B.N. Banerjee, J.
1. The plaintiff is the appellant before me.
2. The suit, out of which this second appeal arises, was one for specific performance of a contract of re-conveyance of the disputed property.
3. The facts which are not disputed before me, may he summarised as hereinafter appearing. On 23-5-1923, one Rostam Ali conveyed to the predecessor-in-interest of the defendants Nos. 1 to 3 agricultural land measuring 5.22 acres, for a consideration of Rs. 1299/-. Only two days thereafter, on 25-5-1923, there was an agreement between the vender. Rostam Ali, and the purchaser, the prede-cessor-in-interest of the defendants Nos. 1 to 3 for re-conveyance of the property either to Rostam Ali or to his heirs or legal representatives, if only the consideration money was repaid either by Rostam Ali or by his heirs in the month of Chaitra of any year subsequent to the year 1333 B. S. There was a further condition in the said agreement that even if Rostam Ali and his heirs failed to repay the consideration money in one payment, even then the purchaser would re-convey such area of the land as would be proportionate to the amount paid by either Rostam Ali or his heirs. Rostam Ali died without succeeding in getting re-conveyance of the property, leaving the plaintiff, a daughter, defendants Nos. 4 to 6. his sons, defendant No. 7, his widow and defendant No. 8, another daughter, as his heirs and legal representatives under the Mahom-medan Law. After the death of Rostam Ali his heirs gave up the right to re-purchase two demarcated portions, out of the property sold, measuring 57 acre and .61 acre, by two separate documents respectively bearing the dates the 13th Chitra. 1355 B. S. and the 13th Sravan. 1336 B. S. Thereafter defendant No. 4, one of the sons of Rostam Ali. paid a sum of Rs. 925/- to defendants Nos. 1 to 8 (heirs of the original purchaser) and got a re-conveyance in respect of 3.725 acres of land, out of the property sold.
4. Alleging that defendants Nos. 1 to 3 refused to reconvey the remaining portion of the land, which had been sold to their predecessor-in-interest, defendants Nos, 4 to 6, who are the sons of Rostam Ali and defendant No. 7, who is the widow of Rostam Ali, brought a suit for specific performance of the contract for reconveyance of remaining portion of the disputed property measuring . 305 acre. That suit was numbered as Title Suit No. 180 of 1947 and was decreed and the present defendants Nos. 1 to 3 were directed to re-convey the remaining portion of the property to the plaintiffs in that suit (namely defendants Nos. 4 to 6 and defendant No. 7 of the instant case) if a sum of Rs. 75/- was paid by the plaintiffs in that suit to the defendants in that suit within a period of one month from the date of the decree. This payment admittedly was not made and the defendants Nos. 4 to 6 and defendant No. 7 gave up the fruits of the decree by their own conduct. I need mention here that the present plaintiff was one of the pro forma defendants in that suit but took no active interest.
5. Thereafter, on 5-10-1950, the present plaintiff, who is one of the heirs of Rostam Ali, being a daughter, brought the suit, out of which this appeal arises, claiming specific performance of the contract of re-convevance and further claiming that under that contract the defendants were bound to re-convey the remaining portion of the disputed property measuring . 305 acre.
6. The suit was dismissed by the trial court and the decree of dismissal was also affirmed by the court of appeal below. The plaintiff lms appealed to this Court, challenging the decree dismissing her claim to specific performance.
7. The point which weighed with the court of appeal below, in dismissing the plaintiff's suit, was that the agreement for re-conveyance being to the effect that the re-conveyance was to be made to the vendor or to his heirs and representatives, the entire body of his heirs and not only one of them was entitled to brine a suit of the present description on the death of the original vendor. I quote below the relevant extracts from the judgment of the court of appeal below on this point :
'All the heirs therefore have in this case got the character of joint contractees. Although the document itself contemplates reconveyance in several instalments and consequently the contract can be said to be divisible so far as the properties are concerned, it is clear beyond doubt that no such division was contemplated so far as the contractees were concerned. The case before me therefore is in my opinion covered by the decision of the Hon'ble High Court of Calcutta in the case of Safiur Rahman v. Maharamunness Bibi. ILR 24 Cal 832 where their, Lordships have held that some of the parties to a single contract like that (sic) to convey some lands to several persons cannot on principle enforce specific performance against their adversary. Their Lordships have further held that in a suit for performance of a single contract the parties on each side must be marshalled as plaintiffs and defendants respectively.'
8. Mr. Kamjit Mookerjee learned Advocate appearing for the plaintiff appellant, argued a single point of law for my consideration. He argued that ordinarily all the heirs of a deceased contracting: party must bring a suit for specific performance of a contract but if any of the heirs refused to join as a plaintiff he must be added as a defendant. In support of his argument he relied on certain observations from a judgment of the Judicial Committee reported in , Monghibai v. Cooverjt Umersey. Lord Porter in delivering the judgment of the Judicial Committee observed as follows :
'It has long been recognized 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. Such cases as Luck v. South Kensington Hotel Co. (1879) 11 Ch. D. 121 and Cullen v. Knowles (1898) 2 Q.B. 380 are examples of this principle. Nor, indeed, would it matter that a wrong person had originally sued though he had no cause of action : see Hughes v. The Pump House Hotel Co.. Ltd. (No. 2) ((1902) 2 K.B. 485). Once all the parties are before the Court the Court can make the appropriate order, and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants.'
9. Me. Mukherjee also relied on a judgment of the Nagpur High Court reported in AIR 1937 Nag 186, Jagdeo Singh v. Bisbambhar, which is equivalent to 171 I.C. 654. In the Nagpur decision, Vivians Bose. T. sitting singly, dissented from the decision reported in ILR 24 Cal 832 and held as follows :
'Section 23, Specific Relief Act, sets forth the persons who may obtain specific performance. It says : Except as otherwise provided bv this Chapter the specific performance of a contract may be obtained by (a) any party thereto.
That would certainly appear to cover a case where one or more co-contractors want to enforce the contract against the will of the others. The wording is not 'either side thereto' or even 'either party thereto' but 'any party thereto'. Tbe word any' indicates one out of a number of persons more than two. If only two parties are contemplated the correct adjective would be 'either' or at the most 'both'. Tbe argument advanced was- that tbe contract cannot be enforced piecemeal and that the Courts cannot make a new contract for the parties Of course not; but the plaintiffs are not doing that. They want the original contract enforced just as it was made. They want to buy the property and want the Court to compel their co-contractors Anantram to buy it along with them just as he had promised to do, and asked the Court to compel the defendants to sell it to all four in exact accordance with the agreement. That is not a variation of the contract. So long as the plaintiffs are willing to pay the vendors the full price bargained for and ask them to sell to the very persons with whom they had contracted I am unable to see how there is any variation. X X X X Therefore I am clear that the plaintiffs have a right to sue for specific performance even though one of their co-contactors now refuses to join them. Of course it is essential in such a case that all the parties to the contract should be before the Court. If any are omitted then I can understand difficulties arising. But when as here they have all been joined on one side or the other I am of opinion the suit can proceed.'
10. In the cases relied upon by Mr. Mukher-jee there were several joint promisees. What was decided in those two cases was that if one or more of the joint promisees refused to join with the other promisees in the matter of enforcement of a contract the remaining promisees could sue for enforcement of the contract by themselves, impleading the promisees who had refused to join as parties defendants to the suit. In the instant case, however, there were no joint promisees at the inception. The promisee was only one, namely Rostan Ali, and on his death the plaintiff, defendants No. 4 to 6, defendant No. 7 and defendant No. 8 became his heirs. What I am called upon to decide is whether any one or more of the heirs of the original promisee a single individual, could, by himself or themselves institute a suit for specific performance of the contract of re-conveyance by making the remaining heirs as parties defendants to the suit. If, on the death of the original promisee, his heirs become or filled up the character of several promisees, then of course there is no doubt that a suit by one or more of the several heirs can be maintained for specific performance of a contract, after making the other heirs, who may have refused to join in the suit, parties defendants to the suit. But if they do not become themselves several joint promisees, the question is whether a suit by any one or more of them for specific performance of a contract is maintainable. This points came up for decision in the case of Ahinsa Bibi v. Abdul Kader Saheb, ILR 25 Mad 26. In delivering judgment of the Division Bench Bhashyam Ayyangar, J. observed as follows at p. 35 of the report :
'Whatever doubts may arise on the construc-ction of an instrument as to whether a covenant in Favour of two or more persons, parties to the instrument, whether in their character as tenants in common, co-heirs or otherwise, is joint, several, or several according to their respective interests and under the English law, unlike the civil law, a covenant in Favour of two or more cannot be both joint and several, except perhaps in a single instance, which need not be referred to here (Keightley v. Watson, (1849) 3 Ex. 716 at p. 723); fSlingsbv's Case, Coke's Rep., Part V, p. 18b); Eccleston v. Clipsham. 1 William's Notes to Saunder's Rep., on. 162-68); Bradburne v. Botfield. (1845) 14 M and W 559 -- there ran be no doubt that a single cause of action cannot be divided into several causes of action against the obligee without his privity, though two or more persons may have several interest? in the right giving rise to the cause of action, whether such persons be joint covenanteps or the heirs of a single covenantee. Exceptions to this rule generally rest on statutory provisions and their nature has been already indicated. When a right accruing to a single person from a covenant in his favour devolves, on his death, on two or more of his heirs in several shares, no question can possibly arise as to whether the covenant was joint or several, and the only difference, caused by the death of the covenantee is that the cause ot action which resided in one person, is, by operation of law. transferred to a number of parceners, who, as observed by Jindal, C.J., in Decharms v. Horwood (1834) 10 Bing. 526 at p. 529, constitute one heir. In other words, the claim which was possessed by one in dividual is now possessed jointly by a number of individuals, who are his legal representatives and all must therefore join in a suit to enforce that claim.'
11. I respectfully agree with the statement of law in the aforesaid decision. The instant case was not brought by the entire body of the heirs of Ros-tam Ali and, therefore, was badly framed. What is more, there is nothing in the instant case to show that the other heirs of Rostam Ali. who were made parties defendants, at all refused to join with the plaintiff in her suit. The defendants Nos. 4 to 6 and 7, in the instant suit, may have been debarred by their conduct in further pursuing their claim but defendant No. 8 was not in any way so debarred, because against her no decree had been passed in Title Suit No. 180 of 1947 hereinbefore referred to. That being the position, I am of opinion that the present suit as framed was not maintainable.
12. In the view that I take of this matter, I am of opinion that the ultimate conclusion arrived at by the lower appellate court, that the suit brought by the plaintiff alone was not maintainable, was a correct conclusion and I affirm the decree made by the lower appellate Court.
13. This appeal is dismissed but in the circumstances of the case I make no order as to costs.
14. Leave to appeal under Clause 15 of the Letters Patent is asked for and refused.