2006(3) ALL MR 656
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
D.G. KARNIK, J.
Laxman S/O. Lahanuji Lende (Dead Through Lrs.)Vs.Harichand S/O. Domaji Kulharkar
Second Appeal No.266 of 1990
17th August, 2005
Petitioner Counsel: Mr. SHRINIWAS DESHPANDE
Respondent Counsel: Mr. M. ANILKUMAR, MEENA D. G. PANKAJ DIXIT
(A) Specific Relief Act (1963), S.10 - Specific performance of contract - Joint property - A stranger to contract having interest in suit property may be joined as a proper party, but cannot be a necessary party - It would be open to plaintiff to obtain a decree for specific performance only against party to contract and after obtaining title to property may sue separately any stranger claiming interest in said property. (Para 6)
(B) Specific Relief Act (1963), S.16(C) - Specific performance of contract - Agreement to sell suit property to plaintiff - Willingness and readiness of plaintiff to perform his part of contract - Finding of fact recorded by courts not stating anything about framing of issue regarding willingness and readiness of plaintiff to perform his part of contract - Matter remanded to trial court for purpose of consideration of said issue. (Para 9)
JUDGMENT :- Appellants are the legal heirs of the original defendant. Respondent is the original plaintiff. For the sake of convenience the appellants are hereinafter referred to as defendant, and the respondent is referred to as the plaintiff.
2. The defendant is the owner of the property bearing field survey no.18/2 situated at village Parsoda (for short the suit property). On 10th March, 1976 the defendant entered into an agreement to sell suit property to the plaintiff for a consideration of Rs.1500/- by accepting Rs.400/- as an earnest. According to the plaintiff the defendant put the plaintiff in possession of the suit property in part performance of the agreement of sale. The defendant, however, denied the execution of an agreement of sale and also denied having put the plaintiff in possession of the suit property. The question of possession however is not relevant for the purpose of this appeal. The defendant having refused to execute the sale-seed, the plaintiff filed the suit bearing R.C.S. No.65/1976 in the Court of Civil Judge Junior Division, Ramtek for specific performance of the agreement of sale dated 10-3-1976. The defendant contested the suit contending that the plaintiff got the agreement of sale executed by exercising fraud and mispresentation. He denied that he had accepted Rs.400/- as an earnest amount and also denied having put the plaintiff in possession of the suit property. After considering the evidence adduced before it the trial court dismissed the suit holding that plaintiff got the agreement executed by exercising fraud in the manner described in para no.10 of the written statement. It also held that the plaintiff had not proved that he had paid Rs.400/- to the defendant as an earnest amount. The trial court had also framed an issue as to whether the plaintiff was ready and willing to perform his part of contract. However, the trial court did not answer that issue in view of its finding that the suit agreement was obtained by fraud. On appeal the lower appellate court reversed the finding of the trial court that the plaintiff had obtained the agreement by fraud as pleaded by the defendant in para no.10 of the written statement. It also held that the defendant had entered into a valid agreement of sale agreeing to sell the suit property to the plaintiff for a consideration of Rs.1500/-. Accordingly the lower appellate court passed a decree for specific performance of the contract.
3. By an order dated 13th September, 1990 the Second Appeal was admitted without framing any question of law. After having heard the learned counsel for the appellant following substantial questions of law arise in this Appeal.
(1) Whether the suit was bad in law for non-joinder of other coparceners as party defendants in the suit ?
(2) Whether the lower appellate court was right in allowing the appeal and passing a decree for specific performance without recording a finding that the plaintiff was ready and willing to perform his part of the contract ?
4. In his written statement, the defendant inter alia contended that the suit property was an ancestral property and that the two sons of the defendant had a right, title and interest in the suit property. They were entitled for share on partition and the defendant alone had no right to alienate the suit property. The wife and son of the defendant were necessary parties to the suit and as they were not joined as parties the suit was liable to be dismissed. The trial court accordingly framed a specific issue (issue No.7) as to whether necessary persons were joined as parties to the suit. While considering the same, the trial court recorded a finding that the suit property was an ancestral property of the plaintiff. The trial court further held that since the suit property was an ancestral property other coparceners (defendant's sons) were necessary parties to the suit. The trial court relied upon a judgment of this court in Shivshankareppa Mahadevappa Parakanhatti Vs. Shivappa Parappa Kupati and others reported in AIR 1943 Bombay 27 in support. On appeal, the lower appellate court held that the ratio of the decision of this Court in Shivshankareppa Vs. Shivappa (supra) was not applicable to the facts and circumstances of the case because in that case the agreement for sale was entered into by only a member of the joint family and in the present case the agreement was entered into by the defendant in the capacity of a "Karta" of the family. The appellant court held that as a "Karta" the defendant had a right to sell or to alienate the suit property for legal necessity or benefit of the estate and therefore, principles laid down in the said case was not applicable.
5. Learned Counsel for the appellant submits that the lower appellant court erred in distinguishing the decision of this Court in Shivshankareppa Vs. Shivappa Parappa (supra). He submits that the defendant was not the sole owner of the property. The property was a joint family property, and it was so held by the trial court. In Shivshankareppa Vs. Shivappa (supra), this court has clearly held that in all persons who are interested in the property are necessary parties to a suit for specific performance. It ought to have been held that two sons and wife of the defendant were the necessary parties to the suit as the sons were coparceners and the wife was also entitled to a share on partition between the defendant and his sons. The trial court had rightly held that the wife and sons of the defendant were necessary parties to the suit and as they were not joined as parties the suit was bad in law.
6. In Shivshankareppa Vs. Shivappa (supra) the defendant nos.3 to 20 therein had trespassed in the property and were in possession of the suit property. The defendant no.1 who was the owner had already filed the suit bearing Suit No.521/1928 against the defendant nos.3 to 20 for possession. By an agreement of sale he (the defendant no.1) had agreed to sell the suit property as he required money to prosecute the litigation against defendant nos.3 to 20. On refusal by the defendant no.1 to execute the sale the plaintiff filed the suit against the defendant no.1, joining defendant no.2 who was a co-owner as a party to the suit. He also joined defendant no.3 to 20 as parties to the suit because they were in possession, though as trespassers. A decree for specific performance was passed by the trial court. Defendant nos.3 to 20 filed an appeal challenging the decree contending that they were not necessary parties to the suit for specific performance. The Assistant Judge confirmed the decree against defendant nos.1 to 2, but set it aside against defendant nos.3 to 20 on the ground that they were not necessary parties to the suit. This court set aside the decision of the lower appellate court holding that the decree was properly passed against defendant nos.3 to 20. This court specifically approved the rule that in a suit for specific performance a stranger to the contract cannot ordinarily be joined as a party but held that there could be an exception. For instance a stranger could be made party in case he claimed an interest the suit property arising under a prior contract and in cases where it was desirable to avoid multiplicity of suits. The ratio of the decision is that even a stranger to the contract can be made a party to a suit for specific performance in exceptional circumstances. The decision does not lay down that in every case a stranger who is interested in the suit property in any way must be made a party to the suit. In my view in a suit for specific performances a stranger to the contract who is in any way interested in the suit property may be joined a proper party, but it cannot be said that he is a necessary party. It would be open to the plaintiff to obtain a decree for specific performance only against the party to the contract and after having obtained the title to the property by obtaining a sale deed in pursuance of the decree to sue separately the stranger claiming any interest in the property.
7. Learned Counsel for the appellants submits that since the suit property belonged to the joint family the plaintiff should have joined other coparceners as parties to the suit. If they were joined, they would have been proper parties and it would have been open for them to plead in the suit and the suit contract was not binding on them as the contract was not for legal necessity or for benefit of the estate. The court would have then been required to consider whether a decree be passed against other coparceners in that suit. It was however open to the plaintiff to file a suit only against the defendant who as a "Karta" had entered into the agreement of sale. A decree passed in that suit would obviously not be binding on the other coparceners. It would be open to such coparceners to file a separate suit after the sale, (voluntary or though execution of a court decree) on the ground that alienation was not for legal necessity, or the benefit of the estate. The issue of the legal necessity or benefit of estate would be independently considered in that suit. In my view the coparceners, though could be proper parties in a suit for specific performance of an agreement executed by a "Karta" would not be necessary parties to the suit.
8. Learned counsel for the appellants however, contends that no decree for specific performance could have been passed in view of section 12 of the Specific Relief Act, 1963. Section 12 says that the Court shall not direct specific performance of a part of a contract. He submits that since the plaintiff was not the full owner of the property, and was only a "Karta" of the joint family. He could not have alienated the whole of the property, but could have alienated the property only to the extent of his share. Therefore, passing of a decree for specific performance would amount to passing of a decree for performance of a part of the contract, and the appellate court erred in passing of the decree for specific performance. A coparcener who is not a "Karta" has to right to sell the whole of the joint family property, even for a legal necessity or for the benefit of the estate. However the position of a "Karta" is different. A "Karta" is entitled to sell the whole joint family property for a legal necessity or for benefit of the estate. At this stage it cannot be held that the agreement of sale made by the defendant was not for legal necessity. It cannot be said that by passing a decree for specific performance the court would be passing the decree for performance of a part of contract. Hence, the contention is rejected.
"Does the plaintiff prove that he was and he is always ready and willing to perform his part of contract, but the defendant failed to perform his part ?"
The trial court answered the issue as : "does not survive". The trial court had earlier recorded the findings that the plaintiff got the agreement executed from the defendant by fraud. The trial court therefore had considered it unnecessary to consider whether the plaintiff was ready and willing to perform his part of contract. After reversing the judgment of the trial court on the question of fraud, the appellate court did not consider whether the plaintiff was ready and willing to perform his part of contract. Clause (C) of Section 16 of Specific Relief Act lays down that specific performance of a contract cannot be granted in favour of a person who fails to aver and prove that he was always ready and willing to perform the essential terms of the contract which were to be performed by him. Under clause-(C) of Section 16 of Specific Relief Act for passing of a decree for specific performance the plaintiff must prove that he is and was always ready and willing to perform his part of contract. In the present case a specific defence was taken by the defendant that the plaintiff was not ready and willing to perform his part of contract, and issue to that effect was also framed by the trial court. However, there has been no finding of fact recorded by either of the courts below on this issue. In the circumstances, the matter would have to be remanded back to the trial court for the purpose of consideration of issue no.6 as initially framed by it.
10. For these reasons, the Second Appeal has to be allowed partly. The appeal is accordingly allowed partly. The matter is remanded back to the trial court for consideration of the issue no.6. At the request of the learned counsel, both the parties are permitted to adduce additional evidence, if any, on this issue before the trial court. If the trial court answers the issue in the affirmative, the trial court shall pass decree for specific performance and in the event the finding is in the negative it shall dismiss the suit.