Vendor is a necessary party in a suit for specific performance against Purchaser

It is essential that the vendor must join in the execution of the sale deed. If that be so, vendor becomes a necessary party

In Dwarka Prasad Singh and Ors. vs. Harikant Prasad Singh and Ors., decided on 29.11.1972 [AIR 1973 SC 655], the issue before Court was as to whether in a suit for specific performance against a purchaser with notice of a prior agreement of sale the vendor is a necessary party or not or in other words whether the decree in a suit for specific performance when the property in dispute has been sold to a third party should be to only direct the subsequent purchaser to execute a conveyance or whether the subsequent purchaser and the vendor should both execute a conveyance in favour of the party aggrieved. 

It was observed that in a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale the proper form of the decree is to direct specific performance of the contract between the vendor and the plaintiff and further direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff.

It was held as difficult to sustain the argument that the vendor is not a necessary party and it must be remembered that if there are any special covenants and conditions agreed upon in the contract for sale between the original purchaser and the vendor those have to be incorporated in the sale deed although it is only the vendor who will enter into them and the subsequent purchaser will not join in those special covenants. But without the vendor joining in the execution of the sale deed special covenants, if any, between him and the original purchaser cannot be incorporated in the sale deed. The whole idea and the purpose underlying a decree for specific performance is that if a decree for such a relief is granted the person who has agreed to purchase the property should be put in the same position which would have obtained in case the contracting parties, i.e. vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way. Therefore, it is essential that the vendor must join in the execution of the sale deed. If that be so, vendor becomes a necessary party. At any rate, in the presence of the relief for a decree for refund of the amount paid by way of part consideration the vendor would be a necessary party.