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TMI Blog1978 (4) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... within five years from the date of sale on receipt of the consideration of Rupees 2500. It is to enforce this agreement to reconvey, the plaintiffs filed the present suit. The plaintiffs tendered the entire consideration within the time stipulated and demanded the execution of the sale deed by the first defendant. They also issued a notice demanding the specific performance, but the first defendant refused to execute the same. Since defendants 2 and 3 did not co-operate with the plaintiffs, the suit was filed by the plaintiff alone for specific performance of the agreement to reconvey. The plaintiffs had deposited the entire amount of Rs. 2500 in Court. The main contention of the first defendant was since the agreement to reconvey was in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration in this second appeal is whether the suit could be maintained by some only of the promisees as plaintiffs in a case where the relief asked for is specific performance of the contract, specially, when the others do not want to specifically enforce the contract. Section 45 of the Contract Act was relied on in Safiur Rahman v. Maharamunnissa Bibi ILR (1897) Cal 832 and Koripalli Ramiah v. Sajja Sabbiah 1912 MWN 415 in support of the view that the suit is not maintainable. Section 45 of the Contract Act reads as follows :- When person has made a promise to two or more persons jointly, then unless a contrary intention appears from the contract the right to claim performance rests, as between him and them, with them, during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is to join him as a pro forma defendant. As would appear from Biri Singh v. Nawal Singh ILR (1902) All 226, which was decided in 1898 and Pyari Mohan Bose v. Kedarnath Roy ILR (1899) Cal 409 which was decided in 1899, it has consistently been held by courts in this country that where two parties contract with a third party, a suit by one of the joint promisees, making the other as co-defendant, is maintainableeven if the plaintiff does not prove that the other joint promisee has refused to join him a co-plaintiff. 3. The Privy Council also considered the question in the decision reported in Monghibai v. Cooverji Umersey and it was held therein- It has long been recognised that one or more of several persons jointly interested can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Judge also pointed out that in a case for specific performance, the relief to be granted being in the nature of discretion of the court where there are no sufficient grounds for rejecting the claim of the plaintiff for specific performance the court cannot refuse to grant the relief merely on the ground that some of them had refused to join. The learned counsel for the appellant tried to distinguish the decision in Kandassami v. Venkatachala Kandar (1972) 85 MLW 616 on the ground that in that case the learned Judge specifically found that the refusing parties have colluded with the defendant against whom the relief is sought and that therefore the plaintiff was entitled to the relief. I am unable to agree with this argument of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to prejudice the rights of the other co-promisees. Therefore, the first defendant also would not be entitled to claim that he will execute only with reference to half of the suit properties on the ground that if the conveyance is executed in favour of the plaintiffs and defendants 2 and 3, defendants 2 and 3 would be entitled to half of the properties conveyed. The rights as between the plaintiffs and the defendants would have to be worked out with reference to the agreements between them and it is not open to the first defendant to plead that the second and third defendant's right should be separated from that of the plaintiffs. Accordingly, the judgment and decree of the lower appellate Court is correct and does not call for int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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