SEEMA Vs. JYOTI RANI AND OTHER

JUDGEMENT

(1.) The revision petition is against the order dismissing an application for impleadment of a third party to an agreement in the suit. The suit has been filed for specific performance of an agreement of sale said to have been executed by the petitioner's father. The contention is that the father has remained ex-parte in suit and therefore the petitioners are interested in bringing themselves on record to contest the suit on the ground that the father did not have an indefeasible right to sell the property. The basis of the contention is that the property is ancestral property in which the petitioners have a right by birth. The counsel refers me to the decision of the Supreme Court in Balmukand Vs. Kamla Wati, 1964 66 PunLR 897 where the Court was considering the power of Manager to sell the family property for the benefit of the family. The judgment is wholly inapplicable for examining a situation of who is a necessary or proper party in a suit for specific performance. The power of the Manager to sell the ancestral property is limited to the extent of family necessity or family benefit. If the sale takes place in violation of these precepts, the remedy of the son shall be to impeach the sale on a contention that the sale is not a binding. The sale cannot be stopped even before such a transaction is brought about. The right in such a case cannot be by means of injunction against the sale of the father. A fortiori, it cannot also be sought at the instance of the son obtaining an impleadment and contending that the decree shall not be passed. Counsel also refers me to yet another judgment in Vallimmai Achi Vs. Nagappa Chettiar and another, 1967 AIR(SC) 1153 The Court was considering the effect of Section 180 of the Indian Succession Act relating to doctrine of election of the legatee under a Will to claim that the father had only limited right to make a Will. The issues of election to allow for a beneficiary either to claim under a bequest or denying the bequest to set up independent claim was dealt with in that case which has also no applicability at all.

(2.) The counsel would rely on a judgment of this Court in Gordhan Vs. Pawan, 2006 142 PunLR 335. In that case in a suit for an agreement to enforce an agreement that the defendant was not properly contesting the case and the children were likely to be effected, the Court allowed for an intervention to be made. I find myself unable to accept a proposition that a son who is not a party to the agreement could impeach an agreement even before the stage when a decree is passed. The fundamental principle is this. In a suit for specific performance, title is never a relevant issue. A plaintiff obtains such title as his vendor has. If the vendor did not have the absolute right to sell the property, the Court will not adjudge on whether the plaintiff could obtain title to the property or not. A relief for specific performance secures to the plaintiff a document of sale pursuant to the agreement, if the relevant factors which are required to be proved are established in suit. The Court has discretion under Section 20 either to grant a decree or not. If the application for impleadment at the instance of the non-parties to the agreement was dismissed by the Court below, I find no reason to modify the same. The order passed is perfectly tenable and requires no intervention in revision. The revision petition is dismissed