Jharkhand High Court
Anita Soni vs Smt. Mina Devi on 27 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(C) No. 5237 of 2015
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Anita Soni, wife of Sri Rajeev Kumar Soni, resident of Purana Bazar, Gomoh, Post Office-Gomoh, Police Station- Hariharpur, District-Dhanbad ..... .... Petitioner
--Versus--
1.Smt. Mina Devi, wife of late Chandra Shekhar Paneri
2.Gouri Shankar Paneri
3.Raj Kumar Paneri Both sons of late Dwarka Paneri
4.Smt. Nirmala Devi
5.Urmila Devi
6.Malti Devi
7.Deoki Devi
8.Mona Devi Sl.Nos.4 to 8, all daughters of late Dwarka Paneri
9.Murowa Devi, wife of late Darogi Prasad Chourasia and daughter of late Nanku Paneri
10.Vinod Paneri
11.Jitu Paneri
12.Astik Paneri Sl.Nos.10 to 12, sons of late Munki Devi
13.Smt. Mithila Devi, daughter of late Munki Devi Sl.Nos. 1 to 13, all resident of Purana Bazar, Gomoh, Post Office -Gomoh, Police Station-Hariharpur, District-
Dhanbad ..... Respondents.
14.Smt. Tara Devi, wife of late Ram Lakhan Chourasia and daughter of Smt. Sundari Devi
15.Smt. Sabitri Devi
16.Kamla Devi
17.Smt. Laxmi Devi Sl.Nos. 15 to 17, daughters of late Iswari Lal Paneri
18.Smt. Shabnam Praveen, wife of Shoukat Islam
19.Shankar Kumar Agarwalla
20.Pawan Kumar Agarwalla Both sons of Jai Narayan Agawalla Sl.Nos.14 to 20, all resident of Purana Bazar, Gomoh, Post Office-Gomoh, Police Station-Hariharpur, District- Dhanbad .... ..... Proforma Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Birendra Kumar, Advocate For the Respondents : Mr. R.S.Mazumdar, Sr.Advocate Mr. Pratik Sen, Advocate
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9/ 27.08.2018 The petitioner after her failed attempt to get herself impleaded in Title (Partition) Suit No.4 of 1999 has approached this Court. She seeks to challenge the order 2 dated 19.09.2015 by which her application under Order-I Rule 10(2) CPC has been rejected.
2. Title (Partition) Suit No.4 of 1999 was instituted by Smt. Mina Debi and 17 others for a preliminary decree for partition of schedule-B property to the extent of half share for the plaintiffs and for a declaration that the defendant nos.2 and 3 had no right to sell the dwelling house to the defendant nos.5 and 6 through sale-deed dated 21.12.1988 and the plaintiffs are entitled to purchase the said land from defendant nos.5 and 6. The plaintiffs have pleaded that the land comprised under plot nos. 129 and 137 which is shown as "chhapparbandi" in the Khatiyan was taken in oral settlement by Panchu Mian, father of Ishwar Lal and Nanku. They were in joint possession over the aforesaid lands. Over plot no. 129, six pucca rooms with one latrine and 'Angan' were constructed and over plot no.137, shop rooms, living room, kitchen, latrine, varanda etc. were constructed. The defendant no. 1 is grand-daughter and defendant nos. 2 to 4 are daughters of Ishwar Lal. The plaintiffs are descendants of Nanku. They have claimed that the wife of Ishwar Lal namely, Jagbasia Devi who had no right over the suit land, executed a registered deed of gift on 12.09.1978 in favour of her step daughters namely, Sabitri-defendant no.2 and Kamla-defendant no.3 in respect of the land comprised under plot no.238, and subsequently she cancelled the said gift-deed through a registered cancellation-deed dated 17.03.1980. The plaintiffs have further pleaded that through registered sale-deed dated 11.01.1972 Ishwar Lal sold 50 decimals land under plot no.129 to the tenants in occupation namely, Shankar Kumar Agarwal-defendant no.7 and Pawan Kumar Agrawala-defendant no.8 and defendant nos. 2 and 3 have also executed sale-deed dated 21.12.1988 through which 2 decimals land under plot 3 no.238 with structures thereon have been transferred to Shabnam Parveen-defendant no.5 and minor Shadab Parveen-defendant no.6 for a valuable consideration of Rs.60,000/- (Rs. Sixty Thousand only). The right, title and interest of Ishwar Lal and defendant nos.2 and 3 have been challenged by the plaintiffs to execute the aforesaid sale-deeds. The defendant nos.5 and 6 have contested the suit by filing their separate written-statement. They have admitted execution of gift-deed and cancellation-deed dated 17.03.1980, however, they have insisted that subsequently, Jagbasia Devi sold that landed property to defendant nos. 2 and 3 vide registered sale-deed dated 07.10.1980 and they are purchasers from the defendant nos.2 and 3 for valid consideration. The suit was dismissed vide judgment dated 27.09.2003 and the plaintiffs preferred Title Appeal No.147 of 2003 against the aforesaid judgment in the partition suit. Finally, the appeal was allowed by judgment dated 25.03.2015 and the suit was remitted back to the court below for fresh hearing on two additional issues. The petitioner has pleaded that during pendency of the appeal she has purchased a part of the suit property from defendant nos. 5 and 6 through sale-deed dated 21.09.2012. After the remand, she has filed an application for her impleadment in the suit.
3. Contention raised on behalf of the petitioner is that a 'subsequent' purchaser pendente lite like the petitioner is a necessary party in the partition suit. Mr. Birendra Kumar, the learned counsel for the petitioner in support of this contention has relied on decisions in "Chandrakant Raipat & Anr. vs. Santosh Kumar Ganguly & Ors." reported in 2018 (1) JCR 486(Jhr) and "Dhanlakshmi & Ors. vs. P. Mohan & Ors." reported in (2007) 10 SCC 719.
4. Resisting the writ petition, Mr. R.S. Mazumdar, the learned Senior counsel for the respondents, submits that alienees of alienees have no right to equities 4 [refer "K. Adivi Naidu & Ors. vs. E. Duruvasulu Naidu & Ors." reported in (1995) 6 SCC 150].
5. Whether a person is a necessary party or a proper party in the suit has been explained by the Supreme Court in "Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar and Another" reported in AIR 1963 SC 786. It has been held that the one whose presence is necessary for effective adjudication of the dispute is a necessary party and the one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding is a proper party. Under Order-I Rule 10(2) CPC the Court may at any stage of the proceeding, either suo-motu or upon an application of a party, struck out the name of any party who has been improperly joined and name of any person who ought to have been joined may be added in the suit. This power under Order-I Rule 10(2) CPC is grounded on justice, equity and good conscience.
6. Technically, the petitioner is a transferee pendente lite, but then, whether she has a right to be impleaded in the partition suit, is the issue contested by the parties.
7. The doctrine of lis pendence has been incorporated in Section 52 of the Transfer of Property Act, 1882. It is well-known that the doctrine of lis pendence embodies a public policy that it is necessary for administration of justice that the decision of a Court in a suit must bind all who claim an interest in the property and also those who derive title pendente lite. It is intended to protect accrued rights of the parties against alienations by the other party during pendency of the suit. As held by the Privy Council in "Gouri Dutt Maharaj vs. Sukur Mohammed & Ors." reported in AIR (35) 1948 PC 149, "broad purpose of section 52 is to maintain status-quo unaffected by the act of any party to the litigation pending 5 its determination". The logic is that if alienations pendente lite are permitted to prevail it would be impossible to bring action or suit to a successful termination. In "Marirudraiah & Ors. vs. B. Sarojamma & Ors." reported in (2009) 12 SCC 710, a Constitution Bench of Supreme Court has observed that courts are not supposed to encourage pendente lite transactions and regularizing their conduct by showing equity in their favour at the cost of co-sharers. More than one and half century ago, in "Bellamy vs. Sabine" 1957 [(1857) DeG and J 566: 44 ER p842] it was observed in the context of the doctrine of lis pendence, thus :
"41. .... '... that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.' "
8. It is true that application for joinder of a transferee pendente lite in a partition suit should ordinarily be allowed to enable the transferee pendente lite to protect his interest, however, in "Amit Kumar Shaw & Anr. vs. Farida Khatoon & Anr." reported in (2005) 11 SCC 403 it has been held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has a discretion to make him a party; he can be added as a proper party only if his interest in the subject-matter of the suit is substantial and not just peripheral [para-16].
9. In a partition suit, a purchaser pendente lite who has purchased undivided share of a co-sharer is normally impleaded as a party in order to work out equities in his favour in the final decree proceedings. His impleadment in the partition suit is only for the purpose of providing an 6 opportunity to him to protect his rights flowing from the sale-deed executed by a co-sharer to the extent of his vendor's share in the joint family property. His presence is not necessary for effective and complete adjudication of the disputes involved in the suit and, in fact, only at the stage of Taktabandi when a final decree shall be prepared, a purchaser from a co-sharer can have a right to get the equities worked out in such a manner that he may get the land comprised under the sale-deed which has been transferred to him by one of the co-sharers.
10. A common sentiment seems to run through the judgments on impleadment of a purchaser pendente lite in the partition suit; the courts must be cautious and vigilant, impleadment of a stranger in the partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right. This limited right of a purchaser from a co-sharer is not a transferrable right. May be the equitable right in the property in question has been transferred by a purchaser, who himself may be purchaser pendente lite, to another person, pending litigation, still the limited right of a purchaser to get equities worked out in his favour in the final decree proceedings to the extent his vendor who is a co-sharer gets his share in the property, cannot be transferred to the "subsequent" purchaser pendente lite. The limited right of a purchaser pendente lite, or the first purchaser, from a co-sharer to get equities worked out in his favour gets exhausted with his impleadment in the suit and a further alienation of the same property by the purchaser or the purchaser pendente lite does not create a fresh equity or revive the same right in the second purchaser.
11. On the above principle, it is held that a purchaser pendente lite, who has purchased the suit property or a part of the suit property from another purchaser/ 7 purchaser pendente lite, has no right to equities and, thus, cannot be impleaded in a partition suit.
12. The application under Order-I Rule 10(2) CPC seeking impleadment of the petitioner in Title (Partition) Suit No.4 of 1999 is founded on a right claimed by her in the suit property by virtue of the registered deed of sale dated 21.09.2012 executed by Shabnam Parveen- defendant no.5 and Shadab Parveen-defendant no.6. The petitioner has asserted that she, who has valuable interest in a part of the suit property, should essentially be added as a party-defendant in the suit. The petitioner's vendors themselves are purchasers from defendant nos.2 and 3 through registered sale-deed dated 21.12.1988. They have claimed that they have purchased 2 decimals land in plot no.238 with construction thereon for a consideration of Rs.60,000/- (Rs. Sixty Thousand only). The construction over this part of the suit property is a dwelling house. The plaintiffs have challenged the authority of Sabirti Devi- defendant no.2 and Kamala Devi-defendant no.3 to sell a part of the joint family property which consists of a dwelling house, to an outsider. The appellate Court by judgment dated 25.03.2015 passed in Title Appeal No.147 of 2003 has set-aside the judgment and decree passed in Title Suit No.4 of 1999 and remitted back the matter for a fresh consideration on two issues: "(i) whether there is unity of title and unity of possession between the co- sharers over the suit property, and (ii) whether the plaintiffs have a legal right in respect of the dwelling house against the stranger under section 4 of the Partition Act".
13. The petitioner who technically can be labelled as transferee pendente lite, in the context of a partition suit in which the purchaser of undivided share of a co-sharer is held entitled to come on record, is not the one who inspite of her purchase through sale-deed dated 21.09.2012 can insist that her interest in the suit-subject is substantial 8 and not just peripheral. Her vendors are parties in the partition suit and they have contested the suit by filing written-statement. They themselves are not purchasers pendente lite, rather long before Title Suit No. 4 of 1999 was instituted, they have purchased a part of the suit property through registered sale-deed dated 21.12.1988. At this stage, it cannot be pleaded that the vendors of the defendant nos.5 and 6, who are defendant nos.2 and 3 have got undivided share in the suit properties, though they may have laid a claim for their share in the suit property or over a part of the suit property. In contrast to her vendors, the petitioner admittedly stands on a different footing. She is not a purchaser from a co-sharer. If at all she has a right it is only against her vendors who are parties in the suit; defendant nos.5 and 6. She has no right to equities, she had knowledge of the pending Title Appeal No.147 of 2003 and it was about 3 years after her purchase when she filed her application for impleadment in Title (Partition) Suit No.4 of 1999, after its remand by the appellate court. The trial Judge has rightly refused to join her a party in the partition suit.
14. Viewed thus, and for the reasons indicated hereinabove, I find no infirmity in the impugned order dated 19.09.2015, and accordingly the writ petition is dismissed.
(Shree Chandrashekhar, J.) SI/