P L D 1965 Supreme Court 651 (PLP)

B. Z. KAIKAUS, J.‑Facts of this appeal by ‑‑special leave need be stated only to the extent to which they have a bearing on the, question of abatement, the only question which is being The suit out of which this appeal arises was one for specific performance of an agreement to sell dated 8th August 1953. By this agreement Murad who is a pro forma respondent in this appeal agreed to sell one square (200 kanals) of land to Manak and Lai the contesting respondents for a sum of Rs. 24,000 out of which Rs. 5,000 were paid at the time of the execution of the agreement and the balance of Rs.19,000 was to be paid. at the time of ‑the registration of the sale deed. The sale deed was according to this agreement to be registered on 28tfi August 1953. Possession of the land sold was already with Manak.and Lai as tenants. On the 29th October 1953, Manak and Lai filed the suit out of which this appeal arises. They alleged in the plaint that Murad had evaded performance of his contract in spite of notice and had in fact sold one half of the land to Wali, Jahana and Allah Dad the present appellants for a sum of Rs. 13,000 by a registered sale deed dated 22‑10‑1953. The plaintiffs, had come to know of the contemplated sale in favour of the appellants and had applied to the Sub-Registrar to prevent registration of the sale deed. This application had been read out to Murad in the presence of the Sub‑Registrar, but Murad had repudiated the agreement in favour of the plaintiffs and had got the sale deed registered. Defendants. to the suit were Murad and the transferees of half the land from him, that is, the present appellants. By separate written statements Murad as well as the appellants contested the suit. Murad denied that he had ever agreed to sell the land to the plaintiffs and also pleaded, that the agreement for‑ sale was the result of fraud and misrepresentation. He relied too on a writing, signed by both the plaintiffs, of 8‑8-1953, that is, the very date on which the agreement for sale 'was executed, by which, as an answer to a notice for ejectment, the plaintiffs agreed to vacate the land in dispute. The present appellants pleaded that they had no knowledge of any agreement for sale in favour of the plaintiffs and that they were bona fide purchasers for value of half the land. The Senior Civil Judge found that a valid agreement for sale existed but that the present appellants were bona fide transferees for value without notice of the agreement for sale and were not bound by the agreement. As to the agreement to vacate the land he held that though it did not amount to cancellation of the agreement for sale it could afford sufficient basis for disallowing specific performance which was a relief in the discretion of Court, because it was on the strength of this document that Murad had been able to sell the land to the plaintiffs. He dismissed the suit as regards one half of the land which had been purchased by the present appellants. As regards the other half of the land the Senior Civil Judge was prepared in spite of his finding as to the agreement to vacate the land affording ground for refusing specific performance to grant a decree for specific performance, but he was of the opinion that in view of section 15 of the Specific Relief Act specific performance even with respect to one half could be decreed only on payment of the_ whole price and the plaintiffs having refused to pay the whole price for half the land he awarded damages to the extent of Rs. 1,000 for breach of contract in addition to ordering refund of Rs. 5,000 paid a$ earnest money. On appeal by the plaintiffs the learned Judges of the High Court came to the conclusion that the appellants had notice of the agreement for sale. As to the agreement to vacate the land the learned Judges found that it had been executed prior to the agreement for sale and therefore did not affect that agreement. On these findings the appeal was accepted and the suit was decreed as prayed for. On 25th February 1957, the case was certified by the High Court as fit for appeal to the Supreme Court and an appeal was in consequence filed in this Court. Lal respondent who was one of the two plaintiffs died during the pendency of the appeal in 1958. His legal representatives were not brought on the record. As against him the appeal has, according to the admission of learned counsel for the appellants abated. The only question for decision is whether there has been a total abatement of the appeal. The main contention on behalf of the appellants is that the shares which the two plaintiffs were to have in the land in dispute are ascertained or ascertainable and the appeal should abate only as regards the share of the deceased.. The main con tention on behalf of Manak respondent is that there was a single agreement and there can be no partial specific performance of it. The first observation to be made while entering upon a discussion of this subject is that abatement as such takes place' only as regards the defendant or respondent who dies and when we speak of "total abatement" of a suit or appeal on the death of one of the defendants or respondents we only mean that on account of the situation that is created by the abatement of the suit as against a party the suit or appeal cannot for one reason or the other proceed at all. In accordance with Order XXII. rule 4, C. P. t'. the suit abates only "as against the deceased" defendant, and by virtue of rule I1 in case of appeals "respondent" has to be substituted for "defendant". In the Civil Procedure Code of 1882, the relevant provision was section 368 and according to it the suit abated. There was a difference of opinion amongst the High Courts as to whether the suit was to abate,4_ totally or only as against the deceased defendant and in the Civil Procedure Code of 1908 the words "as against the deceased defendant" were added so as to set at rest the conflict, Abatement as such takes place therefore only as regards the deceased party and it will greatly add to clarity of thought if the, expression "total abatement" was altogether avoided when dealing with a situation like the present. When a suit has abated as against the deceased defendant but for one reason or the other it cannot proceed at all the proper order to pass would be to dismiss the suit as against the remaining defendants. The abatement itself does not stand in need of an order for it L, automatic. The Court simply records that the suit has abated. I against the deceased defendant. So far as the living defendants are concerned there has to be an order by the Court dismissing it. No appeal lies against an order simply recording an abatemer, whereas an appeal will lie against an order of the so‑called "total abatement" because it is an order of dismissal of the suit against the living defendants, and as it finally disposes of the suit it will be a decree. The second observation to be made is that this order of dismissal of suit or appeal against the living defendants or respondents (we would avoid use of the expression "total abatement") will be justified only if it becomes impossible to proceed with the suit or appeal on account of its abatement as against the deceased party. Law favours adjudication on merits for a failure to so adjudicate means a refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuperable practical obstacle preventing it. It was open to those who amended the Civil Procedure Code in 1908, if they contemplated a bar in some circumstances to the trial of the suit as against living parties too, to make a provision for it. They have not done so and any bar that is now pleaded has. to be based on the practical impossibility of the trial of the suit. The fact that rights and obligations as between A and B have become incapable of adjudication in a suit filed by A against both B and C would ordinarily afford no ground for refusing to adjudicate upon the rights and obligations as between A and C and for depriving A of the relief he is entitled to against C, and if such an adjudication is to be prevented it will have to be shown that adjudication of rights and obligations as between A and C is not possible without a simultaneous adjudication of the rights and obligations as between A and B, either on account of the nature of the relief asked for or on account of some provision of law which expressly or by necessary implication requires a single adjudication between all the parties. An example of a suit where the nature of the relief asked for requires an adjudication between all parties is a suit for partition of property. A partition can take place only as between all the co‑sharers though it may be clarified here that after a decree for partition is passed the dispute may in appeal become confined to some out of the co‑sharers. A suit for accounts of partnership is also an example of this kind but not a perfect one for a case is conceivable where there have admittedly been profits and two parties are claiming their share of profits against the third partner who is the accounting party. An example of a case where law requires one decision of a dispute between all parties is a suit for pre‑emption. Though there be more than one vendee only a single suit can be filed with respect to one sale and the law does not permit an adjudication as between the pre emptor and one of the vendees. Here the law envisages only one cause of action and one decision of a dispute and a partial adjudication is not possible. Another criterion for deciding the question before us, but which is really the same criterion put in a different form is this. Could separate suits have been brought by A against B and C? If separate suits could have been brought the abatement of suit against one cannot affect the other. On the other hand if separate suits were not possible it is obvious that the abatement as against one defendant would result in dismissal against the other. It would be proper to state here that the effects of withdrawal (without permission of Court) and abatement are the same. In both cases a suit on the same cause of action is barred. If a suit could be withdrawn as against one defendant without affecting it as against another defendant, its abatement against one could also not bar it against the other and if separate suits could originally have been brought withdrawal against one would not affect it as against the other. Three grounds have been mentioned in decided cases for holding that there has been "total abatement", of a suit or appeal. They are:‑. (i) that the suit or appeal would be imperfectly constituted in the absence of the deceased party; (ii) that a decision on the merits may result in inconsistent decrees; and (iii) that an effective decree ‑cannot be passed against the living party. To the first of the grounds no objection can be taken. If a suit becomes imperfectly constituted it obviously has to be dismissed. This ground contains in effect, the same criterion as has been stated above although the approach is slightly different. So far as the second ground is concerned it has to be pointed out that if by inconsistent decrees are meant decrees which contain conflicting determinations of rights or conflicting executable directions, even though the parties to the decrees be not the same, then our law permits such decrees and a little consideration will show that there is no true inconsistency between them in spite of the conflicting determinations or directions. With respect to the same property the Court may hold in one suit that it belongs to A, in another that it belongs to B, in a third that it belongs to C and so on. With respect to the same property the Court may pass a decree for possession in favour of A against B in one suit and in favour of C against D in another suit and so on. A suit by A against B for a declaration that a property belongs to him may be dismissed and another suit by A against C for the same relief may be decreed. The reason why these decrees or judgments in spite of the apparently conflicting decisions which they contain are truly not inconsistent is that they are judgments in personam. When A ‑ gets a decree against B declaring the title of A to a particular property, the Court has not (as representing the State) accepted the title of A as to that property for title is declared only as against B and the only effect of the decree is that B is hence forth debarred from disputing A's title. Judgments in personam only . establish rights and obligations as between parties to a litigation. Suits are . filed no doubts in respect of rights in personam as well as rights 'in rem, but even when they are filed in respect of rights in rem the judgment delivered being one in personam does not establish the right in rem, but only debars the defendant from hence forth contesting such right. It is only if a judgment is delivered in the exercise of jurisdiction, mentioned in section 41 of the Evidence Act, that there comes into existence a judgment in rem which prevents any other determination of the subject matter of the judgment irrespective of who the parties to the litigation are. The section refers to probate, matrimonial, admiralty and insolvency jurisdictions and goes on to mention other judgments which determine a right "not as against any specified person but absolutely". These are all judgments in rem. It is with respect to these judgments that a question of inconsistency arises. Other judgments create inconsistency only if they are between the same parties so that the matter becomes res judicata. With judgments in rem we are not here concerned. So far as a judgment .delivered in, the exercise of the ordinary jurisdiction of a Court is concerned according to the express provision in section 43 of the Evidence Act it is irrelevant unless it bars the trial of the suit in which it is produced. There‑ are a number of provisions which bar suits but the bar is only as regards suits between the same parties . or their representatives in interest. In any case in the absence of a provision to the contrary a decree or judgment does not become inconsistent with another decree or judgment because of the conflicting determinations or directions which they contain if parties are not the same. If a judgment delivered in a‑separate suit between two parties does not operate as a bar to trial of another suit between different parties although the subject matter of the two suits is the same and the judgments in the two suits are not to be regarded as inconsistent in spite of the conflicting findings or declarations of right or directions contained in them should it_ make any difference that the judgments are delivered in the same suit? If the fact that A's suit against B as to ownership of a particular property has been dismissed does not debar A from filing a suit against C as to ownership of the. same property and getting a decree against C declaring such ownership, will a judgment delivered in the same suit, between A :and B only bar the trial of the same suit between A and C on the ground that the judgment between A and C may be "inconsistent" with the judgment between A and B, assuming that originally separate suits could have been filed by A against B and C? Of course if separate suits could not have been filed at all a different situation will arise for a separate proceeding between A and C will be. incompetent. But if separate suits could have been filed, there is no principle on which a distinction could be made between decrees in different suits and decrees in the same suit. If the same‑decree when delivered in a different suit could not bar the trial of a suit or appeal against the living defendants a decree in the, same suit could not do so. There is another ground on which decrees which are not between the same parties are not to be regarded as inconsistent though delivered in the same case and that is that legal rights inhere in juristic persons and ‑therefore juristic persons have in the absence of some legal provision or implication to the contrary seperate legal rights so that a decree with respect to one juristic person will be relating to his own right and no question of contradiction between it and a decree in favour of another juristic person can arise. Reference may in this connection. be made to two Full Bench judgments of the High Court of Judicature at Lahore. The first case is reported as Sant Singh v. Golab Singh (A I R 1928 Lah. 572). In that case there was a sale deed in favour of four vendees and a suit had been brought by the reversioners of the vendor for a declaration that the sale would ,not affect their reversionary rights. The sale deed was found to be for consideration and necessity by the trial Court and the suit was dismissed. An appeal was filed by the reversioners and during the pendency of the appeal one of the vendee respondents having died and the legal representatives not having been brought on the record the appeal abated as against him. A question arose as to whether the appeal could proceed against the other vendees. It was urged on behalf of the vendees that two inconsistent decrees would come into existence if the appeal succeeded. This contention of the vendees was repelled by all the learned Judges though the lines of reasoning were not the same. All the learned Judges found that the decrees could co‑exist in spite of the fact that the same sale was held to be for consideration and necessity in one decree and not for consideration and necessity in the other because the decrees would relate to different shares in the property. The second case is Nanak v. Ahmad Ali (A I R 1946 Lah. 399) In that case a suit had been filed for declaration of ownership of certain property and for cancellation of a sale deed with respect to that property by a defendant in favour of two other defendants. The suit was decreed and the two defendants who had purchased the property filed an appeal, but one of them died without his legal representatives being brought on the record. It was held that the abatement of the appeal of one could not, bring into existence contradictory decrees though the deed had been found to be void by the trial Court and may be found to be valid by the appellate Court because the shares of the two defendants were separate and each decree would relate to a separate share. One more observation is needed in this connection. One of the defendants in a suit may admit the claim of the plaintiff 'or enter into a compromise with the plaintiff or the suit may be withdrawn against him. In all such cases if originally there could have been separate suits there can be no objection to the suit being proceeded with against the other defendants on the ground that contradictory decrees may come into existence. There can be contradictory decrees in a limited sense if the law contemplates only one decision of a dispute as in a case of pre‑emption so that there is a joint cause of action and the defendants can only be sued together as if they together constituted a single juristic person. However, in such cases the suit will be imperfectly constituted if it abates against a defendant and no need will arise of recourse to the objection based on contradictory decrees. So far as the third criterion is concerned namely that based on effectiveness of decree it has to be pointed out that this principle has been applied to cases arising under International Law where either the defendant or the subject matter is not within the jurisdiction of the Court. If the Court has jurisdiction over parties as well as the subject‑matter there does not appear to be any reason for the Court not being able to pass an‑ effective decree. What is needed is that the decree be effective between the parties and that it will surely be. It will even create res judicata. The mere fact that a third person may nullify the decree does not mean that the Court will refuse relief. We have been maintaining the distinction between legal reliefs and equitable reliefs and the Court has no discretion to refuse a legal relief. If the right of the plaintiff has been violated he is entitled to have relief and it is for him to see whether the relief will. benefit him. He has paid court‑fees and is entitled to a determination. If A gets a decree for possession against B a suit by B against C for declaration of title or for possession cannot be dismissed on the ground that A can nullify B's decree and it should make no difference that the situation arises not in two suits, but in the same suit. In fact it is difficult to see how the legal representatives of the deceased can nullify the decree as against other defendants because as already shown their decree will relate only to their own share in . property and if it be a case where there is a joint cause of action then in case of abatement as against one the suit or appeal will become improperly constituted and the question of effectiveness of decree will not arise. Coming to the facts of the present case the main contention of the appellants is that the two vendees (vendee being used in the sense of a person who has entered into a contract to purchase) have separate shares which are either ascertained or ascertainable and the fact that the suit of one has succeeded should not stand in the way of that of the other being dismissed. The two decrees it is urged will relate to separate shares of property and can stand together. Learned counsel for the appellants argues that if the vendees had in fact purchased the property. and had not merely entered into an agreement for purchase and the suit of one for possession‑ had been decreed there would be no bar to the suit of the other failing and the same principle should be applicable to a suit where there is only an agreement for sale. The agreement should, it is contended, be regarded as really consisting of two agreements one in favour each vendee for one half of the. property for half the price. Shaves of the vendee are not specified in the agreement, but learned counsel depends on the presumption of equality of ‑shares in a case where no shares are specified. He also contends that even if the presumption be not availed of the Court can go into the matter and ascertain the shares. The general presumption no doubt is that where shares are not specified in a joint purchase, or acquisition, the shares are presumed in the absence of indication to the contrary to be equal. It is not necessary however for the appellant to rely on this presumption for he is not affected by the shares not being equal. After all .the vendees had, agreed to purchase in some shares, and as long as these are ascertainable shares the argument of the appellants remains unaffected. The joint tenancy of English law is unknown in this country though in‑the relationship of landlord and tenant there may be incidents of that estate. We are here concerned however not with any‑relationship of landlord and tenant but with acquisition of ownership and whenever persons acquire property in this country they do so as tenants in common and their shares are ascertainable. It is true also that if this was a sale deed and not an agreement for sale the abatement of the appeal as regards one respondent would not bar the hearing it as against another. However, difficulty for the appellants is created by section 17 of the Specific Relief Act which runs: "

17. The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections." The three preceding sections mentioned in this section are: "

14. 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, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

15. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of defendant.

16. When a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part." Admittedly sections 14, 15 and 16 have no relevance in the present case. According to section 17 there can be no partial specific performance of a contract except in cases mentioned in sections 14, 15 and

16. It is clear that the law envisages performance of a contract in its entirety unless for some reason it be not capable of such specific performance at all. Sections 14 p to 16 deal with cases where such reasons exist. Apart from those sections a contract must be performed as a whole. The law does not contemplate that with respect to the agreement there should be a decree for specific performance in respect of one promisee and a dismissal of suit as regards another. The only argument put forward by learned counsel for the appellants in this connection is that the agreement for sale should be interpreted as consisting of two agreements one in favour of each vendee. It is not possible for us to accept this contention. There is only one contract between the parties. The shares of the vendees are not specified) in the agreement, but even if they were specified as long as the contract was one section 17 would bar a splitting up of the ~E transaction. This is one of those cases where the law contemplates only one decision of a dispute. The position is similar to that which arises in cases of pre‑emption. With respect to one sale deed which is in favour of more than one vendee, there can only be one suit for pre‑emption, though a pre‑emptor may have a right of pre‑emption with respect to a part of the property, and his right cannot be defeated by including property with respect to which he has no right of pre‑emption, It cannot be urged in cases of pre‑emption that if there be more than one vendee the transaction should be split up. We have considered only section

17. It could have been argued that the vendees were not prepared to purchase unless the whole land was sold even though their shares were separate. A decision of that question would have involved inquiry into facts. However, section 17 makes such enquiry unnecessary. If the contract is one section 17 prevents different decisions with respect to the subject‑matter. We are of the opinion that the appeal cannot proceed against the living defendants and we dismiss it but make no order as to costs. S. A. H. Appeal dismissed.