1. This is an appeal from the decree of the District Judge of Nellore dismissing the plaintiffs' suit for specific performance of a contract of sale. The agreement to sell is contained in Ex. J, and its counterpart Ex. I. Before the agreement the plaintiff held an auction of his lands and it turned out that the defendant was the highest bidder he having agreed to purchase the plaintiff's lands of 3 acres 44 cents, at the rate of Rs. 1,900 per acre. The defendant having deposited Rs. 100 that day agreed to pay the balance of Rs. 6,436 within one month and obtained a sale-deed. According to the plaint though the plaintiff asked the defendant to complete the transaction, the defendant was putting off and ultimately issued a registered notice Ex. K dated 21st April 1929 through an advocate in which he suggested : (1) that the lands were under attachment at the instance of the plaintiff's creditors and (2) that as the plaintiff has minor sons and as the property in question forms an ancestral property and as the said sharers are not parties to the letter of sale in question, the agreement is not valid. Then he called upon the plaintiff to give some security. The plaintiff replied by Ex. L, denying the attachment and alleging that the properties are his self-acquisition and anyhow the sale was made for discharging antecedent debts and that these facts were all known at the time of the auction and the bidders bid with full knowledge of these facts. He called upon the defendant to complete the contract.
2. The present suit for specific performance was filed on 6th August 1928. The defendant in para. 4 of the written statement pleaded that the suit properties were not the self-acquired properties of the plaintiff, that there were disputes between the plaintiff and his brothers, as regards the partition of the properties inherited from their maternal grandfather, that the properties auctioned included the whole property inherited from the grandfather and that his demand for security was justified. It is enough to notice the following issues, viz., 1, 2 and 8. The first is whether the plaintiff has an undisputed title to convey. Issue 8 raises the question whether the suit properties were subject to any attachment. Issue 2 is whether the defendant is entitled to call upon the plaintiff to furnish security. The most important issue is issue 1. It is settled law that if there is reasonable doubt as to the title to the property, Courts shall not exercise their discretion for decreeing specific performance. The suit lands consist of 3 acres 44 cents being a half share of 6 acres 88 cents consisting of:
S.A. No. 894 ... ... 3 acres 2 cents' 405/1 ... ... 0 ' 42 ' ' 405/2 ... ... 3 ' 44 '---------------6 acres 88 cents.----------------
3. Of the total extent of these three survey numbers, viz., 6 acres 88 cents the eastern half belongs to one Ippagunta Ranga Reddi. The western half is the subject matter of the suit. Now the plaintiff and his two brothers originally got these properties under a will executed by their maternal grandfather (Ex. B dated 28th November 1890). At the time of the execution of the will the testator had his daughter (Subbamma, mother of the plaintiff) and her three sons. In the will he refers to his father-in-law Narappa Reddi, and other family history. He then mentions the fact that he brought his son-in-law Raghava Reddi (plaintiff's father) to his house to help him in his cultivation. In para. 5 he says:
Though after my death my property will devolve on you according to law, yet owing to the reasons mentioned by me hereinbefore I have made this will for making arrangements in respect of my properties after my death.
4. In para. 8 he says that until the grandchildren attain majority the daughter Subbamma shall have rights in respect of the property. After they attain majority they shall have equal right to the movable and immoveable properties and shall be entitled to have all rights of sale etc., and enjoy the property. Now it is seen that according to this will the testator has displaced the ordinary law of succession. Under the ordinary law of sue-, cession the daughter would inherit the estate for life and after her death her sons would succeed. But under this will the daughter is not to get a life estate but should have rights over the property until the last of the three sons attains the majority. She is divested of whatever estate she has up to that time and then the sons become equal absolute owners of the property. This means that they will take the property as tenants in common each enjoying one-third share.
5. Now the District Judge refers to the decision in Venkayamma Guru v. Vendataramanayamma Bahadur Guru (1902) 25 Mad. 687, (Juggampet case) according to which daughter's sons (being sons of one daughter) succeeding to their maternal grandfather take the estate as ancestral property and therefore as joint family property. If one of them dies, the others get that property by survivorship. But this decision applies only to a case of succession. It has never yet been applied to a case of device by a maternal grandfather. Following the principle of this decision it has been held by the Indian High Courts that the sons of daughters' sons will have a right by birth in such ancestral property but we are not concerned with such a question here. The District Judge then refers to cases where a father gives his self-acquired property to his sons by a will such as Nagalingam Pillai v. Ramachandra Devasr (1901) 24 Mad. 429 and Janakiram Chetty v. Nagamony Mudaliar 1926 Mad. 273. These are cases relating to father and sons.
6. In such a, case there is considerable conflict in all the Indian High Courts and the Privy Council has noticed this conflict and hopes to settle it in a future decision : vide Lal Ram Singh v. Deputy Commissioner, Partabgarh 1923 P.C. 160. But there is nothing to justify the raising of any such question in respect of property devised where the testator is not the father. In Jogeswar Narain Deo v. Ramachandra Dutt (1896) 23 Cal. 670, the Privy Council held that the principle of joint tenancy appears to be unknown to Hindu law except in the case of a co-parcenary between the members of an undivided family. In that case they overruled the decision in Vydinada v. Nagammal (1888) 11 Mad. 258. Even where the donees of property are already members of an undivided family, a transaction of a gift or will cannot be construed to give the property to the donees or devisees as undivided family property.
7. Mr. T M. Krishnaswami Ayyar appearing for the respondent argued that there may be a gift to a joint family itself. Undoubtedly there may be such gifts but in that case the family is regarded as a unit and as the donee or devisee. The individual members are not separately thought of. We have nothing to do here with such a case. Where the individual members are referred to and equal shares are given, it cannot be a gift to the family. That possibility being eliminated, the transaction itself cannot pass the property to the donees as undivided property. I doubt if the decision in Mahalakshmi Amma v. T. Nagapayya (1921) 62 I.C. 814 is consistent with the decision in Jogeswar Narain Deo v. Ramachandra Dutt (1896) 23 Cal. 670 Jogeswar Narain Deo v. Ramachandra Dutt (1896) 23 Cal. 670. But apart from this that decision may be distinguished on the ground that in that case the testator showed an indication that the property should be taken as joint family property. Probably in all cases where the testator shows such a clear intention, Courts for the purpose of giving effect to his intention would construe the gift as a gift to the family even if the members are named. But in the case before us all the indications in the document are the other way. We are therefore of opinion differing from the learned District Judge that under Ex. B the plaintiff and his brothers got the property as tenants-in-common and held it as self-acquired property. The first difficulty raised by the defendant and upheld by the lower Court does not therefore exist.
8. The next doubt thrown on the plaintiff's title is that the property originally belonged to him and his two brothers and it is not clear how exactly he acquired the property from his brothers. Now it is noticeable that no such question was raised in the registered notice Ex. K and it was raised for the first time in the written statement only. If the defendant had felt any doubt in the matter, he could easily have called upon the plaintiff to clear it up prior to the suit. He never did so. The District Judge held on this part of the case in favour of the plaintiff (vide para. 13 of his judgment); but it appears that his reasons are not as strong as they might have been in favour of the plaintiff. The plaintiff's case is that there was a partition between him and his two brothers according to which a third share on the east of the western half belonging to the family fell to the share of one brother and the north-western one-third fell to the share of another brother and the south-western one-third fell to the share of the third brother. (Vide Ex. D darted 4th June 1909). The eastern one-third was sold by its owner to the plaintiff under Ex. P dated 2nd July 1909. There is not the smallest difficulty about these two documents.
9. The District Judge misquotes the date of Ex. F. as if it is 2nd June 1909 and then proceeds to put the question how the properties could be the subject of the partition of 4th June if they had been sold by a sale-deed of 2nd June? As the question started with a blunder, the whole reasoning was erroneous. The other brother sold his share on the south-western side under Ex. E' dated 15th November 1911. The extent given, namely, 2 acres 18 cents includes not only the one-third share in the suit lands but also other lands, The recital makes it clear that what he sold was what he obtained under the registered partition deed Ex. D. Though the details of the Survey numbers and extent are not given in Ex. E, there is no reason to doubt that the brother was selling all that he got under the partition. To add to this both the brothers have given evidence as P.Ws. 2 and 3, and relying upon this evidence the District Judge has found the point in favour of the plaintiff. The contention is repeated before us and we find that not only the oral evidence but also the documents make it clear that the plaintiff has become the owner of the shares of his two brothers by purchase. Thus we find that there is not the smallest shadow on the plaintiff's title to the property.
10. The result is that the appeal must be allowed and the plaintiff's suit for specific performance must be decreed with costs throughout on a valuation of Rs. 6,436. The defendant will deposit the balance of the sale amount, viz., Rs. 6,436 within 15th April into Court. If he does not so deposit, the amount will carry interest at 12 per cent per annum from 15th April. The appellant will see that, on such payment, the property is surrendered by the receiver to the defendant. For the delay in the performance of the contract, we award the plaintiff Rs. 100 as damages with interest at 5 per cent per annum till payment.