SC: Document can’t be adjudged null & void without impleading executant

The Hon’ble Supreme Court, on 18th September 2020, in the matter of B. Santoshamma & Anr. v. D. Sarala & Anr. pronounced that there could be no question of a document being adjudged null and void without impleading the executant of the document, as defendant.

The Hon’ble Supreme Court observed that:

The onus of proof lies on the party who makes an allegation. (Para 59)

The relief of specific performance of an agreement, was at all material times, equitable, discretionary relief, governed by the provisions of the Specific Relief Act 1963. Even though the power of the Court to direct specific performance of an agreement may have been discretionary, such power could not be arbitrary. The discretion had necessarily to be exercised in accordance with sound and reasonable judicial principles. (Para 67)

An agreement to sell immovable property, generally creates a right in personam in favour of the Vendee. The Vendee acquires a legitimate right to enforce specific performance of the agreement. (Para 71)

A transferee to whom the subject matter of a sale agreement or part thereof is transferred, is a necessary party to a suit for specific performance. (Para 79)

There could be no question of a document being adjudged null and void without impleading the executant of the document, as defendant. (Para 84)

Section 12 has to be construed in a liberal, purposive manner that is fair and promotes justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free. (Para 88)

It is true that, the clubbing of suits for hearing them together and disposal thereof by a common judgment and order is for practical reasons. Such clubbing together of the suits do not convert the suits into one action. (Para 91)

The plea of bar under Order II Rule 2 of the CPC is a technical plea which has to be pleaded and satisfactorily established. (Para 94)

Copy of judgment: Judgement_18-Sep-2020

-Adv. Tushar Kaushik

Leave a Reply

Your email address will not be published. Required fields are marked *