The main legal point established in the judgment is that the death of a coparcener can affect the maintainability of a suit for specific performance, and the court has the discretion to allow the plaintiff to prosecute the suit with limitations and restrictions under S.15 of the Specific Relief Act.

Headnote:
specific performance - contract for sale of landed property - Hindu coparcenary - Hindu Succession Act, 1956, S.6 - abatement of suit - Specific Relief Act, S.15
Fact of the Case:

The case involved a suit for specific performance of a contract for sale of landed property belonging to the Hindu coparcenary of defendants 1 to 3. The 2nd defendant died intestate, and the 1st defendant sought a declaration that the entire suit had abated due to the 2nd defendant's death.
Finding of the Court:

The court found that the 2nd defendant's share in the suit property could not be represented after his death by the 1st defendant, and the suit had abated as regards the 2nd defendant's share in the property. However, the court allowed the plaintiff to prosecute the suit subject to limitations and restrictions under S.15 of the Specific Relief Act.
Issues: The main issue was the effect of the 2nd defendant's death on the suit for specific performance and whether the abatement affected the maintainability of the entire suit or only part of the suit.
Ratio Decidendi: The court applied the provisions of the Hindu Succession Act, 1956, S.6, to determine the devolution of the 2nd defendant's interest in the coparcenary property. Additionally, the court relied on S.15 of the Specific Relief Act to allow the plaintiff to prosecute the suit with limitations and restrictions.
Final Decision: The Civil Revision Petition was allowed with costs, and the abatement caused by the 2nd defendant's death was declared confined to his interests in the suit property.

Judgment :-

1. This Civil Revision Petition has arisen in a suit for specific performance of a contract for sale of landed property, 16 acres odd in extent, belonging to the Hindu coparcenary of defendants 1 to 3. The suit was contested by the 1st defendant. On December 26,1957, the 2nd defendant died intestate, leaving behind a widow, two daughters and two sons. As none had been impleaded as his legal representative, the 1st defendant on December 10, 1960, filed C. M. P. No. 4514 of 1960 for a declaration that the entire suit had abated, and a copy of that petition was given to counsel for the plaintiff. The same day, the plaintiff filed C. M. P. No. 4516 of 1960 stating that, though the case stood adjourned to that day for impleading the legal representatives of the 2nd defendant, it was not necessary to implead any in place of the deceased as he was only a pro forma party and the 1st defendant was competent to represent the entire family in the suit. Those two petitions were disposed of by the Subordinate Judge by a common order accepting the plaintiff's plea. The 1st defendant seeks revision of that order. When the C. R. P. came before a Single judge it was adjourned to be heard by a Bench; and subsequently a Division Bench referred it to a Full Bench.

2. Supporting the order of the Court below counsel for the plaintiff-respondent contended that defendants 2 and 3 are not necessary parties to the suit, but have been impleaded only as pro forma parties. That the suit property belongs to a Mitakshara coparcenary is not in dispute here. The plaint is clear that the suit is against the coparcenary and that the 1st defendant is sued as the Karta thereof. But, the contract for sale having been entered into by defendants 1 to 3 as representatives of the family, the suit on the contract must be against all the three. The contention of Sri Krishmoorthy Iyer that, even though the defendants 1 to 3 have jointly made the suit-contract on behalf of the family, the 1st defendant alone might have been sued on the contract for a decree against the family, is not acceptable. No authority thereto is cited before us; and the observations in Kishen Parshad v. Har Narain Singh (38 Ind. App. 45) seem to be against it. See the principles of Hindu Law by Mulla,12th Edn. pages 377 & 378.

3. But the question here is not of the constitution of the suit at its institution, but of the effect of the death of the 2nd defendant pending suit. He died intestate in 1957, that is, after the commencement of the Hindu Succession Act, 1956. S.6 of that Act provides:

"When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that if the deceased had left him surviving a female relative specified in class I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1:-For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2:-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

The 2nd defendant having left behind him a widow, two sons & two daughters the aforesaid proviso and the Explanations are attracted in his case; and the result is that his sh

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