1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1123 OF 2008 IN SUIT NO. 2291 OF 2008 Hyder Aga Khan ...Plaintiff vs. Mary @ Kamala William D Souza @ Mary Kamala Jonakutty ...Defendant and Aloysius Manuel D Souza and Ors. ...Applicants Ms.Rohini Dandekar for Applicant in support of Chamber Summons. Mr.Bharat Vaishnawa for the Plaintiff. Mr.Mohan B. Jadhav for the Defendant. CORAM : V.M. KANADE, J. DATED : SEPTEMBER 10, 2009 P.C. :- 1 This Chamber Summons is taken out by the applicants for joining them as defendants no.2 to 5 in the said suit and for a direction that consequential amendments be made in the plaint by adding the applicants as defendants no.2 to 5. 2 Brief facts are as under :- 2 One William Manual D Souza expired and left behind him flat situated at 2-C,IL-Plazzao Co- operative Housing Soceity Limited, Little Gibbs Road, Malbar Hill Road, Bombay  6. It is the case of the applicants that they are the heirs and legal representatives of William Manual D Souza. According to these applicants, the defendant Mary @ Kamala was working as a nurse to take care of William Manual D Souza as he was bedridden. On 3.3.2005, the Heirship certificate was granted to the defendant in Misc. Petition No.1/2005 taken out by the plaintiff as a Constituted Attorney of the defendant herein. The said order was challenged by the applicant in Appeal (Lodging) No.599/2006 in this Court. The Division Bench, however, did not grant leave to the applicants to challenge the order of Heirship Certificate. The Division Bench, however, observed that the applicants herein had adequate remedy of establishing their rights in the estate of the 3 deceased in the appropriate proceedings. The appeal was accordingly disposed of. 3 Thereafter, the applicants filed the petition being Pauper Petition (Lodging) No. 196/2007. The said proceedings are pending. 4 In the meantime, the present suit is filed by the plaintiff for specific performance of the agreement dated 15.10.2004 executed by and between the plaintiff and the defendant in respect of the suit premises. It is the case of the plaintiff that the defendant in this suit is not the legally wedded wife of deceased William but was merely Aaya/Nurse. It is the case of the applicants that they are legal heirs of William and as such, the defendant in this suit did not have any right to enter into Agreement of Sale dated 15.10.2004 and that the said agreement is null and void. It is, therefore, submitted that they are proper and necessary parties in the suit filed by the plaintiff herein. 4 5 Counsel appearing on behalf of the plaintiff, on the other hand, submitted that in the suit for specific performance, the third party do not have any right to be added as the defendant. He relied on the judgment in the case of Kasturi vs. Iyyamperumal and Ors., reported in (2005) 6 SCC Page 733 and one judgment of the Apex Court in the case of Anil Kumar Singh vs. Shivnath Mishra alias Gadasa Guru, reported in (1995) 3 SCC 147. He also relied on the judgment of the Apex Court in the case of Bharat Karsondas Thakkar vs. Kiran Construction Co. and Ors., reported in 2008(6) Scale 355. 6 Counsel appearing on behalf of the applicant, on the other hand, relied on a judgment of the Apex Court in the case of Sumtibai and Others vs. Paras Finance Company and Ors., reported in (2007) 10 SCC 82. 5 7 I have heard both the learned Counsel for the applicants and the learned Counsel for the plaintiff and the defendant at length. It is well settled position in law in a suit for specific performance, the third party who claims independent title and possession is not a necessary party to the suit for specific performance unless he show that he is a bonafide purchaser without notice of the earlier agreement of sale as laid down under Section 19 of the Specific Relief Act. The Apex Court in the cases of Anil Kumar Singh (supra) and Kasturi (supra) has held that only the parties to the contract or parties claiming under them or a person who have purchased the contracted property from the vendor with or without notice of the contract are necessary parties to the suit for specific performance of the contract. In paras 9, 10 and 11 in Kasturi case (supra), the Apex Court has observed as under :- 9. We have carefully considered 6 sub-sections (a) to (e) of Section 19 of the Act. From a careful examination of the aforesaid provisions of clauses (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in sub-sections (a) to (e) of Section 19 of the Specific Relief Act. 10. That apart, from a plain reading of Section 19 of the Act we are also of the view that this section is exhaustive on the question as to who are the parties against whom a contract for specific performance may be enforced. 11. As noted hereinearlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in 7 mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. Lord Chancellor Cottenham in Tasker v. Small (1834) 40 ER 848 : 3 MY & Cr 63 made the following observations: (ER pp.850-51) It is not disputed that, generally, to a bill for a specific performance of a contract of sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly 8 as possible in the same situation as the defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it. 8 In the said judgment, the Apex Court followed the observations made in Anil kumar Singh (supra). The learned Counsel appearing on behalf of the applicants tried to distinguish the said two judgments by relying on the judgment in the case of Sumtibai and others (supra). In this case, the legal representatives of original defendant had made an application for implementation in the suit. The Apex Court in the facts of the said case came to the conclusion that the legal representatives shown in the registered Sale Deed being prima facie proof of co-ownership of property for which specific performance was sought and since the appellants had already been made party to the suit they had right 9 to be implemented as defendants. In my view, the ratio of the said judgment, would not apply to the facts of the present case. In the said case, the appellants were legal representatives of late Kapurchand. A suit was filed by the respondent against Kapurchand for specific performance of the contract for sale. It was alleged that Kapurchand had entered into an agreement of sale of the property in dispute to the respondent-plaintiff M/s.Paras Finance Limited. In that agreement, Kapurchand had stated that the property disputed was a self acquired property. During the pendency of the suit, Kapurchand died and his wife, sons applied to be brought on record as legal representatives. After they were implemented, they filed an application under Order 22 Rule 4(2) read with Order 1 Rule 10 of the CPC praying interalia that they may be permitted to file written statement and also to take such plea which were available to them. The trial court rejected this application. The revision which was filed against this order was also dismissed by 10 the High Court. In that case, the Apex Court observed that the legal representatives were entitled to file their written statement. The ratio of this case will not apply to the facts of the present case. 9 Ms.Rohini Dandekar then relied on the judgment of in the case of Lourdu Mari David and others, Petitioners vs. Louis Chinnaya Arogiaswamy and others, Respondents, reported in AIR 1996 SC 2814. In the said case, the Apex Court held that the person claiming the specific performance was not entitled for equitable relief for decree for specific performance if he does not come to the court with clean hands. The ratio of the said judgment also, in my view, will not apply to the facts of the present case since in the present case, issue which is involved is whether the applicants will be added as party defendants. Ms.Rohini Dandekar, learned Counsel then relied on paras 24-25 of the judgment of the Apex Court in the case of 11 Bharat Karsondas Thakker vs. Kiran Construction Co. and others. In my view, the ratio of this judgment also will not apply to the facts of the present case as the facts are entirely different. Perusal of the said paragraphs clearly show that the said observations are not at all relevant to the controversy and issue raised in this Chamber Summons. In my view, therefore, no case is made out by the applicants for being added as party defendants. The applicants are claiming to be the legal heirs of deceased William. Their petition is still pending in this Court and it is not yet decided. The defendant in this suit claims to be the wife of deceased William. She has entered into an agreement of sale dated 15.10.2004 with the plaintiff. If the applicants are added as defendants in this suit, the entire nature of the suit will change and it will be a suit for title. This cannot be permitted in view of the specific provisions of Sections 15 and 16 of the Specific Relief Act. It is always open for the applicants to challenge the said 12 agreement dated 15.10.2004 between the plaintiff and defendant by filing a private suit or by taking out proper proceedings. 10 The Chamber Summons, therefore, is dismissed. (V.M. KANADE, J.)