Sunday 25 August 2013

Claim that property in question is HUF property cannot be decided in suit for specific performance of agreement



In my view, the Applicant is neither necessary party nor proper party and 
his   presence   is   not   necessary   in   order   to   enable   the   court   to   effectually   and 
completely adjudicate all the questions involved in the suit.  In my view, the claim 
of the Applicant that the property in question is HUF property cannot be decided 
in   this   suit   for   specific   performance   of   agreement   which   is   all   together   for   a 
different reliefs.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1600 OF 2009
IN
SUIT NO. 2674 OF 2006
Mulchand K.Ranka & Anr. 
..... Plaintiffs
Vs.
Hitesh C.Jhaveri & Ors. 

    CORAM 
      :  R.D. DHANUKA, J.
  
  
    PRONOUNCED ON :  9th MARCH, 2012.


The   Applicants   have   taken   out   this   Chamber   Summons   for   impleading 
themselves as party to Suit No.2674 of 2006 claiming to be necessary party.  The 
Plaintiffs have filed the suit for seeking specific performance of the Agreement 
dated 12th January, 1991 and in the alternative, for damages to the tune of Rs.27 
crores together with interest.  It is case of the Applicant that Plaintiff No.1 is the 

brother of the Applicants and all brothers belong to Undivided Joint Hindu family. 
It is his case that his father late Kaluchand Hanjarimal Ranka had initially started 
the   business   of   watch   repairing   and   subsequently   he   closed   down   the   said 
business   and   had   ventured   into   business   of   construction   and   development   of 
properties.  It is his case that several properties in and around Mumbai came  to 
be developed jointly.   It is his case that till date, no partition oral or written by 
metes and bounds have taken place and all the business are carried out for the 
joint   Hindu   family  of  the   Applicants   and  Plaintiffs   and  their  mother     Devubai 
K.Ranka.  It is the case of the Plaintiffs that though Plaintiffs had entered into an 
agreement with the Defendant, the Applicants who are also entitled to share in it, 
deals into the business of the Hindu Joint Undivided Family.   It is contended by 
the Applicants that they are proper and necessary party to the suit and as such are 
required to be joined as parties to the suit.   The Applicants also relied upon the 
affidavit dated 13th April, 2010 filed by the mother of the Applicants and Plaintiff 
No.1 supporting the Applicants.
2.
This Chamber Summon has been vehemently opposed by the Plaintiffs and 
other Defendants. The Learned Counsel appearing for the Plaintiffs state that the 
Applicants are neither necessary nor property parties to the suit.   The Plaintiffs 
also denied the  allegations of the  Applicant that the suit property or any part 
thereof were part of Joint Hindu Undivided Family.  The Plaintiffs denied that the 
Applicants   have   any   right,   title   or   interest   of   whatever   manner   in   the   suit 

property.  
3.
The   Learned   Counsel   appearing   for   Defendant   Nos.   1A   to   1E   and   for 
Defendant No.2 contended that Applicants are attempting to delay the hearing of 
the suit and the application is false and frivolous.  The Defendants also contended 
that the Applicant was neither necessary nor property required to be impleaded as 
the   Defendants   to   the   suit.     The   Plaintiffs   as   well   as   the   Defendants   also 
contended that after filing of this Chamber Summons, the Plaintiffs have already 
filed separate suit being No. 261 of 2011 against the Plaintiffs herein and the 
Defendants   for   various   reliefs.     According   to   the   Plaintiffs   herein   and   the 
Defendants, the allegations made in the Chamber Summons that the suit property 
is HUF property and that the Applicants have share in the same is also subject 
matter of the said suit No. 261 of 2011 and therefore on this ground also the 
Chamber Summons is liable to be dismissed.
4.
The   matter   was   heard   on   14th  February,   2012   when   the   Applicants   and 
Plaintiffs were directed to furnish copy of the said plaint referred by the parties 
filed by the Applicants in this Court.   Since the copy was not furnished by the 
parties,  the  matter   was   placed  for   directions   on  28th  February,  2012.   On   28th 
February, 2012, Learned Counsel for the Applicants submitted a copy of the plaint 
with annexures in Suit No. 261 of 2011. I have considered the copy of the plaint 
filed in Suit No. 261 of 2011 also.  In the said suit bearing No. 261 of 2011, the 

Applicants  herein  have    alleged that  under   the  Agreement  dated  12th  January, 
1991(which   is   the   subject   matter   of   this   suit),   the   Plaintiff   No.1   herein   was 
entitled to 35% share in the profit and/or losses of the joint venture.  Remaining 
65%  share was to be held by Defendant Nos. 2 to 33 of the suit.   It is to be 
pointed out here  at this stage that some of the Defendants are also parties to this 
suit.  In para 14 of the said suit, the Applicants have alleged that the Applicants 
had filed Chamber Summons No. 1600 of 2009 hurriedly in Suit No. 2674 of 
2006 and sought to be impleaded in the said suit.  The said Chamber Summons 
was taken out on the advice of the then advocate of the  Applicants herein and the 
same is pending.  
5.
In   para   16(b)   of   the   said   suit,   the   Applicants   have   alleged   that   the 
Defendant No.1 (Plaintiff No.1 in the present suit) is bound in law to hold such 
benefit/advantage/50% share in the said firm and ownership of the property for 
the   benefit   of   and   in   trust   for   the   Plaintiffs   (i.e.   Applicants   herein).     The 
Applicants   in   the   said   suit   has   prayed   for   declaration   that   Defendant   No.1 
(Plaintiff No.1 herein) hold 50% share in Defendant No.34 firm and through it 
50% of the said property and for the benefit of and on account of the Plaintiffs 
and that the Plaintiffs are entitled to the same.  The Applicants have also prayed 
for an order and decree that the properties be sold and 3/4th of 50% of the sale 
proceeds be handed over to the Applicants herein.  The said suit is pending in this 
Court.

6.
In rejoinder, the Learned Counsel appearing for the Applicants contended 
that in the aforesaid suit, the Plaintiffs herein had taken out Notice of Motion 
bearing No. 3196 of 2006.  The Plaintiffs had made an attempt to withdraw the 
said Notice of Motion so as to jeopardize the Hindu Undivided Family property.  It 
is   contended   by   the   Applicants   that   it   is   likely   that   in   collusion   with   the 
Defendants, the Plaintiffs may withdraw the suit itself jeopardizing the interest of 
the Applicants.   It would be necessary to refer to the relevant provisions which 
have been invoked by the Applicants.
7.
Order   1   Rule   10   of   the   Code   of   Civil   Procedure,   1908,   which   reads   as 
under:­
10. Suit in name of wrong plaintiff.­ 
(1) Where a suit has been instituted in the name 
of   the   wrong   person   as   plaintiff   or   where   it   is 
doubtful   whether   it   has   been   instituted   in   the 
name of the right plaintiff, the Court may at any 
stage of the suit, if satisfied that the suit has been 
instituted through a bona fide mistake, and that it 
is   necessary   for   the   determination   of   the   real 
matter in dispute so to do, order any other person 
to be substituted or added as plaintiff upon such 
terms as the Court thinks just.
(2) Court may strike out or add parties.­ The 
Court may at any stage of the proceedings, either 
upon   or   without   the   application   of   either   party, 
and on such terms as may appear to the Court to 
be   just,   order   that   the   name   of   any   party 
improperly   joined,   whether   as   plaintiff   or 
defendant, be struck out, and that the name of any 
person who ought to have been joined, whether as 

plaintiff  or  defendant,  or  whose  presence  before 
the Court may be necessary in order to enable the 
Court   effectually   and   completely   to   adjudicate 
upon and settle all the questions involved in the 
suit, be added.
(3) No person shall be added as a plaintiff suing 
without a  next friend or as  the  next friend of a 
plaintiff under any disability without his consent.
8.
In the case of Kasturi vs. Iyyamperumal and others reported in AIR 2005 SC 
2813 after considering the provisions of Order 1 Rule 10 of the Code, the Apex 
Court has held 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 
representatives as also a person who had purchased the contracted property from 
the vendor.   It is held that the contract constitutes rights and also regulates the 
liabilities   of   the   parties.       It   is   held   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. 
In the said Judgment, the Apex Court has followed the Judgment in the case of 
Vijay Pratap and others vs. Sambhu Saran Sinha reported in (1996) 10 SCC  
53 in which it was held as under :­
14. ..............   to   decide   the   right,   title   and 
interest in the suit property of the stranger to the 
contract is beyond the scope of the suit for specific 
performance of the contract and the same cannot 

be   turned   into   a   regular   title   suit.   Therefore,   in 
our view, a third party or a stranger to the contract 
cannot   be   added   so   as   to   convert   a   suit   of   one 
character into a suit of different character. 
9.
At para 15 of the said Judgment delivered by the Apex Court, it is held as 
under:­
15. That   apart,   from   a   plain   reading   of   the 
expression used in sub­rule (2) Order 1 Rule 10 of 
the CPC "all the questions involved in the suit" it is 
abundantly clear that the legislature clearly meant 
that   the   controversies   raised   as   between   the 
parties   to   the   litigation   must   be   gone   into   only, 
that is to say, controversies with regard to the right 
which is set up and the relief claimed on one side 
and denied on the other and not the controversies 
which   may   arise   between   the   plaintiff/appellant 
and the defendants inter se or questions between 
the   parties   to   the   suit   and   a   third   party.   In   our 
view,   therefore,   the   court   cannot   allow 
adjudication of collateral matters so as to convert 
a suit for specific performance of contract for sale 
into   a   complicated   suit   for   title   between   the 
plaintiff/appellant   on   one   hand   and   Respondent 
Nos. 2 & 3 and Respondent Nos. 1 and 4 to 11 on 
the other. 
10.
In view of the fact that the Applicants have already filed a separate suit 
being   suit   No.   261   of   2011   for   claiming   similar   reliefs   and   has   raised   similar 
issues which are sought to be raised in the present Chamber Summons, no relief 
can be allowed in the present Chamber Summons taken out by the Applicants.

11.
In my view, the Applicant is neither necessary party nor proper party and 
his   presence   is   not   necessary   in   order   to   enable   the   court   to   effectually   and 
completely adjudicate all the questions involved in the suit.  In my view, the claim 
of the Applicant that the property in question is HUF property cannot be decided 
in   this   suit   for   specific   performance   of   agreement   which   is   all   together   for   a 
different reliefs.  
12.
In view of the facts,  the Applicants have already filed a substantial suit, no 
reliefs in the present Chamber Summons can be granted.  It is for the Applicants 
to make an application for clubbing of this suit with Suit No. 261 of 2011, if he so 
desire.  
13.
In my view, the Chamber Summons is totally misconceived and therefore 
the same is dismissed with no order as to cost. 
[R.D. DHANUKA, J.] 
  

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