In a suit for specific performance of a joint and indivisible contract, the death of one of the plaintiffs during the pendency of the suit abates the suit in its entirety if the legal representatives of the deceased plaintiff are not brought on record within the prescribed time.

Headnote:
SPECIFIC PERFORMANCE - ABATEMENT OF SUIT - JOINT AND INDIVISIBLE CONTRACT - DEATH OF ONE PLAINTIFF - LEGAL REPRESENTATIVES NOT BROUGHT ON RECORD - SUIT ABATES IN ITS ENTIRETY - ORDER 22, RULES 1, 2, 3(1) AND 3(2), CODE OF CIVIL PROCEDURE, 1908 - SECTIONS 37, 45, INDIAN CONTRACT ACT, 1872.
Fact of the Case:

Four brothers entered into a joint and indivisible contract to purchase a plot of land. One of the brothers died during the pendency of the suit for specific performance of the contract. The legal representatives of the deceased brother were not brought on record within the prescribed time.
Finding of the Court:

The suit abated in its entirety as the legal representatives of the deceased brother were not brought on record within the prescribed time. The right to sue did not survive in favor of the surviving plaintiffs alone, and the suit was not properly constituted with all the necessary parties.
Issues: Whether a suit for specific performance of a contract abates in its entirety when one of the plaintiffs, being a party to a joint, indivisible contract, dies and his legal representatives are not brought on record within the specified time.
Ratio Decidendi: 1. Under Order 22, Rule 3(1), CPC, where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, the legal representatives of the deceased plaintiff must be brought on record. 2. When a person has made a promise to two or more persons jointly, the right to claim performance rests with them jointly during their joint lives, and after the death of any one of them, with the representative of such deceased person jointly with the survivor or survivors. (Section 45, Indian Contract Act, 1872) 3. In a suit for specific performance of a joint and indivisible contract, all the parties to the contract must be before the Court either as plaintiffs or defendants. 4. If one of the plaintiffs dies during the pendency of the suit and his legal representatives are not brought on record within the prescribed time, the suit abates in its entirety.
Final Decision: The appeal was dismissed, and the impugned order abating the suit in its entirety was upheld.

JUDGMENT - DEO B.G., J.: - The short and important point for decision in this appeal is whether a suit for specific performance of a contract abates in its entirely when one of the plaintiffs, being a party to a joint, indivisible contract, dies and his legal representatives are not brought on record within the specified time.

2. The facts in brief are as follows:

3. Four brothers viz. one Ramchandra who dies before the institution of the suit and whose four legal representatives are the appellants Nos. 1 to 4, Suryakant plaintiff No. 5, Chandrakant plaintiff No. 6 and Omkant plaintiff No. 7 agreed to purchase one plot being Plot No. 390/4, Ghat Road, Nagpur, from the defendants-respondents Nos. 1 and 2, some time in 1973, and while entering into an agreement for that purpose also agreed to purchase the adjoining Plot No. 390/4, which is the subject-matter of the suit by the following term in the contract dated 10-8-1973.

“If at any time in future, adjoining house and Plot No. 390/3 is to be sold it shall be first offered to party No. 2, who shall have the first right to purchase the same ---”

4. In spite of the aforesaid term the defendants-respondents Nos. 1 and 2 published a notice in the daily 'Nagpur Times' on 16-7-1978, making known their intention to sell the suit property to the defendants-respondents Nos. 3 and 4. On coming across this notice, the plaintiffs protested by a registered notice to the defendants-respondents asserting their rights of pre-emption and the terms of the earlier contract stated above, but in vain. The defendants-respondents Nos. 1 and 2, however, sold the suit house and Plot No. 390/3, to the defendants-respondents Nos. 3 and 4 by two registered sale-deeds dated 26-8-1978, for Rs. 45,000/- each.

5. In the mean time, one of the four contracting brothers viz. Ramchandra died. The legal representatives of Ramchandra i.e. plaintiffs-appellants Nos. 1 to 4, along with the surviving three brothers viz. plaintiffs-appellants Nos. 5, 6 and 7, instituted the present suit in the Court of Civil Judge, Senior Division, Nagpur on 29-11-1978 against the defendants-respondents Nos. 1 and 2 and their transferees with notice of the plaintiff's prior claim, the defendants-respondents Nos. 3 and 4 for specific performance of contract for sale of the suit property i.e. the house and Nazul Plot No. 390/3, Ghat Road, Nagpur for a declaration that the sale-deeds obtained by the respondents-defendants Nos. 3 and 4 on 29-11-1978, were null and void and subsequently, in the suit by amendment for possession of the suit property. The suit was resisted by the respondent-defendants Nos. 1 and 2 the vendors and their transferees defendants-respondents Nos. 3 and 4 by their separate written statements.

5-A. During the pendency of the suit plaintiff Nos. 6 Chandrakant died on 6-6-1981. The defendants respondents Nos. 3 and 4 filed an application Ex. 37 on 20-1-1982, praying for dismissal of the suit as abated, on the ground that the legal representatives of the deceased-plaintiff No. 6 Chandrakant, were not brought on record, within the prescribed period of 90 days.

6. On 10-2-1982, by an application Ex. 39, the plaintiffs informed the Court of the death of plaintiff No. 6 Chandrakant, which took place on 6th June, 1981, and prayed for deletion of the name of plaintiff No. 6 Chandrakant. In this application the plaintiffs averred as below:

“The legal representatives of plaintiff No. 6 are not joined as the parties to the suit as they do not want to claim any interest in the suit property.”

7. On 7-7-1982, the learned Civil Judge, Senior Division, Nagpur by a single line order directed that the name of the plaintiff No. 6 be deleted. The application Ex. 37 for abatement and dismissal of the suit filed by the respondents-defendants was heard at length by the learned Civil Judge, Senior Division, having regard to the admitted position that the plaintiff No. 6 Chandrakant having died during the pendency of the suit and his legal represent

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