1. This revision has been filed against the order of learned Sub Judge Ist Class, Patiala, declining the application of the sons of Ram Sarup for being impleaded as parties to the suit.
2. Respondent No. 1 claimed specific performance of the agreement of sale entered between him and Ram Sarup, Mehar Chand and others. The petitioners alleging that the property, subject-matter of the agreement, was coparcenary property and as such Ram Sarup was not competent to sell it except for legal necessity or the benefit of the estate, contended that the specific performance of the agreement could not be ordered. The application was declined relying on a decision of the Madras High Court t in N. T. Palanisamy Chettiar v. Komara Chettiar, AIR 1950 Mad 91 and some observations in a decision of this Court in Banarsi Dass Durga Prasad v. Panna Lal Ram Richhpal Oswal, AIR 1969 Punj & Har 57. In Banarsi Dass's case (supra) the plaintiff instituted a suit for specific performance of the agreement of sale against Smt. Chameli. Panna Lal and Banawari Lal instituted another suit for an injunction restraining her from interfering with their possession and in the alternative for possession of a chabutra 41/2 square feet. Banarsi Dass alleging that the said chabutra was part of the property, subject-matter of the suit, moved an application for being impleaded as party to the second suit. His prayer was declined by the trial Court and its order was confirmed in revision by R. S. Sarkaria, J. (as he then was) with the following observations (at p. 59):--
'Under sub-para (2) of O. 1, R. 10, a person may be added as a party to a suit in two cases only, i.e. when he ought to have been joined and is not so joined, i.e. when he is a necessary party, or, when without his presence the questions in the suit cannot be completely decided. There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks intrusion. A person may not be as a defendant merely because he would be incidentally affected by the judgment.'
With utmost respect I regret my inability to follow this decision. Benarsi Dass by virtue of the agreement of sale in his favour was entitled to defend the title of his vendor Smt. Chameli and was certain1y a proper party, if not a necessary one. But as the decision basically was rendered on the particular facts available there it provides no binding precedent so far as the present case is cencerned.
3. In N. T. Palanisamy Chettiar's case (AIR 1950 Mad 91) (supra) Krishnaswami Nayudu, J. allowed the revision and rejected a similar application holding thus:--
'In an application under Order 1, Rule 10, Civil Procedure Code, the Court should consider mainly whether the presence of the proposed parties would be necessary for adjudicating upon the questions that are involved in the suit and an order for addition of parties should not be made merely with a view to avoid multiplicity of suits if otherwise their presence is not necessary for determining the real question involved in the suit.
Hence where a plaintiff sues for specific performance of an agreement to sell impleading only the vendors and there is no allegation in the plaint that the agreement is binding on the the sons of the vendors, the title of the vendors or the right of their sons to the properties agreed to be sold is not a question involved in the suit and, therefore the sons of the vendors are not necessary parties to the suit and cannot be joined merely for avoiding multiplicity of suits.'
The view expressed by Nayudu, J, held the field till the Supreme Court in Balmukand v. Kamala Wati, AIR 1964 SC 1385 recognised and upheld the right of a coparcener to resist the specific enforcement of an agreement of sale by the Karta in the following terms:
'That the adult members would not have resisted the claim for specific performance if they were satisfied that the transaction was of benefit to the family. It was possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and therefore the other members of the family were contesting the plaintiff's claim. Apart from that the adult members of the family were well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. Here there was no allegation of any such consultation. In these circumstances the Courts below were right in dismissing the suit for specific performance.'
In view of the decision in Balmukand's case (supra) it cannot be said any more that the coparcener by getting himself impleaded as a party seeks only a decision on his or vendor's title. Instead he seeks to oppose the right of the plaintiff to enforce the agreement of sale specifically against the coparcenary property and as such his prayer cannot be declined on the ratio of the decision in N. T. Palanisamy Chettiar's case (AIR 1950 Mad 91) (supra).
4. This petition is consequently allowed, the impugned order reversed and the applicants ordered to be impleaded as defendants. No costs.
5. Petition allowed.