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IN THE HIGH COURT OF MADHYA PRADESH
G.S. AHLUWALIA, J.
Kishorilal (dead) through L.Rs. and others - Appellants
Versus
Gopal and others - Respondents
F.A. No. 213 of 2000
Decided On : 12-09-2017
ABATEMENT OF APPEAL - LEGAL REPRESENTATIVES - NECESSARY PARTY - SPECIFIC PERFORMANCE OF CONTRACT - SUBSEQUENT PURCHASER - VENDOR - SECTION 91 OF INDIAN TRUSTS ACT, 1882 - SECTION 3 OF THE SPECIFIC RELIEF ACT, 1877 ILLUSTRATION (G) - SECTION 27 OF THE SPECIFIC RELIEF ACT - SECTION 40 OF THE TRANSFER OF PROPERTY ACT - ORDER 22, RULE 4, CIVIL PROCEDURE CODE - ORDER 22, RULE 10, CIVIL PROCEDURE CODE - SECTION 2(11) OF CIVIL PROCEDURE CODE - ORDER 41, RULE 5, (4?), CIVIL PROCEDURE CODE - ORDER 41, RULE 4 OF THE CIVIL PROCEDURE CODE - SECTION 96 OF CIVIL PROCEDURE CODE - SECTION 151 OF CIVIL PROCEDURE CODE - AIR 1954 SC 75 - (1970) 3 SCC 140 : AIR 1971 SC 1238 - AIR 1976 Cal. 337 - AIR 1985 Pat. 35 - 2005 (3) M.P.L.J. (S.C.) 261 : (2005) 6 SCC 733 - C.A. No. 5576-5577 of 2017 - AIR 1932 All 694: (B) - (1846) 67 ER 1057 (D) - (2008) 8 SCC 321 - AIR 1966 Assam 41 - (2003) 10 SCC 691 - AIR 1960 SC 941 - AIR 1967 SC 978 - (1973) 1 SCC 179 : AIR 1973 SC 655 - (1964) 3 SCR 549 : AIR 1963 SC 1901 - (1966) 3 SCR 451-AIR 1966 SC 1427 - (1962) 2 SCR 636 : AIR 1962 SC 89 - F.A. No. 325 of 1992 - I.A. No. 17118/2010 - I.A. No. 2667/2011 - I.A. No. 1438/2013 - I.A. No. 3581/2017
Fact of the Case:
The original vendor, Kishorilal, executed a sale deed in favour of the appellants No. 2 and 3 and accordingly, the plaint was amended and not only the appellants No. 2 and 3 were impleaded as defendants, but a relief of specific performance of contract was also incorporated. Kishorilal expired on 17-12-2005. An application for substitution of his legal heirs was filed which was allowed by order dated 7-7-2006 and the legal representatives of the original vendor Kishorilal, namely Suresh, Murari, Omprakash and Sitabai were brought on record as appellants. Appellant No. 1(2) Murarilal also expired on 22-7-2007. Instead of bringing the legal representatives of appellant No. 1(2) Murarilal on record, an application (I.A. No. 17118/2010) was filed by the appellants, praying for deleting the name of appellant No. 1(2) Murarilal on the ground that the appellants No. 2 and 3, being the subsequent purchasers are the legal representatives of original Vendor and they are already on record. The said application was allowed by this Court by order dated 9-5-2011. It appears that thereafter, the respondent No. 1 filed an application for dismissing the appeal on the ground that as the appellants has not brought the legal representatives of the appellant No. 1(2) Murarilal on record. The said application was registered as I.A. No. 2667/2011. I.A. No. 2667/2011 was dismissed by this Court by order dated 4-3-2013. It appears that thereafter sensing some Legal difficulty, the appellants filed an application under Order XXII, Rule 4, Civil Procedure Code read with Order 1, Rule 10, Civil Procedure Code for bringing the Legal Heirs of Murarilal on record as proforma respondents. I.A. No. 1438/2013 was allowed by this Court by order dated 3-5-2013.
Finding of the Court:
The legal representatives of Vendor are “Necessary Party” because in their absence, no effective decree can be passed in the case of Specific Performance of Contract. The subsequent purchaser is joined simply to pass on title to the successful plaintiff. After considering the nature of decree which is to be passed in a case of specific performance of contract, the question is that in the eventuality of death of vendor, whether his legal heir would be legal representative or not? There is difference between legal heir and legal representative. The primary duty is of the vendor to execute the sale deed in favour of the successful plaintiff with a direction to the subsequent purchaser to join the covenant.
Issues: Whether the legal representative of the original vendor is a “necessary party” or merely a “proper party” as the subsequent purchaser who claims himself to be a bona fide purchaser was already on record.
Ratio Decidendi: In a suit for specific performance of contract, a peculiar situation arises. The primary obligation in a contract for sale of property by executing a sale deed is always on the vendor and accordingly is passed on to its legal representatives. Earlier there were divergent views that what should be the nature of decree of specific performance of Contract in such a situation. One view was to declare the subsequent sale void and to direct the original vendor to execute the sale deed in favour of the original contractor. Second view was to direct both the vendor and the subsequent purchaser to join in the document of conveyance as directed by a decree and the third view was to direct the subsequent purchaser to execute the sale deed in favour of the original contractor. In the case of Durga Prasad (supra), the Supreme Court held that the proper form of decree would be to direct the subsequent purchaser to join in the conveyance so as to pass on the title which resides in him to the successful plaintiff. Thus, it is clear that the primary duty is of the vendor to execute the sale deed in favour of the successful plaintiff with a direction to the subsequent purchaser to join the covenant.
Final Decision: The appeal as a whole has abated and is accordingly dismissed as having abated.
This First Appeal under section 96 of Civil Procedure Code has been filed against the judgment and decree dated 18-10-2000 passed by District Judge, Sheopurkalan, in Civil Suit No. 5-A/1992.
2. A preliminary objection has been raised by the Counsel for the respondent No. 1 to the effect that this appeal has abated and it was prayed that instead of considering the appeal on merits, the question with regard to abatement of appeal may be decided first. Accordingly, by this order, the preliminary objection of abatement of appeal is being decided.
3. The necessary facts for the disposal of the preliminary objection in short are that the respondent No. 1 initially filed a suit for declaration and injunction against Kishorilal and others. However, during the pendency of the Civil Suit, Kishorilal, executed a sale deed in favour of the appellants No. 2 and 3 and accordingly, the plaint was amended and not only the appellants No. 2 and 3 were impleaded as defendants, but a relief of specific performance of contract was also incorporated.
4. It is the case of the plaintiff/respondent No. 1 that Kishorilal had executed an agreement to sell the house in dispute (in short “disputed property”) by agreement dated 15-3-1988 for a consideration of Rs. 1,80,000, out of which an amount of Rs. 25,000 was received by Kishorilal by way of advance. The plaintiff/respondent No. 1, was already a tenant of the disputed property. Thereafter, the plaintiff/respondent No. 1, filed a suit for declaration of title and permanent injunction against Kishorilal and others, however, during the pendency of the civil suit, Kishorilal sold the disputed property to appellants No. 2 and 3. Accordingly, the suit was amended, the appellants No. 2 and 3 were also impleaded as defendants, and a prayer for specific performance of contract was also incorporated.
5. The trial Court after recording evidence of the parties, and hearing all the necessary parties, decreed the suit and passed a decree of specific performance of Contract against the vendor Kishorilal and the sale deed executed in favour of the appellants No. 2 and 3 was declared as null and void against the plaintiff/respondent No. 1.
6. Being aggrieved by the judgment and decree passed by the trial Court, the original vendor Kishorilal, as well as the subsequent purchasers, appellants No. 2 and 3 filed a joint First Appeal.
7. During the pendency of the appeal, the original vendor, Kishorilal expired on 17-12-2005. An application for substitution of his legal heirs was filed which was allowed by order dated 7-7-2006 and the legal representatives of the original vendor Kishorilal, namely Suresh, Murari, Omprakash and Sitabai were brought on record as appellants. The necessary amendment was also carried out.
8. It appears that thereafter, appellant No. 1(2) Murarilal also expired on 22-7-2007. Instead of bringing the legal representatives of appellant No. 1(2) Murarilal on record, an application (I.A. No. 17118/2010) was filed by the appellants, praying for deleting the name of appellant No. 1(2) Murarilal on the ground that the appellants No. 2 and 3, being the subsequent purchasers are the legal representatives of original Vendor and they are already on record. The said application was allowed by this Court by order dated 9-5-2011, which reads as under:
“9-5-2011
Parties through their Counsel.
Heard on I.A. No. 17118/2010, which is an application under Order XII, Rule 2, 4(4) and under section 11 of Civil Procedure Code for deleting the name of appellant No. 1 who has died and sold the suit property to appellant No. 2 and 3 who are his legal representatives.
Considering the averments made in the application, the same is allowed at the risk and cost of the appellants. The name of appellant No. 1 be deleted from the array of cause title within one week.”
The appellants, accordingly, deleted the name of the appellant No. 1(2) Murarilal from the array of cause title.
9. It appears that thereafter, the respondent No. 1
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