SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.

Page 1 Friday, March 21, 2025

Printed For: pooja srinath, Ramaiah College of Law
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

2022 SCC OnLine SC 1307

In the Supreme Court of India

(BEFORE B.R. GAVAI AND C.T. RAVIKUMAR, JJ.)

Moreshar Yadaorao Mahajan … Appellant(s);

Versus
Vyankatesh Sitaram Bhedi (D) thr. LRs. and Others … Respondent
(s).
Civil Appeal Nos. 5755-5756 of 2011
Decided on September 27, 2022
The Judgment of the Court was delivered by
B.R. GAVAI, J.:— 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
th nd
challenging the judgment dated 13 June 1996 passed by the 2 Additional District
Judge, Yavatmal (hereinafter referred to as the “Appellate Court”) in Regular Civil
Appeal No. 61 of 1990 vide which the Appellate Court confirmed the judgment dated
28th March 1990 passed by the Civil Judge (Senior Division), Yavatmal (hereinafter
referred to as the “trial court”) in Special Civil Suit No. 21 of 1985 filed by the
appellant vide which the trial court had decreed the suit for specific performance filed
by the present appellant.
2. The parties hereto are referred to in accordance with their status as before the
trial court.
3. The plaintiff is a doctor who was working in a Government Hospital. The plaintiff
was also in private practice. The plaintiff, for starting his private practice, took on rent
a part of the house of the defendant. It is the case of the plaintiff that subsequently,
the defendant was in financial need for his agricultural cultivation and household
expenses and therefore, he suggested to the plaintiff that he should purchase the said
part of the house which the plaintiff was occupying, together with an added portion.
The plaintiff accepted the said suggestion and an agreement to sell was entered into
on 24th July 1984. As per the terms of the said agreement to sell, the defendant
agreed to sell and the plaintiff agreed to purchase the suit property for Rs. 50,000/-.
The plaintiff paid an amount of Rs. 24,000/- on the date of the agreement and the
defendant executed an earnest note in favour of the plaintiff. As per the terms of the
st
agreement to sell, the sale deed was to be executed before 31 March 1985. It is the
st
case of the plaintiff that on 31 July 1984, the defendant again requested for money
and on such request, the plaintiff paid him an amount of Rs. 6,000/-. It is also the
case of the plaintiff that pursuant to the aforesaid payment, he was put in possession
st
of the suit property on 31 July 1984.
4. It is further the case of the plaintiff that he was always ready and willing to
perform his part of the agreement and therefore, he informed the defendant by
st
registered letter that he was willing to complete his part of the transaction before 31
March 1985. However, the defendant replied to the said notice by alleging that the
transaction was of money lending and denied the execution of the sale deed. In this
background, the plaintiff filed a suit for specific performance before the trial court. The
trial court, vide judgment and decree dated 28th March 1990, decreed the suit and
directed the defendant to execute the sale deed by accepting the balance sale
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 2 Friday, March 21, 2025
Printed For: pooja srinath, Ramaiah College of Law
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

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
th
Appellate Court which was also dismissed vide judgment dated 13 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 belonged to the
defendant and as such, the finding of the High Court that the suit property belonged
to the joint family of the defendant i.e., his wife and three sons, is untenable. He
submitted that, in any case, the sale deed was for meeting the legal necessities of the
family and as such, the High Court ought not to have interfered with the concurrent
findings of fact.
8. Shri Chitnis further submitted that the trial court had held that, after partition,
the house had come to the share of the defendant. He submitted that both the trial
court and the Appellate Court have concurrently held that the transaction in question
was for the payment of antecedent debt and as such, it was not necessary to join
other members of the family or other co-owners or other co-parceners as party
defendants. He submitted that the concurrent findings ought not to have been
interfered with by the High Court in second appeal. Relying on the judgment of this
Court in the case of Kasturi v. Iyyamperumal1, he submitted that it is only the parties
to a contract who are necessary parties. He further submitted that since the contract
was between the plaintiff and the defendant, it was not at all necessary to implead the
defendant's wife or sons as party defendants. He therefore submitted that the High
Court has erred in taking this aspect into consideration while partly allowing the
second appeal.
9. Shri Raval, on the contrary, submitted that the suit property was a property
jointly owned by the defendant, his wife and three sons. He therefore submitted that
the suit itself was not maintainable on account of non-joinder of other owners of the
suit property.
10. Shri Raval further submitted that the learned Single Judge of the High Court
has rightly held that a mere agreement to alienate cannot be enforced against a son
on the ground that the agreement was effected by the father for a consideration which
was formed by his own antecedent debts. Shri Raval further submitted that a perusal
of the plaint itself would reveal that the plaintiff himself has admitted that the suit
property was owned by the defendant, his wife and three sons. The learned Senior
Counsel submitted that in view of this admission, the suit filed by the plaintiff was
itself not tenable. He further submitted that the Appellate Court, after having held that
the trial court has erred in 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
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 3 Friday, March 21, 2025
Printed For: pooja srinath, Ramaiah College of Law
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

2
Private Limited v. Regency Convention Centre and Hotels Private Limited , 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 Pradesh3.
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 Law. (The defendant is the Karta
of the family. The family inter-alia owns residential premises within the limits of at
Wani……”
12. The plaintiff has further averred in the plaint that in the month of July 1984,
the defendant got into financial difficulties and that he had no money to carry on his
large cultivation. The defendant also required money for his household expenses. It is
further averred that besides this, the defendant also had to pay some debts as there
was no prospect for the defendant to borrow money from the creditor.
13. It is the specific case of the defendant that initially, he had taken an amount of
Rs. 24,000/- and thereafter, Rs. 6,000/- from the plaintiff by way of loan for his
personal purposes. The defendant, in his written statement, has specifically stated
that each of his sons are managing their own properties and the defendant was not
required to look after their properties. The defendant has submitted that the other
members of the family, i.e., his wife and sons had nothing to do with the amount
borrowed by him from the plaintiff. The defendant has stated that the borrowed
amount was spent by him for himself. The defendant has denied that the said
transaction was binding upon other members of his family. It is specifically averred by
him that the said transaction was of money lending and the agreement was entered
into only as a security towards the loan. The defendant has subsequently stated thus:
“It is submitted that the defendant's sons and wife are necessary parties to this
suit and their non-joinder is fettled to the suit. The suit is liable to be dismissed for
non-joinder of necessary parties. It is denied that the defendant's sons must be
deemed to have given their approval to the transactions. It is submitted that
deeming is always fictions and no suit can be decreed on fictions.”
14. It is to be noted that in spite of this specific objection, the plaintiff did not
implead the defendant's wife and sons as party defendants.
15. Though the trial court framed the issue as to whether the suit was bad in law
for non-joinder of necessary parties, it answered the same against the defendant by
holding that the defendant was the absolute owner of the suit property and therefore,
there was no question of joinder of his wife and three sons.
16. The Appellate Court, vide its judgment, held that the observation of 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
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 4 Friday, March 21, 2025
Printed For: pooja srinath, Ramaiah College of Law
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

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 jurisdiction to implead him, against
the wishes of the plaintiff. The fact that a person is likely to secure a right/interest
in a suit property, after the suit is decided against the plaintiff, will not make such
person a necessary party or a proper party to the suit for specific performance.”
18. It could thus be seen that 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. It has been held that if a “necessary party” is not impleaded, the suit
itself is liable to be dismissed.
19. As already discussed hereinabove, the plaintiff himself has admitted in the
plaint that the suit property is jointly owned by the defendant, his wife and three sons.
A specific objection was also taken by the defendant in his written statement with
regard to non-joinder of necessary parties. Since the suit property was jointly owned
by the defendant along with his wife and three sons, an effective decree could not
have been passed affecting the rights of the defendant's wife and three sons without
impleading them. Even in spite of the defendant taking an objection in that regard,
the plaintiff has chosen not to implead the defendant's wife and three sons as party
defendants. Insofar as the reliance placed by Shri Chitnis on the judgment of this
Court in the case of Kasturi (supra) is concerned, the question therein was as to
whether a person who claims independent title and possession adversely to the title of
a vendor could be a necessary party or not. In this context, this Court held thus:
“7. …….From the above, it is now clear that two tests are to be satisfied for
determining the question who is a necessary party. Tests are” (1) there must be a
right to some relief against such party in respect of the controversies involved in
the proceedings; (2) no effective decree can be passed in the absence of such
party.”
20. It can thus be seen that what has been held by this Court is that for being a
necessary party, the twin test has to be satisfied. The first one is that there must be a
right to some relief against such party in respect of the controversies involved in the
proceedings. The second one is that no effective decree can be passed in the absence
of such a party.
21. 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.
22. In that view of the matter, we find that no error can be noticed in the judgment
of the High Court. The appeals are therefore liable to be dismissed.
23. In any case, the High Court, in order to balance the equities, has partly decreed
the suit and directed the defendant to refund an amount of Rs. 30,000/- with an
interest at the rate of 9% per annum from the date of institution of the suit till its
realization. We affirm this direction of the High Court.
24. In the result, the appeals are dismissed. Pending application(s), if any, shall
stand disposed of in the above terms. No order as to costs.
———
1
(2005) 6 SCC 733
2
(2010) 7 SCC 417

3
(2016) 2 SCC 779

Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
 SCC Online Web Edition, © 2025 EBC Publishing Pvt. Ltd.
Page 5 Friday, March 21, 2025
Printed For: pooja srinath, Ramaiah College of Law
SCC Online Web Edition: https://www.scconline.com
© 2025 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.