V.S. Aggarwal, J.
1. The present revision petition has been filed by Jagjit Singh and others (hereinafter described as 'the petitioners') directed against the order passed by the learned District Judge, Faridkot dated 9.6.1994. By virtue of the impugned order the learned trial court had dismissed the application filed seeking amendment of the written statement.
2. The relevant facts are that respondent Mithoo Singh had filed a suit for possession by way of specific performance and in the alternative the suit for recovery of Rs. 1,76,000/- against Kartar Singh. During the pendency of the suit, Kartar Singh had expired and the present petitioners were arrayed as legal representatives on 6.9.1992. One of the issues as a result of the defence of deceased Kartar Singh framed was 'whether the plaintiff is entitled to possession of the suit land by way of specific performance of agreement'. The learned trial Court with respect to the said issue held that land was not ancestral qua defendant Kartar Singh and that the respondent-plaintiff is entitled to the specific performance of agreement. Besides the said findings and the other conclusions arrived at which are not relevant for purposes of disposal of the present revision petition, the suit of the respondent was decreed. The respondent was directed to deposit the remaining sale price in the trial Court within a month.
3. The petitioners had preferred an appeal against the said judgment and the decree of the learned Additional Senior Subordinate Judge. During the pendency of the appeal, the petitioners Filed an application seeking amendment of the written statement. They wanted to plead that land in dispute was ancestral joint Hindu family and co-parcenary property in the hands of Kartar Singh. Kartar Singh had no right to sell the land because his sons had interest in it. There was no legal necessity to do so. Agreement of sale was without consideration and there was no benefit to the estate and the family. The petitioners wanted to contend that due to inadvertance, this plea could not be taken by Kartar Singh. It will not change their defence. The application was opposed and the respondent-plaintiff urged that because the petitioners are in possession of the land, they want to prolong the litigation. If the amendment is allowed, it will re-open the case and change the entire character of the defence.
4. The learned District Judge, Faridkot vide the impugned order dismissed the application relying upon the judgment of the Supreme Court in the case of Sunil Kumar and Anr. v. Ram Parkash and Ors., A.I.R. 1988 S.C. 576. It was held that if the proposed amendment is allowed, it will take away the vested right of other party and it will involve adjudication upon altogether different and independent facts. Aggrieved by the same, the present revision petition has been filed.
5. As referred to above, the suit of the respondent was with respect to the specific performance of the contract namely agreement of sale of the property executed by Kartar Singh since deceased. Keeping in view the said fact, the learned District Judge had felt that defence that petitioners intend to take by amendment could not be taken because the petitioners could only challenge the alienation after the sale in fact takes place. In this regard, therefore, reference must be made to the case of Sunil Kumar (supra). In the said case before the Supreme Court the defendant as Karta of joint Hindu Family had executed an agreement to sell the property. Later on, he refused to execute the sale deed. A suit was filed for specific performance of the agreement and in the alternative for a decree for recovery of Rs. 10,000/-. The sons of the defendant made an application for being impleaded as party. Thereupon when the application was dismissed, they filed a suit for permanent injunction that the said property was joint Hindu Family co-parcenary property and that there was no legal necessity for the sale of the property. They prayed restraining the sale of the said property. The Supreme Court held that such a suit for injunction was not maintainable. Hon'ble Mr. Justice Ray in his judgment in paragraph 8 held :-
'8. The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Singh, A.I.R. 1974 Punjab and Haryana 147, wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu Family property was maintainable has been off-set by the Division Bench in Jujhar Singh v. Giani Talok Singh, (A.I.R. 1987 Punj. and Hry. 34) (supra) wherein it has been held that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the Joint Hindu Family for legal necessity was not maintainable because the coparcener has got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. Following this decision the High court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the trial Court. We do not find any infirmity in the findings arrived at the High Court'.
By way of abundant caution it was however added that in case of waste or ouster, an injunction can be granted in favour of a coparcener but not a blanket injunction order. The said findings are reproduced below for the sake of convenience:-
'We, of course, make it clear that in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu Family at the instance of the coparcener. But nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted.'
In the separate concurring judgment Hon'ble Mr. Justice Shetty, held:-
'No doubt the law confers a right on the coparcener to challenge the alienation made by Karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the Court to grant relief by injunction restraining the Karta from alienation the coparcener property.'
It is abundantly clear from what has been reproduced above that the scope of the decision in the case of Sunil Kumar (supra) confines to the question as to if suit for injunction restraining the karta of a Hindu undivided family from selling the property was maintainable or not. The answer was in the negative. It was not the position that no suit is maintainable in any event with respect to any agreement entered by the Karta. As already noted above the Supreme Court felt that in case of waste, an injunction order can be passed against the Manager or Karta of Hindu undivided family but not a blanket order. Therefore, to rely upon the ratio of the decision in terms that such a defence could not be taken by the petitioners would not be correct.
6. In this regard reference with advantage can again be made to the fact that in the defence taken by the predecessor-in-interest of the petitioners, in his written statement that so filed, it had specifically been alleged that the property in question was ancestral and, therefore, a suit for specific performance was not maintainable. Irrespective, of the findings of the learned trial Court which are subjudice it can conveniently be noticed that seeds of the defence which the petitioners intend to take had already been sown. By virtue of the proposed amendment, the petitioners only want to contend and assert that the property was ancestral and the sale could not be made unless it was for legal necessity. Petitioners contend that they were coparceners in the said property. Keeping in view the earlier defence already taken, the present amendment would certainly not change the nature of the defence but would elucidate the same.
7. At that stage it was pointed that petitioners had no right to challenge the said agreement. On behalf of the petitioners reliance however was being placed on the decision of the Supreme Court in the case of Balmukand v. Kamla Wati and others, A.I.R. 1964 S.C 1385. It was held that adult members of Hindu undivided family could not resist the claim for specific performance if the transaction was for benefit of the family. All adult members should have been consulted. The other findings in this regard of the Supreme Court need not be gone into. The same view had prevailed with this Court in the case of Atul Sharma and Anr. v. Gurinder Singh and Ors., 1985 Punjab Law Journal, 143. It was held that a coparcener getting himself impleadcd as a party can contest the agreement of sale with respect to the coparcenary property. Reliance was placed on the decision in the case of Balmukand (supra). It has yet to be adjudicated if the property is coparcenary or not. But the petitioners in any case would have the right to challenge the sale, if any.
8. There is no dispute that was raised that in turn ordinarily under the Hindu Law right would only accrue to challenge the sale after the sale takes place. There is in cases where Karta effects the sale deed and the coparceners can challenge if it was not for legal necessity. What is the position herein? The alleged person who executed the agreement of sale had died. The petitioners are his legal representatives. It would look preposterous to say that in case the suit is decreed, they should execute the sale deed and subsequently again file a civil suit challenging the sale deed executed by them on the ground that it was not for legal necessity. Each case has to be examined in light of the facts. The reasoning of the learned District judge in this regard in the peculiar facts of this case will not hold much water. In fact, it would increase multiplicity of proceedings. While allowing and disallowing an amendment, the main consideration has to be that there is substantial justice between the parties. Taking note of the position that is likely to arise, it would be proper thus to allow the amendment because of the peculiar situation that the person who is alleged to have executed the agreement to sell has died and those who could challenge the sale subsequently are already on the record.
9. However, a pertinent argument was raised at the bar namely that petitioners were impleaded as legal representatives and, therefore, they can only take pleas appropriate to their character as legal representatives.
10. Order 22, Rule 4(2) of the Code of Civil Procedure reads :-
'(2). Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant'.
The said provision certainly supports what is being alleged on behalf of the respondent. Petitioners as legal representatives can take pleas appropriate to their character as legal representatives of the deceased. It becomes unnecessary to ponder further in this regard because the answer is provided by the judgment of the Supreme Court in the case of Vidyawati v. Man Mohan and Ors., A.I.R. 1995 S.C. 1653. In the cited case the plaintiff has filed a suit for possession of the suit property against one Brij Mohan Kapoor. Brij Mohan Kapoor died and Man Mohan was impleaded as a legal representative. Man Mohan wanted to file additional written statement claiming title to and interest in the property. The application was dismissed by the trial Court. The High Court also had dismissed the revision petition. The Supreme Court held that the legal representative of the deceased could take a defence appropriate to his character as legal representative. He could urge all contentions which the deceased could have urged instead those which were personal to the deceased. It did not prevent the legal representatives from setting up their own independent title in which case there could be no legal objection in impleading them as legal representatives but also in their personal capacity. This would avoid a separate suit. The Supreme Court in paragraph 6 observed: -
'This being the position in law, the view of the Court below is perfectly legal. It is open to the petitioner to implead herself in her independent capacity under Order 1, Rule 10 or retain the right to file independent suit asserting her own right. We do not find any error of jurisdiction or material irregularity committed in the exercise of jurisdiction by the Court below warranting our interference'.
Identical would be the position herein. If the petitioners intend to take an additional plea, they could file an application under Order 1, Rule 10 C.P.C. to be arrayed as a party in their own rights, rather than legal representatives. They could take the defence as defendants or as the case may be, rather than confine themselves to be the legal representatives.
11. On behalf of the respondent in this regard it was pointed that this would unnecessary delay the disposal of this suit. But needless to state that the duty of the Court is to decide the rights of the parties. If it is necessary to determine the same, then cost can well compensate the opposite party. As held by this court in the case of Shambhu Dayal v. Shri Nand Lal and Ors., (1989-1)95 Punjab Law Reporter 668, delay in a factor to be considered not the sole ground to decide such an application. Accordingly, it must be held that petitioners can only take pleas in terms of Order 22, Rule 4(2) of the Code of Civil Procedure as legal representatives. If they intend to take other pleas, they get themselves impleaded as party and thereafter take the defence open under law as already referred to above. At this stage, therefore, the revision petition subject to aforesaid is disposed of.