Charles Gordon Spencer, J.
1. These two appeals arise out of connected suits. Original Suit 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. Original Suit 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 Ramaguruvavya, father of the plaintiffs Nos. 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 Nowloor 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 Nos. 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. Exhibits 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 1o 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 cf 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 apparently 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.
4. At the time when the District Judge gave his judgment, the decision of the Full Bench of this Court in Vizagapatam Sugar Development Co. v. Huthuramareddi 76 Ind. Cas. 886 45 M.L.J. 528 : (1924) M.W.N. 14 had not been pronounced. That Full Bench dissented from the previous rulings of the two Full Benches in Kurri Veerareddi v. Kurri Bapireddi 29 M. 336 : 1 M.L.T. 153 : 16 M.L.J. 395 and in Ramanathan Chetty v. Ranganathan Chetty 43 Ind. Cas. 138 (1917) M.W.N. 757 and pronounced that part performance of a contract by way of delivery of possession coupled with an enforceable right to specific performance was a good defence to an action for ejectment.
5. In this view of the law the defendant who has been in possession of the property since 1911 and has paid the price can Success fully 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.
6. The respondents' Vakil relies on some observations in Ponnambala Pillav v. Sundarappayyar 20 M. 354 : 7 Ind. Dec. 251 to the effect that a purchaser from a co-parcener 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 to the binding character of a contract for sale made by a Hindu upon his after-born 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.
7. In Chinnu Pillai v. Kalimuthu Chetti 9 Ind. Cas. 596 : (1911) 1 M.W.N. 238 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 Nos. 2 and 3 were born both after the contract to sell was entered into and after possession was transferred.
8. In Bappu v. Annamalai Chetti 72 Ind. Cas. 42 : 17 L.W. 364 the coparceners were apparently all born by the time the contract was entered 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 of 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. Karalia Nanubhai v. Mansukhram 24 B. 400 : 2 Bom. L.R. 220 Ram Bakhsh v. Mughlani Khanam A.W.N. (1904) 8 and Salamat-uz-Zamani Begam v. Masha Allah Ehan 16 A.L.J. 28 are all instances where Section 54 of the Transfer of Property Act is held to be inapplicable to cases where possession had been given and part of the purchase money has been paid. In Rebala Venkata Reddi v. Mangadu Yellappa Chetty 5 L.W. 234 Abdur Rahim and Srinivasa Iyengar, 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). The legal representatives of a party to the contract, such as plaintiffs Nos. 2 and 3 are, are bound by the contract, and under Section 27(6) 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 1st plaintiff, the defendant is an alienee from a tenant-in-common not from a co-parcener. He has no equity to ask for a general partition of the family property against a tenant-in-common. This distinguishes Subbe Goundan v. Krishnamachari 68 Ind. Cas. 869 : 45 M. 449 : 30 M.L.T. 217 from the facts of the present case.
10. In the result, S.A. No. 1803 will be allowed in part and in modification of the lower Appellate Court's decree, the 1st plaintiff will get a preliminary decree for the recovery of a moiety of the suit property, the claim of the plaintiffs Nos. 2 and 3 being dismissed. Each party will bear their costs throughout as each side has only partially succeeded. Second Appeal No. 1804 is allowed. The defence of limitation was raised in this suit (O.S. 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 the defendants Nos. 1 and 2 who were directed by the decree of the first Court to execute it, as the suit was only against those who were represented by their mother as 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 be extended to four months from the present date.