1. The first defendant is the appellant. The second plaintiff and the third defendant are the sons of the first plaintiff and the second defendant is the wife of the first plaintiff. The suit properties were originally owned by the plaintiffs and defendants 2 and 3. They sold them for a sum of Rs. 2500 under a sale deed dated 6-5-1969. On the date of sale itself, the first defendant executed an agreement to reconvey the properties to the plaintiffs and defendants 2 and 3 within five years from the date of sale on receipt of the consideration of Rupees 2500. It is to enforce this agreement to reconvey, the plaintiffs filed the present suit. The plaintiffs tendered the entire consideration within the time stipulated and demanded the execution of the sale deed by the first defendant. They also issued a notice demanding the specific performance, but the first defendant refused to execute the same. Since defendants 2 and 3 did not co-operate with the plaintiffs, the suit was filed by the plaintiff alone for specific performance of the agreement to reconvey. The plaintiffs had deposited the entire amount of Rs. 2500 in Court. The main contention of the first defendant was since the agreement to reconvey was in favour of the plaintiffs and defendants 2 and 3 the suit by the plaintiffs is not maintainable and in any case since the second and third defendants did not want any reconveyance of the properties, the decree for specific performance could not be granted in favour of the plaintiffs. It was further contended that in any case, the plaintiffs would be entitled only to half of the properties to be reconveyed and not the entirety. It may be mentioned that the second and third defendants filed a written statement stating that they did not want any reconveyance, that they have no money to pay and that they give up the right under the contract. The trial court dismissed the suit following the decision of this court in Koripalli Ramiah v. Sajja Subbiah, 1912 MWN 415. But, on appeal, the learned District Judge came to a different conclusion and held that the suit was maintainable, that the plaintiff is entitled to specific performance of the entirety of the contract. In coming to this conclusion, the learned District Judge followed the two later judgments of this court in Kondapanei Kottaya v. Gangaru Seshayya 1913 MWN 995 and Abdul Shaker Sahib v. Abdul Rahiman Sahib ILR (1923) Mad 148 : AIR 1923 Mad 284, in preference to the decision in Koripalli Ramiah v. Sajja Subbiah 1912 MWN 415 and the Calcutta decision in Safiur Rahiman v. Maharamunnissa Bibi ILR (1897) Cal 832. It is against this judgment the first defendant has preferred the second appeal.
2. The question of law that arises for consideration in this second appeal is whether the suit could be maintained by some only of the promisees as plaintiffs in a case where the relief asked for is specific performance of the contract, specially, when the others do not want to specifically enforce the contract. Section 45 of the Contract Act was relied on in Safiur Rahman v. Maharamunnissa Bibi ILR (1897) Cal 832 and Koripalli Ramiah v. Sajja Sabbiah 1912 MWN 415 in support of the view that the suit is not maintainable. Section 45 of the Contract Act reads as follows :-
'When person has made a promise to two or more persons jointly, then unless a contrary intention appears from the contract the right to claim performance rests, as between him and them, with them, during their joint lives, and after the death of any of them with the representatives of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor with the representatives of all jointly.'
The Supreme Court considered the scope of S. 45 with reference to Order 1 Rule 1 C.P.C. in the decision reported in Jahar Roy v. Premji Bhimji : 1SCR770 . Their Lordships held (at p. 2442)-
'The section thus deals with devolution of joint rights in the case of joint promisees, but it does not deal with a case where, a joint promisee does not want to join as a co-plaintiff and is arrayed as a proceeding forma defendant with the specific plea that no relief is claimed against him.'
Again, after referring to Order 1., Rule 1 their Lordships observed :-
'This is a general rule which takes care of the interests of the defendant who is interested, in the case of a suit like this in having all the lessors as parties to the suit so that he may not be subjected to further litigation. But the rule is not without an exception. The reason is that person cannot be compelled to be a plaintiff for, as is obvious, he cannot be compelled to bring an action at law if he does not want to do so. At the same time, it is equally true that a person cannot be prevented from bringing an action, by any rule of law or practice, merely because he is a joint promise and the other promisee refuses to join as a co-plaintiff. The proper and the only course in such a case is to join him as a pro forma defendant. As would appear from Biri Singh v. Nawal Singh ILR (1902) All 226, which was decided in 1898 and Pyari Mohan Bose v. Kedarnath Roy ILR (1899) Cal 409 which was decided in 1899, it has consistently been held by courts in this country that where two parties contract with a third party, a suit by one of the joint promisees, making the other as co-defendant, is maintainable even if the plaintiff does not prove that the other joint promisee has refused to join him a co-plaintiff.
3. The Privy Council also considered the question in the decision reported in Monghibai v. Cooverji Umersey and it was held therein-
'It has long been recognised that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not.'
This passage was quoted with approval by the Supreme Court in the case above cited. There could therefore be no bar that in a case where the contract was in favour of more than one person and if some of them are not willing to join as plaintiffs, the others could file a suit for specific performance of contract impleading those who are not willing, as defendants and a person cannot be prevented from filing a suit merely because he is only a joint promisee and the other promisees have refused to join him in filing the suit. The main basis of the judgments in Safjur Rahmin v. Maharamunnissa Bibi ILR (1897) Cal 832 and Koripalli Ramiah v. Sajja Subbiah 1912 MWN 415 is therefore no longer available. In fact the two later Bench decisions in Kondapaneni Kottaya v. Gangaru Seshayya 1913 MWN 995 and Abdul Shakur Sahib v. Abdul Rahiman Sahib ILR (1923) Mad 148 : AIR 1923 Mad 284, have dissented from the decision in Koripalli Ramiah v. Sajja Subbiah 1912 MWN 415 and held that one of the joint promisees could file a suit impleading the others who are not willing to join them, as defendants in the suit. These two later judgments were followed by Ismail J. in Kandassami v. Venkatachala Kandar (1972) 85 MLW 616, where the learned Judge had considered the earlier judgments in detail. The learned Judge also pointed out that in a case for specific performance, the relief to be granted being in the nature of discretion of the court where there are no sufficient grounds for rejecting the claim of the plaintiff for specific performance the court cannot refuse to grant the relief merely on the ground that some of them had refused to join. The learned counsel for the appellant tried to distinguish the decision in Kandassami v. Venkatachala Kandar (1972) 85 MLW 616 on the ground that in that case the learned Judge specifically found that the refusing parties have colluded with the defendant against whom the relief is sought and that therefore the plaintiff was entitled to the relief. I am unable to agree with this argument of the learned counsel. It is true that the learned Judge pointed out that the defendants 2 and 3 have colluded with the first defendant in order to deprive the plaintiff of his right of specific performance. But that was not the ratio of the judgment. In my opinion, the ratio of the judgment is that where the plaintiff is entitled to the relief, merely because some of them have refused to join him as plaintiffs or even where they do not want the specific performance of the agreement, his right could not be jeopardised by such refusal by the other parties. In such a case, I am of the view that if the defendants do not want to pay the money, the plaintiffs would have to pay the entirety of the consideration payable under the agreement to convey or reconvey, as the case may be and on such deposit of the entire money, he would be entitled to get a conveyance of the entirety of the property though it should normally be in favour of the plaintiff and the defendants in whose favour the agreement was executed. After the conveyance is executed as such, the rights of the plaintiff and the other defendants in whose favour the agreement was executed will have to be worked out. The specific performance as such therefore could not be denied to the plaintiff merely on the ground that defendants 2 and 3 have refused to join as plaintiffs or that they do not want the conveyance. It may also be pointed out that in a case of this nature, it will not be possible for one co-promisee to give up his rights so as to prejudice the rights of the other co-promisees. Therefore, the first defendant also would not be entitled to claim that he will execute only with reference to half of the suit properties on the ground that if the conveyance is executed in favour of the plaintiffs and defendants 2 and 3, defendants 2 and 3 would be entitled to half of the properties conveyed. The rights as between the plaintiffs and the defendants would have to be worked out with reference to the agreements between them and it is not open to the first defendant to plead that the second and third defendant's right should be separated from that of the plaintiffs. Accordingly, the judgment and decree of the lower appellate Court is correct and does not call for interference. The second appeal fails and it is dismissed, but there will be no order as to costs.
4. Appeal dismissed.