In a suit for specific performance, a third party asserting an independent title or claim to the property is neither a necessary nor a proper party, as such impleadment would improperly expand the scope of the suit into a title dispute.

WRIT PETITION NO.18809/2021 (GM-CPC)

BETWEEN:

T.S. NAGENDRAIAH ...PETITIONER

AND:

1. CHIKKACHELUVEGOWDA S/O LATE CHIKKA NARASIMHEGOWDA

AGED ABOUT 54 YEARS R/AT NELAMANE VILLAGE

K. SHETTAHALLI HOBLI S R PATNA TALUK 571807.

2. MURULIKUMAR N.C. S/O CHIKKACHALUVEGOWDA

AGED ABOUT 46 YEARS R/AT NELAMANE VILLAGE

K. SHETTAHALLI HOBLI S R PATNA TALUK 571807.

…RESPONDENTS

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD.17.9.2021 IN ORIGINAL SUIT NO.116/2017 ON IA NO.IX ON THE FILE OF ADDL. SR. CIVIL JUDGE SRIRANGAPATNA PRODUCED AT ANNEXURE-A & ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This petition is filed challenging the order dated 17.09.2021 passed in OS.No.116/2017 on IA No.11 by the Additional Senior Civil Judge, Srirangapatna (for short 'the trial Court').

Sri.G.Balakrishna Shastri, learned counsel appearing for the petitioner submits that the petitioner has filed a suit for specific performance of an agreement of sale dated 10.02.2015 against respondent No.1 herein. In the said suit, the plaintiff examined PW1. Thereafter, respondent No.2, who is the son of the defendant filed an application seeking to implead himself as a party to the proceedings, which was allowed by the trial Court. It is submitted that suit is one for specific performance of a contract and it is a trite law that a stranger to the contract is neither necessary nor a proper party to the suit. It is further submitted that the recitals in the agreement of sale indicates that the suit schedule property is the self acquired property of the respondent No.1/defendant; however, the proposed defendant/respondent No.2 seeks impleadment on the ground that he has filed a separate suit for partition and the property is joint family property and therefore, he is a necessary and proper party to the present proceedings. It is also submitted that a manager of a Hindu joint family is not required to obtain prior consent from the co-owners while selling the property. If the co-owner has any grievance, the appropriate remedy is available to file a suit for partition and seek a declaration that the agreement of sale or sale deed executed by the manager in favour of a third party is not binding on his share, upon establishing his co-ownership rights in the said suit. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Kasturi v. Iyyamperumal and Others, (2005) 6 SCC 733. Hence, he seeks to allow the petition.

Per contra, Sri.Deshraj, learned counsel appearing for respondent No.2 supports the impugned order of the trial Court and submits that the respondent No.1/defendant, in his written statement has clearly taken the defence that the suit schedule property is joint family property and he is a co-sharer therein, and until the shares are demarcated or decided the respondent No.1/defendant has no right to sell the property. It is submitted that the agreement of sale in question was executed only as a security document for obtaining the loan and the value of the property is more than Rs.20,00,000/-. However, the sale consideration mentioned in the agreement is only as Rs.6,00,000/- with an advance amount of Rs.3,00,000/-. The said aspect clearly demonstrates that the entire transaction is a loan transaction and that the agreement of sale was obtained by fraud. It is also submitted that respondent No.2 has already filed a suit for partition seeking his share in various properties of the joint family, including the suit schedule property. Therefore, any judgment and decree passed in the present suit would adversely affect the rights of respondent No.2 and other co-owners. Hence, respondent No.2 is a necessary and proper party to the suit, who can place all the documents before the trial Court. Accordingly, he seeks to dismiss the petition.

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