BALURAMversusP. CHELLATHANGAM & ORS.

                  [2014] 13 S.C.R. 291


                       BAL URAM                            A
                           v.
             P. CHELLATHANGAM & ORS.

        (CivilAppeal Nos.10940-10941 of2014)               B
                 DECEMBER 10, 2014

   [T. S. THAKUR AND ADARSH KUMAR GOEL, JJ.]
     Code of Civil Procedure. 1908 - Or. 1, r. 10 -        c
lmpleadment as a party in a suit for specific performance -
Agreement to sell trust property by trustees in favour of
plaintiff - Application for impleadment by appellant as
defendant on the ground that he would suffer prejudice being
beneficiary of the Trust if the sale is effected at the price D
agreed - Trial court allowed the application holding that the
appellant was not a stranger to tf1e subject matter of the
dispute and was entitled to be impleaded as a party"- High
Court set aside the order of trial court on the ground that the
appellant was not a necessary/proper party- Held: Appellant E .
being beneficiary of the trust property cannot be held to be
stranger - Trial court was justified in impeading him as a
party- TrustsAct, 1882.

     All~wing the appeal, the Court                         F
      HELD: 1. Admittedly, the appellant is a beneficiary
of the Trust and under the provisions of the Trusts Act,
the Trustee has to act reasonably in exercise of his right
of alienation under the terms of the trust deed. No doubt, G
it may be permissible for the appellant to file a separate
suit, as suggested by Respondent No.1, but the
beneficiary could certainly be held to be a proper party.
There is no valid reason to decline his prayer to be
                                                            H
                           291
292        SUPREME COURT REPORTS                 [2014] 13 S.C P.



A impleaded as a party to avoid multiplicity of proceedings.
  Order I Rule 10(2), CPC enables, the Court to add a
  necessary or proper party so as to "effectually and
  completely adjudicate· upon and settle all the questions
  involved in the suit". In the present case, the appellant
B could not be held to be a stranger being beneficiary of
  the Trust property. The trial Court was justified in
  impleading him as a party. The High Court erred in
  interfering with the order of the trial Court. [Paras 13 and
  15)[296-A-C; 299-C]
c
          Mumbai International Airport (P) Ltd. v. Regency
          Convention Centre & Hotels (P) Ltd. 2010 (7) SCC
          417: 2010 (7) SCR 790 - relied on.

D
          S. D. Joseph and Ors. v. E. Ebinesan and Ors.
          2009 (5) CTC 193; Bharat Karasor1das. Thakur
          ys. Kiran Cosntruction Co. & Ors. 2008 (13) SCC
          658 : 2008 (6) SCR 59-- referred to.

                          Case Law Reference:
E
          2009 (5) CTC p. 193            referred to   Para 7

          2008 (6) SCR 59                referred to   Para 8

          2010 (7) SCR 790              relied on      Para 11
F
           CIVILAPPELLA_1_E JURISDICTION: Civil Appeal Nos.
      10940--10941 of2014.

          From the Judgment and Order dated 24.11.2011 and
  18-09-2012 of the High Court of Madras at Madurai Bench in
G C.R.P. No. 2610 of 2010 and Review Application (MO) No. 1
  of 2012 in C.R.P. No. 2610 of 2010 respectively.

          G. S. Mani, R. Sathish for the Appellant.

H
         BAL URAM v. P. CHELLATHANGAM & ORS.                        293


      Ms. Madhurima Mridual, Manoj V. George, Ms. Shilpa            A
 M. George, Aakash Kamra, Siju Thomas, Alex Joseph for the
 Respondents. ·

       The Judgment of the Court was delivered by
       ADARSH KUMAR GOEL, J. 1. Leave granted.                      B

       2. These app~als have been preferred against Orders
 dated 24th November, 2011 and 18th September, 2012 passed
 by the High Court of Madras, Bench at Madurai in C.R.P.
 No.2610 of 2010 and in Review Application No.1 of 2012 in          C
 C.R.P. No.2610 of 2010 respectively.
       3. The question raised for our consideration is whether
 the High Court was justified in reversing the Order of the trial
 Court allowing the prayer of the appellant to be added as a
 party in a suit for specific performance filed by Respon-dent      D
 No.1-plaintiff.
        4. Case of the plaintiff in O.S. No.3 of 2007 filed in the
  Court of District Judge, Kanyakumari, is that K. Jagathees and
  R. Subbaram Babu @ Subbaram, Respondent Nos.2 and 3 E
  respectively (original defendants in the suit) acting as trustees
  of "Subbaiah Paniker Family Welfare Trust" (for short "the
  Trust") entered into the agreement dated 9th December, 2003
  to sell the suit property in favour of the plaintiff. The price of
  the property was settled at Rs.22,000/- per cent. A sum of F
  Rs.1 lakh was received as advance. The plaintiff was ready
  and willing to perform his part of the contract but the defendants
  failed to execute the sale deed even in extended time. When
. called upon to do so, they took the stand that the sale deed
  could be executed only if the beneficiaries of the Trust agreed G
  to the sale which was not a valid ground.                     ·
     5. During pendency of the suit, the appellant filed I.A.
 No.584 of 2008 in O.S. No.3 of 2007 in the Court of District
 Judge, Kanyakumari at Nagercoil, for being impleaded as            H
294           SUPREME COURT REPORTS               [2014] 13 S.C.R.


A defendant, pleading that he wili suffer prejudice being
  beneficiary of the Trust if the sale is effected at a throw away
  price. According to him, the value of the property was more
  than Rs.50,000/- per cent while the proposed sale was for
  Rs.22,000/- per cent.
B
         6. The application was opposed by the plaintiff submitting
  that the beneficiary was a stranger to the agreement and was
  not a necessary or proper party.
        7. The trial Court accepted the application. It held that
C the plaintiff was not a stranger to the subject matter of dispute
  and was entitled to be impleaded as a party. Reliance was
  placed on the Judgment of the Madras High Court in S.D.
  Joseph and Other vs. E. Ebinesan and others1 holding as
D follows:
             "Every member who is having interest and right should
             be given an opportunity of being heard and the court
             must see whether subject matter could be factually
             adjudicated upon in the absence of proposed parties
 E           in a case where the property belonged to YMCA, a
             public Trust."

         8. Aggrieved by the Order of the trial Court, the
   respondent-plaintiff preferred a revision petition under Article
 F 227 of the Constitution hefore the High Court with the plea that
   the appellant was not a necessary or proper party and thus the
   order of the trial Court impleading him as a party defendant
   was erroneous. Reliance was placed on the Judgment of this
   Court in Bharat Karasondas Thakkar vs. Kiran
 G Construction Co. and others!.~ The High Court upheld the
   plea of the plaintiff and dismissed the I.A. No.584 of 2008 filed
   by the appellant in the suit filed by the respondent-plaintiff. It
      1
          2009(5) CTC p.193
 H
      2 (2008) 13  sec 658
        BAL URAM v. P. CHELLATHANGAM & ORS.                          295
              [ADARSH KUMAR GOEL, J.]

was further observed that since suit property is a Trust property,    A
the trial Court can look into the relevant provisions of law and
examine whether permission of the Court was required before
entering into the sale agreement.

     9. Aggrieved by the Order of the High Court, the appellant       B
has approached this Court.

      10. We have heard learned counsel· for the parties.

       11. Learned counsel for the appellant vehemently
submitted that the view taken by the High Court is patently        "'" C
erroneous. The appellant was certainly a proper party and the
trial Court was justified in exercising its jurisdiction urider Order
I Rule 10(2) of the Code of Civil Procedure, 1908in impleading
the appellant as a party. Even if the Trustee had the right of
alienation, the Court was entitled to control the exercise of D
power of a Trustee under Section 49 of the Indian Trusts Act,
1881 (for short "the Trusts Act"). The appellant was entitled to
be impleaded as a party to safeguard his right as beneficiary
of the Trust so that the Trustees did not exercise their power of
alienation unreasonably. Reliance has been placed on E
Judgment of this court in Mumbai International Airport (PJ
Ltd. vs. Regency Convention Centre & Hotels (PJ Ltd).

      12. Learned counsel for Respondent No.1 however,
opposed the above submission and supported the impugned               F
order passed by the High Court. It was submitted that since
the appellant was neither necessary nor proper party,
application for impleading the appellant as a party could not
be entertained. The appellant was stranger to the transaction
and could not object to the sale in question.                         G

      13. After due consideration of the rival submissions, we
are of the view that the High Court erred in interfering with the
order of the trial Court impleading the appellant as a party
'2010(7)SCC417                                                        H
296        SUPREME COURT REPORTS                   (2014] 13S.C.R.


A defendant. Admittedly, the appellant is a beneficiary of the
   Trust and under the provisions of the Trusts Act, the Trustee
   has to act reasonably in exercise of his right of alienation under
   the terms of the tr-ust deed. Appellant cannot thus be treated
   as a stranger. No doubt, it may be permissible for the appellant
B to file a separate suit, as suggested by Respondent No.1, but
   the beneficiary could certainly be held to be a proper party.
   There is no valid reason to decline his prayer to be impleaded
   as a party to avoid multiplicity of proceedings. Order I Rule
  ~ 10(2), CPC enables, the Court to add a necessary or proper
C party so as to "effectually and completely adjudicate upon and
    settle all the questions involved in the suit".

           14. In Mumbai International Airport (supra) this Court
      observed:
 D
           13. The general rule in regard to impleadment of parties
           is that the plaintiff in a suit, being dominus litis, may
           choose the persons against whom he wishes to litigate
           and cannot be compelled to sue a person against whom
 E         he does not seek any relief. Consequently, a person
           who is not a party has no right to be impleaded against
           the wishes of the plaintiff. But this general rule is subject
           to the provisions of Order 1 Rule 10(2) of the Code of
           Civil Procedure ("the Code", for short), which provides
 F         for impleadment of proper or necessary parties. The
           said sub-rule is extracted below:

              "10. (2) Court may strike out or add parties.-The
              court may at any stage of the proceedings, either
              upon or without the application of either party, and
 G
              on such terms as may appear to the court to be just,
              order that the name of any party improperly joined,
              whether as plaintiff or defendant, be .struck out, and
              that the name of any person who ought to have been
 H
  .BAL URAM v. P. CHELLATHANGAM & ORS.                       297
         [ADARSH KUMAR GOEL, J.]

   joined, whether as plaintiff or defendant, or whose A ·
   presence before the court may be necessary in order
    to enable the court effectually and completely to
   adjudicate upon and settle all the questions involved
   in the suit, be added."
                                                              B
14. The said provision makes it clear that a court may,
at any stage of the proceedings (including suits for
specific performance), either upon or even without any
application, and on such terms as may appear to it to
be just, direct that any of the following persons may be      c
added as a party: (a) any person who ought to have
been joined as plaintiff or defendant, but not added; or
(b) any person whose presence before the court may
be necessary in order to enable the court to effectively
and completely adjudicate upon and settle the D
questions involved in the suit. In short, the court is given
the discretion to add as a party, any person who is found
to be a necessary party or proper party.

 15. A "necessary party" is a person who ought to have E
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 F
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 G
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
                                                               H
298    SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A      such person a necessary party or a proper ;;arty to the
       suit for specific performance.

        xxxxxxxxxxxxxxx
        19. Referring to suits for specific.performance, this Court
 B      in Kasturi [(2005) 6 SCC 733], held that the following
        persons are to be considered as necessary parties: (i)
        the• parties to the contract which is sought to be enforced
        or their legal representatives; (ii) a transferee of the
        property which is the subject-matter of the contract. This
 c       Court also explained that a person who has a direct
        interest in the subject-matter of the suit for specific
        performance of an agreement of sale may be
         impleaded as a proper party on his application under
         Order 1 Rule 10 CPC. This Court concluded that a
 D
         purchaser of the suit property subsequent to the suit
         agreement would be a necessary party as he would be
      · affected if he had purchased it with or without notice of
         the contract, but a person who claims a title adverse to
 E       that of the defendant vendor will not be a necessary
         party.

       xxxxxxxxxxxxxxx
       22. Let us consider the scope and ambit of Order 1 Rule
 F     10(2) CPC regarding striking out or adding parties. The
       said sub-rule is not about the right of a non-party to be
       impleaded as a party, but about the judicial discretion
       of the court to strike out or add parties at any stage of a
       proceeding. The discretion under the sub-rule can be
 G     exercised either suo motu or on the application of the
       plaintiff or the defendant, or on an application of a
       person who is not a party to the suit. The court can strike
       out any party who is improperly joined. The court can
       add anyone as a plaintiff or as a defendant if it finds
 H
         BALURAM v. P. CHELLATHANGAM & ORS.                         299
              [ADARSH KUMAR GOEL, J.]

      that he is a necessary party or proper party. Such A
      deletion or addition can be without any conditions or
      subject to such terms as the court deems fit to impose.
      In exercising its judicial discretion under Order 1 Rule
      10(2) of the Code, the court will of course act according
      to reason and fair play and not according to whims and B
      caprice."

       15. In the present case, the appellant could not be held
to be a stranger being beneficiary of the Trust property. The
trial Court was justified in impleading him as a party. The High    c
Court erred in interfering with the order of the trial Court.

      16. Accordingly, we allow this appeal, set aside the
impugned order of the High Court and restore that of the trial
Court dated 101h August, 2010, impleading the appP.llant as a D .
party defendant in the suit. There will be no order as to costs.


Devika Gujral                                     Appeal allowed.