Madhya Pradesh High Court
Kishori Lal And Others vs Gopal And Others on 12 September, 2017
(1) FA 213/2000
HIGH COURT OF MADHYA PRADESH AFR
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
FA 213/2000
Kishorilal (Dead) through LRs & Others
Vs.
Gopal and Others
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Shri Santosh Agrawal, counsel for the for the appellants.
Shri KN Gupta, Senior Counsel with Shri Pawan Vijaywargiya, counsel
for the respondent No.1.
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JUDGMENT
(Delivered on 12 /09/2017) This First Appeal under Section 96 of Civil Procedure Code has been filed against the judgment and decree dated 18-10-2000 passed by District Judge, Sheopurkalan, in Civil Suit No. 5-A/1992.
(2) A preliminary objection has been raised by the Counsel for the respondent no.1 to the effect that this appeal has abated and it was prayed that instead of considering the appeal on merits, the question with regard to abatement of appeal may be decided first. Accordingly, by this order, the preliminary objection of abatement of appeal is being decided. (3) The necessary facts for the disposal of the preliminary objection in short are that the respondent no. 1 initially filed a suit for declaration and injunction against Kishorilal and others. However, during the pendency of the Civil Suit, Kishorilal, executed a sale deed in favour of the appellants no.2 and 3 and accordingly, the plaint was amended and not only the appellants no.2 and 3 were impleaded as defendants, but a relief of specific performance of contract was also incorporated. (4) It is the case of the plaintiff/respondent no.1 that Kishorilal had executed an agreement to sell the house in dispute (in short "disputed (2) FA 213/2000 property") by agreement dated 15-3-1988 for a consideration of Rs.1,80,000, out of which an amount of Rs. 25,000 was received by Kishorilal by way of advance. The plaintiff/respondent no.1, was already a tenant of the disputed property. Thereafter, the plaintiff/respondent no.1, filed a suit for declaration of title and permanent injunction against Kishorilal and others, however, during the pendency of the civil suit, Kishorilal sold the disputed property to appellants no. 2 and 3. Accordingly, the suit was amended, the appellants no. 2 and 3 were also impleaded as defendants, and a prayer for specific performance of contract was also incorporated.
(5) The Trial Court after recording evidence of the parties, and hearing all the necessary parties, decreed the suit and passed a decree of specific performance of Contract against the vendor Kishorilal and the sale deed executed in favour of the appellants no. 2 and 3 was declared as null and void against the plaintiff/respondent no.1. (6) Being aggrieved by the judgment and decree passed by the Trial Court, the original vendor Kishorilal, as well as the subsequent purchasers, appellants no. 2 and 3 filed a joint First Appeal. (7) During the pendency of the appeal, the original vendor, Kishorilal expired on 17-12-2005. An application for substitution of his legal heirs was filed which was allowed by order dated 7-7-2006 and the Legal Representatives of the original vendor Kishorilal, namely Suresh, Murari, Omprakash and Sitabai were brought on record as appellants. The necessary amendment was also carried out.
(8) It appears that thereafter, appellant no. 1(2) Murarilal also expired on 22-7-2007. Instead of bringing the legal representatives of appellant no. 1(2) Murarilal on record, an application (I.A. No. 17118/2010) was filed by the appellants, praying for deleting the name of appellant no. 1(2) Murarilal on the ground that the appellants no.2 and 3, being the subsequent purchasers are the legal representatives of original Vendor and they are already on record. The said application was allowed by this Court by order dated 9-5-2011, which reads as under :
'' 9-5-2011 (3) FA 213/2000 Parties through their Counsel.
Heard on I.A. No. 17118/2010, which is an application under Order XII rule 2, 4(4) and under Section 11 of CPC for deleting the name of appellant no.1 who has died and sold the suit property to appellant no. 2 and 3 who are his legal representatives.
Considering the averments made in the application, the same is allowed at the risk and cost of the appellants. The name of appellant no.1 be deleted from the array of cause title within one week.'' The appellants, accordingly, deleted the name of the appellant no. 1(2) Murarilal from the array of cause title.
(9) It appears that thereafter, the respondent no. 1 filed an application for dismissing the appeal on the ground that as the appellants has not brought the legal representatives of the appellant no. 1(2) Murarilal on record. The said application was registered as I.A. No. 2667/2011. I.A. No. 2667/2011 was dismissed by this Court by order dated 4-3-2013 reads as under :
''4-3-2013 Parties through their Counsel.
Heard on I.A. No. 2667/2011, which is an application filed on behalf of respondents for treating the appeal as abated as the legal representatives of appellant Kishorilal have not been brought on record.
Learned Counsel for the appellants submitted that appellants no. 2 and 3 have already been brought on record as Legal Representatives of appellant Kishorilal vide order dated 9-5-2011 on the gruond that the disputed property has been sold by Kishorilal to appellants no. 2 and 3 therefore, appellants no. 2 and 3 who are purchasers lis pendense are legal representatives of appellant Kishorilal as the property has been purchased by them and legal heirs of appellant Kishorilal have no right, title or interest in the disputed property.
Since the Legal Representatives of appellant Kishorilal who are having the right, title and interest over the disputed property are already on record being appellants No. 2 and 3, therefore, it cannot be said that the appeal has abated.
Appellants may implead other legal heirs of appellant Kishorial as Legal Representatives if they are necesssary (4) FA 213/2000 party in the appeal.
List the case for final hearing in due course.'' (10) It appears that thereafter sensing some Legal difficulty, the appellants filed an application under Order XXII Rule 4 C.P.C. read with Order 1 Rule 10 C.P.C. for bringing the Legal Heirs of Murarilal on record as proforma respondents. I.A. No. 1438/2013 was allowed by this Court by order dated 3-5-2013 which reads as under :
''03-05-2013 Parties through their counsel.
Heard on I.A. NO. 1438/2013 which is an application under Order XXII Rule 4 C.P.C. and 11 and under Order 1 Rule 10 of CPC for deleting the name of original appellant no.1 as he has sold the property to appellant no.2 and 3 and to bring the L.R.s of appellant no. 1(2) on record. Other L.R.s of appellant no. 1(2) are on record, therefore, there is no abatement of appeal. Let the necessary amendment be carried out within 7 days of appeal. Let the necessary amendment be carried out within 7 days from today. List the case for final hearing in Second Week of July, 2013.'' (11) It is submitted by the Counsel for the respondent no.1 that the abatement of a suit/appeal is automatic and takes place by operation of law and no formal order is required. The subsequent purchaser cannot be treated as Legal Representative of the original vendor in the light of peculiar fact that the present case is that of specific performance of Contract and a decree is required to be drawn against the original vendor for executing a sale deed in favour of decree holder with a direction to the subsequent purchaser to join the sale deed. Therefore, it cannot be said that the subsequent purchaser is the legal representative. The legal representatives of the original vendors are to be brought on record, which has not been done, and accordingly, the appeal as filed by the appellants has stood abated as whole on the ground of non-bringing the legal representatives of appellant no.1(2) Murarilal on record. It is further submitted that on earlier occasion, this Court while allowing the prayer for deleting the name of the appellant no. 1(2) Murarilal, had observed that the name of appellant 1(2) be deleted at the risk and cost of the appellants. On subsequent dates, the effect of death of appellant no.1 (2) (5) FA 213/2000 Murarilal was not taken into consideration, and the application for dismissal of appeal as having abated was rejected under the impression that original vendor has expired. As the legal representatives of Original Vendor Kishorilal were already brought on record, therefore, there was no question of abatement of appeal. It is further submitted that after the name of appellant no.1(2) Murarilal was already deleted from the array of cause title, then his Legal Representatives cannot be brought on record under Order XXII Rule 4 C.P.C. and the only remedy available with the appellants was to implead the legal representatives of appellant no.1(2) Murarilal under Order 1 Rule 10 C.P.C. and therefore, the question of limitation would also arise. It is submitted that as the effect of death and deletion of name of appellant no.1(2) Murarilal was never considered and as the appeal had already stood abated, therefore, any order passed on earlier occasion would not apply as res judicata. The effect of death of appellant no.1(2) Murarilal and the consequence of deletion of his name has not been considered so far, therefore, the same may be considered afresh.
(12) It is submitted by the Counsel for the appellants that after the execution of the sale deed in favour of the subsequent purchaser, the subsequent purchaser steps into the shoes of the original vendor and therefore, in its true sense, the subsequent purchaser is the legal representative of the original vendor and the legal heirs of the original vendor are not required to be impleaded in the appeal. It is further submitted that as the question of abatement has already been decided by this Court on earlier occasion, therefore, the same cannot be reopened as the same was not challenged before the Superior Court. (13) Heard the learned Counsel for the parties. (14) The moot question for determination is that whether the legal representative of the original vendor is a "necessary party" or merely a "proper party" as the subsequent purchaser who claims himself to be a bona fide purchaser was already on record.
(15) "Necessary party" means a party in whose absence, an effective decree cannot be passed by a Court, and if the necessary party is (6) FA 213/2000 not impleaded then the suit itself is liable to be dismissed. Whereas 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 disputes in the suit, though he need not be a person in favour or against whom the decree is to be made. (16) The Supreme Court in the case of Mumbai International Airport (P) Ltd., Vs. Regency Convention Centre & Hotels (P) Ltd.
reported in (2010) 7 SCC 417 has held as under -
''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 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.'' (17) Thus, the question for determination is that whether the Legal Representatives of the original vendor are "Necessary Party"or "Proper Party".
(18) In a case of Specific Performance of Contract, a decree is to be drawn between the vendor and the plaintiff and by making the subsequent transferee to join in the conveyance so as to pass on the title to the plaintiff. The subsequent purchaser cannot claim himself to be a legal representative within the meaning of Order 22 Rule 4 of Cr.P.C. My view is fortified by the judgments passed in Durga Prasad Vs. Deep Chand, AIR 1954 SC 75, Ramesh Chandra Chandiok and others Vs. Chunnilal Sabharwal (Dead) through his Legal heirs, AIR 1971 SC 1238, Chhotamal Hariram Vs. Dilip Kumar Chatterjee, AIR 1976 Cal (7) FA 213/2000 337, Manni Devi Vs. Ramayan Singh AIR 1985 Pat 35 Kasturi Vs. Iyyamperumal (2005) 6 SCC 733, Srinivasaiah Vs. H.R. Channabasappa passed in C.A. No. 5576-5577 of 2017 on 25-4-2017.
In the case of Durga Prasad (Supra), it has been held by the Supreme Court as under :
''36.Now arises a question which touches the Custodian U. P. The contract was for Rs. 62,000. The plaintiff paid Rs.10,000 as earnest money but this was later returned, so Rs. 62,000 is still due. But there is a conveyance outstanding in favour of the appellants for which they have paid, according to their case. Rs. 58,000. If the Rs. 62,000 due to the Nawab is paid to him, or to the Custodian U. P. who represents his estate, it is evident that the Nawab, who is at fault, will be paid twice over for the same property and his estate will benefit accordingly while the appellants will be left of pursue their remedies against the Nawab or his estate. The question is whether we have power to direct that the Rs. 58,000 be paid to the appellants instead of to the Nawab and thus obviate further, and possibly fruitless, litigation. But before we decide that, we will consider another question which is bound up with it, namely the proper form of decree in such cases.
37.The practice of the courts in India has not been uniform and three distinct lines of thought emerge. (We are of course confining our attention to a 'purchaser's suit for specific performance.) According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the plaintiff and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchase alone.
38.The only statutory provisions which bear on this point are section 91 of the Indian 'Trusts Act. 1882, section 3 of the Specific Relief Act, 1877 illustration
(g) and section 27 of that Act, and section 40 of the Transfer of Property Act.
39.Section 91 of the Trusts Act does not make subsequent purchaser with notice a trustee properly so called but saddles him with an obligation in the nature of a trust (because of section 80) and directs that he must hold the property for the benefit of the prior "contractor", if we may so describe the plaintiff, "to the extent necessary to give effect to the contract". Section (8) FA 213/2000 3 illustration (g) of the Specific Relief Act makes him a trustee for the plaintiff but only for the purpose of that Act. Section 40 of the Transfer of Property Act enacts that this obligation can be enforced against a subsequent transferee with notice but not against one who holds for consideration and without notice. Section 27 of the Specific Relief Act does not carry the matter any further.
All it says is that specific performance may be enforced against "(a) either party thereto;(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract." None of this helps because none of these provisions directly relate to the form of the decree. It will, therefore, be necessary to analyse each form in the light of other provisions of law.
40.First, we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier "contractor". As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance to the vendor was ordered but Sulaiman C. J. adopted the other course in -'Kali Charan v. Janak Deo, A. I. R. 1932 All 694: (B). He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring in its train complications between the vendor and the subsequent purchaser. There may be convenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution.
41.We are not enamoured of the next alternative either, namely conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of the vesting the title to the property in the plaintiff but it might be inequitable to compel the subsequent transfree to enter into terms and convenants in the vendor's agreement with the plaintiff to which he would never have agreed had he been a free agent; and if the original contract is varied (9) FA 213/2000 by altering or omitting such terms the court will be remaking the contract, a thing it has no power to do; and in any case it will no longer be specifically enforcing the original contract but another and different one.
42.In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - Kafiladdin v.
Samiraddin', A. I. R. 1931 Cal 67 (C), and appears to be the English practice. See Fry on specific Performance, 6th Edn. page 90, paragraph 207; also - 'Poter v. Sanders', (1846) 67 ER 1057 (D). We direct accordingly.'' The Supreme Court in the case of Srinivasaiah (Supra) by relying on the judgment passed in the case of Durga Prasad (Supra) has held as under :-
''38. The question arose before this Court in the case of Durga Prasad & Anr. vs Deep Chand & Ors., AIR 1954 SC 75 as to what form of decree should be passed in the case of specific performance of contract where the suit property is sold by the defendant, i.e., the owner of the suit property to another person and later he suffers a decree for specific performance of contract directing him to transfer the suit property to the plaintiff in term of contract.
39. The learned Judge-Vivian Bose, J. examined this issue and speaking for the Bench in his inimitable style of writing, held as under: "Where there is a sale of the same property in favour of a prior and subsequent transferee and the subsequent transferee has, under the conveyance outstanding in his favour, paid the purchase-money to the vendor, then in a suit for specific performance brought by the prior transferee, in case he succeeds, the question arises as to the proper form of decree in such a case.
The practice of the Courts in India has not been uniform and three distinct lines of thought emerge. According to one point of view, the proper form of decree is to declare the subsequent purchase void as (10) FA 213/2000 against the prior transferee and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone.
According to the Supreme Court, the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. He does not join in any special covenants made between the prior transferee and his vendor; all he does is to pass on his title to the prior transferee."
(19) Thus, it is clear that the proper form of decree is to direct execution of sale deed by the vendor in favour of the plaintiff with a direction to subsequent transferee to join in the conveyance so as to pass on the title to the plaintiff. Therefore, it is held that the Legal representatives of Vendor are "Necessary Party" because in their absence, no effective decree can be passed in the case of Specific Performance of Contract.
(20) It is submitted by the Counsel for the appellants that assignees of a property in certain circumstances would be the legal representatives of the assignor, not generally but in respect of the property assigned. It is submitted that generally the legal heirs of the vendor generally do not retain any interest, because either the decree would be passed in favour of the subsequent purchaser or in favour of the plaintiff, but in any case, the vendor or his legal heirs are not going to gain anything out of the litigation.
(21) In a suit for specific performance of contract, a peculiar situation arises. The primary obligation in a contract for sale of property by executing a sale deed is always on the vendor and accordingly is passed on to its legal representatives. Earlier there were divergent views that what should be the nature of decree of specific performance of Contract in such a situation. One view was to declare the subsequent sale void and to direct the original vendor to execute the sale deed in favour of the original contractor. Second view was to direct both the vendor and (11) FA 213/2000 the subsequent purchaser to join in the document of conveyance as directed by a decree and the third view was to direct the subsequent purchaser to execute the sale deed in favour of the original contractor. (22) In the case of Durga Prasad (Supra), the Supreme Court held that the proper form of decree would be to direct the subsequent purchaser to join in the conveyance so as to pass on the title which resides in him to the successful plaintiff. Thus, it is clear that the primary duty is of the vendor to execute the sale deed in favour of the successful plaintiff with a direction to the subsequent purchaser to join the covenant. The subsequent purchaser is joined simply to pass on title to the successful plaintiff. After considering the nature of decree which is to be passed in a case of Specific Performance of Contract, the question is that in the eventuality of death of vendor, whether his legal heir would be legal representative or not? There is difference between legal heir and legal representative.
Order 22 Rule 4 C.P.C. reads as under :-
''4. Procedure in case of death of one of several defendants or of sole defendant.-- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing;
and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and (12) FA 213/2000 effect as if it has been pronounced before death took place.
(5) Where--
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved.]'' Order 22 Rule 10 C.P.C. reads as under :-
''10. Procedure in case of assignment before final order in suit.-- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).'' Section 2(11) of C.P.C. which defines Legal Representatives read as under :-
(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.'' Thus, the question is that whether the subsequent purchasers can be termed as Legal Representatives of the estate of the deceased (13) FA 213/2000 defendant/vendor.
(23) In the case of Chhotalal Hariram (Supra), it was held by Calcutta High Court that person primarily bound to complete the contract was the vendor and upon his death, his legal heirs and representatives.
Therefore, in absence of primary party, the suit could no longer proceed. It was held that on the death of the defendant vendor, it was necessary that his legal representatives are brought in his place and the right to sue could not have survived only against the subsequent transferees. The Calcutta High Court in the case of Chhotalal Hariram (Supra) held as under :
''13.Let us first consider whether on the death of the principal defendant, the right to sue survives as against the transferee defendants alone or not. The privity of contract sought to be enforced was between the plaintiff vendee and the principal defendant vendor. The obligation to fulfil and complete the contract on the vendor and on his death such obligation vests in the legal representatives of the vendor under Section 37 of the Contract Act - the contract in question not being entirely personal. The law no doubt enjoins that under certain circumstances, such a contract is also enforceable against subsequent transferees from the vendor vide Section 40 of the T. P. Act and Section 19 the Specific Relief Act. But such transferee is not the person to complete the contract since he was not the person who had entered into the contract. His position is of the nature of a trustee holding the property in trust for the benefit of the vendee who had earlier entered into the contract to the extent necessary to give effect to the contract vide Section 91 of the Trusts Act. The position that follows from Section 40 of the T. P. Act and Section 19 of the Specific Relief Act is that such a contract is enforceable against such transferees in the sense that when the vendor is made to perform the contract in favour of the vendee, title to the property passes on to the latter overriding the transfer thereof to the subsequent transferees are in law bound to acknowledge this position and convey the title. The primary obligation to perform the contract therefore, always remains on the vendor and on his death on his legal representatives. As has been pointed out by the Supreme Court in the case of Durga Prosad v. Deepchand, AIR 1954 SC 75 (reaffirmed in AIR 1967 SC 978) the correct frame of the relief to be claimed and given in a suit for specific performance of a contract of sale is to direct specific performance against the vendor - the subsequent (14) FA 213/2000 transferees from him being only called upon to join in the conveyance to ensure passing of full title to the vendee.
The balance consideration is also normally payable to the vendor but subject to equities which may arise from the facts of each case. We have already pointed out that the relief so admissible against the vendor shifts on his death on his legal representatives under Section 37 of the Contract Act and not on the transferees, their obligation remaining what it was even when the vendor was alive.
14.In the case of Kafilladdin V. Samiraddin, 34 Cal WN 698 : (AIR 1931 Cal 67) (approved by the Supreme Court in AIR 1954 SC 75) it was laid down by this court that in enforcing specific performance of a contract of sale, both the contracting party and the subsequent purchaser must join in the conveyance. The reason assigned is instructive. It was pointed out that in case the vendor, i.e., the contracting party is not made to execute the conveyance then he "may subsequently raise the objection that his title had not passed for want of consideration or otherwise to the subsequent purchaser and therefore the conveyance executed by the subsequent purchaser in favour of the plaintiff did not pass good title", Therefore, to convey perfect title to the vendee in all such cases both the vendor and the subsequent transferee from him are required to be made parties to convey the title to the vendee. This requirement is not altered in any way by the death of the vendor - his position being taken by his legal representatives. Hence, there is no escape from the position that on the death of the principal defendant vendor it was necessary that his legal representatives must be brought on the record in his place and the right to sue could not have survived against the subsequent transferees, Patels alone. That not having been done, the suit must be taken to have abated against the said principal defendant.'' (24) In the case of Manni Devi (Supra), it was held by Patna High Court as under :
''9.For the purpose of consideration of the second question the first thing required to be looked into is whether upon the death of the vendor the substitution of his legal representative is at all required. The other concerned question would be if a legal representative is required to be substituted and such a legal representative is not substituted whether the case can proceed against the purchaser if he is a party to the suit. It appears that specific performance of contract is not wholly personal. The obligation vests in the legal representatives of the vendor under S.37 of the Contract Act; the contract in question not being entirely (15) FA 213/2000 personal. Therefore, I am of the opinion that the legal representative of the vendor is required to be substituted in a suit for specific performance of contract. So far as the question whether the suit can proceed against the purchaser if such a substitution has not been made or disallowed, even though S.40 of the Transfer of Property Act read with S.19 of the Specific Relief Act permits the enforceability of the contract against the transferee but the said transferee is not the person to complete the contract since he was not the person, who had entered into contract. He is in the nature of a trustee of a thing and, therefore only a necessary party to the suit as held by the Supreme Court in the case of Dwarka Prasad Singh v. Harikant Prasad Singh AIR 1973 SC 655. This matter came to be considered by a Division Bench of the Calcutta High Court in the case of Chhotalal Hariram v. Dilip Kumar Chatterjee, AIR 1976 Cal 337 and their Lordships observed.
"The primary obligation to perform the contract, therefore, always remains on the vendor and on his death on his legal representatives. Hence, there is no escape from the position that on the death of the principal-defendant vendor, it was necessary that his legal representatives must he brought on the record in his place and the right to sue could not have survived against the subsequent transferees alone. That not having been done the suit must be taken to have abated against the said principal defendant."
Their Lordships further considered the question that the suit cannot proceed against the transferee alone, because the interest is not severable and the transferee has to join in the conveyance to be executed by the vendor on specific performance of contract and the transferees are not to perform the contract on their own nor are they to execute any conveyance independently of the original vendor. I am in complete agreement with the law laid down in Chhotalal"s case (AIR 1976 Cal 337) (supra). I hold that a suit for specific performance of contract is not maintainable in absence of the vendor or his legal representative being party to the suit. The suit is not saved by transferee along being a party even though he is also a necessary party to the suit.'' (25) In the case of Nirav Deepak Modi Vs. Nijoo Bhiwandiwala, the Bombay High Court by order dated 27-8-2014 held as under :
''14. In the light of the law down as above, there is no escape from the proposition that in the case of death of the (16) FA 213/2000 original vendor defending a specific performance suit, his legal representatives have to be joined as party defendants upon his death and it is they alone, who represent the estate of the deceased vendor and not the subsequent transferee of the original vendor.'' (26) The Supreme Court while considering the situation where the subsequent purchaser was on record, but the Legal Representatives of the original vendor were not brought on record, held in the case of Dwarka Prasad Singh and others Vs. Harikant Prasad Singh and others, reported in AIR 1973 SC 655 has held that non-bringing the Legal Representatives of the original vendor on record will prove fatal to the entire appeal as either inconsistent and contradictory decrees will have to be passed or peroper reliefs cannot be granted in absence of a necessary against that party or his legal representatives. (27) It has been held by the Supreme Court in the case of Dwarka Prasad Singh (Supra) as under :
''7.The second limb of argument of the appellants is based on Order 41, Rule 5, (4?), Civil Procedure Code. According to that rule where there are more plaintiffs or more defendants than 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 v. Shyam Beharilal Jagannath, (1964) 3 SCR 549 = (AIR 1963 SC 1901). 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 (17) FA 213/2000 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, (1962) 2 SCR 636 = (AIR 1962 SC 89). According to that rule the abatement of an appeal means not only that the decree between the appellant and the deceased respondent becomes fianl but also, as a necessary corollary, the appellate Court cannot in any way modify that decree directly or indirectly. The decision in Nathu Ram's case, (1962) 2 SCR 636 = (AIR 1962 SC 89) (supra) was referred to in Pandit Siri Chand v. M/s. Jagdish Parshad Kishin Chand, (1966) 3 SCR 451 = (AIR 1966 SC 1427) where the decision was somewhat similar to Rameshwar Prasad's case, (1964) 3 SCR 549 = (AIR 1963 SC 1901) (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. and 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 observed 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 decisions in Rameshwar Prasad, (1964) 3 SCR 549 = (AIR 1963 SC 1901) and Pt. Siri Chand, (1966) 3 SCR 451 = (AIR 1966 SC 1427) (supra). Here the appellate Court could, under Order 41, Rule 4 of the Civil Procedure Code reverse the decree for specific performance since the defendants (18) FA 213/2000 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 Rupees 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. Moreover, 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 representatives.'' (28) The Counsel for the appellants have relied upon a judgment passed by the Bombay High Court in the case of Shyamabai Shriram Sharma (Since deceased) and others Vs. Ramkisan Prabhatilal Mittal passed on 19-12-2007 in F.A. No. 325 of 1992 and submitted that even if the Legal representatives of the original vendor are not brought on record, it would not make any difference and the appeal would not abate. The counsel for the appellants relied upon the following observations made by the Bombay High Court which reads as under :-
''23..............This Position in law therefore, leaves no manner of doubt that the appellant Nos. 2 and 3 are in fact inter meddlers with the suit property being its purchasers and in its possession. They could have therefore, maintained an Appeal under Section 96 independently in case death of appellant would have occurred during pendency of suit or immediately after its decision. Had respondent/original plaintiff not joined them as party defendants before trial Court, they were also entitled to move appropriate application for coming on record. In fact they represent the estate of deceased in this matter and even (19) FA 213/2000 if it is presumed that deceased had any legal heir, in view of decree passed against them by Trial Court asking them to join in execution of sale deed with deceased and awarding them balance sale consideration, such legal heir cannot be and could not have been treated as Legal Representative in present facts. Fact that appellant Nos. 2 and 3 are co-appellants at the time of institution of this Appeal itself along with appellant no.1/original defendant no.1 (now deceased cannot be overlooked. I therefore, find no substance in contention of advocate C.P. Sen that appeal had abated. Accordingly contentions in Civil Application No. 5369/2004 moved by respondent seeking dismissal of Appeal on that account are found to be without any substance.'' (29) I have gone through the judgment passed by Bombay High Court in the case of Shyamabai Shriram Sharma (Supra), however, the High Court has not considered the judgments passed by the Supreme Court in the case of Durga Prasad (Supra), Ramesh Chandra Chandiok (Supra) and Dwarka Prasad Singh (Supra) and therefore, in the considered opinion of this Court, the judgment passed by the Bombay High Court in the case of Shyamabai Shriram Sharma (Supra) is per- incuriam and does not lay down good law.
(30) It is next contended by the Counsel for the appellants that as this Court has already held on previous occasions, that the appeal does not abate, therefore, any contrary opinion would be contrary to the principles of res-judicata as the principle of res-judicata applies even to interlocutory orders and if the respondent no.1 was aggrieved by any of the orders dated 4-3-2013 and 3-5-2013, then he should have challenged the same before the Appellate Court and having allowed the said orders to attain finality, the respondent at this stage cannot reopen the issue of abatement. To buttress his contentions, the Counsel for the appellants has relied upon the judgment of Assam High Court passed in the case of Bholanath Thakur and another Vs. Sarvananda Kotoky and others, reported in AIR 1966 Assam 41.
(31) The High Court in the case of Bholanath Thakur (Supra) has held as under :-
''5.The judgment of the court below has been assailed on (20) FA 213/2000 two grounds. Firstly it is urged that the order of the 13th July, 1959 by which the court below had held that the suit abates only in so far as the interest of defendant No. 1 is concerned, constitutes res judicata and it was not open to him at the after stage of the same suit to hold a contrary view. It cannot he doubted that if an order is passed at any stage of the proceedings by the court, it cannot at a later stage, be ignored and the order subsists unless it is set aside by a superior court, and will he binding on that court, in the case of Satyadhyan Ghosal v. Smt. Deorajin Debi AIR 1960 SC 941 the following observation is apposite :
"The principle of res judicata applies also as between two stages in the same litigation to fills extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re- agitate the matter again at a subsequent stage of the same proceedings.
If the court at the earlier stage of the proceedings was of the opinion that the proceedings could go on against defendants Nos.2 and 3, even though defendant No.1 was not impleaded as a party he cannot now at a later stage of the same proceeding turn down the earlier order and hold that the suit cannot proceed without defendant No. 1 or his heirs on the record.'' (32) Thus, it is submitted by the Counsel for the appellants that even if this Court has erroneously held that the appeal has not abated, then the said question cannot be re-opened.
(33) Per contra, it is submitted by the Counsel for the respondent no.1, that this Court on the earlier occasion had not considered the effect of death of appellant no. 1(2) Murarilal, and every time, the effect of appellant Kishorilal was considered and admittedly, the appeal had not abated on the death of Kishorilal as his legal representatives were already brought on record.
(34) Heard the learned Counsel for the parties. (35) The abatement is automatic and by operation of law. The Supreme Court in the case of Perumon Bhagvathy Devaswom Vs. Bhargavi Amma reported in (2008) 8 SCC 321 has held as under :
''5.Having regard to the wording of Rule 4, it is clear that when a respondent dies and an application to bring his legal (21) FA 213/2000 representative on record is not made, abatement takes place on the expiry of the prescribed period of 90 days, by operation of law. Abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order. It occurs by operation of law. But nevertheless "abatement" requires judicial cognizance to put an end to a case as having abated. To borrow a phrase from Administrative Law (used with reference to void orders), an appeal bears no brand on its forehead that it has "abated", nor does it close itself automatically on abatement. At some stage, the court has to take note of the abatement and record the closure of the case as having abated (where the deceased was a sole respondent) or record that the appeal had abated as against a particular respondent (if there are more than one and the cause of action survives against the others).'' (36) Thus, it is clear that although the abatement is automatically by operation of law, but the Court has to take note of abatement and record the closure of the case as having abated. Thus, the moot question for consideration is that whether this Court, at any point of time, had ever taken note of abatement on account of death of Appellant no. 1(2) Murarilal or not and if not then whether the orders dated 4-3-2013 and 3- 5-2013 would operate as res- judicata?
(37) The appellants had earlier filed an application for deleting the name of the appellant no. 1(2) of Murarilal on the ground that since, the subsequent purchasers (Appellant no. 2 and 3) are already on record, therefore, the name of the appellant no. 1(2) Murarilal may be deleted.
The said application was allowed by this Court by order dated 9-5-2011, at the risk and cost of the appellants no. 2 and 3. Thus, it is clear that while deciding the application for deleting the name of the appellant no.1 (2) Murarilal, the Court had clarified that the deletion of the name of the appellant no. 1(2) Murarilal would be at the risk and cost of the appellants. Subsequently, the application filed by the respondent no.1 to dismiss the appeal having abated because of non-substitution of L.R.s of appellant no. 1(2) Murarilal was dismissed. However, while deciding the question of abatement on the application of the respondent no.1, this Court had taken note of death of Kishorilal only and had not taken note of (22) FA 213/2000 effect of death of appellant no.1(2) Murarilal. At the cost of repetation, it is once again mentioned that the appeal had abated automatically by operation of law on the death of appellant no. 1(2) Murarilal and only a formal order was required considering the effect of death of appellant no.1 (2) Murarilal, but the effect of death of appellant no. 1(2) Murarilal was never considered by this Court while deciding the application filed by the respondent for dismissal of the appeal as having abated on the death of appellant no. 1(2) Murarilal. As while passing order dated 4-3- 2013, this Court had not considered the effect of death of appellant no.1(2) Murarilal as well as the effect of deletion of name of appellant no.1(2) Murarilal, therefore, the order dated 4-3-2013 cannot be treated as binding because of principle of res-judicata. It is undisputed fact that appellant no.1(2) Murarilal had not died without leaving legal representatives. Undisputedly, the appellant no. 1(2) Murarilal was survived by his legal representatives, who were not brought on record. Later on, sensing some legal problems, the appellants by way of abundant caution, filed an application under Order XXII Rule 4 read with Order I Rule 10 C.P.C. for bringing the Legal Representatives of the deceased appellant no. 1(2) Murarilal on record as formal respondents. The said application was allowed by order dated 3-5-2013 and the appellants substituted the Legal Representatives of appellant No. 1(2) Murarilal as formal respondents. Appellant no.1(2) Murarilal had died on 22-7-2007 and his legal representatives were brought on record, although in the form of formal respondents in the year 2013. It is submitted that in case of abatement, strict view should not be adopted and once, the application for substitution of Legal Representatives under XXII Rule 4 C.P.C. is allowed, then it should be presumed that the abatement has also been set aside. To buttress his contentions, the Counsel for the appellants relied upon the judgment passed by the Supreme Court in the case of Mithailal Dalsangar Singh Vs. Annabai Devram Kini reported in (2003) 10 SCC 691 has held as under :-
''8. In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to (23) FA 213/2000 be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.'' (38) Unfortunately, this case has a peculiar circumstance. The name of the appellant no. 1(2) Murarilal was deleted from the array of cause title by order dated 9-5-2011 at the risk and cost of the appellants. The provisions of Order XXII Rule 4 C.P.C. would apply only when the name of the deceased party has not been deleted and he is substituted by his Legal Representatives. Therefore, when an application under Order XXII Rule 4 of C.P.C. is filed, then even in absence of any specific prayer for setting aside abatement, it can be said that the Court by allowing the application for bringing the L.R.s of the deceased party has also set aside the abatement. However, when the name of the deceased party is deleted without any substitution, then it would mean, that the said deceased party is no more in the suit/appeal. If a person is not a party to the suit or appeal, then his Legal Representatives cannot be brought on record under Order XXII Rule 4 C.P.C. and therefore, the question of setting abatement by allowing application for substitution of the Legal Representatives of (24) FA 213/2000 deceased party would also not arise. After the name of appellant no. 1(2) Murarilal was deleted from the array of cause title, it would mean that his Legal Representatives could be impleaded only under Order I Rule 10 C.P.C. and if they are allowed to be impleaded under Order I Rule 10 C.P.C., then it can be said that there was no implied or explicit setting aside of abatement. Thus, it cannot be said that this Court by allowing the Legal Representatives of appellant no.1(2) Murarilal to be brought on record, had directly set aside the abatement. Further, it is clear that the Legal Representatives of appellant no.1(2) Murarilal were never brought on record prior to 3-5-2013 whereas appellant no. 1(2) Murarilal had already expired on 22-7-2007. Thus, in the considered opinion of this Court, that the orders dated 4-3-2013 and 3-5-2013 passed by this Court at the interlocutory stage would not apply as res-judicata and therefore, in the light of the order dated 9-5-2011, this Court can still consider the effect of deletion of name of appellant no.1(2) Murarilal as the application for deleting the name of the appellant no.1 (2) Murarilal was allowed at the risk and cost of the appellants. (39) As already held that non-substitution of the Legal Representatives of Appellant no. 1(2) Murarilal has resulted in abatement of appeal to the extent of appellant no.1(2) Murarilal. As two contradictory decrees cannot be passed, therefore, in the considered opinion of this Court, the entire appeal would abate because of non-substitution of the L.R.s as well as on the deletion of the name of appellant no.1(2) of Murarilal. (40) It is next contended by the Counsel for the appellants, that they have filed an application (I.A. No. 3581/2017) under Section 151 of C.P.C. with the following prayer :
''Hence, in the facts and circumstances of the case, it is humbly prayed that the application may kindly be allowed and by exercising power under Section 151 C.P.C., heirs of Murarilal who are already on record, be considered to be taken on record in place of Murarilal as proforma respondents by recalling/modifying the order dated 9-5-2011, so also by setting aside abatement and condoning delay if any finds by this Hon'ble Court and if this Hon'ble Court thinks necessary notices to the heirs of Murarilal may (25) FA 213/2000 be issued to end of justice.'' Paragraph 13 of the application is reproduced as under :
''13. That, it is in practice that after sale of property in dispute, the purchasers in possession is treated to be legal representative in such circumstances the appellants were mislead because of orders in the instant appeal whereby it has been held between the parties that there is no abatement as appellant no.2 and 3 who purchased the property in question area already on record........'' (41) In I.A. No. 17118/2010, which was filed by the appellants for deleting the name of the appellant no.1 (2) Murarilal, it was claimed by the subsequent purchasers that they are the Legal Representatives of appellant no.1 (2) Murarilal as having been purchased the property in dispute. Even in this application, it is claimed that it is the practice to consider the subsequent purchasers as legal representatives of original vendor. The Court has already held that subsequent purchaser cannot be held to be a legal representative of original vendor.
(42) Here, the mistake of law has been committed by the appellants themselves by filing an application for deleting the name of the appellant no. 1(2) Murarilal and therefore, the mistake of law cannot be corrected by modifying or recalling the order dated 09-05-2011 even by adopting the most lenient view in the matter. Further more, the application for deleting the name of Appellant no. 1(2) Murarilal was allowed with a rider that the deletion of the name of appellant no.1(2) Murarilal shall be at the risk and cost of the appellants. Therefore, under these circumstances, the prayer of the appellants for modifying/recalling the order dated 9-5-2011 cannot be accepted. Even otherwise, I.A. No. 17118/2010 was considered on 9-5-2011 and in I.A. No. 17118/2010, the appellants had merely prayed for deleting the name of the appellant no.1(2) Murarilal and therefore, even by recalling the order dated 9-5- 2011, the legal representatives of appellant no. 1(2) Murarilal cannot be brought on record.
Accordingly, I.A. No. 3581/2017 filed by the appellants under (26) FA 213/2000 Section 151 of C.P.C. is rejected.
(43) Hence, this Court is of the considered opinion that due to non- bringing the legal representatives of appellant no.1 (2) Murarilal on record who died on 22-07-2007, the appeal as a whole has abated and is accordingly dismissed as having abated. No orders as to costs.
(G.S. Ahluwalia) Judge 12/09/2017 *MKB*