LexMUKESH KUMAR AND ORS. versus COL. HARBANS WARAICH AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
MUKESH KUMAR AND ORS.
A
v.
COL. HARBANS WARAICH AND ORS.
OCTOBER 27, 1999
[S. RAJENDRA BABU AND R.C. LAHOTI, JJ.]
B
Limitation Act, I 963-S.2 I-Suit for specific performance of contract-
Transposition of a party from the array of defendants to plaintiff-Bar of
/imitation-Applicability of-Held, mere change of a party from the array of
defendants to that of plaintiff will not make him new plaintiff-By virtue of C
sub-section (2) of S.21, deeming provision under S.21(1) not applicable to
a case of transposition of parties-Civil Procedure Code, 1908-0rder I rule
IO-Specific Relief Act, 1963.
Specific Relief Act, 1963-S.22-Specific performance of a contract- D
Enforcement of-Held, can be enforced by anJi party to a contract-Jn case
of co-contractees it is sufficient if all of them are before the Court and it is
not necessary that all of them should be arrayed on the same side-However
where a single indivisible contract is to convey land to several persons, some
of the joint contractees cannot seek specific performance if other contractees
do not want that relief
E
Hindu Law-Hindi{, Undivided Family-Joint property--Attachmentfor
payment of income tax dues- 'Karla' of Hindu Undivided Family entering into
sale transaction-Legal necessity of-Held,'sale was for the purpose of benefit
of joint family which was binding on all the members of family-No infirmity
in the findings of courts below as to legal necessity.
F
Respondents No.I to 3 (plaintiff) entered into an agreement with
respondent No. 4 (defendant) for purchase of certain property. Respondent
No. 4 was a 'Karta' of Hindu Undivided Family (HUF) comprising of appellants
I to 5. Under the agreement, respondents I and 2 would together purchase
one half of the property while respondent No. 3 would purchase the other half. G
Due to non-execution of sale deed, respondents I and 2 filed a suit for specific
performance. Initially, respondent No. 3 refused to join as plaintiff and was
arrayed as defendant No. 6 but subsequently he was transposed from the array
of defendants and joined as plaintiff. Trial court decreed the suit holding that
141
H
142
SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.
A since the Hindu Undivided Family was facing heavy debts, the sal<e of suit
property was a legal necessity which would bind all the members. On appeal,
both the first appellate court and High Court affirmed the findings of trial
court. Hence the present appeal.
On beha,lf of appellants it was contended that the findings reached by
B courts below regarding legal necessity was not correct since all the defendants
were not partners of the defendant firm which was facing debt, the
transposition ofrespondent No.3 from the array of defendants as plaintiff was
beyond the period of limitation.
c
Dismissing the appeal, the Court
HELD : I. There is no infirmity in the findings recorded by tllte courts
below as to legal necessity. Though all the defendants may not have been
partners of the defendant firm, all male members of the joint family who were
major at that time were partners thereof and, therefore, it could not be said
D that the business carried on by defendant firm is not a family business of the
defendants. The fact that joint family properties have been attached for payment
of the income tax itself was sufficient to hold that the sale of the property was
for the purpose of benefit of the joint family. [145-B-C-D]
2. The transposition of respondent No.3 from the array of defendants
E as plaintiff is not barred by limitation. S. 21 of the Limitation Act, 1963
provides that wherever on institution of a suit a new plaintiff or defendant is
substituted or added, the suit shall, as regards him, be claimed to have been
instituted when he is so made a party. However, sub-section (2) ofS.21 of the
Act makes it very clear that provisions of S.21 would not apply to a 1:ase where
a party is added or substituted owing to assignment or devolution of any
F interest during the pend ency of the suit or where plaintiffis made a defendant
or a defendant is made a plaintiff. For sub-section (2) to apply all that is
necessary is that suit as filed originally should remain the same after the
transposition of the plaintiff and there should be no addition to its subject
matter. Thus, where a suit as originally filed is properly framed with the
G proper parties or record, the mere change of a party from array of defendants
to that of plaintifExcerpt shown. Read the full judgment & AI analysis in Lexace.