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2007 DIGILAW 1605 (MAD)

R. v. E. Venkatachalam VS Jeel Devanesan & Others

2007-06-05

S.ASHOK KUMAR

body2007
Judgment :- The revision petitioner/plaintiff has come forward with this revision as against the order of impleadment or respondents 1 to 6 and 10 to 16 herein as defendants 5 to 17 in the suit who are third parties to the suit. 2. The brief facts of the case are as follows:- (a) The plaintiff filed the suit for specific performance of an agreement dated 22. 1992 and assignment deed dated 5. 1992 against Ms.LVP Devanesan and 3 others. The defendants 1 to 3 are sisters and brother. The 1st defendant as their power of attorney entered into an agreement of sale with the 4th defendant on 22. 1992 for Rs.5 lakhs. The 4th defendant assigned the agreement in favour of the plaintiff on 5. 1992 and handed over possession. The 4th defendant had received a sum of Rs.61,000/= from him leaving the balance of Rs.4,39,000/= to be paid to defendants 1 to 3. AS the defendants avoided execution of sale deed, the suit has been filed. (b) During the pendency of the suit, the third defendant executed a sale deed in respect of her share to the plaintiff. The suit was decreed ex parte on 11. 2000 and the plaintiff also deposited the balance sale consideration before the court. Subsequently, the ex parte decree was set aside. Thereafter the first defendant died on 10. 1994 and thereafter the defendants 2 and 3 who were already on record were recorded as her legal representatives for carriage of the proceedings. Thereafter the trial commenced and the plaintiffs evidence was over. D.W.1 was also examined. At that time, the third parties, the respondents 1 to 6 herein filed the Interlocutory Application for impleading them as respondents to 12 in the I.A., as the legal representatives of the deceased first defendant. According to them the share of the first defendant did not devolve on the defendants 2 and 3 alone, but it devolves on her brother and sisters children and as such they are all legal representatives and necessary and proper parties to be made as defendants. (c) The plaintiff resisted the said application contending that in a suit for specific performance, it is enough if the estate is represented and the proposed parties did not have independent right de hors their status as legal representatives. (c) The plaintiff resisted the said application contending that in a suit for specific performance, it is enough if the estate is represented and the proposed parties did not have independent right de hors their status as legal representatives. Further, the suit is at part heard stage and the I.A., is only filed to delay the trial. In spite of such objections the I.A., was allowed which is now challenged in this revision. 3. The suit is for specific performance of the agreement to sell and assignment deed. Admittedly, the first defendant, unmarried spinster, died on 10. 1994 at the age of about 85 years and defendants 2 and 3 were recorded as the legal representatives of the deceased first defendant. It is also the case of the plaintiff that already the defendants 2 and 3 have given power of attorney in favour of the first defendant. The third defendant also executed necessary sale deed in favour of the plaintiff in respect of his share in the suit property. Accordingly the plaint was amended for a decree directing the second defendant to execute a sale deed jointly with the 4th defendant after receiving the balance sale consideration of Rs.2,19,500/=. Plaintiffs evidence is over and the evidence of D.W.1 is also completed. At this stage, the I.A., has been filed by the respondents 1 to 6 and 10 to 16 herein to implead them as defendants in the suit on the ground that the estate of the deceased first defendant also devolves on them as they are her brother an sisters children. .4. It is the well settled position of law that in a suit for specific performance of contract to sell, the parties to the contract or if they are dead, their legal representatives are the necessary parties. In a suit for specific performance it is enough if the executants of the agreement are arrayed as defendants who are bound to carry out the agreement. The first defendant died in whose favour a power of attorney has been executed by the defendants 2 and 3. Third defendant has already sold his share to the plaintiff and accordingly the prayer in the suit has been amended claiming relief only as against 2nd and 4th defendants. 5. It is also pertinent to point out that when memo has been filed by the plaintiff when the first defendant died on 10. Third defendant has already sold his share to the plaintiff and accordingly the prayer in the suit has been amended claiming relief only as against 2nd and 4th defendants. 5. It is also pertinent to point out that when memo has been filed by the plaintiff when the first defendant died on 10. 1994 to record the second and third defendants as the legal representatives of the first defendant, they have not objected to the same and kept silent and allowed the plaint viz., cause title and the prayer, to be amended accordingly and did not disclose any other legal representative, though the same has been averred in their written statement. Thereafter the plaintiff has been examined and D.W.1s evidence has also been taken. Thereafter only the proposed parties have come forward with the I.A., which is nothing but a delaying tactics. 6. Further in a suit for specific performance, the court is not going to decide the title and the only issue is regarding the enforceability of the contract. The proposed third parties claiming legal representatives at the most could claim their equal share if they prove that they are legal heirs of the deceased first defendant, which is not the issue for adjudication in the present suit. In fact, the third defendant has already executed a sale deed conveying his share in favour of the plaintiff, the second defendant 2 who is recorded as the legal representative is sufficient to represent the estate of the deceased first defendant. .7. In 1999 (3) SCC 109 , the Honble Supreme Court, in an identical case, held as follows:- ."5...They must proceed with the litigation from the stage where the death of Defendant 1 had taken place. They are bound by the pleadings of their predecessor in whose place they are to be substituted. A legal representative substituted cannot set up a new or individual right. He cannot take up a new and inconsistent plea contrary to the one taken up by the deceased. The proposed LRS stand in the shoes of he deceased defendant and must accept their position adopted by their predecessor." .8. A legal representative substituted cannot set up a new or individual right. He cannot take up a new and inconsistent plea contrary to the one taken up by the deceased. The proposed LRS stand in the shoes of he deceased defendant and must accept their position adopted by their predecessor." .8. In the present case also, even if they are allowed to be impleaded cannot take up all other defences arising from their individual rights, when already the executants to the agreement are recorded as legal representatives of the first defendant in their personal capacity as well as legal capacity, who are alone necessary and proper parties to the specific performance suit. 9. Therefore, in these circumstances, the order of the trial court passed in I.A.No:86 of 2005, is set aside and the CRP is allowed. Since this is a specific performance suit, the trial court is directed to dispose of the suit itself within a period of five months from the date of receipt of a copy of this order. 10. Consequently, connected M.P., is closed. No costs.