KRISHAN LAL Vs. TEK CHAND

JUDGEMENT

(1.) Whether in a suit for specific performance of a contract of sale a third person claiming to be a joint owner of the property (the subject-matter of the suit) is entitled to be impleaded as a defendant, is a short but interesting question raised in this revision petition.

(2.) In view of the pristinely legal nature of the issue involved, it is not necessary to recount the facts in detail. It will suffice to mention that Tek Chand filed a suit against Ram Tikaya for specific performance of a contract of sale pertaining to property bearing No. 113/11d. B-V situated in the town of Meham, Tehsil and District Rohtak. Krishan Lal, Smt. Mohni Devi, Chander Bhushan and Usha Rani claiming themselves to be the sons and daughters of Smt. Ram Bai daughter of Jiwan Dass, father of Ram Tikaya defendant, filed an application under O.1, R.10, Civil P.C. for impleading them as defendants to the suit, inter alia, on the plea that Ram Tikaya and Jiwan Dass had jointly purchased the property in dispute from the Custodian in equal shares vide Conveyance Deed dt. April 17, 1962. Jiwan Dass died on June 6, 1977 leaving behind Ram Tikaya (son) and Smt. Lakshmi Bai and Smt. Ram Bai (daughters) as legal heirs and successors to his one-half share in the abovesaid property. On the death of Jiwan Dass, Ram Tikaya became owner of 2/3rd share whereas Smt. Ram Bai and Smt. Lakshmi Bai inherited 1/6th share each thereof. Ram Tikaya defendant had no right or authority to sell or transfer the share of the applicants in any way or enter into any agreement of sale on their behalf and, therefore, suit for specific performance to the extent of share of the applicants was not maintainable. Tek Chand plaintiff naturally resisted this intrusion in the suit and opposed the application pleading that the applicants had no locus standi to be made parties because Ram Tikaya defendant was the sole owner of the property in dispute. The application had been moved mala fide at the instance of Ram Tikaya defendant to delay the proceedings. No relief was claimed against the alleged sisters of defendant Ram Tikaya and the applicants, who were not necessary or proper parties. The learned trial Judge noted that Ram Tikaya defendant had not denied the execution of the agreement to sell. It was executed by him in his individual capacity and there was nothing to suggest from the document that Smt. Lakshmi Bai or Smt. Ram Bai had any interest in the subject-matter of the suit. Smt. Lakshmi Bai had previously filed a similar application, which had been declined on December 18, 1983. He came to the conclusion that the applicants were not necessary parties and dismissed the application. Aggrieved, the petitioners filed a revision petition against the order of the learned trial Judge.

(3.) During the course of the hearing of the revision petition, Shri Subhash Kapoor, learned counsel for the petitioners, brought to my notice a decision of a learned single Judge of this Court in Gurdev Singh v. Paras Ram, 1985 Pun LJ 315, wherein a revision petition filed by the petitioners against the order of the trial Court declining to implead them as defendants had been allowed. They had pleaded that the vendor, who had agreed to sell the property in dispute, was not the owner thereof and the same was in exclusive possession of the applicants. The learned single Judge took the view that the applicants were necessary parties for the determination of the controversy. If they were not impleaded as parties and the suit for specific performance was decreed without determining the issue as to whether the vendor owned the plot in dispute, there would be another round of litigation at the time of execution or in a separate suit and since the suit was at the initial stage, it was just and proper to implead the revision petitioners as defendants in the suit so that the whole controversy could be determined at one and the same time. However, earlier sitting singly, mainly basing myself on the ratio of the illuminating Full Bench decision of the Madhya Pradesh High Court in Panne Khushali v. Jeewan Lal Mathoo Khatik, AIR 1986 Madh Pra 148 (FB), while deciding the case Chand Kishore v. Satish Kumar, 1984 Pun LJ 127, I had taken the view that a third person claiming to be a joint owner of the subject-matter of the dispute in a suit for specific performance of a contract for sale, is not entitled to be impleaded as a party. So, noticing the cleavage in the judicial opinion within this jurisdiction, I referred the matter for decision by a Division Bench. That is how the case is before us in the Division Bench.