1. This appeal is directed against the decision of the learned District Judge of Kutch at Bhuj in Civil Regular Appeal No. 41 of 1962 from the decree passed by the learned Civil Judge, Junior Division, Mundra, in Regular Civil Suit No. 34 of 1959. The learned Judge has thereby confirmed the decree passed by the learned trial Judge. The decree passed is one of specific performance of the agreement to sell dated August 11, 1958, and for possession of the properties from the defendants. The decree is in respect of properties listed at items Nos. 1, 3 & 4 described in Schedule II to the plaint. Property No. 2 was ordered to remain in possession of defendant No. 6. named Bai Devakabai, widow of Shripal Jadav, as she was to enjoy it during her life time. It was ordered that after her death the plaintiff will get possession of property from her.
2. The plaintiff's suit was for specific performance of an agreement to sell, Ex. 18, dated August 11, 1958. The property consisted of one residential house, one Dela in possession of defendant No. 6, a field named 'Maro' and another field named 'Suivali Katki' situated in village Kundrodi in Mundra Taluka in District Kutch. It appears that the properties originally belonged to the sons and grand-sons of one Jadav. Jadav had five sons named Hirji, Jetha, Dungarshi, Umarsi and Shripal. Hirji has died leaving a son named Kunverji, who is defendant No. 1 in the suit, Jetha died leaving a widow named Bai Devkabai and three sons named Lalji, Hansraj and Vasanji, who are respectively defendants Nos. 3, 4 and 5 in the suit, Shripal died leaving a widow named Devakabai, who is defendant No. 6. Dangarshi and Umarsi, two other sons of Jadav, are not parties to the suit. Plaintiff Shamji Mulji appears to have a house adjacent to the house in dispute. He entered into an agreement to purchase the aforesaid property from Kunverji Hirji to whose share the property had come by virtue of a partition effected earlier some time in Samvat Year 1999 (1943 A.D.) and long before the agreement of sale. The plaintiff's case was that the first item of the property named the residential house was divided in a partition between defendant No. 1 Kunvarji and the other members of their undivided joint Hindu family and the northern part of it had come to defendant No. 1's share, along with the other property covered by the agreement and the northern part of the house was now being held by defendants Nos. 2 to 6 for and on behalf of defendant No. 1. The partition deed. Ex. 24, speaks of the partition of the properties, which includes the suit properties and states that the properties which were partitioned could now be alienated by the members of the family to whose shares they had fallen. Defendant No. 1 resisted the suit and contended that the agreement to sell was executed by fraud and misrepresentation. Defendants Nos. 2 to 6 contended by a common written statement that the partition deed had not been acted upon and further that they were in adverse possession of the property. They admitted the partition deed. It is not clear whether adverse possession was being claimed in respect of all the suit properties or in respect of the residential house (northern part of it) which had come to the share of defendant No. 1 on a partition of the joint family properties. However, the case that appears to have been urged in the two courts below and is now urged before me is on the footing that the disputed property is property No. 1 the residential house. The plaintiff has prayed for the reliefs of specific performance of the agreement of sale and of the partition of the property and possession. However, it appears that at the stage of the final arguments before the learned trial Judge, the learned advocate appearing on behalf of the plaintiff advisedly did not ask for the relief of partition and stated that the relief was not necessary. It appears that this position was taken having regard to the fact that the material plea of the defendants Nos. 2 to 6 was that they were in adverse possession of the suit property and the writing of S.Y. 1999, which is the partition deed, was admitted. Both the courts have recorded a finding that the defendants Nos. 2 to 6 were holding the property for and on behalf of defendant No. 1. Having regard to the special facts of the case, the learned Judges below have reached the conclusion that defendants Nos. 2 to 6 were necessary parties to the suit because as they claimed possession of the suit property, their rights were likely to be affected.
3. The principal contention of Mr. K.N. Mankad, the learned counsel appearing on behalf of the appellants, original defendants Nos. 2 to 6 was that in a suit for specific performance of a contract, parties to the contract are the only necessary parties and strangers are not necessary or proper parties, unless the case falls within the purview of Section 27 of the Specific Relief Act, 1877 (Act No. 1 of 1877). He has confined his argument to the northern half (part) of the residential house listed as property No. 1 in the Schedule to the plaint. Now, as aforesaid, this is a suit in which the plaintiff's case is that the disputed property had come to the share of defendant No.1 in a partition between the members of the defendants' family and that the defendants Nos.2 to 6 wee holding the property for and on behalf of defendant No. 1. Admittedly, defendants Nos. 2 to 6 are in possession of the concerned property. Thus, it is a case which would fall within the exception of the ordinary rule, namely, that in a suit for specific performance of a contract, persons other than the parties to the contract, meaning the strangers, are not necessary parties. Specific performance of a contract cannot be enforced against persons who are not parties to the contract and who do not fall within the purview of clauses (a) to (e) of Section 27 of the Specific Relief Act. That is the general rule. The general rule is, however, subject to the recognised exceptions which are in conformity with the practice of the Court of Chancery. In cases where it is desirable to avoid multiplicity of suits and where interest of persons who are in actual possession of the property in question might be affected, strangers to the contract can be sued upon. According to Fry's Specific Performance of Contracts, Edn. 6. p. 90 paras 208 and 209:
'A stranger to the contract may so mix himself up with it by setting up a claim to some benefit resulting from it, as to render himself liable to be made a party to proceedings for the enforcement of the contract.....In some cases where a portion of the relief claimed might affect the person in actual possession of the property, that person may properly be made a party to an action for the specific performance of the contract............'
The instant case, wherein defendants Nos. 2 to 6 are in actual possession of disputed property No. 1 and claim to hold it adversely against defendant No. 1 and who have been found by the learned District Judge to be holding it for and on behalf of defendant No. 1, is a case falling within the recognised exception to the general rule. I am supported in this view by the observations of Wassoodew J. in Mahadevappa Parakanhatti v. Shivappa Parappa Kupati, AIR 1943 Bom 27. at p. 29:
' It is indeed true that in a suit for specific performance the general rule is that a strange to the contract cannot be sued upon it. Only the parties to the contract are, according to that rule, necessary and sufficient parties. But the general rule is subject to certain modifications.' The learned Judge has then observed.
'It has been held in several cases in England that persons claiming adversely might be made defendants, and the case of defendants Nos. 3 to 20 is exactly on the same footing for they had claimed adversely to the vendor. It may be noted that they are still in possession and their possession is likely to defeat the claim of the plaintiff to possession. If the plaintiff succeeds upon his title, the decision is bound to affect those defendants. In that connection it is necessary to refer to Section 27, Clause (c), Specific Relief Act, which deals with the class of persons who may be parties to a suit for specific performance...........The general rule is obviously the sensible rule in practice. But the recognised exceptions, which are in conformity with the practice of the Court of Chancery cannot be overlooked.'
The ratio of the Bombay decision, with which I am in respectful agreement, completely covers the case.
4. Mr. G.A. Thakkar, learned counsel appearing on behalf of the respondent-plaintiff, has rightly placed reliance upon the following passage in Halsbury's Laws of England. Third Edition, Volume 36, in para 479 under the caption 'Strangers to the Contract':
'A stranger to the contract cannot according to the general rule either sue or be sued upon it. This general rule is, however, subject to certain modifications. Thus, where a party to the contract is trustee for a third party, specific performance of the contract may be obtained at the instance of the third party. Again, a stranger to the contract may be made defendant to an action for specific performance where he is in possession of the subject matter of the contract with notice of the contract, or where he claims to be interested in the purchase money under an agreement antecedent to the contract or where he is in actual possession of the property and might be affected by part of the relief claimed.'
The aforesaid passage clearly shows that where a stranger is a person in actual possession of the property and might be affected by the relief claimed he may be joined as a party to the suit. Such a case would fall under the recognised exception to the general rule. In the instant case, as observed earlier it is the case of defendants Nos. 2 to 6 that they are in actual possession of the property in question. They claim possession adversely to defendant No. 1. It is the case of the plaintiff that they held the property for and on behalf of defendant No.1 who was a party to the contract. Having regard to the facts of the case, the joinder of defendants Nos. 2 to 6 as parties is necessary to effectually adjudicate the real matter in controversy in the suit and they can be sued upon. In my opinion, therefore, the learned District Judge was right in taking the view the defendants Nos. 2 to 6 were necessary parties to the suit, even though they were strangers in a way.
5. Mr. Mankad had placed some reliance on the observations of Hidavatullah. J. (as he then was) in Mt. Nagi v. Damodar Jagobaji Tidke, AIR 1948 Nag 181. It was a case where a stranger had set up an independent title to the land, which was the subject matter of the contract of sale. Having regard to the facts of the case, the learned Judge has taken the view that strangers setting up an independent title to the land, the subject matter of the contract of sale, are not proper parties to the suit for specific performance and that the plaintiffs after perfecting their title by obtaining specific performance against the executants of the agreement would be in a position to bring a fresh suit against anybody who stood in the way of obtaining possession. The case was one in which the defendants had claimed a relief of independent title to the disputed land. In the instant case, the title is set up in relation to the suit properties and it is claimed that the defendants are in adverse possession of the property and they are in possession. The Nagpur decision cannot, therefore, be of any assistance to the view canvassed by Mr. Mankad. A decision of the Bombay High Court in Luckumsev Ookerda v. Fazulla Cassumbhoy, (1880) ILR 5 Bom 177 was then relied upon by Mr. Mankad. In the said decision, it has been observed that a stranger to a contract of which specific performance is sought cannot be a party to the suit. That indeed is the ordinary general rule. In that case, there were two distinct causes of action and two distinct reliefs sought. The decision cannot, therefore, be of any avail to Mr. Mankad.
6. In my opinion, having regard to the pleadings of the parties and the nature of reliefs sought, and also having regard to the fact that the properties have been earlier partitioned and the defendants Nos. 2 to 6 are in actual possession of the property in question and have been held to be holding the property for and on behalf of defendants No. 1, defendants Nos. 2 to 6 were necessary parties to the suit in order that the dispute between the parties may be effectually and finally adjudicated. They have been rightly sued upon. It is noteworthy that defendant No. 1 has not challenged the decree of the District Court in Civil Regular Appeal No. 42 of 1962.
(In Paragraph 7, the judgment rejected the appellant's argument that there was variance between the decree and the pleadings and the decree for possession was not good. In Paragraph 8 interference on the ground of a new plea viz., great hardship to Defendants 2 to 6 was refused. In Para 9 their plea that no adequate opportunity to defend the suit was given to them was held to be without any basis. Judgment then proceeds):
10. The aforesaid were the only contentions which were raised in this appeal, and for the reasons stated, they have no merit. In the result, the appeal fails and is dismissed with costs.
11. Appeal dismissed.