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TMI Blog2015 (11) TMI 1902X X X X Extracts X X X X X X X X Extracts X X X X ..... specific performance, the vendor can only sell to the extent of his share in favour of vendee. He cannot sell the property/share of other co-sharers. With the dismissal of probate petition, the dispute between defendant Nos. 1 and 2 and the present petition has come to rest and in order to avoid multiplicity of litigation, the present petitioner should have been impleaded as party to the suit. Reference, at this stage, can be made to the verdict given by the Hon'ble Supreme Court in Mumbai International Airport's case [ 2010 (7) TMI 1159 - SUPREME COURT] , wherein it has been observed If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be nonexistent. The observations in Kasturi [ 2005 (4) TMI 635 - SUPREME COURT] and Sumtibai [ 2007 (10) TMI 653 - SUPREME COURT] are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is also co-owner of the property in dispute as his father Swaran Singh died intestate and after his death, the suit property devolved upon him and defendant Nos. 1 and 2, who had agreed to sell the suit property to the plaintiff by virtue of agreement to sell dated 06.03.2006 without having right over the entire suit property except to the extent of their shares. The said application has been dismissed vide impugned order dated 16.12.2014 on the ground that Ranjit Singh has been appearing as GPA of defendant Nos. 1 and 2 and the present application is only a devise to prolong the litigation. 2. It is not in dispute between the parties is that defendant Nos. 1 and 2 had entered into an agreement to sell with plaintiff-respondent No. 1 qua the shop in dispute, by virtue of a Will dated 12.07.2004, which was executed in their favour by Swaran Singh. A Probate Petition No. 6 of 2006 was filed by defendant Nos. 1 and 2, which was contested by petitioner-Ranjit Singh and his sisters namely Gurnam Kaur and Sharanjit Kaur. Ultimately, the said probate petition was dismissed vide judgment dated 01.05.2010 (Annexure P-4). 3. Learned counsel for the petitioner has argued that after dismissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion given by the Hon'ble Supreme Court in Kasturi's case (supra). In that case, a suit for specific performance was filed and subsequently, an application under Order 1 Rule 10 CPC was made for impleadment of defendants. The plea taken was that they were in possession of the property and had an independent title over the same and the sale deed could not be executed in view of their possession over the property. The trial Court had allowed the application and this order was upheld by the High Court. The Hon'ble Supreme Court set aside the order in SLP and held that addition of new defendants would enlarge the scope of the suit for specific performance of the contract. Newly added defendants would base their claim on independent title and possession of the contracted property. This enlargement of the suit was not permissible in law. The respondents were party to the contract, which was subject matter of dispute in a suit for specific performance and in case, a decree was passed in favour of the plaintiff, they could take appropriate remedies in execution proceedings. They were at liberty to obstruct the execution in order to protect their possession by taking recourse to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m adverse to the title of the defendant (vendor) contending that they are the co-owners of the contracted property are neither necessary nor proper party and are, therefore, not entitled to be joined as parties to the suit. 9. This judgment of the Madhya Pradesh High Court has been followed by this Court in Om Parkash 's case (supra). 10. However, in the facts of the present case, after dismissal of probate petition on 01.05.2010, right of Ranjit Singh-petitioner in the property owned by Swaran Singh is no longer in dispute. If he is made party to the suit, it will not enlarge the scope of the suit as there is no dispute with regard to his share in the property left by Swaran Singh after dismissal of probate petition. Since after being impleaded as party on an earlier application, he has filed his written statement and has led evidence, it would not amount to enlarging the scope of dispute. Moreover, as per the judgments passed by this Court in Amrik Singh and Smt. Sarita Devi Jain's case (supra), it has been held that in a suit for specific performance, the vendor can only sell to the extent of his share in favour of vendee. He cannot sell the property/share of other co-sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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