Dismissed

Hyder Aga Khan v. Marry @ Kamala William D Souza @ Mary Kamala Jannakutty and A.M. D Souza and 3 Ors.

Bombay HC10 Sept 2009CHS/1123/2008

Case brief

AI extract

What is this about?

Bench dismissed a Chamber Summons praying to add legal heirs as necessary defendants in a suit for specific performance. Held that heirs claiming independent title are not necessary parties unless they are bona fide purchasers without notice; adding them would convert the suit into a title suit.

What did the court decide?

Chamber Summons taken out for joining applicants as defendants no. 2 to 5 and consequential amendments in plaint was dismissed.

Hyder Aga Khan Vs Marry @ Kamala William D Souza @ Mary… — Specific Performance | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1123 OF 2008 IN

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SUIT NO. 2291 OF 2008

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Hyder Aga Khan
vs.

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...Plaintiff

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Mary @ Kamala William D�Souza
@ Mary Kamala Jonakutty...Defendant
and
Aloysius Manuel D�Souza and Ors....Applicants

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Ms.Rohini Dandekar for Applicant in support of
Chamber Summons.
Mr.Bharat Vaishnawa for the Plaintiff.
Mr.Mohan B. Jadhav for the Defendant.

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CORAM : V.M. KANADE, J.

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DATED : SEPTEMBER 10, 2009

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P.C. :-

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1This Chamber Summons is taken out by the

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applicants for joining them as defendants no.2 to 5

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in the said suit and for a direction that
consequential amendments be made in the plaint by

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adding the applicants as defendants no.2 to 5.

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Brief facts are as under :-

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2One William Manual D�Souza expired and left

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behind him flat situated at 2-C,IL-Plazzao Co-

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operative Housing Soceity Limited, Little Gibbs
Road, Malbar Hill Road, Bombay � 6. It is the case
of the applicants that they are the heirs and legal
representatives of William Manual D�Souza. According
to these applicants, the defendant Mary @ Kamala was

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working as a nurse to take care of William Manual
D�Souza as he was bedridden. On 3.3.2005, the
Heirship certificate was granted to the defendant in
Misc. Petition No.1/2005 taken out by the plaintiff
as a Constituted Attorney of the defendant herein.

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The said order was challenged by the applicant in
Appeal (Lodging) No.599/2006 in this Court. The
Division Bench, however, did not grant leave to the

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applicants to challenge the order of Heirship
Certificate. The Division Bench, however, observed

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that the applicants herein had adequate remedy of
establishing their rights in the estate of the

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deceased in the appropriate proceedings. The appeal
was accordingly disposed of.

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3Thereafter, the applicants filed the

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petition being Pauper Petition (Lodging) No.
196/2007. The said proceedings are pending.

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4In the meantime, the present suit is filed

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by the plaintiff for specific performance of the

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agreement dated 15.10.2004 executed by and between

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the plaintiff and the defendant in respect of the

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suit premises. It is the case of the plaintiff that

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the defendant in this suit is not the legally wedded
wife of deceased William but was merely Aaya/Nurse.

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It is the case of the applicants that they are legal

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heirs of William and as such, the defendant in this

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suit did not have any right to enter into Agreement

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of Sale dated 15.10.2004 and that the said agreement

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is null and void. It is, therefore, submitted that

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they are proper and necessary parties in the suit
filed by the plaintiff herein.

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plaintiff, on the other hand, submitted that in the
suit for specific performance, the third party do
not have any right to be added as the defendant. He
relied on the judgment in the case of Kasturi vs.
Iyyamperumal and Ors., reported in (2005) 6 SCC Page
733 and one judgment of the Apex Court in the case
of Anil Kumar Singh vs. Shivnath Mishra alias Gadasa
Guru, reported in (1995) 3 SCC 147. He also relied
on the judgment of the Apex Court in the case of
Bharat Karsondas Thakkar vs. Kiran Construction Co.
and Ors., reported in 2008(6) Scale 355.

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6Counsel appearing on behalf of the
applicant, on the other hand, relied on a judgment
of the Apex Court in the case of Sumtibai and
Others vs. Paras Finance Company and Ors., reported
in (2007) 10 SCC 82.

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7I have heard both the learned Counsel for

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the applicants and the learned Counsel for the
plaintiff and the defendant at length. It is well
settled position in law in a suit for specific
performance, the third party who claims independent
title and possession is not a necessary party to the
suit for specific performance unless he show that he
is a bonafide purchaser without notice of the
earlier agreement of sale as laid down under Section
19 of the Specific Relief Act. The Apex Court in the

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cases of Anil Kumar Singh (supra) and Kasturi
(supra) has held that only the parties to the

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contract or parties claiming under them or a person
who have purchased the contracted property from the
vendor with or without notice of the contract are

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necessary parties to the suit for specific
performance of the contract. In paras 9, 10 and 11
in Kasturi case (supra), the Apex Court has observed
as under :-

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�9.We have carefully considered

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sub-sections (a) to (e) of Section 19
of the Act. From a careful
examinationoftheaforesaid
provisions of clauses (a) to (e) of
the Specific Relief Act we are of the
view that the persons seeking
addition in the suit for specific
performance of the contract for sale
who were not claiming under the
vendor but they were claiming adverse
to the title of the vendor do not
fall in any of the categories
enumerated in sub-sections (a) to (e)
of Section 19 of the Specific Relief
Act.

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10.That apart, from a plain
reading of Section 19 of the Act we
are also of the view that this
section is exhaustive on the question
as to who are the parties against
whom a contract for specific
performance may be enforced.

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11.As noted hereinearlier, two
tests are required to be satisfied to
determine the question who is a
necessary party, let us now consider
who is a proper party in a suit for
specific performance of a contract
for sale. For deciding the question
who is a proper party in a suit for
specific performance the guiding
principle is that the presence of
such a party is necessary to
adjudicate the controversies involved
in the suit for specific performance
of the contract for sale. Thus, the
question is to be decided keeping in

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mind the scope of the suit. The
question that is to be decided in a
suit for specific performance of the
contract for sale is to the
enforceability of the contract
entered into between the parties to
the contract. If the person seeking
addition is added in such a suit, the
scope of the suit for specific
performance would be enlarged and it
would be practically converted into a
suit for title. Therefore, for
effectiveadjudicationofthe
controversies involved in the suit,
presence of such parties cannot be
said to be necessary at all. Lord
Chancellor Cottenham in Tasker v.
Small (1834) 40 ER 848 : 3 MY & Cr 63
made the following observations: (ER
pp.850-51)

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�It is not disputed that,
generally, to a bill for a specific
performance of a contract of sale,
the parties to the contract only are
the proper parties; and, when the
ground of the jurisdiction of Courts
of Equity in suits of that kind is
considered it could not properly be
otherwise.TheCourtassumes
jurisdiction in such cases, because a
court of law, giving damages only for
the non-performance of the contract,
in many cases does not afford an
adequate remedy. But, in equity, as
well as at law, the contract
constitutes the right, and regulates
the liabilities of the parties; and
the object of both proceedings is to
place the party complaining as nearly

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as possible in the same situation as
the defendant had agreed that he
should be placed in. It is obvious
that persons, strangers to the
contract, and, therefore, neither
entitled to the right, nor subject to
the liabilities which arise out of
it, are as much strangers to a
proceeding to enforce the execution
of it as they are to a proceeding to
recover damages for the breach of
it.�

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8In the said judgment, the Apex Court

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followed the observations made in Anil kumar Singh
(supra). The learned Counsel appearing on behalf of

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the applicants tried to distinguish the said two
judgments by relying on the judgment in the case of

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Sumtibai and others (supra). In this case, the legal
representatives of original defendant had made an
application for implementation in the suit. The Apex

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Court in the facts of the said case came to the
conclusion that the legal representatives shown in
the registered Sale Deed being prima facie proof of

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co-ownership of property for which specific
performance was sought and since the appellants had
already been made party to the suit they had right

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to be implemented as defendants. In my view, the

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ratio of the said judgment, would not apply to the
facts of the present case. In the said case, the
appellants were legal representatives of late
Kapurchand. A suit was filed by the respondent
against Kapurchand for specific performance of the
contract for sale. It was alleged that Kapurchand
had entered into an agreement of sale of the
property in dispute to the respondent-plaintiff

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M/s.Paras Finance Limited. In that agreement,
Kapurchand had stated that the property disputed was

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a self acquired property. During the pendency of the
suit, Kapurchand died and his wife, sons applied to
be brought on record as legal representatives. After

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they were implemented, they filed an application
under Order 22 Rule 4(2) read with Order 1 Rule 10

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of the CPC praying interalia that they may be

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permitted to file written statement and also to take
such plea which were available to them. The trial

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court rejected this application. The revision which
was filed against this order was also dismissed by

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the High Court. In that case, the Apex Court
observed that the legal representatives were

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entitled to file their written statement. The ratio

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of this case will not apply to the facts of the
present case.

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9Ms.Rohini Dandekar then relied on the

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judgment of in the case of Lourdu Mari David and

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others, Petitioners vs. Louis Chinnaya Arogiaswamy

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and others, Respondents, reported in AIR 1996 SC

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2814. In the said case, the Apex Court held that the

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person claiming the specific performance was not

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entitled for equitable relief for decree for
specific performance if he does not come to the

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court with clean hands. The ratio of the said

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judgment also, in my view, will not apply to the

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facts of the present case since in the present case,

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issue which is involved is whether the applicants

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will be added as party defendants. Ms.Rohini
Dandekar, learned Counsel then relied on paras 24-25
of the judgment of the Apex Court in the case of

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Bharat Karsondas Thakker vs. Kiran Construction Co.

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and others. In my view, the ratio of this judgment

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also will not apply to the facts of the present case

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as the facts are entirely different. Perusal of the

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said paragraphs clearly show that the said
observations are not at all relevant to the

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controversy and issue raised in this Chamber

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Summons. In my view, therefore, no case is made out

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by the applicants for being added as party

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defendants. The applicants are claiming to be the
legal heirs of deceased William. Their petition is

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still pending in this Court and it is not yet

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decided. The defendant in this suit claims to be the

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wife of deceased William. She has entered into an

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agreement of sale dated 15.10.2004 with the

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plaintiff. If the applicants are added as defendants

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in this suit, the entire nature of the suit will

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change and it will be a suit for title. This cannot

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be permitted in view of the specific provisions of

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Sections 15 and 16 of the Specific Relief Act. It is
always open for the applicants to challenge the said

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agreement dated 15.10.2004 between the plaintiff and
defendant by filing a private suit or by taking out
proper proceedings.

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10The Chamber Summons, therefore, is
dismissed.

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(V.M. KANADE, J.)

Hyder Aga Khan v. Marry @ Kamala William D Souza @ Mary Kamala Jannakutty and A.M. D Souza and 3 Ors.

Case brief

What is this about?

What did the court decide?

Hyder Aga Khan v. Marry @ Kamala William D Souza @ Mary Kamala Jannakutty and A.M. D Souza and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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