Back
2017 Supreme(Kar) 1144
IN THE HIGH COURT OF KARNATAKA BENCH AT KALABURAGI
B.V. NAGARATHNA, B.A. PATIL, JJ.
Kumari Lata - Appellants
Vs.
Shivaji Rao and Ors. - Respondent
Regular First Appeal No. 6055 of 2013
Decided On : 23-06-2017
For the Appellant : R.S. Sidhapurkar
Headnote:SPECIFIC RELIEF ACT, 1963 – Section 19 – When persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of vendor, do not fall in any of the categories enumerated in sub-sections (a) to (e) of Section 19 of the said Act.
SPECIFIC RELIEF ACT, 1963 – Section 22 – Suit for specific performance of a contract – A person suing for the specific performance of a contract can ask for partition and separate possession of the property. But, it would not enable a third party who is also having interest in the property to get himself impleaded in the said suit as a defendant and seek such reliefs. In this case, the said provision also does not help the plaintiff/appellant in any manner. It is our considered view that the scope of suit for partition is wider than the suit for specific performance and if at all the Court below was intending to see that the rights of the parties are to be determined and adjudicated properly and effectively without drawing them to multiplicity of proceedings then under such circumstances it could have clubbed the suit of specific performance with the suit for plaintiff or vice-versa instead of directing the plaintiff/appellant to file an impleading application in the suit filed for specific performance. The impugned order is not sustainable in law and the same is liable to be set aside.
Order 1, Rule 11 of the CPC – On the issue as to who could be a party to a suit for specific performance and, as to whether, a stranger or a third party could be impleaded in such a suit, the same is no longer res integra. In Kasturi vs. Iyyamperumal and others, (2005) 6 SCC 733, the Hon'ble Supreme Court on referring Order I, Rule 10 (2) CPC has observed that, "the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representative as also a person who had purchased the contracted property from the vendor". In equity as well as in law, the contract constitutes rights and regulates liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. Thus, the Hon'ble Supreme Court has laid down two tests to be satisfied for determining the question as to who is a necessary party. The tests are as under:
(1) There must be a right to some relief against such part in respect of the controversies involved in the proceedings; (2) No effective decree can be passed in the absence of such party.
TRANSFER OF PROPERTY ACT, 1882 – Section 52 – Order 22, Rule 10 of CPC and Section 19 (c) of the Specific Relief Act, 1963 – Section 52 of the Transfer of Property Act and with regard to the purchase of the property which is the subject of a suit for specific performance during the pendency of the suit, nevertheless in that case it is held that when the subject matter of a suit for specific performance is transferred during the pendency of the litigation, in the event, under Order 22, Rule 10 of CPC a transferee of the suit property could be impleaded as a party to the proceeding and be heard before any order is made. This is because a transferee pendent lite would claim an interest in the subject matter of the suit under the vendor who would be a defendant in a suit for specific performance. In this contest, reference could also be made to Section 19(c) of the Act wherein it has been categorically stated that specific performance of contract may be enforced against either party thereto or any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. This is because a transfer pendent lite is not illegal but would remain subservient to the pending litigation.
A transferee pendent lite he would be in in a similar position as a heir or a legatee of a party who dies during the pendency of the suit or a proceeding and therefore could seek impleadment under Order 22, Rule 10 CPC. Particularly, if he is a bona fide purchaser for valuable consideration, he would have to be heard before passing a decree in respect of the subject matter of the suit which has been purchased by him.
B.A. Patil, J.
1. Though this appeal is listed for admission, with the consent of learned counsel for the appellant it is heard finally. The respondents are served and have not appeared, either in-person or through counsel.
2. This regular first appeal is directed against the judgment and decree passed by the Senior Civil Judge, Humnabad in O.S. Old No. 37/2010 (New No. 106/2011) dated 01.07.2013.
3. The brief facts for filing the suit are that, plaintiff filed the suit for partition and separate possession of suit schedule properties, contending that the suit schedule properties are joint family properties of herself and defendant Nos. 1 and 2. That defendant Nos. 1 and 2 are the parents of the plaintiff and they constitute a Hindu Joint Family. It is further contended that plaintiff and defendants are co-owners and co-possessors of suit schedule properties. It is further alleged that defendant No. 1, father of the plaintiff has no knowledge regarding current worldly affairs including family affairs as he had served in the Army. It is further alleged that he is a chronic alcoholic and addicted to substances. By taking undue advantage, defendant Nos. 3 and 4 came in contact with defendant No. 1 and having regard to his weakness for alcohol, they conspired to knock off the suit properties and they obtained his signatures on a got up alleged agreement of sale when defendant No. 1 was in a state of intoxication. The said agreement is false and a created agreement of sale. It is further contended that on the basis of such agreement of sale, defendant Nos. 3 and 4 are obstructing peaceful possession and enjoyment of suit properties. It is further contended that the agreement of sale is without consent and without the knowledge of plaintiff and defendant No. 2. That the said agreement of sale is not binding on the plaintiff as she is having one-third share in the suit schedule properties. As such, she requested the defendants to award her share, but defendants were not ready to heed to her request, as such she was constrained to file the suit and prayed for decreeing the suit.
4. After service of summons defendants appeared. Defendant Nos. 1 and 2 filed separate but similar written statement. Defendant No. 4 also filed written statement and it was adopted by defendant No. 3. Defendant Nos. 1 and 2 admitted the contents of suit averments and further contended that defendants Nos. 3 and 4 by taking undue advantage of defendant No. 1, who was addicted to alcohol created an agreement of sale. Further it is contended that the agreement of sale is void ab inito. It is further contended that defendant Nos. 1 and 2 have got one-third share, as such they requested to declare the alleged agreement of sale as void as it is the outcome of fraud and inducement made by defendants No. 3 and 4.
5. Per contra, defendant No. 3 and 4 contended that defendant No. 1 is the owner of suit land. Since he was in need of money for legal necessity and for discharge of family debts, he entered into an agreement of sale to sell the suit property in favour of defendant No. 3 and 4 for a consideration of Rs. 10,00,000/-. It is further contended that after negotiation, defendant No. 1 by receiving Rs. 4,00,000/- as part consideration executed the registered agreement of sale on 18.4.2009 in the presence of Sub-Registrar, Humnabad and it is attested by witnesses. It is further contended that the agreement of sale executed by defendant No. 1 is for family benefit and it is to the knowledge of plaintiff and defendant No. 2. The part consideration amount received by defendant No. 1 has been utilized for the purpose of family necessities. They further contend that they have filed O.S. No. 46/2011 against defendant No. 1 for specific performance of agreement of sale, as such the present suit is not maintainable. It is further contended that plaintiff is not entitled to file the present suit through maternal uncle since he is not a fit person to act as guardian of p
