N T PALANISAMY CHETTIAR Vs. KOMARA CHETTIAR

JUDGEMENT

(1.) The petitioner is the plaintiff in O. S. No. 116 of 1947 on the file of the Subordinate Judge's Court of Coimbatore instituted by him for specific performance of an agreement to sell dated 23rd January 1944 executed by defendants 1 and 2. Defendant 3 is a subsequent purchaser of the property and has therefore been impleaded. The suit was filed on 22nd January 1947 and issues were settled on 28th August 1947, The respondents filed I. A. No. 1216 of 1948 for adding themselves as party defendants 4 to 9 and this application was made under Order 1, Rule 10, Civil P. C. The allegations in the affidavit in support of the application are that respondents 1 to 5 are the sons of defendant 1 and that respondent 6 is the son of defendant 2 that in respect of the suit properties they filed O. S. No. 265 of 1947 in the Sub-Court of Coimbatore alleging that the alienations by defendants 1 and 2 are not binding on them and for partition and possession of their separate shares. They also state that they had to contend that the agreement will not bind them in so far as they are concerned and that there are good reasons for the success of their defence. The application was opposed and the learned Subordinate Judge passed an order as follows : "The sons of the defendant want to plead that the agreement to sell is not for the benefit of the sons. To avoid multiplicity of proceedings it is better that the petitioners are also impleaded." He also observes that the petition has been delayed and directs that costs should in any event be paid to the plaintiff by the respondents.

(2.) It is contended on behalf of the petitioner plaintiff that this is a suit for specific performance of an agreement executed by defendants 1 and 2 and that the main issue that has to be decided in the suit is whether the agreement had been executed and whether the plaintiff had otherwise complied with the terms of the agreement and entitled to specific performance by getting a document of sale from defendants 1 and 2 and that questions relating to title are foreign to the suit for specific performance. Further, it is pointed out that there is no prayer in the plaint for the recovery of possession of properties. The prayer in the plaint is for a declaration that the plaintiff is the owner of the plaint properties and to order that the defendants should execute a sale deed in respect of the plaint properties in favour of the plaintiff and that on their default the sale-deed may be ordered to be executed by the Court on behalf of the defendants in favour of the plaintiff. This is the usual prayer in suits for specific performance though it is also permissible to add a prayer for possession in such suits.

(3.) The learned counsel for the petitioner cited the decision in Mt. Nagi v. Damodhar, I.L.R. (1947) Nag 623: A.I.R. (35) 1948 Nag. 181) where it is held that a Court acts without jurisdiction if, in a suit for specific performance of contract, it joins other causes of action which cannot properly be investigated in that suit. It is also held that a person who claims adversely to the vendor is not a necessary party to a suit for specific performance of a contract to sell. Two English decisions are referred to in that judgment and I will refer to the Page 2 of 5 N.T. Palanisamy Chettiar vs. Komara Chettiar and Ors. (20.07.1949 - MADHC) 6/19/2007 following passage in the judgment of Cottonham L. C. in Tasker v. Small, (1837) 40 E. R. 848 at p. 850 :