T S Nagendraiah Vs Chikkacheluvegowda

REP BY HIS GPA HOLDER SRI. M.R. KUMARASWAMY S/O LATE M.L. RAJU AGED ABOUT 54 YEARS R/AT NO 1299/1, CH 23/1 3RD CROSS, KRISHNAMURTHYPURAM MYSURU CITY 570004.

¶11

…PETITIONER

¶12

(BY SRI. G. BALAKRISHNA SHASTRY, ADV.,)

¶13

AND:

¶14

CHIKKACHELUVEGOWDA S/O LATE CHIKKA NARASIMHEGOWDA AGED ABOUT 54 YEARS R/AT NELAMANE VILLAGE K. SHETTAHALLI HOBLI

¶15

S R PATNA TALUK 571807.

¶16

MURULIKUMAR N.C. S/O CHIKKACHALUVEGOWDA

¶17

2 - NC: 2026:KHC:19827 W.P. No.18809/2021

¶18

HC-KAR

¶19

AGED ABOUT 46 YEARS R/AT NELAMANE VILLAGE K. SHETTAHALLI HOBLI S R PATNA TALUK 571807.

¶20

…RESPONDENTS

¶21

(BY SRI. DESHRAJ, ADV., FOR R2 R1 SERVED AND UNREPRESENTED)

¶22

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD.17.9.2021 IN ORIGINAL SUIT NO.116/2017 ON IA NO.IX ON THE FILE OF ADDL. SR. CIVIL JUDGE SRIRANGAPATNA PRODUCED AT ANNEXURE-A & ETC.

¶23

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶24

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

¶25

ORAL ORDER

¶26

This petition is filed challenging the order dated

¶27

17.09.2021 passed in OS.No.116/2017 on IA No.11 by the Additional Senior Civil Judge, Srirangapatna (for short 'the trial Court').

¶28

Sri.G.Balakrishna Shastri, learned counsel

¶29

appearing for the petitioner submits that the petitioner has filed a suit for specific performance of an agreement of

¶30

3 - NC: 2026:KHC:19827 W.P. No.18809/2021

¶31

HC-KAR

¶32

sale dated 10.02.2015 against respondent No.1 herein. In the said suit, the plaintiff examined PW1. Thereafter, respondent No.2, who is the son of the defendant filed an application seeking to implead himself as a party to the proceedings, which was allowed by the trial Court. It is submitted that suit is one for specific performance of a contract and it is a trite law that a stranger to the contract is neither necessary nor a proper party to the suit. It is further submitted that the recitals in the agreement of sale indicates that the suit schedule property is the self acquired property of the respondent No.1/defendant; however, the proposed defendant/respondent No.2 seeks impleadment on the ground that he has filed a separate suit for partition and the property is joint family property and therefore, he is a necessary and proper party to the present proceedings. It is also submitted that a manager of a Hindu joint family is not required to obtain prior consent from the co-owners while selling the property. If the co-owner has any grievance, the appropriate remedy

¶33

4 -

¶34

NC: 2026:KHC:19827 W.P. No.18809/2021

¶35

HC-KAR

¶36

is available to file a suit for partition and seek a declaration that the agreement of sale or sale deed executed by the manager in favour of a third party is not binding on his share, upon establishing his co-ownership rights in the said suit. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Kasturi v. Iyyamperumal and

¶37

Others¹ . Hence, he seeks to allow the petition.

¶38

Per contra, Sri.Deshraj, learned counsel appearing for respondent No.2 supports the impugned order of the trial Court and submits that the respondent No.1/defendant, in his written statement has clearly taken the defence that the suit schedule property is joint family property and he is a co-sharer therein, and until the shares are demarcated or decided the respondent No.1/defendant has no right to sell the property. It is submitted that the agreement of sale in question was executed only as a security document for obtaining the

¶39

1 (2005) 6 SCC 733

¶40

5 -

¶41

NC: 2026:KHC:19827 W.P. No.18809/2021

¶42

HC-KAR

¶43

loan and the value of the property is more than Rs.20,00,000/-. However, the sale consideration mentioned in the agreement is only as Rs.6,00,000/- with an advance amount of Rs.3,00,000/-. The said aspect clearly demonstrates that the entire transaction is a loan transaction and that the agreement of sale was obtained by fraud. It is also submitted that respondent No.2 has already filed a suit for partition seeking his share in various properties of the joint family, including the suit schedule property. Therefore, any judgment and decree passed in the present suit would adversely affect the rights of respondent No.2 and other co-owners. Hence, respondent No.2 is a necessary and proper party to the suit, who can place all the documents before the trial Court. Accordingly, he seeks to dismiss the petition.

¶44

I have heard the arguments of the learned counsel for the petitioner, learned counsel for respondents and meticulously perused the material on record.

¶45

6 - NC: 2026:KHC:19827 W.P. No.18809/2021

¶46

HC-KAR

¶47

The material on record indicates that the

¶48

petitioner has filed a suit in OS.No.116/2017, which is pending before the trial Court seeking the relief of specific performance of the agreement of sale dated 10.02.2015. In the said suit, the GPA holder of the petitioner examined himself as PW1 and the said witness has been crossexamined at length. Respondent No.1, who is the defendant in the suit has filed a detailed written statement denying the plaint averments, inter alia contending that the suit schedule property is joint family property and that its value exceeds Rs.20,00,000/-. It is further contended that the agreement of sale was executed only as security for loan. The agreement of sale, produced as Annexure-C is a registered document. The covenant of the said agreement of sale clearly indicates that the suit schedule property is a self-acquired property. Be that as it may, the suit is for specific performance of the contract dated 10.02.2015. In the said suit, respondent No.2 seeks to come on record on the ground that he is the son of the

¶49

7 - NC: 2026:KHC:19827 W.P. No.18809/2021

¶50

HC-KAR

¶51

defendant and claims to be a co-sharer in the suit schedule property and he has also filed a suit for partition in OS.No.57/2021 which is presently pending. The trial Court considering the assertion made by respondent No.2 has allowed the application for impleadment. Before considering the issue involved it would be useful to extract paragraph Nos.9, 10, 15, 16 and 18 of the decision of the Hon'ble Supreme Court in the case of Kasturi referred supra

¶52

"9. We have carefully considered subsections (a) to (e) of Section 19 of the Act. From a careful examination of the aforesaid 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 subsections (a) to (e) of Section 19 of the Specific Relief Act.

¶53

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.

¶54

8 -

¶55

NC: 2026:KHC:19827 W.P. No.18809/2021

¶56

HC-KAR

¶57

15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha [(1996) 10 SCC 53] this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to

¶58

9 -

¶59

NC: 2026:KHC:19827 W.P. No.18809/2021

¶60

HC-KAR

¶61

the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.

¶62

10 -

¶63

NC: 2026:KHC:19827 W.P. No.18809/2021

¶64

HC-KAR

¶65

16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 CPC “all the questions involved in the suit” it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.

¶66

18. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of

¶67

11 -

¶68

NC: 2026:KHC:19827 W.P. No.18809/2021

¶69

HC-KAR

¶70

law, as already discussed above. For the reasons aforesaid, we are, therefore, of the view that Respondents 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale."

¶71

The Hon'ble Supreme Court in the aforesaid

¶72

case, while considering the scope of Section 19 of the Specific Relief Act, 1963 has held that a third party to a contract is neither a necessary nor a proper party to a suit for specific performance of the contract. It has specifically observed that only the category of persons referred in Section 19 (a) to (e) can be regarded as necessary parties in a suit for specific performance. In the case on hand, admittedly, respondent No.2 does not fall within any of the categories referred under Section 19 of the Act. Respondent No.2 is independently claiming his right as a coparcener of the property stating that he is entitled to a share in the suit schedule property.

¶73

12 -

¶74

NC: 2026:KHC:19827 W.P. No.18809/2021

¶75

HC-KAR

¶76

The learned counsel for the petitioner's

¶77

contention that respondent No.2, being a stranger to the contract, cannot be impleaded as a party to the proceedings in a suit for specific performance of the contract is required to be accepted. It is however, open for respondent No.2 to establish his independent right in the pending suit filed by him for partition and not in the present suit for specific performance of contract. The contention of the learned counsel for respondent No.2 that the agreement of sale in question was executed merely as a security document for a loan transaction, and by misusing the innocence of the defendant the agreement was executed, cannot be gone into, in this proceedings. But such contention is required to be raised in the pending suit by the respondent No.1 and the same is required to be examined by the trial Court in the course of adjudication of the suit. Insofar as the right of respondent No.2 is concerned, it is an independent right, which he is already enforcing in OS.No.57/2021; therefore, the

¶78

13 - NC: 2026:KHC:19827 W.P. No.18809/2021

¶79

HC-KAR

¶80

respondent No.2's impleadment is not warranted in the present suit for specific performance. Section 19 is exhaustive as to who can be bound by a decree for specific performance. Only the parties to the contract or those claiming under them can be impleaded. Third parties claiming an independent title or possession are neither necessary nor proper parties.

¶81

For the aforementioned reasons and keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court in the case of Kasturi referred supra , I am of the considered view that the trial Court has committed a grave error in impleading a stranger to the contract as a defendant in the suit. Hence, I proceed to pass the following:

¶82

ORDER

¶83

i) The writ petition is allowed . ii) The impugned order dated 17.09.2021 passed in

¶84

OS.No.116/2017 on IA No.11 by the

¶85

NC: 2026:KHC:19827 W.P. No.18809/2021

¶86