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1999 DIGILAW 30 (CAL)

LAXMI CHARAN RANA v. SITARAM SINGH

1999-02-03

BHASKAR BHATTACHARYA

body1999
BHASKAR BHATTACHARYA, J. ( 1 ) THIS second appeal is at the instance of defendant No. 2 in a suit for specific performance of contract and is directed against judgment and decree dated July 26, 1995 passed by the learned assistant District Judge, 2nd Court, Barasat in Title Appeal No. 16 of 1994 thereby affirming those dated July 24, 1993 passed by the learned Munsif, 4th Court, Sealdah in Title Suit No. 253 of 1981. ( 2 ) THE respondent filed the aforesaid suit for specific performance of contract for sale dated June 29, 1978 alleged to have been executed by one Dhani Bala Dasi, since deceased, the defendant No. 1, for a consideration of Rs. 4,000/ -. After the execution of the said agreement for sale but before the institution of the suit, the said Dhani Bala Dasi having gifted the suit property to the present appellant, he as made defendant No. 2 in the suit. ( 3 ) THE defendant No. 1 filed written statement and admitted the fact alleged by the plaintiff. The present appellant however filed separate written statement and denied the averments made in the plaint. The specific defence of the appellant was that he by virtue of the deed of gift executed by defendant No. 1 has acquired title and possession over the suit property. The respondent, according to the appellant, had filed the said suit in collusion with the defendant No. 1. ( 4 ) DURING the pendency of the suit the defendant No. 1 having died, the respondent filed an application before the learned trial judge to strike out her name as she had transferred the property to the present appellant. The said prayer was allowed and the name of the defendant No. 1 was expunged. ( 5 ) ULTIMATELY, the learned trial Judge decreed the suit in favour of the respondent against the appellant. ( 6 ) BEING dissatisfied, the appellant preferred an appeal being Title Appeal No. 16 of 1994 which was heard by the learned Assistant District Judge, 2nd Court, Barasat and by the Judgment and decree impugned in the instant second appeal the learned first appellate court below affirmed those passed by the learned trial Judge. ( 7 ) BEING aggrieved, the defendant No. 2 has preferred the instant second appeal. ( 8 ) MR. ( 7 ) BEING aggrieved, the defendant No. 2 has preferred the instant second appeal. ( 8 ) MR. Roychowdhury, the learned senior advocate appearing on behalf of the appellant has advanced a pure question of law in support of the instant second appeal. According to mr. Roychowdhury, in a suit for specific performance of contract, where the contracting party, before institution of the suit, has transferred his interest in the property, both the contracting party and the transferee should be made parties and it the absence of one of them a suit for, specific performance of contract is not maintainable. Mr. Roychowdhury contends that in the instant case the defendant No. . 1 viz. , the contracting party having died andher heirs not having been brought on record and Instead the plaintiff having prayed for expunging her name, the suit against the subsequent transferee alone was not maintainable. Thus, Mr. Roychowdhury contends, the learned courts below erred in law in passing a decree for specific performance of contract in the absence of the heirs of the original contracting party. In support of such contention mr. Roychowdhury relied upon a Division bench decision of this court in the case of chotta Lal and Anr. v. Dilip Kumar Chatterjee and Ors. . ( 9 ) MR. Banerjee, the learned advocate appearing on behalf of the plaintiff/respondent has however controverted the aforesaid submission of Mr. Roychowdhury and has contended that the appellant being a transferee from the defendant No. 1, the estate of defendant No. 1 was properly represented and as such neither it can be said that the suit had abated against defendant No. 1, nor can it be contended that in view of deletion of the name of defendant No. 1, the suit became bad for absence of necessary party. In support of such contnetion Mr. Banerjee has referred to the decision of the Apex Court in the case of Md. Ariff v. Allah Rabbul Alamin and Ors. . Mr. Banerjee also refers to the decision of the Apex court in the case of Custodian of Branches of Banco National Ultramarino v. Nalinibai naigue. Mr. In support of such contnetion Mr. Banerjee has referred to the decision of the Apex Court in the case of Md. Ariff v. Allah Rabbul Alamin and Ors. . Mr. Banerjee also refers to the decision of the Apex court in the case of Custodian of Branches of Banco National Ultramarino v. Nalinibai naigue. Mr. Banerjee lastly relying upon the decision of the Supreme Court in the case of mahabir Prasad v. Jageram and Ors, contends that in the instant case the appellant being the transferee from deceased defendant should be deemed to be the legal representative of the deceased defendant No. 1 and being already on record there was no necessity of any substitution. ( 10 ) IN view of the decision of the Apex court in the case of Durga Prasad v. Deepchand and the subsequent decision of the same court in the case of Sonilaljl Jetha v. Sonilcalidas Debchand and Ors. the law is now settled that in a suit for specific performance of contract where the original contracting party after the agreement but before the institution of suit has transferred his right, title and interest in the suit property, both the contracting party and the subsequent transferee should be made defendants, otherwise, no effective decree can be passed in favour of a plaintiff inasmuch as in order to convey title in favour of the plaintiff both the contracting party and the subsequent transferee should be parties to the deed to be executed pursuant to the decree. ( 11 ) IN view of the above position of law, if a plaintiff on the death of the original contracting parties decides not to bring the heirs and the legal representatives of the deceased party, by passing a decree against a transferee alone, no valid title to the property can be conveyed in favour of the plaintiff. The defendant no. 1 in the instant case being a necessary party and the plaintiff having decided not to proceed against the heirs of such party on her death, no effective decree can be passed in favour of the plaintiff and as such the suit was not maintainable in the absence of the heirs of defendant No. 1. ( 12 ) IN the case of Md. Ariff v. Allah rabbul Alamin and Ors. (supra) relied upon by mr. Banerjee, a suit was decreed against both the vendor and subsequent transferee. ( 12 ) IN the case of Md. Ariff v. Allah rabbul Alamin and Ors. (supra) relied upon by mr. Banerjee, a suit was decreed against both the vendor and subsequent transferee. Against such decree the vendor alone preferred an appeal before the learned first appellate court making the subsequent transferee a party respondent. Having lost before the first appellate court the vendor preferred a second appeal wherein the subsequent transferee was made a co-appellant along with the vendor. During the pendency of the second appeal vendor died and the heirs of the vendor not having been substituted, the High Court held that the appeal had abated. Under the aforesaid circumstances, the Apex Court held that the subsequent purchaser being also a co-appellant before the learned second appellate court against whom the decree having been passed and he being also a transferee from the vendor should be treated as legal representative of the vendor and as such there was no necessity of bringing on the record of the deceased appellant on record and the appeal could not be said to have abated. In the case of Custodian of Branches of Banco National vltramarino (supra), it was held by the Apex court that where after the death of a person one of the legal heirs was brought on record within the period of limitation and the remaining legal representatives were brought on record at a subsequent stage, the suit could not be held to have abated. Similarly in mahabir Prasad v. Jageram and Ors. (supra) it was merely held that on the death of a party respondent if one of his legal representatives is already on record in another capacity, the appeal does not abate even though no application is made to bring them on record. ( 13 ) IN my opinion, the principles laid down by the Supreme Court in the aforesaid decisions cannot benefit the plaintiff in the instant case, i am unable to accept the contention of Mr. Banerjee that the appellant should be treated as a legal representative of defendant No. 1 within the meaning of Section 2 (11)of the Code of Civil Procedure. I was prepared to accept such contention had the defendant no. Banerjee that the appellant should be treated as a legal representative of defendant No. 1 within the meaning of Section 2 (11)of the Code of Civil Procedure. I was prepared to accept such contention had the defendant no. 1 transferred the suit property to the appellant during the pendency of these suits and in such a case it could be argued that the appellant is a legal representative of the defendant No. 1 in view of the provision contained in order 22 Rule 10 of the Code of Civil Procedure. ( 14 ) THUS, 1 find substance in the contention of Mr. Roychowdhury that on the death of defendant No. 1 the suit had not only abated as a whole but in the absence of defendant no. 1 suit is also not maintainable, and no effective decree for specific performance can be passed by a court in the absence of the legal heirs of defendant No. 1. ( 15 ) THEREFORE, the judgment and decree passed by the learned courts below are set aside, the suit filed by the respondent is dismissed. The second appeal is thus allowed. In the facts and circumstances of the case there will be however no order as to costs. Appeal allowed.