http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: VIJAY PRATAP & ORS.

       Vs.

RESPONDENT: SAMBHU SARAN SINHA & ORS.

DATE OF JUDGMENT:       30/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   226        1996 SCALE  (5)805

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This  petition  is  against  an  order  dismissing  the application under  Order  1,  Rule  10,  CPC  filed  by  the petitioners to  come on record in place of their father. The suit was  laid for  specific performance  wherein the father during his  life  time  is  alleged  to  have  entered  into compromise  and  requested  to  delete  his  name  from  the arraignment of  the parties as respondent No.1. The deletion of the  first respondent  came to  be made after his demise. Pending  suit  before  compromise  memo  was  recorded,  the petitioners sought  to come on record under Order 1, Rule 10 being that they were necessary and proper parties. The trial Court recorded the finding that deletion had taken place and observed as under:      "At present  I am  not  giving  any      finding with  respect of  Ext-6 and      compromise petition in the light of      an objections raised by petitioners      in  their   other  two   petitions.      Simply  I  have  stated  the  facts      which are  available on  record. If      these petitioners  are made parties      in the  suit as prayed then dispute      will arise  between petitioners and      plaintiff  No.1   with  respect  of      compromise and  Ext-6.  Its  result      will be  that there will be dispute      between  the   co-plaintiffs   with      respect of  their right,  title and      interest  in  suit  property.  This      suit will turn into a regular title      suit. To  decide right,  title  and      interest of  co-plaintiffs in  suit      property is  beyond  the  scope  of      this   suit.   Suit   of   Specific      performance of  contract  Can’t  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

    turned into  a regular  Title Suit.      So, in my opinion these petitioners      are  not   necessary   and   proper      parties  under   Order  1  Rule  10      C.P.C.      The trial  Court accordingly  held that the petitioners are neither  necessary nor  proper parties  to the  suit. On revision, the  High Court  upheld the same. Shri Sanyal, the learned counsel  for the  petitioners contended  that  their father had  not  signed  the  relinquishment  deed  and  the signatures appended  to it were not that of him. The deed of relinquishment said to have been signed by the father of the petitioners was  not genuine. These questions are matters to be  taken   into  consideration   in  the  suit  before  the relinquishment deed  and compromise  memo between  the other contesting respondents were acted upon and cannot be done in the absence of the petitioners. The share of the petitioners will be  effected and,  therefore, it  would prejudice their right, title and interest in the property, We cannot go into these questions  at this  stage. The trial Court has rightly pointed  that  the  petitioners  are  necessary  and  proper parties so  long as  the alleged relinquishment deed said to have been  signed by  the deceased father of the petitioners is on  record. It may not bind petitioners but whether it is true or  valid or binding on them and all questions which in the  present   suit  cannot   be  gone   into.  Under  those circumstances, the  courts below  were right in holding that the petitioners are not necessary and proper parties but the remedy is  elsewhere. If the petitioners have got any remedy it is open to them to avail of the same according to law.      The special leave petition is dismissed.