BAI DEVKABAI Vs. SHAH SHAMJI MULJI

JUDGEMENT

(1.) This appeal is directed against the decision of the learned District Judge of Kutch at Bhuj in Civil Regular Appeal No. 41 of 1962 from the decree passed by the learned Civil Judge, Junior Division, Mundra, in Regular Civil Suit No. 34 of 1959. The learned Judge has thereby confirmed the decree passed by the learned trial Judge. The decree passed is one of specific performance of the agreement to sell dated August 11, 1958, and for possession of the properties from the defendants. The decree is in respect of properties listed at items Nos. 1, 3 & 4 described in Schedule II to the plaint. Property No. 2 was ordered to remain in possession of defendant No. 6. named Bai Devakabai, widow of Shripal Jadav, as she was to enjoy it during her life time. It was ordered that after her death the plaintiff will get possession of property from her.

(2.) The plaintiff's suit was for specific performance of an agreement to sell, Ex. 18, dated August 11, 1958. The property consisted of one residential house, one Dela in possession of defendant No. 6, a field named "Maro" and another field named "Suivali Katki" situated in village Kundrodi in Mundra Taluka in District Kutch. It appears that the properties originally belonged to the sons and grand-sons of one Jadav. Jadav had five sons named Hirji, Jetha, Dungarshi, Umarsi and Shripal. Hirji has died leaving a son named Kunverji, who is defendant No. 1 in the suit, Jetha died leaving a widow named Bai Devkabai and three sons named Lalji, Hansraj and Vasanji, who are respectively defendants Nos. 3, 4 and 5 in the suit, Shripal died leaving a widow named Devakabai, who is defendant No. 6. Dangarshi and Umarsi, two other sons of Jadav, are not parties to the suit. Plaintiff Shamji Mulji appears to have a house adjacent to the house in dispute. He entered into an agreement to purchase the aforesaid property from Kunverji Hirji to whose share the property had come by virtue of a partition effected earlier some time in Samvat Year 1999 (1943 A.D.) and long before the agreement of sale. The plaintiff's case was that the first item of the property named the residential house was divided in a partition between defendant No. 1 Kunvarji and the other members of their undivided joint Hindu family and the northern part of it had come to defendant No. 1's share, along with the other property covered by the agreement and the northern part of the house was now being held by defendants Nos. 2 to 6 for and on behalf of defendant No. 1. The partition deed. Ex. 24, speaks of the partition of the properties, which includes the suit properties and states that the properties which were partitioned could now be alienated by the members of the family to whose shares they had fallen. Defendant No. 1 resisted the suit and contended that the agreement to sell was executed by fraud and misrepresentation. Defendants Nos. 2 to 6 contended by a common written statement that the partition deed had not been acted upon and further that they were in adverse possession of the property. They admitted the partition deed. It is not clear whether adverse possession was being claimed in respect of all the suit properties or in respect of the residential house (northern part of it) which had come to the share of defendant No. 1 on a partition of the joint family properties. However, the case that appears to have been urged in the two courts below and is now urged before me is on the footing that the disputed property is property No. 1 the residential house. The plaintiff has prayed for the reliefs of specific performance of the agreement of sale and of the partition of the property and possession. However, it appears that at the stage of the final arguments before the learned trial Judge, the learned advocate appearing on behalf of the plaintiff advisedly did not ask for the relief of partition and stated that the relief was not necessary. It appears that this position was taken having regard to the fact that the material plea of the defendants Nos. 2 to 6 was that they were in adverse possession of the suit property and the writing of S.Y. 1999, which is the partition deed, was admitted. Both the courts have recorded a finding that the defendants Nos. 2 to 6 were holding the property for and on behalf of defendant No. 1. Having regard to the special facts of the case, the learned Judges below have reached the conclusion that defendants Nos. 2 to 6 were necessary parties to the suit because as they claimed possession of the suit property, their rights were likely to be affected.

(3.) The principal contention of Mr. K.N. Mankad, the learned counsel appearing on behalf of the appellants, original defendants Nos. 2 to 6 was that in a suit for specific performance of a contract, parties to the contract are the only necessary parties and strangers are not necessary or proper parties, unless the case falls within the purview of Section 27 of the Specific Relief Act, 1877 (Act No. 1 of 1877). He has confined his argument to the northern half (part) of the residential house listed as property No. 1 in the Schedule to the plaint. Now, as aforesaid, this is a suit in which the plaintiff's case is that the disputed property had come to the share of defendant No.1 in a partition between the members of the defendants' family and that the defendants Nos.2 to 6 wee holding the property for and on behalf of defendant No. 1. Admittedly, defendants Nos. 2 to 6 are in possession of the concerned property. Thus, it is a case which would fall within the exception of the ordinary rule, namely, that in a suit for specific performance of a contract, persons other than the parties to the contract, meaning the strangers, are not necessary parties. Specific performance of a contract cannot be enforced against persons who are not parties to the contract and who do not fall within the purview of clauses (a) to (e) of Section 27 of the Specific Relief Act. That is the general rule. The general rule is, however, subject to the recognised exceptions which are in conformity with the practice of the Court of Chancery. In cases where it is desirable to avoid multiplicity of suits and where interest of persons who are in actual possession of the property in question might be affected, strangers to the contract can be sued upon. According to Fry's Specific Performance of Contracts, Edn. 6. p. 90 paras 208 and 209: "A stranger to the contract may so mix himself up with it by setting up a claim to some benefit resulting from it, as to render himself liable to be made a party to proceedings for the enforcement of the contract.....In some cases where a portion of the relief claimed might affect the person in actual possession of the property, that person may properly be made a party to an action for the specific performance of the contract............" The instant case, wherein defendants Nos. 2 to 6 are in actual possession of disputed property No. 1 and claim to hold it adversely against defendant No. 1 and who have been found by the learned District Judge to be holding it for and on behalf of defendant No. 1, is a case falling within the recognised exception to the general rule. I am supported in this view by the observations of Wassoodew J. in Mahadevappa Parakanhatti v. Shivappa Parappa Kupati, AIR 1943 Bom 27. at p. 29: