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PETITIONER: DWARKA PRASAD SINGH & OTHERS

       Vs.

RESPONDENT: HARIKANT PRASAD SINGH & OTHERS

DATE OF JUDGMENT29/11/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. MATHEW, KUTTYIL KURIEN MUKHERJEA, B.K.

CITATION:  1973 AIR  655            1973 SCR  (2)1064  1973 SCC  (1) 179

ACT: Appeal--supreme   Court   --Abatement--Death   of   one   of respondents Legal representatives not impleaded  in  time- Appeal  whether abates as a  whole-Considerations-Order-  41 Rule 4 Code of Civil Procedure, applicability of.

HEADNOTE: G  (defendant First Party) sold a house to the plaintiff  in 1931  for  a consideration of Rs. 99,995, out of  which  Rs. 23,000 were paid to G. Subsequently G sold the house to  the defendants Second Party.  The plaintiff’s prayed in the suit for  (1) a decree for specific performance in favour of  the plaintiffs against defendants, and (2) in the alternative  a decree against defendant First Party for a sum of Rs. 44,688 with  interest.   The trial Court held  that  the  defendant First Party had broken the contract with the Plaintiffs  and that  defendants Second Party had failed to prove that  they had  paid the consideration money in good faith and  without notice  of  the  contract.  In the result  the  trial  court passed a decree for specific performance of contract of sale regarding  the disputed property for a sum of Rs.  1,00,000, and  the defendants were directed to execute and register  a deed  of  sale for the sale in favour of the  plaintiffs  on payment  of  the balance of the price.   The  court  further observed  that if it had refused the main relief claimed  by the  plaintiffs it would have allowed the alternative  plea. The appeal of the defendants Second Party in the High  Court abated  as  a  result of the non-impleadment  of  the  legal representatives  of  one of the appellants  who  died.   The defendants  Second  Party filed an appeal in this  Court  by special leave., During the pendency of the appeal G who  was impleaded  as  respondent  No.  3  died.   The  advocate  of respondent  No.  1 to the appeal filed  an  application  for dismissal  of  the appeal for non-prosecution as  the  legal representatives  of deceased respondent No. 3 had  not  been brought on record.  The appellants then moved an application for substitution of the legal representatives of G  deceased end  subsequently moved another application for  condonation of   delay.   The  Court  dismissed  the   application   for substitution.   It  was urged on behalf of  the  respondents that the appeal had abated as a whole, The appellants on the

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other  hand  contended that (i) the  appeal  could  continue against  the remaining respondents as G was not a  necessary party,  and (ii) the decree of the trial court could be  set aside on the basis of the provision in order 41 Rule 4  Code of Civil Procedure. Dismissing the appeal, HELD : (i) It is difficult to sustain the argument that  the vendor is not a necessary party when, according to the  view accepted by this Court, the conveyance has to be executed by him although the subsequent purchaser has also to join so as to pass on the title which resides in him to the plaintiffs. If  there  are any special covenants and  conditions  agreed upon in the contract for sale between the original purchaser and  the  vendor those have to be incorporated in  the  sale between the original purchaser and the vendor although it is only the vendor who will enter into them and the  subsequent purchaser  will not-join in those special  covenants,.   But without the vendor joining in the execution of the sale deed special 106 5 covenants,  if any, between him and the  original  purchaser cannot be incorporated in the sale deed. The  whole  idea  and the purpose underlying  a  decree  for specific  performance is that if a decree for such a  relief is  granted  the  person  who has  agreed  to  purchase  the property,  should  be put in the same position  which  would have obtained in case the contracting parties, i.e.,  vendor and  purchaser  had, pursuant to the agreement,  executed  a deed of sale and completed it in every way.  Therefore it is essential that the vendor must join in the execution of  the sale deed.  If that be so, it is not possible to  comprehend how  he  is  not a necessary party.  At  any  rate,  in  the presence of the relief for a decree for refund of the amount paid  by way of Dart consideration in the present case,  the vendor would be a necessary party.  No such relief could  be granted  in his absence nor could it be granted even if  the appeal succeeded and the decree for specific performance was set aside. [1070 A] Gourishankar- & Others v. Ibrahim Ali, A.I.R. 1929 Nag. 298, Kafiladdin & Others v. Samiraddin & Others, A.I.R. 1936 Cal. 67, Lala Durga Prasad & Another v. Lala Deep Chand & Others, [1954] S.C.R. 360 and R. C. Chandiok & Another v. Chuni  Lal Sabharwal & Others, [1971] 2 S.C.R. 573 referred to. (ii) There  was  a joint decree in favour of  both  sets  of defendants for the receipt of Rs. 77,000.  If the decree for specific  performance was set aside that part of the  decree would  also  have  to go.         It  was  not  possible  to understand  how  that could be done in the  absence  of  the legal  representatives  of  the deceased  G.  Moreover,  the plaintiffs  had  claimed against G, in  the  alternative,  a decree  for  substantial  amount  consisting  of  the   part consideration paid and certain other amounts. if G had  been alive or if his legal representatives had been impleaded  in time  the  court could, while setting aside the  decree  for specific performance, grant the alternative prayer which was only  made against G. This could not be done now.  in  these circumstances Order 4, Rule 4 of the Code of Civil Procedure could not be of any avail to the appellants.  The  abatement of the appeal, so far as G was concerned, would prove  fatal to   the   entire   appeal  as   either   inconsistent   and contradictory  decrees  would have to be  passed  or  proper reliefs  could not be granted in the absence of a  necessary party against that party or his legal representatives. [1072 B] Rameshwar Prasad & Others v. M/s Shyam Beharilal Jagannath &

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Others,  [1964] 3 S.C.R 549, Panjab v. Nathu Ram,  [1962]  2 S.C.R.  636  and Pandit Siri Chand & Others v.  M/s  Jagdish Parshad Kishin Chand & Others, [1966] 3 S.C.R. 451  referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2203  of 1969. Appeal  by special leave from the judgment and  order  dated April  8,  1958  of  the Patna High  Court  in  Appeal  from Original Decree No. 17 of 1948. S.   T. Desai, and R. C. Prasad, for the appellants. L.   N.  Sinha,  Solicitor-General of India,  D.  P.  Singh, Madhu Sudan Singh and S. C. Agarwal, for respondent No. 1. V.   J. Francis, for respondent No. 2. 1066 The Judgment of the Court was delivered by GROVER,  J.   This  is an appeal by  special  leave  from  a judgment  of  the Patna High Court in a  suit  for  specific performance  of  a contract for sale of  certain  properties described in Schedule 1 of the plaint. The  facts  to the extent they are material may  be  stated. The  suit  which  was filed by Babu Thakur  Prasad  Singh  & others in 1943 was on the basis of a contract for sale  made in  1931 by Saroda Charan Guha  (deceased)-defendants  First Party  in the suit and Babu Ambika Prasad Singh and  others- defendants  second party to whom defendant first  party  had actually  sold the properties in dispute.  It  was  alleged, inter alia, in the plaint that the total sale  consideration was Rs. 99,995/-.  Out of that sum, Rs. 23,000/- had already been  paid to defendant first party.  It was further  stated that  defendant second party in spite of full  knowledge  of the agreement between the plaintiffs and the defendant first party  purchased  the suit properties  for  Rs.  1,63,400/by means of a deed of sale dated December 11, 1942.  Among  the reliefs which were prayed for were for a decree for specific performance being passed in favour of the plaintiffs against the defendants on payment of a sum of Rs. 55,306.25 paise or such  other amount as the court might determine and if,  for any reason, such a decree be not granted a decree for a  sum of  Rs.  44,688/- with interest at 6% from the date  of  the suit  till  the date of the realisation  be  passed  against defendant first party. A  written statement was filed on behalf of  the  defendants first  party.  Therein he admitted receipt of a sum  of  Rs. 15,000/-  only  by way of payment as earnest money  or  part consideration.   The defence of defendants second party  was that  being  bona fide purchaser for value and  having  paid full  consideration in good faith and without notice of  the alleged  contract of sale set up by the plaintiffs the  suit was  liable  to be dismissed.  The trial court  decided  the suit  by  a  judgment dated October 10, 1947.   Out  of  the issues framed on the pleadings of the parties the  following need be mentioned :               "5. Are the plaintiffs guilty of breach of any               of the terms embodied in the agreement.               6.    Are  defendants second party  bona  fide               purchasers for consideration without notice ?               7.    Are  the  plaintiffs entitled to  get  a               refund  of the amount alleged by them to  have               been  paid to defendant first party or of  any               other amount ?" It  was  found on issue No. 5 that the plaintiffs  were  not

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guilty of breach  of the terms embodied in the agreement of  sale  and that it 1067 was  defendant  first party who had "played false  with  the plaintiffs and sold the disputed property along with  others to  defendants  second party in December 1942.   The  entire liability  for the breach of plaintiff’s contract lies  upon Mr.  Guha and not on the plaintiffs.  The three  issues  are answered accordingly".  On issue No. 6 the trial court  held that  defendant second party_ had failed to prove that  they had  paid the consideration money in good faith and  without notice  of the contract of 1931.  On issue No. 7  the  court observed  that it was unnecessary to consider in detail  the alternative relief prayed for.  It proceeded to say :               "  I  may, however,  incidentally  mention  in               passing that if I would have refused to decree               the main relief of the plaintiffs there  would               have  been no difficulty in my way in  passing               decree  for  the  alternative  claim   against               defendant  first  party on  account  of  whose               conduct  the  completion of the sale  deed  in               favour   of  the  plaintiffs  has  been   made         X       X impossible".               Finally a decree for specific performance  was               granted in these               terms :               "  The  plaintiffs  shall  get  a  decree  for               specific  performance  of  contract  of   sale               regarding   the   disputed  property   for   a               consideration of Rs. 1,00,000.  The defendants               are directed to execute and register a deed of               sale for the same in favour of the  plaintiffs               on payment of Rs. 77,000 by the latter to  the               former  and also put the latter in  possession               of the same". Three  appeals were preferred to the High Court against  the judgment  and  decree of the trial court.  One  was  by  the defendant  first party, the other by the plaintiffs and  the third  by defendants second party.  It appears that  neither the  plaintiffs nor defendants first party prosecuted  their appeals   which  were  dismissed  on  the  ground  of   non- prosecution.  In the appeal filed by defendants second party one of the appellants Ambica Prasad Singh died in June 1956. On September 17, 1956 an application was filed by the  other appellants for substitution of the legal representatives  of the deceased in his place.  The High Court, after having  an inquiry on the questions in dispute with regard to the  date of death of Ambica Prasad Singh and other matters,  declined to  condone the delay.  On September 27, 1957 an  order  was made recording the fact that the appeal had abated so far as the  appellant Ambica Prasad Singh was concerned.  On  April 8, 1958 the High Court held that the whole appeal failed  as having  become  incompetent because of the  said  abatement. The appeal was consequently dismissed. 1068 The appeal which was brought to this Court was filed by  de- fendant second party consisting of defendants 3 to 8 in  the original  suit.  Special leave was granted on  February  18, 1959.   During  the pendancy of that appeal  in  this  Court Saroda  Charan Guha original first party defendant  who  was impleaded  as respondent No. 3 in the appeal to  this  Court died.  It was only on February 23, 1972 that an  application was made by the counsel for the appellants for  substitution

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of the legal representatives of Saroda  Charan Guha deceased (C.M.P. 1501/72).  Previous to this     an application dated February 13, 1972 had already been moved     by the advocate for respondent No. 1 for dismissal of the appeal  for   non- prosecution   as  the  legal  representatives  of   deceased respondent No. 3 had not been brought on the record; (C.M.P. 810/72).  On April 24, 1972 another application was filed by counsel for the appellants for condonation of delay, if any, in  filing  the application for substitution  of  the  legal representatives  of  deceased Saroda  Charan  Guha;  (C.M.P. 3091/72).  After hearing counsel at length we made an  order on   November  17,  1972  dismissing  the  application   for substitution. The only question which has to be determined is whether  the appeal can be heard and disposed of in the absence of  legal representatives  of  the deceased Saroda  Charan  Guha  with regard  to  whom  the decree as passed by  the  trial  court became final.  The learned Solicitor-General who appears for the  contesting  respondent has maintained that  the  decree which  was  passed  by the trial court was  a  joint  decree against  the  defendant  first party  and  defendant  second party.  It was further a decree which was also in favour  of the defendants to the extent that they were to be paid a sum of Rs. 77,000/- by The plaintiffs and that payment was to be made  jointly to them.  In other words the decree being  for specific  performance of a contract was of a special  nature and  it was essentially joint so far as all  the  defendants were concerned.  Moreover defendant first party who was  the vendor  was a necessary party because the  plaintiffs  asked for  a  relief  in the alternative which  has  already  been mentioned,  that if the court on equitable grounds  did  not grant  a decree for specific performance a decree be  passed against  defendant first party in the sum of  Rs.  44,688.75 paise.  The trial court found that a sum of Rs. 23,000/- had been paid by the plaintiffs to Guha defendants first  party. It was further observed by the trial court that if the  main relief had been declined it would have granted a decree  for the  alternative  claim against defendant first  party.   It followed from this that if the High Court or this Court  was going  to allow the appeal filed by defendants second  party and  set aside the decree for specific performance it  would no   longer   be   possible  in   the   absence   of   legal representatives of deceased 1069 Guha  to  either set aside that part of  the,  joint  decree which  is  in his favour but also the  plaintiffs  would  be disabled  from being granted any relief in  the  alternative for  the  amount paid by way of part  consideration  to  the vendor  Guha  deceased.   In  these  circumstances,  it   is contended,  the present appeal must be held to. have  become incompetent and it must fail on that ground. Counsel for the appellants has relied on two points in  sup- port of the argument that the appeal cannot fail because  of the  non-impleadment  of the legal representatives  of  Guha deceased.   The first is that he was not a  necessary  party being  the vendor and the second is that the case  would  be covered  by  the  provisions  of  O.41,  R.4  of  the  Civil Procedure Code.  There appears to be some divergence between the  High  Courts  on the question whether  in  a  suit  for specific  performance against a purchaser with notice  of  a prior  agreement of sale the vendor is a necessary party  or not.  In other words the conflict has arisen on the question whether  the decree in a suit for specific performance  when the  property  in  dispute has been sold to  a  third  party should be to only direct the subsequent purchaser to execute

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a  conveyance  or whether the subsequent purchaser  and  the vendor  should  both execute a conveyance in favour  of  the plaintiff : See Gourishankar & Others v. Ibrahim Ali(1)  and Kafiladdin  & Others v. Samiraddin & Others(2).  This  Court has,  however, held in Lala Durga Prasad & Another  v.  Lala Deep  Chand  &  Others(3) that in a  suit  instituted  by  a purchaser against the vendor and a subsequent purchaser  for specific performance of the contract of sale the proper form of  the  decree  is to direct specific  performance  of  the contract  between the vendor and the plaintiff  and  further direct  the subsequent transferee to join in the  conveyance so  as  to  pass on the title which resides in  him  to  the plaintiff.   This  was the course followed by  the  Calcutta High Court in the above case and it appears that the English practice was the same.  Thus according to this decision, the conveyance has to be executed by the vendor  in  favour  of’ the plaintiff who seeks specific performance of the    contract in his favour and the subsequent transferee has to join in the conveyance only to pass his title- which resides in him. It   has been made quite clear that he does not join in  any special   covenants  made  between  the  plaintiff  and  his vendor.All that he  does  is  to pass on his  title  to  the plaintiff.   In  a recent decision of this Court  in  R.  C. Chandiok  & Another v. Chunni  Lal Sabharwal & Others  (4  ) while  passing  a  decree  for  specific  performance  of  a contract  a direction was made that the decree should be  in the same form as in Lala Durga Prasad’s(3) (1)  A.I.R. 1929 Nag. 298. (2) A.I.R. 1931 Cal. 67. (3) [1954] S.C.R, 360, (4) [1971] 2. S.C.R. 573. 1070 case.  It is thus difficult to sustain the argument that the vendor is not a necessary party when, according to the  view accepted by this Court, the conveyance has to be executed by him although the subsequent purchaser has also to join so as to pass on the title which resides in him to the  plaintiff. It  must  be  remembered  that  if  there  are  any  special covenants  and  conditions agreed upon in the  contract  for sale  between  the original purchaser and the  vendor  those have to be incorporated in the sale deed although it is only the  vendor  who  will enter into them  and  the  subsequent purchaser  will  not join in those special  covenants.   But without the vendor joining in the execution of the sale deed special covenants, if any, between him and the original pur- chaser  cannot be incorporated in the sale deed.  The  whole idea  and  the  purpose underlying  a  decree  for  specific performance  is  that  if a decree for,  such  a  relief  is granted  the person who has agreed to purchase the  property should be put in the same position which would have obtained in  case  the  contracting parties,  i.e.,  vendor  and  the purchaser had, pursuant to the agreement, executed a deed of sale  and  completed  it in every  way.   Therefore,  it  is essential that the vendor ’Must join in the execution of the sale deed.  If that be so, it is not possible to  comprehend how  he  is  not a necessary party.  At  any  rate,  in  the presence of the relief for a decree for refund of the amount paid  by  way of part consideration the vendor  would  be  a necessary  party.   No such relief could be granted  in  his absence  nor  can  it  be granted now  even  if  the  appeal succeeds  and  the decree for specific  performance  is  set aside. The  second limb of argument of the appellants is  based  on Order  41, Rule 5, Civil Procedure Code.  According to  that rule where there are more plaintiffs or more defendants than

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one  in a suit and the decree appealed from proceeds on  any ground  common to all the plaintiffs or all  the  defendants any one of the plaintiffs or the defendants may appeal  from the  whole  decree  and thereupon the  appellate  court  may reverse  or vary the decree in favour of all the  plaintiffs or  defendants, as the case may be.  As the appeal had  been filed  by  defendants second party, it has  been  contended, that  it  remained complete and competent in spite  of  the death  of Guha, defendant first party, for the  reason  that the  decree  proceeded  on  a  ground  common  to  all   the defendants.  It appears that there was conflict of  judicial opinion  on  the  question whether the said  rule  could  be invoked when one of the several appellants had died and  his legal  representatives  had not been brought on  the  record with the result that the appeal had abated against him.  But this matter stood concluded by the decision of this Court in Rameshwar Prasad & 1071 Others v. M/s Shyam Beharilal Jagannath & Others(1). In that case the appeal had been filed in the High Court not by  any one  or some of the plaintiffs against the whole decree  but had  been filed by all the plaintiffs jointly.  One  of  the appellants  died  and  his legal  representatives  were  not impleaded.   It was laid down by this Court that  Order  41, Rule 4 could not be invoked because the appellate court  had no power to proceed with the appeal and to reverse and  vary the  decree  in favour of all the plaintiffs  or  defendants under that rule because if all the plaintiffs or  defendants had  appealed from the decree and any one of them  had  died the appeal had abated so far as he was concerned under Order 22, Rule 3. The appeal of the surviving appellant could also not  be heard because of the rule laid down in the State  of Punjab  v.  Nathu  Ram  (2).According   to  that  rule   the abetement  of  an  appeal means not  only  that  the  decree between the. appellant and the deceasedrespondent,becomes final but also, as,      a necessary corollary, theappellate court  cannot  in  any way modify that  decree  directly  or indirectly.   The decision in Nathu Ram’s case  (supra)  was referred  to  in Pandit Siri Chand & Others v.  M/s  Jagdish Parshad  Kishan Chand & Others (3 ) where the  decision  was somewhat similar to Rameshwar Prasad’s case (supra).  It was also  emphasised that in a situation where two  inconsistent orders, or decrees would result the rule in Nathu Ram’s case would be applicable.  It may be mentioned that in that  case an award had been made for payment of compensation in favour of two brothers L. & N. The State appealed against the award to  the  High  Court.  During the  pendency  of  the  appeal respondent  L died and no application was made for  bringing on  record his legal representatives within  the,  requisite period  of  limitation.   The question was  that  since  the appeal  had abated against L what was its effect  in  appeal against  N. It was ob. served that the  consideration  which would  weigh with the court in deciding whether  the  entire appeal had abated or not would be whether the appeal between the  appellants and the respondents other than the  deceased respondent could be said to be properly constituted or could be  said to have all the necessary parties for the  decision of the controversy before the court.  Another main test  was whether  the success of the appeal would lead to a  decision which  would  be in conflict with the decision  between  the appellant and the deceased respondent.  Thus the court  will have,  to pass a decree contradictory to the, one which  had already become final with respect to the same subject matter between  the appellant and the deceased respondent.   It  is arguable  that the present case is distinguishable from  the

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decisions  in Rameshwar Prasad and Pt.  Siri Chand  (supra). Here  the appellate court could, under Order 41, Rule  4  of the Civil Procedure Code. (1) [1964] 3 S.C.R. 549.  (2) [1962] 2 S.C.R. 636. (3) [1966] 3 S.C.R. 451. 1072 reverse  the  decree  for  specific  performance  since  the defendants  second  party  filed the appeal  and  Guha,  the vendor  who died, had not joined in the appeal.  The  decree for  specific  performance proceeded on a ground  common  to both sets of defendants.  It ,could, therefore, be set aside in  terms  of  the above provision.  But there  is  a  joint decree in favour of both sets of defendants for the receipt of Rs. 77,000/-.  If the decree for specific performance  is set aside that part of the decree will also have to go.   It is  not possible to understand how that can be done  in  the absence of the legal representatives of the deceased,  Guha. More,over,  the plaintiffs had claimed against Guha, in  the alternative,  a decree for substantial amount consisting  of the  part consideration paid and certain other amounts.   If Guha had been alive or if his legal representatives had been impleaded  in time the court could, while setting aside  the decree  for  specific  performance,  grant  the  alternative prayer  which  was only made against Guha.  This  cannot  be done  now.  In these circumstances we are of the  view  that order 41, Rule 4 of the Code of Civil Procedure cannot be of any avail to the appellants.  The abatement of the   appeal, so far as Guha was concerned, will prove fatal to the entire appeal as either inconsistent and contradictory decrees will have to be passed or proper reliefs cannot be granted in the absence of a necessary party against that party or his legal re-presentatives. The  appeal  is dismissed but there will be no order  as  to costs. G.C.                          Appeal dismissed. 1073