1.This is an appeal in a suit for specific performance of a contract. The facts, on which the question of law raised by this appeal depends lie within a short compass. It appears that defendant 1 held a jama of Rs. 5 for two and half bighas of land under the superior landlords Ramsebak Sana and others. He contracted to sell this jama to the plaintiff for a sum of Rs. 250 on 29th Magh 1329 B. S. and executed a bainanama after taking an advance of Rs. 85. He promised further to execute a deed of sale within 15th Chaitra 1329 B. S. He, however, failed to perform his part of the contract notwithstanding repeated requests from the plaintiff and, instead of performing the said contract, he as the plaintiff alleged in his plaint, joined with his son defendant 2 who is the appellant in this Court in settling one bigha out of the two and half bighas of land in suit with defendant 3. The present suit had consequently to be instituted by the plaintiff. Defendant 1 died during the pendency of the suit in the primary Court. The main contention of defendant 2 who is the appealing defendant was that, as he was claiming under a title different from that of his father defendant 1, the suit for specific performance and for recovery of possession of the disputed land as against him was not maintainable, and that he had been improperly joined in the suit.
2. This objection was taken in the Court of first instance ; but the Munsif negatived it and decreed the plaintiff's suit against defendants 1 and 2 and dismissed the claim for khas possession as against defendant 3 on the ground that he took his lease without notice of the contract for sale, in favour of the plaintiff. The plaintiff, it was ordered by the decree, was to get khas possession of one and half bighas of land and, with regard to the remaining one bigha leased out to defendant 3, the suit for khas possession was dismissed and the plaintiff was declared entitled to rent. The Court of first instance found that the land belonged to defendant 1 and that he was competent to enter into the contract for sale. On appeal to the lower appellate Court, the learned District Judge affirmed the finding of the trial Court on the question of fact as to the plaintiff's title and also held that the objection of the defendant that the suit was bad for multifariousness or misjoinder of parties and causes of action must be overruled, as having no substance in it.
3. A second appeal has been preferred to this Court by defendant 2 and the main contention advanced by the learned advocate for the appellant is that, as defendant 2 was claiming under a distinct title to that of his father, the suit was not maintainable as against him and that he ought either to have been dismissed from the suit or that the suit should have been dismissed as against him. In support of this contention, reliance has been placed on several decisions both of the English Court of Chancery and of the Indian Courts. It is argued that the general rule is that a person who is a stranger to a contract is not a proper party to a suit for specific performance of the said contract. It may be conceded that that is the ordinary rule as it is founded on the ground of convenience. But hero the plaintiff's case being that defendant 2 in conjunction with his father defendant 1 set up a title in himself to a portion of the property contracted to be sold, in those circumstances, the ordinary rule, in my opinion, has no application to the facts of the present case. This case really resembles the case which was before this Court and is reported in Mukund Lall v. Chhotey Lall  10 Cal. 1061. It was pointed out by Romesh Chunder Mitter, J., that the plaintiff in that case:
charged defendant 1 with having resorted to certain devices in concert with defendant 3 to defeat his rights arising out of the contract under which he was suing ; he called defendant 3 a mere benamidar and there was no admission on the face of the plaint or in the plaintiff's case that defendant 3 had a separate or distinct interest from that of defendant 1.
4. That was the ground on which the English cases to which I will presently refer and the case reported in Luckumsey Oakerda v. Fazulla Cassumbhoy  5 Bom. 177 on which reliance was placed were distinguished by Mitter, J.
5. The first case relied on is the case of De Houghton v. Money  2 Ch. A. 166, in which it was admitted by the plaintiff that there was a conveyance in favour of Money, but it was said that the conveyance was executed under such circumstances as would make it a voidable one. Similarly, in the case of Luckumsey Oakerda v. Fazulla Gassumbhoy  5 Bom. 177, it was distinctly admitted by the plaintiff that the third party who was not a party to the contract had a distinct interest. The position taken up by the plaintiff in the present case as appears from his allegations in the plaint is similar to the position of the plaintiff in the case reported in Mukund Lal v. Chhotey Lall  10 Cal. 1061. It has been argued by the learned advocate for the appellant that defendant 2 set up a case of distinct interest from that of his father. But it is plain that the case of the plaintiff does not rest upon the defence set up. The application of the case of De Houghton v. Money  2 Ch. A. 166 to the present case, as contended for by the appellant, could not be justified seeing that, in that case, the plaintiff himself distinctly alleged in the plaint that the third party who was not a party to the contract had a distinct interest in the land contracted to be sold or conveyed. Piggot, J., who delivered a separate judgment in the case of Mukund Lall v. Chhotey Lall  10 Cal. 1061 also pointed out that:
it does appear to ma that the point at which the rule in De Houghton v. Money  2 Ch. A. 166. Would be applicable would not be reached in this case. The question is: Are not defendants 1 and 3 identical and that question in itself, if answered in the affirmative, as it has been, precludes the application of these cases.
6. Reliance has also been placed on another decision of the English Court, namely, the case of Tasker v. Small  3 My. & C.R. 63. There what was contracted to be sold was the equity of redemption in a certain estate on which there was a previous mortgage and it was held, as is pointed out by Fry, L. J., that the mortgagee was not a necessary party in the suit for specific performance. Whatever the rule of the Court of Chaneary might have been in early times, that rule, as Lord Justice Fry points out in his Treatise on Specific Performance of Contract at para. 175, has been considerably modified by Section 49, Chancery Procedure Act of 1852. The learned author remarks:
In the Court of Chancery persons having adverse or inconsistent rights in the subject-matter of the suit could not be joined as plaintiffs : nor could a parson who had no interest he joined as plaintiff with one who had. The importance of the doctrine of misjoinder was, however, diminished by Section 49, Chancery Procedure Act, 1852.
7. In some cases,' says the learned author, ' persons claiming adversely might be made defendants.' Again, in para. 192, the learned author remarks with regard to the matter in hand as follows:
The plaintiff may unite in the same action and in the same statement of claim several causes of action, subject to a power in the Court or Judge to direct separate trials of any of such causes of action. Farther, the Court or a Judge may at any stage of the proceedings order the name of any party, plaintiff or defendant, who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, to be added.
8. It seems to me, having regard to the allegations in the plaint in the present case, that it was essential that the question as to whether defendant 2, who subsequent to the contract in favour of the plaintiff leased out a portion of the land to defendant 3 along with his father, was interested in the subject-matter of the contract or not should be gone into and decided and that the decision could only be arrived at effectually in the presence of defendant 2. In this view of the matter, I am of opinion that the Courts below are right in holding that defendant 2 was a necessary and proper party to the suit. This is the only contention which has been urged in appeal before us and, as this contention fails, the appeal must be dismissed with costs.
9. I agree.