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2009 DIGILAW 4096 (MAD)

Durgadevi & Another v. Veeradevan & Others

2009-10-07

ARUNA JAGADEESAN

body2009
Judgment :- These Civil Revision Petitions are filed against the order passed in IA.No.47/2008 and IA.NO.48/2008 dated 13. 2008 in OS.No.47/2005 by the learned Subordinate Judge, Aruppukkottai, refusing to implead the petitioners as proposed parties to the suit and appoint the 1st petitioner as guardian of the 2nd petitioner. 2. The brief facts, which are essential for the disposal of this Civil Revision Petition, are as follows:- The 1st respondent/plaintiff has filed the above said suit for specific performance of contract against the 2nd respondent herein who is the father of the petitioners. The 2nd respondent has executed a sale agreement dated 210. 2003 to sell the suit schedule house property for a value of Rs.3,80,000/-in favour of the 1st respondent herein. In the said suit, the 2nd respondent filed his written statement inter alia disputing the sale agreement stating that it was obtained by the 1st respondent by way of fraud and coercive manner for the amount of Rs.80,000/-borrowed by the 2nd respondent. The 2nd respondent has contended that the sale agreement executed in favour of the 1st respondent as well as the mortgage deed executed in favour of the 3rd respondent are void and therefore, the 1st respondent is not entitled to the discretionary relief prayed for by him. 3. The suit after settlement of issues had been posted in the list and the trial had commenced. At that stage, the petitioners have come forward with this application to implead them as necessary parties and also to appoint the 1st petitioner as guardian of the minor 2nd petitioner. The trial court dismissed the petitions on the ground that they are not necessary parties to the suit. Aggrieved against the said order, the present Civil Revision Petitions are filed. 4. Mr.K. Balasubramanian, the learned counsel for the petitioners contended that when the petitioners have raised a plea that the suit schedule property is purchased by the 2nd respondent out of joint family funds and they have got major share in the said property, in order to adjudicate upon all the real questions in controversy in the suit, although no relief in the suit is claimed against the petitioners, they are necessary parties in the larger interest of justice for vindicating their direct substantial interest in the suit property. It is contended that the petitioners being cosharers in the suit property, the agreement of sale entered into between the 1st respondent and the 2nd respondent is not binding on them and therefore, to decide the said controversy, they have to be impleaded. 5. The learned counsel for the petitioners placed reliance on the decision of this court rendered in the case of V.Ravi @ P.V.Ravi Vs.B.Balakrishna & ten Others [2009-1-CTC-411], wherein it is held that although only the parties to the agreement will be the necessary and proper parties, but in the circumstances, the proposed parties taking a plea that the executant of the agreement was not the sole owner and they have got some right in the suit property mentioned in the agreement, they are proper parties and their presence is necessary to effectively and completely adjudicate upon all the real questions involved in the suit. 6. The learned counsel for the petitioners also placed reliance on two other decisions rendered in the cases of Kandasamy and others Vs. M.Palanisamy and Others [2005-3-MLJ-206] and Aliji Momonji & Co. Vs. Lalji Mavji and Others [1996-5-SCC-379] to emphasise the point that for complete and effectual adjudication of the dispute, if the proposed parties have direct and substantial interest in the property, then they are necessary parties though no relief is sought against them. 7. It is settled law that in a suit for specific performance of contract for sale of the property instituted by a purchaser against the vendor, a stranger or a 3rd party to the contract, claiming to have an independent title and possession over the contracted property is not entitled to be added as a party/ defendant. 8. In the suit for specific performance of an agreement to sell against the executant of the agreement, the children of the latter will not be necessary parties to such a suit and cannot be added as parties under Order 1 Rule 10 of CPC even though they may plead that the agreement would not bind them. 9. In the case of Ram Bilash Vs. 9. In the case of Ram Bilash Vs. Jai Narayan [AIR-1984-Patna-218], wherein in a suit for specific performance of contract of sale entered into by certain member of the joint family, when the other members of the family claimed to be impleaded on the ground that the property brought to be sold was the joint family property, it was held that the member claiming to be impleaded was neither necessary nor proper party to the suit. 10. Like wise, in the case of Vijai Pratap Vs. Shambu Saran Shinha [AIR-1996-SC-2755, in a suit for specific performance, a petition was filed by two persons stating that the deed of relinquishment signed by their father was not genuine and they should be impleaded as parties, co-plaintiffs, it was dismissed on the ground that the suit for specific performance cannot be converted into a title suit and the remedy of the petitioners was elsewhere. 11. Mr.S.Parthasarathy, the learned counsel for the respondents drew the attention of this court to the decision of the Honourable Supreme Court rendered in the case of Kasturi Vs. Uyyamperumal and Others [2005-3-MLJ-124-SC], wherein when a third party to the contract claiming independent title and possession over the contracted property sought to implead himself, their Lordships have held thus:- “A bare reading of second part of Order 1 Rule 10 Sub Rule (2) of the CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract and if they are dead their legal representative as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims adversely to the clam of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party.” 12. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party.” 12. If the above two tests are applied to the facts of the present case, it would be evident that the petitioners do not satisfy the above two tests for determining the question as to whether a stranger/3rd party is entitled to be added under Order 1 Rule 10 of CPC. Such being the position, in my considered view the petitioners are not entitled to be added as parties/defendants and the trial court applied the law rightly and dismissed the petition, which does not require interference by this court. 13. In the suit, these Civil Revision Petitions are dismissed.