Chand v. Narasingh Das 16 Ind. Cas. 988 : 22 Cri.L.J. 383 it was held and in Goffur v. Bhukaji 26 B. 159; 3Bom. L.R. 596 it was assumed that it can be.
34. In the present suit the contract of sale was to sell the 1st defendant's share in certain items of immoveable property, which formed part of the co-pecuniary property belonging in common to himself and the other defendants in the case. It is now settled so far as this Court is concerned that this contract, even if completed by a conveyance, would not entitle the plaintiff to joint possession with the other co-parceners--that in fact he is pot en-titled to any sort of possession--but that his purchase, if completed, would enable him to bring a suit for partition in which, if the Court making a division considers it fair having due regard to the rights of other co-parceners to allot the property sold to the vendor, the vendee standing in his shoes may obtain that property. It is obvious that the 1st defendant, the vendor, was under no obligation to place the plaintiff in joint possession of any family property and no other person, even ft bound to perform the obligation of the contract, can be under that obligation.
35. It was said that in the case of a contract to sell his share of the joint family property by a member of the coparcenary, there is a contractual obligation on his part to divide himself off from the other members and place the vendee in possession of the property which may be allotted in a fair partition. Without an express stipulation in the contract, I an) unable to imply any such obligation from the provisions of the Transfer of Property Act or any other law governing the relation of vendor and vendee. Even in the ease of tenants in-common, where one tenant-in-common sells his share in specific items there appears to be no such obligation (see Freeman on Co-Tenancy, Section 199, at page 329).
36. The right to sue for partition does not arise till after the legal title is transfer, red and when the suit was instituted in the present case there was no right to sue for partition at all. This conclusion, apart from any question of joinder of parties or causes of action, which can only arise if there is a right to relief against one or more at the time of the institution of the suit, is enough to answer the second question in the negative see De Hoghton v. Money (1867) 2 Ch. 164 : 15 L.T. 403 : 15 W.R. 214 especially the observations at page 170 of the report].
37. The first question stands on a different footing; and an answer to that would depend on, whether defendants Nos. 2 to 5 are subsequent transferees of the property agreed to be sold to the plaintiff. The compromise in the previous litigation, which is challenged in the present suitas a fraud on the rights of the plaintiff under his contract of sale, does not interms purport to be a transfer of the 1stdefendant's share of the property agreed to be sold to the plaintiff; he as a member of a Mitakshara joint Hindu family had no definite share in any particular item of the family property. In fact what defendants Nos. 2 to 5 say is that they have only converted their partial interest in the whole of the family properties into a full interest in some of them, and that no agreement by the 1st defendant can affect their prior rights in the family property. They in no way dispute the contract of the 1st defendant with the plaintiff. It is not said that the value of the property allotted to the 1st defendant is less than the value of his share. But a partition involves the release of the interest of the other co-parceners in the properties allotted to one of them and though by virtue of their prior title defendants Nos. 2 to 5 may be entitled to a release from the 1st defendant of his interest in the properties, the subject of the present suit, if these properties were allotted to them in a fair partition without being affected by the contract of sale which can only operate subject to their rights, yet if the partition is proved to be a fraudulent design to defeat the rights of the plaintiff under his contract of sale, by the 1st defendant giving up the chance of the suit properties or a share in them being allotted to him in a fair division, I think that defendants Nos. 2 to 5 in such a case may fairly be treated as subsequent transferees with notice. In Fateh Chand v. Narsingh Das 16 Ind. Cas. 988 : 22 Cri.L.J. 383 which is perhaps the nearest to the present case, under the form of a compromise one of the defendants got a transfer for money of whatever interest the other defendant had in the property agreed to be sold. It was held that he was a subsequent transferee. The difference between that case and this is obvious; but that, I think, makes no difference in principle. The answer to the 1st question must, therefore, be in the affirmative. In the view I have taken, there is only one cause of action, namely, that for specific performance in this case, the other cause of action, viz., for partition not having accrued on the date of the suit. If there was an existing cause of action for partition on the date of the suit, the question whether the two causes of action, one for specific performance and the other for partition and possession, can be joined in one Suit, would depend not only on the provisions of Order J, Rules 3 and 5, which primarily regulate the joinder of parties but also of Order II, Rules 3 and 4, which provide for joinder of causes of action.