P.K. Madeswaran vs T.S. Sivakumar

R. Subbiah, J.—This application is filed to implead the applicants numbering 4 as defendants 3 to 6 in C.S. No. 758 of 2010, the suit filed by the 1st respondent herein as against respondents 2 and 3. The 1st respondent herein is the plaintiff and respondents 2 and 3 are the defendants 1 and 2. For easy reference, the respondents are hereinafter referred to as arrayed in the plaint. The case of the plaintiff, in brief, for disposal of the present application, is as follows:

The plaintiff filed the said suit for specific performance of the sale agreement against the defendants stating that the 2nd defendant, who is the wife of the 1st defendant, the owner of the suit property, represented herself to the plaintiff as the power agent of her husband, and entered into an agreement for sale dated 28.10.2009 with the plaintiff to sell the suit property, namely, house and land situated in new door No. 8, old door No. 15, Vaikunta Vathiyar Street, Sowcarpet, Chennai-79, measuring about 1308 sq.ft. for a sale consideration of Rs.30 lakhs. On the date of agreement, the plaintiff has paid an advance of Rs.5 lakhs towards sale consideration and got an acknowledgment of the same. Subsequently, the 2nd defendant received various amounts on different dates totalling to Rs.25 lakhs. Thus, the plaintiff paid the entire sale consideration to the 2nd defendant. It was agreed that the plaintiff must vacate the tenants from the suit property. After the payment of entire sale consideration, in order to safeguard her position, the plaintiff has sought for possession of the property. Defendants 1 and 2 also readily agreed and handed over possession to the plaintiff. The defendants had written a letter dated 28.01.2010 to the plaintiff confirming the handing over of possession of the suit property. Thereafter, the plaintiff had taken steps to vacate the tenants from the suit property. Thus, the plaintiff had taken only symbolic possession from the defendants and physical possession from the tenants. Thereafter, when the plaintiff insisted the defendants to execute a sale deed, they tried to dodge the plaintiff by not executing the sale deed. Moreover, the defendants and their henchmen tried to dispossess the plaintiff from the suit property. Hence, the plaintiff filed a civil suit in O.S.No. 7288 of 2010 on the file of VIII Assistant Judge, City Civil Court, Chennai, as against the defendants restraining them from dispossessing the plaintiff from the suit property except under due process of law. Thereafter, the plaintiff sent a telegraphic notice dated 26.07.2010 calling upon the defendants to execute a sale deed. Since the defendants sent a reply stating that the plaintiff has forged the documents, the present suit has been filed for specific performance.

Pending the said suit, now the applicants have filed the present application for impleading them as defendants 3 to 6 claiming that they are the owners of the suit property. It has been averred in the affidavit filed in support of the application that the suit property originally belonged to one Kuppusamy Chetty, son of R. Muthalaiah Chetty, the maternal grandfather of the 1st applicant, by name, B. Narasimhulu Chetty. The said R. Kuppusamy Chetty during her lifetime settled the property by way of registered settlement deed dated 09.10.1945 vide document No. 834 of 1945 in favor of his daughter Chengamma. The 1st applicant, B. Narasimhulu Chetty is the son of Chengamma. As per the settlement deed executed by Kuppusamy Chetty, the said Chengamma and her son Narasimhulu Chetty both are having only a life interest in that property without power of alienation and after the death of both the life interest holders, the children of B. Narasimhulu Chetty alone are entitled to take the said property absolutely in equal shares. The first beneficiary Chengamma died on 25.02.1994 and the second beneficiary is alive i.e. the 1st applicant herein and he has also released his life interest in favour of his children, applicants 2 to 4, under a release deed dated 16.08.2010 registered as Doc.No. 1034/2010 registered in the office of the Sub Registrar, Sowcarpet. Thus, it is contended by the applicants that the entire suit property belongs to applicants 2 to 4 and they are in actual physical possession and enjoyment of the suit property and they are the real owners and are paying water tax, property tax, electricity charges, etc., to the suit property. The suit property has one big residential portion and 3 non-residential portions. The residential portion was originally occupied by one tenant P.K. Purushothaman and against him, Narasimhulu Chetty, the 1st applicant herein filed, eviction petition in RCOP No. 23 of 1996 on the file of XIII Judge, Court of Small Causes, Chennai. In the said petition, eviction was ordered and against the eviction order, an appeal was filed in RCA No. 464 of 2003 and the same was also dismissed. Thereafter, the 1st applicant filed execution petition and the same was allowed and presently, the 1st applicant is residing in the said residential portion of the suit property.

It has been further stated that the 1st defendant in the present suit gave evidence in RCOP No. 23 of 1996 claiming that he is the owner of the petition premises; but his statement was negatived by the rent control authorities. In the said situation, the plaintiff K. Vijayalakshmi, who entered into an agreement of sale with the defendants, filed a suit in O.S.No. 14723 of 2010 before the City Civil Court against the defendants and applicants 1 and 2 herein for declaration, declaring the release deed executed by the 1st applicant in favour of applicants 2 to 4 on 16.08.2010 as null and void and also for consequential prayer of injunction restraining the applicants from disturbing physical possession and enjoyment of the suit property. That apart, the plaintiff herein has also filed another suit in O.S.No. 7288 of 2010 for injunction. From the said suit filed by the plaintiff only, the applicants came to know the existence of the present suit as against the defendants for specific performance. Hence, the present application is filed by them to implead themselves as defendants 3 to 6 since they are the owners of the suit property.

The 2nd defendant filed a counter stating that originally the suit property belonged to R. Kuppusamy Chetti i.e. the grandfather of the 1st applicant. The said Kuppusamy Chetti settled the schedule mentioned property in favour of his daughter Chengamma and his grandson Narasimhulu Chetty. In the said situation, a firm, by name, Ganesh Narain Govindlal filed a suit against one Vijaya Gunny Depot represented by its proprietor B. Varadarajulu Chetty and his wife Chengamma in O.S.No. 3352 of 1971 before the City Civil Court. In the said suit, Chengamma was the 2nd defendant. When the property was settled by Kuppusamy Chetty, his grandson Narasimhulu Chetty was minor at that time, aged about 5 years. The suit filed by the said firm was decreed on 17.11.1971. Based on that decree, the firm Ganesh Narain Govindlal filed E.P.No. 797 of 1973 on the file of X Assistant Judge, City Civil Court, Chennai, for attachment and sale of immovable property, namely, the suit property. In the said execution proceedings, the said property was auctioned and the firm M/s. Ganesh Narain Govindlal being the highest bidder took the property in auction. After adjusting the decree amount, the sale certificate was also issued by the City Civil Court, Chennai, in favour of Ganesh Narain Govindlal on 04.01.1975. Subsequently, the mutation of records has been effected. The patta, property tax, electricity connection and metro water tax and charges for the suit property stand in the firm''s name. Thereafter, in the family arrangement between the family members, the suit property was allotted to the 1st defendant''s share. Thus, the sale certificate issued by the City Civil Court was acted upon and the 1st defendant is in possession of the suit property. The 1st defendant also filed a rent control petition in RCOP Nos.1485 and 1486 of 2011 to evict some of the erstwhile tenants. In the said situation, the 1st applicant, who is the grandson of Kuppusamy Chetty with a mala fide intention filed RCOP No. 23 of 1996 and obtained an eviction order and thereafter, the 1st applicant trespassed into one portion of the suit property claiming that he is the owner of the suit property. The sale certificate issued by the City Civil Court was not challenged by the 1st applicant. By virtue of the sale certificate issued by the City Civil Court, a firm Ganesh Narain Govindlal became the owner of the property. Subsequently by virtue of the family arrangement, the 1st defendant became the owner of the property. In the said situation, the 1st applicant with a male fide intention to grab the property executed a release deed in favour of his children on 16.08.2010, which is sham and nominal. Hence, the defendants filed a suit as against the applicants/proposed defendants before the City Civil Court and in that, he challenged the very genuineness of the sale agreement said to have been entered into between the plaintiff and the 2nd defendant. Thus, they prayed for the dismissal of the application.

The present application was vehemently opposed by the plaintiff stating that the suit property was originally purchased by the father of the 1st defendant, viz., M. Govindalal in the court auction. The sale certificate was issued to the father of the 1st defendant in the suit filed for recovery of money as against the father of the 1st applicant and the grandfather of applicants 2 to 4. In the auction held by the City Civil Court in the execution proceedings, the father of the 1st defendant, who is a partner of firm, by name, Ganesh Narain Govindlal, participated in the bid and was declared as successful bidder and subsequently, the entire money was paid and therefore, the father of the 1st defendant has become the owner of the property. Against which, no appeal was filed by the judgment debtors. Hence, the applicants cannot claim title or interest at this stage. It is the further specific contention of the plaintiff that she is in possession of the suit property by virtue of handing over of possession to her by the 2nd defendant on 28.01.2010, who is the power agent of the 1st defendant. The applicants have no locus standi whatsoever in the suit for specific performance as against the defendants. There was a collusion between the defendants and the applicants in order to defeat the right of the plaintiff. Thus, she prayed for the dismissal of the application.

The applicants have filed a reply inter alia stating that the allegation of the plaintiff that they colluded with the defendants to defeat the right of the plaintiff in the suit property is not correct. The sale certificate dated 04.01.1975 was a fabricated one either by the father of the 1st defendant or the 1st defendant, because in Vijaya Gunny Depot, the grandfather of applicants 2 to 4 Varadharajalu Chetty had never been the proprietor at any point of time; against which concern, suit was filed by the father of the 1st defendant in the year 1971. As per the records produced by the 1st defendant, one Venkatapathy Chetty was the proprietor of Vjaya Gunny Depot and the grandfather N. Varadharajulu Chetty''s name had been inserted in the ulterior motive. Chengamma was not the absolute owner of the property as per the covenants of the settlement deed executed by V. Kuppusamy Chetty and Chengamma was having only life interest. Hence, no civil court can grant a sale certificate against the person who is not the owner of the property and also against a person who got a life estate only in the property. Absolutely there is no evidence as to how the property was purchased by the 1st defendant''s father in his individual capacity as the partner of one Ganesh Narayanan Govindalal Company and not in the name of the company. The entire records produced by the 1st defendant stands in the name of Ganesh Narayanan Govindalal and the counter filed by the 1st defendant did not reveal the fact that how the 1st defendant became the owner of Ganesh Narayan Govindalal''s property. Thus they prayed to allow the impleading petition.

Learned counsel for the applicants/proposed parties has made an elaborate arguments with regard to the sale certificate dated 04.01.1975 and also the rent control proceedings initiated by them to evict the tenants from the suit property. According to the applicants, the sale certificate dated 04.01.1975 is a fabricated document. In this regard, the learned counsel for the applicants submitted that it is the case of the defendants that the 1st defendant''s father Govindalal was a partner in the firm called Ganesh Narain Govindlal and the said firm filed a civil suit for recovery of money as against another firm Vijaya Gunny Depot, represented by Varadarajulu Chetty, the proprietor and the mother of the 1st applicant Chengamma was a party to the suit. The said suit was decreed by the City Civil Court and pursuant to the same, in the execution petition, the 1st defendant''s father Govindalal purchased the property. According to the learned counsel for the applicants, the case projected by the defendants based on the sale certificate dated 04.01.1995 cannot be true because neither Varadarajulu Chetty nor Chengamma was the owner of the suit property. Moreover, though there was a sale certificate on 04.01.1975, till date possession was not taken by the defendants. Under Article 134 of the Limitation Act, the defendants ought to have filed a suit for delivery of possession within a period of one year from the date of issuance of sale certificate. But, even as on date, only the applicants are in possession of the suit property. To substantiate the contention, the learned counsel for the applicants invited the attention of this Court to the proceedings in RCOP No. 23 of 1996 which was initiated by the 1st applicant as against one of the tenants in the suit property. In the said rent control petition, the 1st defendant gave an evidence that he is the owner of the property; but his contention was rejected and the rent control petition was allowed in favour of the 1st applicant. Thus, the learned counsel submitted that in the year 1998 itself, the 1st defendant''s contention was rejected by the learned Rent Controller. Since they are the owners of the property, they are necessary parties in the present suit for specific performance. In support of this contention, the learned counsel has relied on the judgment reported in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , Sumtibai.vs. Paras Finance Co., Mankanwar, etc.& Others ( 2007 4 L.W. 865 ), S. Krishnan Vs. Rathinavel Naicker and Others, and V. Ravi @ P.V. Ravi Vs. V. Balakrishnan and Others .

Per contra, the learned counsel for the 1st defendant submitted that this is a suit filed by the plaintiff as against him and his wife for specific performance since they failed to execute a sale deed pursuant to the sale agreement dated 28.10.2009. Now the applicants by impleading themselves wanted to decide the title of the suit property which is not permissible in law. If there is any dispute with regard to the title between the applicants and the defendants, they ought to have filed a separate suit.

By way of reply, the learned counsel for the plaintiff submitted that the sale certificate was issued by the City Civil Court on 04.01.1975. Now almost 34 years have lapsed. Immediately after the issuance of sale certificate, the 1st defendant''s father took possession in 1975 itself. The property consists of four portions, one residential and three non-residential portions and in respect of one residential portion, the 1st applicant filed RCOP. No. 23 of 1996 before the Rent Controller to evict the tenant. In that petition, the 1st defendant appeared and gave evidence that he is the owner of the property. Though the said rent control petition ended in favour of the 1st applicant, it does not mean that the claim of the 1st defendant that he is the owner of the property was denied by the Rent Controller because the rent control court has no jurisdiction to deal with the title of the property. In fact, the 1st applicant has falsely filed the rent control proceedings against one of the tenants and got the eviction order and trespassed into one portion of the suit property. The applicants were well aware of the ownership of the 1st defendant in the suit property. They were also aware of the possession taken by the 1st defendant''s father in the year 1975. Only in order to grab the property, in 2010, the 1st applicant executed a release deed in favour of applicants 2 to 4 as if he is the owner of the suit property. The said release deed under Document No. 1034/2010 was challenged by the defendants in a suit filed before the City Civil Court. So far as the present suit is concerned, it is between the plaintiff and the defendants with regard to the execution of agreement of sale and in which, the applicants are not necessary parties because they are claiming title over the property which cannot be decided in the suit for specific performance. In support of his contentions, the learned counsel has relied upon the judgments reported in M/s. Leelavathi.vs. Sri Venkateswara Finance ((2009) 7 MLJ 761 ) and Bharat Karsondas Thakkar Vs. Kiran Construction Co. and Others, .

Heard the learned counsel for the parties and perused the materials.

Though elaborate arguments were made by the 1st applicant with regard to the suit filed in the year 1971, namely, O.S.3352 of 1971 and also the rent control proceedings initiated by him to show that he is the owner of the property and as such, the applicants are entitled to be impleaded as parties, in my considered opinion, this Court is not conducting any trial in this application to decide the title of the suit property or to decide the question whether the sale certificate issued by the City Civil Court is genuine or not or whether the possession of the suit property was taken immediately after the sale certificate within one year. Since the present suit has been filed by the plaintiff as against defendants 1 and 2 only for a decree of specific performance of the contract, the question that has to be decided falls in a narrow compass and as such, the only question that has to be seen in this case is whether the applicants are proper and necessary parties to be impleaded themselves as defendants 3 to 6 in the suit filed by the plaintiff for specific performance. This question has to be decided only based on the legal dictum laid down by the Hon''ble Supreme Court and other High Courts. Therefore, I am not inclined to deal with the submissions made by the learned counsel for both sides with regard to the title of the suit property.

Now, let us see the judgments relied on by the applicants. The learned counsel for the applicants has relied on the decision of this Court in S. Krishnan Vs. Rathinavel Naicker and Others, , wherein it has been held that a party can be impleaded when the relief prayed for in proceedings is sought to be made binding on him or when it is felt that he would be adversely affected by the ultimate outcome of the proceedings. But, the factual aspect of that case would show that a suit was filed by the revision petitioner as against the 1st respondent in O.S.341 of 1998 and the 1st respondent has also filed three suits as against the revision petitioner in O.S.No. 799 of 1988, 819 of 1998 and 573 of 1999 i.e. the suit for permanent injunction restraining the revision petitioner and police authorities from forcing him to hand over possession of the suit property, for declaration that he is the absolute owner of the suit property and also for a permanent injunction restraining the writ petitioner and the revenue authorities from transferring the patta in favour of the petitioner stating that he purchased the suit property in the year 1957 and the remaining property in 1958 from the original owner Krishnamachary; but the trial court, by a common judgment dated 22.12.2000, decreed the suit filed by the revision petitioner and dismissed all the suits filed by the 1st respondent. Challenging the same, the respondent filed A.S.No. 17 of 2001 against the dismissal of O.S.No. 819 of 1998. At the time when the appeal was ripe for hearing, the 1st respondent filed an application for impleading respondents 5 to 23 as party respondents in the main appeal on the ground (i) that the original owner of the suit schedule property Mr. Krishnamachary (from whom he claims to have purchased the property under oral sales) left behind 3 sons; (ii) that the 2nd respondent (from whom the petitioner claims to have purchased the property under a registered sale deed) is the wife of one of the sons of Krishnamachary (iii) that the proposed parties 5 to 23 are the legal heirs of the other 2 sons of Krishnamachary and (iv) that their presence is necessary for effective adjudication of the dispute between the parties. The appellate court allowed the application on the ground that their presence is necessary for deciding the actual dispute between the parties. Only in that background, this Court has held that the third party can also be impleaded in the relief sought to be made binding on him or when it is felt that he would be adversely affected by the outcome of the proceedings. So far as this case is concerned, this is a simple suit for specific performance filed by the plaintiff as against the defendants based on the agreement of sale. To decide the issue whether there is a breach of conditions in the sale agreement or whether the plaintiff was ready and willing to perform her part of the contract, the presence of the applicants is absolutely not necessary.

In V. Ravi @ P.V. Ravi Vs. V. Balakrishnan and Others , this Court has held that if the proposed parties claim some semblance of direct substantial right or interest in the property, they have to be heard in the suit for deciding the controversies. But the facts of that case are totally different from the case on hand. In the present case, the dispute raised by the applicants is only with regard to the title of the property and as observed above, they are not necessary parties to decide the issue involved in the suit for specific performance. In Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , the Hon''ble Apex Court held that transferee pendente lite can be added as a proper party if his interest in the subject matter of suit is substantial and not just peripheral. The said judgment is not applicable to the present case because the said case dealt with the purchase of the property pending suit and that is not the state of affairs in the present case.

In 2007-4-L.W.865 (supra), the Hon''ble Apex Court has held as follows:

Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi Vs. Iyyamperumal and Others, . He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchase of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.

A reading of the above judgment would show that a suit for specific performance was filed by the respondent in that case as against one Kapoor Chand stating that Kapoor Chand had entered into an agreement to sell the property in dispute to the plaintiff and in that agreement, Kapoor Chand stated that the said property was his self acquired property. During the pendency of suit, Kapoor Chand died and his wife and sons applied to be brought on record as legal representatives. After impleadment, they filed an application under Order 22 Rule 4(2) read with Order 1 Rule 10 C.P.C. that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them. The trial court rejected that application; against which, a revision was filed, which was dismissed by the High Court. Thereafter, they filed SLP before the Supreme Court. In that background, the Hon''ble Supreme Court has held that when it appears that the purchasers of the property in dispute were Kapoor Chand and his sons, it cannot be said that the legal heirs of Kapoor Chand have no semblance of title and are mere busybodies or interlopers and thus, allowed the appeal. But the factual aspects of the said case are totally different from the case on hand. It is well settled principle that each has to be decided upon the facts and circumstances of that case. So far as the present case is concerned, the applicants are disputing the title of the suit property stating that they are the owners of property and not the 1st defendant, which cannot be decided in the suit filed by the plaintiff for specific performance. Therefore in my considered opinion, they are not necessary parties.

It would be appropriate to refer the judgments relied on by the plaintiff and in fact, the dictum laid down in the said judgments give a fitting answer to this issue. In (2009) 7 MLJ 761 (supra), this Court has held as follows:

In Kasturi.vs. Iyyamperumal and Others (supra), the Hon''ble Supreme Court held as under:

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As noted herein earlier ,two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all.

The Hon''ble Supreme Court in the case of Bharat Karsondas Thakkar Vs. Kiran Construction Co. and Others, has held as follows:

21... This aspect of the matter has been dealt with in detail in Kasturi Vs. Iyyamperumal and Others, . While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character.

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23..... this Court held that since the plaintiff in the said matter was merely seeking the specific performance of an agreement of sale, any attempt to implead a third party to the contract in the suit would be hit by the provisions of section 15(a) of the Specific Relief Act, 1963. In fact, in Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, in a suit for specific performance, the respondent, who was not a party to the contract but wanted to be impleaded as a defendant on the ground that he had acquired subsequent interest as a co-owner by virtue of a decree obtained from the court, was held not entitled to be joined as defendant either under Order 1 Rule 3 or under Order 1 Rule 10(ii) of the Code having regard to the provisions of Sections 15 and 16 of the Specific Relief Act, 1963.

The principles enunciated in the above judgments are squarely applicable to the facts of this case. Under such circumstances, I am of the opinion that the question to be decided in the case for specific performance of contract of sale is only with regard to the enforcement of the contract entered into between the parties. But the proposed parties are disputing of the title of the defendants in the property claiming that they are the owners of the property. I am of the considered opinion that the applicants ought to have filed a separate suit for declaration of title and the issue cannot be brought in the suit filed by the plaintiff for specific performance. Under such circumstances, I hold that the applicants are not necessary parties to decide the controversy involved in the suit filed by the plaintiff.

For the reasons stated, the application fails and is dismissed.