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TMI Blog2022 (9) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of such a party. In view of the plaintiff s own admission that the suit property was jointly owned by the defendant, his wife and three sons, no effective decree could have been passed in their absence. Thus, no error can be noticed in the judgment of the High Court. The appeals are therefore liable to be dismissed. - B.R. Gavai And C.T. Ravikumar, JJ. For the Appellant : Mr. Rahul Chitnis, Adv., Mr. Chander Shekhar Ashri, AOR. For the Respondent : Mr. Harin P. Raval, Sr. Adv., Mr. Satyajit A. Desai, Adv., Mr. Satya Kam Sharma, Adv., Mr. Abhinav K. Mutyalwar, Adv., Mr. Siddharth Gautam, Adv., Mr. Gajanan N. Tirthkar, Adv., Mr. Deb Deepa Majumdar, Adv., Ms. Anagha S. Desai, AOR. JUDGMENT B.R. GAVAI, J. 1. These appeals challenge the judgment dated 3rd July 2008 passed by the learned Single Judge of the High Court of Judicature at Bombay in Second Appeal No. 264 of 1996, thereby allowing the appeal filed by the respondents challenging the judgment dated 13th June 1996 passed by the 2nd Additional District Judge, Yavatmal (hereinafter referred to as the Appellate Court ) in Regular Civil Appeal No. 61 of 1990 vide which the Appellate Court con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance sale consideration as per the terms of the agreement to sell. It further directed that if the defendant failed to execute the sale deed, the same should be executed through the court. Being aggrieved thereby, the defendant preferred an appeal before the Appellate Court which was also dismissed vide judgment dated 13th June 1996. 5. The defendant thereafter preferred a second appeal before the High Court which came to be partly allowed vide the impugned judgment. Though the High Court denied the specific performance, it directed the defendant to refund the amount of Rs.30,000/ along with an interest at the rate of 9% per annum from the date of the institution of the suit till its realization. Hence, the present appeal is at the instance of the plaintiff. 6. We have heard Shri Rahul Chitnis, learned counsel appearing on behalf of the appellant and Shri Harin P. Raval, learned Senior Counsel appearing on behalf of the respondents. 7. Shri Chitnis submitted that a perusal of the agreement to sell would reveal that the defendant had agreed to sell the property since he needed money for farming and household expenses. He submitted that the suit property exclusively belonge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the suit property was the exclusive property of the defendant but was in fact a joint property of the defendant, his wife and his three sons, has erred in dismissing the appeal filed by the defendant. He too relies on the judgment of this Court in the case of Kasturi (supra) to argue that it was not possible for the trial court to pass an effective decree in the absence of necessary parties. Relying on the judgment of this Court in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others [(2010) 7 SCC 417] , he reiterated his submission that since the wife and sons of the defendant were necessary parties, in their absence, an effective decree could not have been passed. He also relies on the judgment of this Court in the case of Poonam v. State of Uttar Pradesh and Others [(2016) 2 SCC 779] 11. A perusal of the plaint would reveal that the plaintiff himself, in paragraph (2), has stated thus: 2. That the defendant and his sons viz. (i) Laxman; (ii) Vivek and (iii) Jayant together with defendant s wife Sou. Saralabai constitutes a joint Hindu family governed by Bombay School of Hindu Mitaksharia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial court that the suit property was the exclusive property of the defendant was not correct. It held that though the property was partitioned, the property remained as joint with the defendant, his wife and three sons. It further held that since the defendant represents the entire family and since the transaction in question was for payment of an antecedent debt, it was not necessary to join other members of the family or other co owners or other coparceners. 17. This Court, in the case of Mumbai International Airport Private Limited (supra), has observed thus: 15. A necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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