Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 57555756 OF 2011
MORESHAR S/O YADAORAO MAHAJAN ...APPELLANT(S)
VERSUS
VYANKATESH SITARAM BHEDI (D)
THR. LRS. AND OTHERS ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
rd
1. These appeals challenge the judgment dated 3 July
2008 passed by the learned Single Judge of the High Court of
Judicature at Bombay in Second Appeal No. 264 of 1996,
thereby allowing the appeal filed by the respondents
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challenging the judgment dated 13 June 1996 passed by
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the 2 Additional District Judge, Yavatmal (hereinafter
referred to as the “Appellate Court”) in Regular Civil Appeal
No. 61 of 1990 vide which the Appellate Court confirmed the
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judgment dated 28 March 1990 passed by the Civil Judge
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(Senior Division), Yavatmal (hereinafter referred to as the
“trial court”) in Special Civil Suit No. 21 of 1985 filed by the
appellant vide which the trial court had decreed the suit for
specific performance filed by the present appellant.
The parties hereto are referred to in accordance with
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their status as before the trial court.
3. The plaintiff is a doctor who was working in a
Government Hospital. The plaintiff was also in private
practice. The plaintiff, for starting his private practice, took
on rent a part of the house of the defendant. It is the case of
the plaintiff that subsequently, the defendant was in
financial need for his agricultural cultivation and household
expenses and therefore, he suggested to the plaintiff that he
should purchase the said part of the house which the
plaintiff was occupying, together with an added portion. The
plaintiff accepted the said suggestion and an agreement to
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sell was entered into on 24 July 1984. As per the terms of
the said agreement to sell, the defendant agreed to sell and
the plaintiff agreed to purchase the suit property for
Rs.50,000/. The plaintiff paid an amount of Rs.24,000/ on
the date of the agreement and the defendant executed an
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earnest note in favour of the plaintiff. As per the terms of the
agreement to sell, the sale deed was to be executed before
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31 March 1985. It is the case of the plaintiff that on 31
July 1984, the defendant again requested for money and on
such request, the plaintiff paid him an amount of
Rs.6,000/. It is also the case of the plaintiff that pursuant
to the aforesaid payment, he was put in possession of the
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suit property on 31 July 1984.
4. It is further the case of the plaintiff that he was
always ready and willing to perform his part of the agreement
and therefore, he informed the defendant by registered letter
that he was willing to complete his part of the transaction
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before 31 March 1985. However, the defendant replied to
the said notice by alleging that the transaction was of money
lending and denied the execution of the sale deed. In this
background, the plaintiff filed a suit for specific performance
before the trial court. The trial court, vide judgment and
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decree dated 28 March 1990, decreed the suit and directed
the defendant to execute the sale deed by accepting the
balance sale consideration as per the terms of the agreement
to sell. It further directed that if the defendant failed to
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execute the sale deed, the same should be executed through
the court. Being aggrieved thereby, the defendant preferred
an appeal before the Appellate Court which was also
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dismissed vide judgment dated 13 June 1996.
The defendant thereafter preferred a second appeal
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before the High Court which came to be partly allowed vide
the impugned judgment. Though the High Court denied the
specific performance, it directed the defendant to refund the
amount of Rs.30,000/ along with an interest at the rate of
9% per annum from the date of the institution of the suit till
its realization. Hence, the present appeal is at the instance
of the plaintiff.
6. We have heard Shri Rahul Chitnis, learned counsel
appearing on behalf of the appellant and Shri Harin P. Raval,
learned Senior Counsel appearing on behalf of the
respondents.
7. Shri Chitnis submitted that a perusal of the
agreement to sell would reveal that the defendant had agreed
to sell the property since he needed money for farming and
household expenses. He submitted that the suit property
exclusively belonged to the defendant and as such, the
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finding of the High Court that the suit property belonged to
the joint family of the defendant i.e., his wife and three sons,
is untenable. He submitted that, in any case, the sale deed
was for meeting the legal necessities of the family and as
such, the High Court ought not to have interfered with the
concurrent findings of fact.
8. Shri Chitnis further submitted that the trial court
had held that, after partition, the house had come to the
share of the defendant. He submitted that both the trial
court and the Appellate Court have concurrently held that
the transaction in question was for the payment of
antecedent debt and as such, it was not necessary to join
other members of the family or other coowners or other co
parceners as party defendants. He submitted that the
concurrent findings ought not to have been interfered with by
the High Court in second appeal. Relying on the judgment of
this Court in the case of Kasturi v. Iyyamperumal and
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Others , he submitted that it is only the parties to a contract
who are necessary parties. He further submitted that since
the contract was between the plaintiff and the defendant, it
was not at all necessary to implead the defendant’s wife or
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(2005) 6 SCC 733
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sons as party defendants. He therefore submitted that the
High Court has erred in taking this aspect into consideration
while partly allowing the second appeal.
Shri Raval, on the contrary, submitted that the suit
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property was a property jointly owned by the defendant, his
wife and three sons. He therefore submitted that the suit
itself was not maintainable on account of nonjoinder of
other owners of the suit property.
Shri Raval further submitted that the learned Single
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Judge of the High Court has rightly held that a mere
agreement to alienate cannot be enforced against a son on
the ground that the agreement was effected by the father for
a consideration which was formed by his own antecedent
debts. Shri Raval further submitted that a perusal of the
plaint itself would reveal that the plaintiff himself has
admitted that the suit property was owned by the defendant,
his wife and three sons. The learned Senior Counsel
submitted that in view of this admission, the suit filed by the
plaintiff was itself not tenable. He further submitted that the
Appellate Court, after having held that the trial court has
erred in holding that the suit property was the exclusive
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property of the defendant but was in fact a joint property of
the defendant, his wife and his three sons, has erred in
dismissing the appeal filed by the defendant. He too relies on
the judgment of this Court in the case of (supra) to
Kasturi
argue that it was not possible for the trial court to pass an
effective decree in the absence of necessary parties. Relying
on the judgment of this Court in the case of
Mumbai
International Airport Private Limited v. Regency
Convention Centre and Hotels Private Limited and
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, he reiterated his submission that since the wife and
Others
sons of the defendant were necessary parties, in their
absence, an effective decree could not have been passed. He
also relies on the judgment of this Court in the case of
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.
Poonam v. State of Uttar Pradesh and Others
11. A perusal of the plaint would reveal that the plaintiff
himself, in paragraph (2), has stated thus:
“2. That the defendant and his sons viz. (i)
Laxman; (ii) Vivek and (iii) Jayant together
with defendant’s wife Sou. Saralabai
constitutes a joint Hindu family governed by
Bombay School of Hindu Mitaksharia Law.
(The defendant is the Karta of the family. The
2 (2010) 7 SCC 417
3
(2016) 2 SCC 779
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family interalia owns residential premises
within the limits of at Wani……”
12. The plaintiff has further averred in the plaint that in
the month of July 1984, the defendant got into financial
difficulties and that he had no money to carry on his large
cultivation. The defendant also required money for his
household expenses. It is further averred that besides this,
the defendant also had to pay some debts as there was no
prospect for the defendant to borrow money from the
creditor.
It is the specific case of the defendant that initially,
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he had taken an amount of Rs.24,000/ and thereafter,
Rs.6,000/ from the plaintiff by way of loan for his personal
purposes. The defendant, in his written statement, has
specifically stated that each of his sons are managing their
own properties and the defendant was not required to look
after their properties. The defendant has submitted that the
other members of the family, i.e., his wife and sons had
nothing to do with the amount borrowed by him from the
plaintiff. The defendant has stated that the borrowed
amount was spent by him for himself. The defendant has
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denied that the said transaction was binding upon other
members of his family. It is specifically averred by him that
the said transaction was of money lending and the agreement
was entered into only as a security towards the loan. The
defendant has subsequently stated thus:
“It is submitted that the defendant’s sons and
wife are necessary parties to this suit and their
nonjoinder is fettled to the suit. The suit is
liable to be dismissed for nonjoinder of
necessary parties. It is denied that the
defendant’s sons must be deemed to have
given their approval to the transactions. It is
submitted that deeming is always fictions and
no suit can be decreed on fictions.”
14. It is to be noted that in spite of this specific
objection, the plaintiff did not implead the defendant’s wife
and sons as party defendants.
Though the trial court framed the issue as to
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whether the suit was bad in law for nonjoinder of necessary
parties, it answered the same against the defendant by
holding that the defendant was the absolute owner of the suit
property and therefore, there was no question of joinder of
his wife and three sons.
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16. The Appellate Court, vide its judgment, held that the
observation of the trial court that the suit property was the
exclusive property of the defendant was not correct. It held
that though the property was partitioned, the property
remained as joint with the defendant, his wife and three
sons. It further held that since the defendant represents the
entire family and since the transaction in question was for
payment of an antecedent debt, it was not necessary to join
other members of the family or other coowners or other co
parceners.
17. This Court, in the case of
Mumbai International
Airport Private Limited (supra), has observed thus:
| “ | 15. | A “necessary party” is a person who ought | |
|---|---|---|---|
| to have been joined as a party and in whose | |||
| absence no effective decree could be passed at | |||
| all by the court. If a “necessary party” is not | |||
| impleaded, the suit itself is liable to be | |||
| dismissed. A “proper party” is a party who, | |||
| though not a necessary party, is a person | |||
| whose presence would enable the court to | |||
| completely, effectively and adequately | |||
| adjudicate upon all matters in dispute in the | |||
| suit, though he need not be a person in favour | |||
| of or against whom the decree is to be made. If | |||
| a person is not found to be a proper or | |||
| necessary party, the court has no jurisdiction | |||
| to implead him, against the wishes of the | |||
| plaintiff. The fact that a person is likely to | |||
| secure a right/interest in a suit property, after |
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| the suit is decided against the plaintiff, will not | |
|---|---|
| make such person a necessary party or a | |
| proper party to the suit for specific | |
| performance.” |
18. It could thus be seen that a “necessary party” is a
person who ought to have been joined as a party and in
whose absence no effective decree could be passed at all by
the court. It has been held that if a “necessary party” is not
impleaded, the suit itself is liable to be dismissed.
19. As already discussed hereinabove, the plaintiff
himself has admitted in the plaint that the suit property is
jointly owned by the defendant, his wife and three sons. A
specific objection was also taken by the defendant in his
written statement with regard to nonjoinder of necessary
parties. Since the suit property was jointly owned by the
defendant along with his wife and three sons, an effective
decree could not have been passed affecting the rights of the
defendant’s wife and three sons without impleading them.
Even in spite of the defendant taking an objection in that
regard, the plaintiff has chosen not to implead the
defendant’s wife and three sons as party defendants. Insofar
as the reliance placed by Shri Chitnis on the judgment of this
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| Court in the case of | Kasturi | (supra) is concerned, the |
|---|
question therein was as to whether a person who claims
independent title and possession adversely to the title of a
vendor could be a necessary party or not. In this context,
this Court held thus:
| “ | 7. | …….From the above, it is now clear that two | |||||
|---|---|---|---|---|---|---|---|
| tests are to be satisfied for determining the question | |||||||
| who is a necessary party. Tests are — ( | 1 | ) there must | |||||
| be a right to some relief against such party in | |||||||
| respect of the controversies involved in the | |||||||
| proceedings; ( | 2 | ) no effective decree can be passed in | |||||
| the absence of such party.” |
20. It can thus be seen that what has been held by this
Court is that for being a necessary party, the twin test has to
be satisfied. The first one is that there must be a right to
some relief against such party in respect of the controversies
involved in the proceedings. The second one is that no
effective decree can be passed in the absence of such a party.
In view of the plaintiff’s own admission that the suit
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property was jointly owned by the defendant, his wife and
three sons, no effective decree could have been passed in
their absence.
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22. In that view of the matter, we find that no error can
be noticed in the judgment of the High Court. The appeals
are therefore liable to be dismissed.
23. In any case, the High Court, in order to balance the
equities, has partly decreed the suit and directed the
defendant to refund an amount of Rs.30,000/ with an
interest at the rate of 9% per annum from the date of
institution of the suit till its realization. We affirm this
direction of the High Court.
24. In the result, the appeals are dismissed. Pending
application(s), if any, shall stand disposed of in the above
terms. No order as to costs.
…..….......................J.
[B.R. GAVAI]
…….......................J.
[C.T. RAVIKUMAR]
NEW DELHI;
SEPTEMBER 27, 2022.
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