1. This is an appeal from the decision of the lower Courts refusing specific performance of a contract of sale entered into by the 1st defendant, who is the managing member of the family and against defendants Nos. 2 to 4, his major sons, and defendants Nos. 5 to 8, his minor sons, who appear by their guardian, the 1st defendant. The lower Courts have both found that this contract is not binding on defendants Nos. 2 to 8 and the question which we have to decide is, whether specific performance should in these circumstances be granted or not.
2. We have been referred to a decision in Kosuri Ramaraju v. Ivalury Ramalingam 26 M.P 74 : 12 M.L.J. 400 in which it was decided, without specific reference to the provisions of the Specific Relief Act, that the proper course in such pases as this would be to give a decree for specific performance of the whole of the contract against the 1st defendant leaving it to be settled in future litigation what passed under the conveyance.
3. Another case to which we have been referred is Srinivasa Reddi v. Sivarama Reddi 32 M.P 320 : 4 Ind. Cas. 506 in which, similarly, a decree was granted directing the first defendant to' sell the whole land without determining whether such a sale would bind the 2nd defendant. In that case, the provisions of Section 15 of the Specific Relief Act were referred to and it was observed that, 'section 15 of the Specific Relief Act would be applicable only if the 1st defendant had no interest in any portion of the property agreed to be conveyed as in illustration (a) or is unable to convey such portion as in illustration (b) to that section.'
4. In Ponaka Subbarani Reddy v. Vadamadi Sesha Challam Chetty 33 M.K 359 : 7 M.L.T. 137 : 20 M.L.J. 328 : 5 Ind. Cas. 79, the Court considered it unnecessary to express any opinion as to the correctness of the observation that we have just cited and refused in that case to grant a decree for specific performance of the whole contract distinguishing the previous case on the ground that the contract before them was one entered into on behalf of the minors as well, but gave the plaintiff the benefit of the latter provision of Section 15 of the Specific Relief Act.
5. In Govinda Nacken v. Apathsahaya Iyer (1912) 1 M.W.N. 87 : 11 M.L.T. 87 : 22 M.L.J. 257 : 13 Ind. Cas. 471 these cases were again considered and Srinivasa Reddi v. Sivarama Reddi 32 M.P 320 : 4 Ind. Cas. 506 was distinguished from the case before the Court and was explained as proceeding on the ground that an undivided father has an interest in every portion of the undivided property, and that, therefore, Section 15 of the Specific Relief Act does not apply. To us, however, it appears that the consideration that an undivided father has an interest in every part of the undivided property in no way takes the case out of the operation of the section which runs thus: 'Where a party to a contract is unable to per- form the whole of his part of it and the part which must be left unperformed forms a considerable portion of the whole, he is not entitled to obtain a decree for specific performance.' We think- the words of the section apply where a member of an undivided family agrees to sell part of the joint property in which he has only a share and the present case is a particularly plain one, because, according to the plaintiff's own evidence, the 1st defendant agreed to get the other members of the family to execute the sale-deed.
6. Further, the contract has been decided in the present suit not to be binding on the other members of the family and a decree for specific performance against the first defendant only would be merely encouraging useless litigation. We may add that Barrett v. Ring 2 Sm. & Giff. 43 is no authority on the present point as the facts were entirely different.
7. The plaintiff does not claim the benefit of the latter part of Section 15 of the Specific Relief Act, and we dismiss the appeal with costs.