NEVANDRAM JAVERMAL Vs. DEVIKABAI HARIDAS GANDHI

JUDGEMENT

(1.) This is a chamber summons mainly to bring on record the respondents as defendants Nos.1 (a) and 1 (b) , as the executrices of the last will and testament of the 1st defendant, in the will and testament of the 1st defendant, in the place and stead of the 1st defendant who, it appears was dead even at the time of the institution of the suit.

(2.) A few facts are necessary for the appreciation of the controversy raised before me. The defendant No.1 was the owner of a unit in an industrial estate, called A-Z Industrial Estate at Ferguson Road, Lower Parel in Bombay. Defendant No.2, firm, carried on business in the said unit on the basis of a leave and licence agreement. In Sept., 1976, by a written agreement, defendant No.2 agreed to sell to the plaintiff its running business and the benefit of the tenancy rights which, according to defendant No.2, it had In the said unit and further agreed that if it acquired the ownership of the said unit from defendant No.1 the same would also be transferred to the plaintiff. Thereafter, in suit No.1744 of 1974, filed in this court by defendant No.1 herein against defendant No.2 herein, certain consent terms were arrived at whereby defendant No.1 agreed to sell the said unit to defendant No.2 on the payment of a certain amount. It is the case of the plaintiff that sometime shortly prior to march 1979, defendant, No.1, through defendant No.2, agreed to sell to the plaintiff the said unit along with 5 shares in the co-operative society and put the plaintiff in possession of the said unit pursuant to that agreement. It is further contended that on 28th March, 1979, a draft agreement regarding the said purchase was finalised but the same could not b e signed for reasons which are not relevant here. The present suit, namely suit No.699 of 1981, was filed in march or April,1981 by the plaintiff for specific performance of the said agreement and it is prayed therein that the defendants be ordered and decreed to specifically perform the said sale agreement which has been set out in para 5 of the plaint. The plaint was lodged on 30th March , 1981. It appears that, at that time, the defendant No. I was already dead, she having died on 14th July, 1979. It was on 16th Nov., 1979 that the plaintiff came to know that defendant No. 1 had died prior to the institution of the suit and left a registered will wherein the respondent were appointed as the executrices. It was only in Jan. 1982 that the plaintiff was able to find out the address of the respondent, on the same being furnished to the plaintiff by the learned advocate of defendant No. 2. The present summons has been taken out by the plaintiff on 25th Feb., 1982.

(3.) Practically the only contention raised by Mr. Adhia, he learned counsel for defendant No.2, to show cause against the chamber summons, is that, as the defendant No. 1 was dead at the time of the institution of the suit, the suit against her is a nullity and no application can be made to bring her heir on record or to bring her legal representatives on record in her place and stead.