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)

JUDGMENT

B.R. GAVAI, J.

1. These appeals challenge the judgment dated 3 rd 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

challenging the judgment dated 13 th June 1996 passed by

the 2nd 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

judgment dated 28th 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.

2. The parties hereto are referred to in accordance with

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

sell was entered into on 24th 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

31st March 1985. It is the case of the plaintiff that on 31 st

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

suit property on 31st 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

before 31st 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

decree dated 28th 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

dismissed vide judgment dated 13 th June 1996.

5. The defendant thereafter preferred a second appeal

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

Others1, 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

1 (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.

9. Shri Raval, on the contrary, submitted that the suit

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.

10. Shri Raval further submitted that the learned Single

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 Kasturi (supra) to

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

Others2, he reiterated his submission that since the wife and

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

Poonam v. State of Uttar Pradesh and Others3.

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.

13. It is the specific case of the defendant that initially,

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.

15. Though the trial court framed the issue as to

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.

21. In view of the plaintiff’s own admission that the suit

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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