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Letters Patent Appeal No. 15 of 1961, decided on 26th March 1963.

, S. 12‑Specific performance of contract‑Agreement creating joint and several right for reconveyance‑Cannot be enforced in part‑Co‑contractor has to enforce specific performance of whole contract on payment of entire consideration.

Jagdeo Singh and others v. Bisambhar and others A I R 1937 Nag. 186 rel.

Every contract creates not only a right but also corresponding obligation in another.

M. A. Khondkar for Appellant.

B. N. Chowdhury for Respondents.

‑This appeal under clause 15 of the Letters Patent is directed against the judgment and decree of a Single Judge of this Court passed in Second Appeal No. 71 of 1959 arising out of other Suit No. 72 of 1956/46 of 1954 of the Court of the Munsif, Additional Court, Satkania, for specific performance of a contract of re‑purchase.

2. Facts of the case, shortly stated, are as follows :‑---

The plaintiff along with one Sitanath (deceased), defendant No. 3 (wife of Sitanath), Amal (deceased) and defendants Nos. 4 to 6 executed a deed of sale with the condition of re‑purchase (Exh. 1) dated 6‑11‑41 for a sum of Rs. 250 only in favour of defendant No. 2 Kiran Chandra Das in the benami of his wife defendant No. 1 Charu Bala Das, on condition that if the consideration money was paid by the month Chaitra, 1315 M. E. the vendee would return the property with the deed of sale to them. The suit was filed for specific performance of contract of resale (i.e., for reconveyance) by the plaintiff alone impleading the other executants of the deed (Exh. 1) as defendants Nos. 3 to 6 in the suit as they refused to join as plaintiffs in the suit, praying for a decree against defendants Nos. 1 and 2, for execution of the kabala in respect of the suit land on their accepting the kabala money of Rs. 250.

3. The suit was contested by defendants Nos. 1, 2, 4 to 6 and 7 by filing separate written statements. The defence of defendants Nos. 1 and 2 is that defendant No. 1 got possession of 32 decimals of the kabala land by virtue of the sale in his favour by the plaintiff and other co‑vendor and the remaining portion of the land remained in possession of the plaintiff. Defendant No. 2 further claims some independent title of a portion of the suit land on the basis of the patta executed by Sitanath and defendant No. 3 in his favour prior to the disputed conveyance by them in favour of defendant No. 1. These defendants further challenge the right of. the plaintiff to bring the suit.

4. The defence of defendants Nos. 4 to 6 inter alia is that the conveyance in favour of defendant No. 1 was an out and out sale and defendant No. 1 did not get possession of all the lands covered by the kabala. Defendant No. 7 claims to be in pos session of a portion of the suit land by purchase from Sitanath on the basis of the kabala dated 4‑12‑42 and denies the title of the plaintiff and defendant No. 3 in the suit land.

5. The main contention before the trial Court on behalf of the defendants was that the suit by one of the parties in whose favour the agreement for sale was executed was not entertainable as this would amount to a variation of the contract. The trial Court however, took the view that such 4 suit wag maintainable, but the plaintiff could get a decree only in respect of his share in the properties and decreed the suit to the extent of 1/8th share in the disputed properties on a consideration of the evidence that the plaintiff had originally sold to defendant No. 1, 1/8th share in the disputed properties, on payment of proportionate consideration money of Rs. 34‑4‑9 pies.

6. On appeal by the plaintiff the learned Subordinate Judge came to the conclusion that the plaintiff was entitled to get a decree for specific performance of contract in respect of the whole of the land on payment of the entire consideration money of Rs. 250 and directed defendant No. 1 to execute the kabala in favour of the plaintiff in respect of the entire land of Exh. I on receipt of the sum of Rs. 250 which was the consideration of the said kabala.

7. On second appeal the learned Single Judge of the High Court, relying on the decision of the case of Jagdeo Singh and others v. Bisambhar and others (A I R 1937 Nag. 186), where the learned Judge (Vivian Bose, J.) relying on section 23 of the Specific Relief Act came to the conclusion that the expression any party' in the said section indicated that such a suit was maintainable at the instance of one of the contractors where the others were joined as defendants held that the suit was maintainable ; but relying on the argument of Mr. B. N. Chowdhury for appellant in the second appeal held that the decree in such a suit could only be passed in respect of the share of the plaintiff and accordingly restored the decree of the trial Court after setting aside the judgment and decree of the learned Subordinate Judge. Hence this appeal under clause 15 of the Letters Patent.

8. Mr. Khondkar, the learned Advocate for the appellant before us, contends that the decision of the High Court in the second appeal is absolutely wrong, because‑that would be a variation of the contract as entered into between the parties. His contention is that the contract is one and indivisible creating an indivisible right in favour of one or more of the contractors and indivisible obligation on the purchaser to reconvey the property.

9. We think, this contention of the learned Advocate for the appellant is of substance and it has got support from the decision in the case of Jagdeo Singh and others v. Bisambhar and others. The relevant portion of the judgment in that case runs as follows :‑---

"The argument advanced was that the 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‑contractor Anantaram to buy it along with them just as he had promised to do, and ask 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."

10. Mr. B. N. Chowdhury for the respondent tried to make much of this observation before the learned Judge in the second appeal saying that that is not the case here, as the plaintiff in the present case wants to purchase whole of the property for himself and not for others and, therefore, he cannot do that, but he totally overlooked the following observation in the said judgment :‑

"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. Any quarrel the purchasers may have among themselves is not being introduced into this suit. Each party is getting exactly what he bargained for and it is no concern of the vendors how these purchasers choose to arrange about the payment of the purchase‑price as between themselves. That is not a part of the agreement. All that the purchasers undertook to do was to pay the money to their vendors and that is being done. There is no section in the Act which prohibits this. Therefore, I am clear that the plaintiffs have a right to sue for specific performance even though one of their co‑contractors 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."

In the earlier part of the judgment that learned Judge quoted section 23 of the Specific Relief Act, which speaks of "any party thereto" thereby meaning that the word any' indicates the number of persons to be more than two as the section does not say either side thereto' nor even either party thereto' but it says any party thereto'.

11. From another point of view also we come to the same conclusion, namely, that every contract not only creates a right but also corresponding obligation in another. Here the right of repurchase has created a corresponding obligation on the vendee to reconvey the property. He cannot reconvey, or it will be wrong to force him to reconvey, only a portion of it nor under the law he can reconvey any portion of it, because the obligation is one and whole. Let us look to the contract of mortgage where out of several mortgagors one cannot enforce his right to redemption against the mortgagee in respect, of his share of property on payment of proportionate mortgage money unless the mortgagee agrees to it. If he is to redeem the mortgage, he is to redeem the whole of the mortgage on payment of the entire mortgage money. Similarly, here the right created by the agreement for reconveyance is joint and several and any one of them can enforce it in respect of whole and cannot enforce it in respect of his share only. If any one of the co‑contractors wants to enforce the specific performance of contract for reconveyance he is to enforce it as a whole on payment of the entire consideration money and there will be no variation of the contract as pointed out by Vivian Bose, J.:‑---

"Any quarrel the purchasers may have among themselves is not being introduced into this suit. Each party is getting exactly that he bargained for and it is no concern of the vendors how these purchasers choose to arrange about the payment of the purchase price as between themselves."

In the present case though the reconveyance will be executed in favour of plaintiff No. 1. It will ensure to the benefit of all the other co‑contractors subject to the payment of their share of the money to the plaintiff and it is no concern of the vendee how they arrange this among themselves. 1n this view of the matter, we think, the view taken by the learned Single Judge of the High Court in the second appeal is not correct.

We, therefore, allow this appeal with costs and set aside the judgment and decree of the learned Single Judge in second appeal and restore those of the learned Subordinate Judge.

.‑I agree with my Lord the Chief Justice.

S. Q./K. B. A. Appeal allowed.

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