JUDGMENT
Costello, J.
1. This is an appeal from a decision of the Subordinate Judge, First Court, Dacca, reversing a decision of the Munsif at Munshiganj. The matter out of which this appeal has arisen was a suit for specific performance of a contract for the sale of certain land said to have been made by defendant 1 on behalf of himself and his two minor brothers. The land in question was a feel in Mouza Deoshair. The plaintiff’s case was that in the latter part of Magh 1332 B. S. defendant 1 entered into a verbal contract with him for the sale of the land in question at the price of Rs. 1,850 and that the defendant by way of earnest took back from him a bond for Rs. 96 which had been executed by defendant l’s father in favour of the plaintiff. The plaintiff further said that afterwards defendant 1 took back three other bonds which had then recently been executed for an aggregate sum of Rs. 200 on the understanding that the debt of Rs. 200 for which they were security would be credited towards the consideration for the conveyance of the land in suit. The plaintiff further said that subsequently defendant 1 took from him a sum of Rs. 50 in cash also on account of the purchase price and agreed to execute a deed of sale on behalf of himself and his minor brothers upon getting permission on that behalf from the District Judge. Subsequently defendant 1 was induced to execute and indeed in fact executed a bayanapatra for the sale of the same land to defendants 2 and 3. The plaintiff did not seek to enforce the contract as against the minor brothers of defendant 1 but brought the present suit for the enforcement of the contract as against defendant 1 only in respect of his one-third share of the land in question and he made an alternative claim that in case the contract could not be enforced a decree should be made for the return of the consideration money which he had already paid on account of the price.
2. The suit was contested by all the defendants and they denied both the making of the contract of sale and the payment of any consideration money on account of it. Defendants 2 and 3. put forward as their case that defendant 1 had entered into a contract for sale of the land in question with them for the price of Rs. 3,000 out of which they had deposited Rs. 500 on account of the price. Defendants 2 and 3 also denied that they had any notice or knowledge of any prior contract between defendant 1 and the plaintiff. The learned Munsif after a consideration of the evidence found that there was no concluded agreement between defendant 1 and the plaintiff for the sale of the land in question and also found as a fact that the plaintiff did not return any bonds to that defendant and he came to the conclusion that the case set up by the plaintiff was a false case which he was unable to prove. When the matter came before the Subordinate Judge of Dacca on appeal however he after a very careful review of the evidence, came to the conclusion that there had been a concluded agreement between the plaintiff and defendant 1 which was capable of enforcement at law and also found that there was evidence on the record that defendants 2 and 3 had notice of the prior contract mad(c) between the, plaintiff and defendant 1. In the course of his judgment the learned Subordinate Judge says:
I am unable to agree with the learned Munsif that the contract between the plaintiff and defendant 1 was not a concluded agreement which was capable of specific performance. On the contrary I think that there was sufficient and reliable evidence before him for taking the opposite view that the contract was a concluded agreement which was capable of enforcement.
3. He then proceeded to deal with the question of the remedy to which the plaintiff was entitled and gave the plaintiff a decree upon the footing that the plaintiff was entitled to get from defendant 1 a conveyance of the latter’s l/3rd share in the land in question upon paying to defendant 1 the sum of Rs. 266-10-8 which represented the sum which, together with the amount which the plaintiff had already paid to or had been allowed by defendant I towards the amount of the price, would come to Rs. 616-10-8, that is to say l/3rd of the total purchase price of Rs. 1,850. The learned Subordinate Judge made an order that the plaintiff should within one month from the date of the judgment deposit in Court the sum of Rs. 266-10-8 to the credit of defendant 1, whereupon defendant 1 should within two months execute and register a conveyance in respect of his l/3rd share of the land in suit in favour of the plaintiff and that on the defendant’s default to execute and register the kobala the same shall be executed and registered by the Court on his behalf.
4. It is to be observed that the plaintiff came to Court with the allegation that defendant 1, purporting to act not only for himself but also on behalf of ‘his two minor brothers had agreed to sell the heel, the subject-matter of the suit, to the plaintiff and that that defendant had no right to deal with the shares of his minor brothers or to procure a conveyance of their shares in the land in question without the authority of the Court. Defendant 1 and his two minor brothers were members of a joint Hindu family governed by Dayabhaga law. That being so although defendant 1 might have been acting as the karta of the joint family, clearly he was not authorized to dispose of the shares belonging to his brothers and so far as that part of the case is concerned it is not seriously contended otherwise.
5. The only question seriously argued before us was what was the nature and extent of the relief to which the plaintiff was entitled in the circumstances of the case, and whether or not he was entitled to get specific performance of the entire contract between him and defendant 1, and if so upon what terms. I have already said that the learned Subordinate Judge made an order decreeing specific performance of the contract to the extent only of defendant l’s share in the property upon the plaintiff’s paying a proportionate part of the price for the whole of the property. Dr. Basak, ‘on behalf of the appellant, argued that that was not a proper order and that the case was one which fell within the ambit of Section 15, Specific Relief Act, 1877, and accordingly the plaintiff was entitled to get specific performance to the extent of defendant l’s share and that only on payment not of a proportionate part of the price but the whole of the price originally agreed upon. On the other hand Mr. Upendra Kumar Roy argued that the matter fell within the scope of Section 16, Specific Relief Act, and that it was possible to say that the property, the subject-matter of the contract, was so divisible that there could be specific performance of the contract with regard to one part of it, that is to say, defendant l’s share, upon payment of the 1/3rd only of the purchase price. In my opinion that argument was put forward in a somewhat half-hearted fashion because the learned advocate seemed to realize that because a man is willing to pay Rs. 1,850 for the whole of a certain property it by no means necessarily follows that he will be willing to pay the exact 1/3rd of the price in order to obtain an undivided l/3rd share of the same property. Probably if not certainly, by making such a purchase he would be involved in further litigation in order to secure what he had purchased. It seems to us that on the face of the contract, which purports to be a contract for the sale of joint Hindu property, it is not possible to say that the shares of the various cosharers in that property can probably be said to form separate parts of the property in the sense contemplated in Section 16, Specific Relief Act.
6. Mr. Roy sought to support his argument by a reference to a case decided by the Privy Council, William Graham v. Krishna Chunder Dey A.I.R. 1925 P.C. 45. In that case, by a contract in writing, two plots of land, A and B, had been agreed to be sold. The contract stated that the plots were of about equal area and defined each by specified boundaries, but the price was a price for both plots together, and the other terms of the contract dealt with both together. The vendor having failed to make a title to plot B the purchaser sued for specific performance or damages. The purchaser declined to take a conveyance of plot A only under the provisions of Section 15, Specific Relief Act.. Their Lordships of the Privy Council held that specific performance could not be decreed as to plot A with an abatement of price in consequence of the failure to make a good title to plot B. Section 16 was not applicable, since it did not appear that the contract as to plot A stood “on a separate and independent footing” so as to be within the terms of Section 16, Specific Relief Act, 1877. It is a little difficult to understand how the learned advocate for the respondent in this case thought that this decision would be of any assistance to him in the argument which was put forward. Seeing that in the circumstances, and on the facts of that case, their Lordships thought that Section 16 did not apply to the case it follows a fortiori that in the circumstances of the case with which we are now concerned Section 16 would certainly not apply. Mr. Roy then, in support of his contention, made some reference to isolated English decisions on the question of specific performance of contract, and even went so far as to argue the matter by a reference to first principles. I must point out that it has been repeatedly emphasized in the numerous decisions in this country [on this point, that it is futile to endeavour to discuss a matter of this kind by a reference to a priori principles, and it is of not little utility to refer to English authorities. The law in India with regard to the specific performance of contracts is in many respects quite different from the law in England. The law in this country is contained within the four corners of certain sections of the Specific Relief Act, 1877, namely Sections 14 to 17 inclusive. As was pointed out by Lord Sumner who delivered the judgment of their Lordships of the Privy Council in the case to which I have already referred:
Sections 14 to 17 inclusive of the Specific Relief Act 1877, are both positive and negative in their form. Taken together they constitute a complete code within the terms of which relief of the character in question must be brought, if it is to be granted at all. Although assistance may be derived from a consideration of cases upon this branch of English jurisprudence, the language of the section must ultimately prevail.
7. His Lordship then proceeded to say:
Section 17 prescribes that there shall be no grant of specific performance except in cases coming within one or other of the three previous sections.
8. Then his Lordship says with reference to the case then before the Court:
It was not proved that the part of the contract which was left unperformed bore only a small proportion in value to the whole within Section 14, and the purchaser had declined to accept relief on the terms of Section 15. Accordingly Section 16 (which appears to be novel in the width of the power which it confers) afforded the only ground on which the Court could help him. To make this section applicable it had to be shown that there was a part of the contract, to wit, that relating to plot A which (a) ‘taken by itself could and ought to be specifically performed’
and (b)
stood on a separate and independent footing from the other part of the contract, which admittedly could not be performed.
9. It is quite clear that Sections 14, 15 and 16 deal with three sets of circumstances. Section 14 deals with the case where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears Only a small proportion to the whole in value; Section 15 deals with a case where the part which must be left unperformed forms a considerable portion of the whole; and Section 16 deals with a case where part of the contract can clearly be severed from the rest of the contract. In the present case the circumstances are such that beyond all question the matter does not fall within the purview of Section 14. The matter also does not fall within the purview of Section 16. Therefore it seems to us that it is a matter beyond all argument that this is one of the class of cases which fall with-in the intermediate section, that is to say, within Section 15. One has only to consider the salient features of the contract to see that the matter was so. Defendant 1 has only one-third share in the property and he is in a position to sell that one-third share and no more. Therefore the part which must be left unperformed forms a considerable portion of the whole. Where that is so the Indian legislature in enacting Section 15, Specific Relief Act, unlike the English Law, has not recognized the right to a proportionate abatement of the purchase-money. It is pointed out in Pollock and Mulla’s Treatise at p. 849 that
this section agrees with English law in allowing a purchaser to enforce specific performance at his option under the named conditions, although the vendor cannot claim it. But the Indian enactment clearly excludes, in such cases any claim of the purchaser to compensation, thus making a considerable and (it must be presumed) deliberate departure from English authority.
10. In the case of Baluswami Aiyar v. Lakshmana Aiyar A.I.R. 1921 Mad. 172, Kumaraswami Sastri, J. at p. 627 (of 44 Mad.) put the matter thus:
The English decisions on the subject of specific performance where a party is only entitled to a share are not uniform and the latter part of Section 15, Specific Relief Act, is a clear departure from the English rule as to abatement or compensation when specific performance of part of a contract is decreed.
11. I respectfully adopt the language of that learned Judge in the argument before us. The learned advocate for the respondent seems to have completely ignored the fact that there is a multitude of decisions dealing with the question as to the right to specific performance where the contract has been made by one member of a joint Hindu family and this multitude of decisions is spread over all the High Courts of India and indeed when one comes to look into the matter one finds that this question has already been placed beyond the region of forensic controversy. We do not think it necessary to refer at length, to the numerous decisions which are to be found in the reports of the various High Courts. It will be sufficient if I refer to two decisions of this Court and of the Madras High Court. It happens that these decisions of this Court for some reason or other have not apparently found their way to any of the authoritative reports. It may be it is for that reason that the parties here have endeavoured to re-agitate the question. In the case of Dina Nath Sarma v. Gour Nath Sarma A.I.R. 1925 Cal. 434 the facts were very similar and indeed, almost identical with the facts of the present case. In the course of his judgment Pearson, J., says:
I am unable to distinguish the facts of the case now before us from the facts which are given in Illus. (a), Section 15, Specific Relief Act, and I think the lower appellate Court was right in holding that that was the section to be applied in the circumstances of this case
and with that decision Graham, J., agreed. The other case in this Court is that of Purna Chandra Mukerji v. Gopendra Krishna Kundu decided by Greaves, J. and B. B. Ghose, J., and reported in A.I.R. 1926 Cal. 744. The Madras ease is the one from which I have already quoted is that of Baluswami Aiyar v. Lakshmana Aiyar. The head-note of that case is as follows:
The managing member of a joint Hindu family, who, for purposes not binding upon the other coparceners and without their concurrence, agrees to convey a specific item of joint family property, cannot perform his contract in its entirety and the case falls within the provisions of Section 15, Specific Relief Act. The purchaser in such a case cannot enforce specific performance of the entire contract. But the Court will grant specific performance by a conveyance of the share which the vendor had in the property at the date of the contract, if the purchaser elects to pay the entire consideration and the share should be specified in the decree.
12. The case was decided by a Pull Bench of the Madras High Court that consisted of Sir John Wallis Kt., C. J., and Oldfield and Kumaraswami Sastri, JJ. In the course of the hearing a large number of authorities were referred to and the matter was considered in the fullest possible manner. We are of opinion that this case should be taken to govern eases of the kind with which we are now dealing. It is a complete and definite authority for holding that where one member of a joint Hindu family purports to sell not only his own share but those of his coparceners and the vendor is not able to give a good title to anything more than his own individual share in the property; if the purchaser desires to have a remedy by way of specific performance he cannot claim more than the share of the actual contracting member of the joint family and he can only obtain even that share by being prepared to pay not merely a proportionate part of the purchase price but the whole of the sum originally agreed upon as the consideration for the sale of the entire property in question.
13. In that view of the matter holding as we do that Section 15, Specific Relief Act, governs this case we have no other course open to us but to allow this appeal and to set aside so much of the judgment of the Subordinate Judge of Dacca as orders that the plaintiff shall deposit in Court the sum of Rs. 616-10-8. If the plaintiff desires to have defendant l’s one-third share in the land in question conveyed to him he must be prepared to pay the whole sum of Rs. 1,850 less, of course, the sum of Rs. 350 which has already in effect been paid by him to defendant 1. If on the other hand the plaintiff is content to get relief by way of compensation from defendant 1 for this undoubted breach of contract he will be entitled to obtain monetary compensation from defendant 1 for the loss which he has sustained. We propose to give the plaintiff an opportunity to make up his mind with regard to the course which he desires to adopt and for that purpose we defer making a final order and allow the plaintiff 14 days time in which to decide which of the two causes I have indicated ha would prefer to follow.
Suhrawardy, J.
14. I agree.
Costello, J.
15. In this matter we allowed the respondent time to decide whether he will obtain the defendant’s one-third share of the property which was the subject matter of the contract; for the whole of the purchase price agreed to be paid for the entire property agreed to be sold or on the other hand recover from the defendants-appellants the money which he had already paid actually of in effect on account of the price. We are now in formed by the learned advocate for the respondent that he does not wish to purchase the one-third share of the property. We accordingly order that the defendant do return to the plaintiff all the money which he has already paid in effect or in cash with interest at six per cent per annum. We have already indicated that the appeal will be allowed and the respondent must pay the appellants’ costs.
Suhrawardy, J.
16. I agree.
