KRISHNAKUTTY NAIR Vs. PANKAJAM

JUDGEMENT

(1.) The question which arises in this case is whether a legal heir of the deceased defendant who had not been brought on record as a party to the suit will be bound by the decree if the circumstances of the case indicate that such legal heirs was aware of the proceedings in the suit.

(2.) Ext. P3 order passed by the Additional munsiff, Cherthala dismissing an application filed by the husband of the original defendant in the suit which was one for specific performance of an agreement for sale of property is under challenge in this writ petition under Article 227 of the Constitution instituted by the unsuccessful applicant-husband. The suit was instituted in the year 1987 against Smt. Janakiamma, wife of the petitioner by the 1st respondent. On receiving summons, Smt. Janakiamma entered appearance and contested. Upon her demise all the five children of Smt. Janakiamma were impleaded as additional defendants and they filed a statement adopting the contentions which had been raised in the suit by their mother. The suit stood trial for 14 years and was finally decreed for specific performance on 11-10-2001. Thereafter on the basis of an application filed under Section 28 (3) of Specific Relief Act, sale deed was executed in favour of the 1st respondent-plaintiff and the sale deed was pending registration. The instant application, ext. P2 was filed by the petitioner under Section 28 (a) of the Specific Relief Act and Section 151 of the Code for an order to rescind the contract or in the alternative to rescind the decree as to convert it as one for money. The learned Munsiff after hearing parties found that there are strong circumstances to Indicate that the petitioner who is the father of the five children of Smt. Janakiamma (respondents 2 to 6 herein) was aware of the proceedings in the suit and also that the petitioner was substantially represented by his children in the suit. It was also found that the objective of the petitioner is only to protract the litigation further and accordingly the application was dismissed.

(3.) It was very strenuous arguments which were addressed before me by Sri B. Krishna Mani, learned counsel for the petitioner. According to Mr. Krishna Mani the theory of substantial representation, which had been applied by the learned Munsiff was not really applicable on the facts of the present case and at any rate there was no answer at all from the side of the plaintiff as to why the plaintiff did not implead the petitioner who was the head of the family of deceased Janakiamma. The non-impleadment was deliberate. The objective was only to foreclose the very valid contentions which the petitioner could have raised in the suit, submitted counsel. Reliance was placed by the learned counsel on the judgments of the Supreme Court in K. Ethirajan v. Lakshmi (2003 (10) SCC 578) : (AIR 2003 sc 4295) and that of this Court in Menon v. Panchitra (2003 (2) KLT SN 29).