Delhi District Court
Vide This Order vs Gopibai And Others on 18 April, 2016
Kanak Singh v. R.N.Chaudhary & Ors..
IN THE COURT OF MS DEEPALI SHARMA,
ADDL. DISTRICT JUDGE-14 (CENTRAL):
TIS HAZARI COURTS: DELHI
CS-89/16
Sh. Kanak Singh ........... Plaitniff.
Versus
Sh. R.N. Chaudhary & Ors. .......... Defendants.
O R D E R:
1. Vide this order, I shall dispose off the "preliminary/ additional issue" as framed by the Ld. Predecessor on 21.07.2014. On 21.07.2014, the following additional issue was framed:
"(1) Whether the suit of plaintiff can survive for not bringing on record the legal heirs who have interest in the property after the death of their mother for not impleading them as necessary parties to the suit in a suit for declaration by him."
2. Since it is only pursuant to the decision on this issue that the suit can proceed further and moreover, no disputed questions of fact arise qua the said issue, therefore, the above issue is treated as a "preliminary issue".
3. The suit was filed on 26.09.1998. It is stated by the Plaintiff that the Plaintiff is the sole and absolute owner of property, (CS-89/2016) (Page 1 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
bearing No. A-116, First Floor, Arjun Nagar, New Delhi. It is further stated by the Plaintiff that on 08.10.1997, the Plaintiff purchased the suit property from Ms. Seema Anand, Defendant No.2. The necessary documents were executed by Ms. Seema Anand in favour of plaintiff. Defendant No.1 was the Property Dealer through whom the property was purchased from Ms. Anand, i.e. Defendant No.2. Defendant No.1 was a witness to the transactions and also supervised the preparation of the documents of property which were executed in favour of the Plaintiff by Defendant No.2. Pursuant to the transfer of property by Defendant No.2 in favour of the Plaintiff, vacant physical possession of the property was handed over to the Plaintiff by Defendant No.2.
4. It is the case of the Plaintiff that Defendant No.1, on the pretext of introducing a buyer, interested in buying the suit property, took the keys and original documents pertaining to the suit property from the Plaintiff. It is further stated that Defendant No.1 has taken the possession of the suit property and thereafter, unauthorizably and illegally passed over the suit property to Defendants No.3 & 4. It is stated that Defendant No.4 is the wife of Defendant No.3
5. It is stated by the Ld. Counsel for the Plaintiff that the suit property was thereafter sold by Defendant No.1 to Defendants No.3 and 4 on 10.05.1999 vide an Agreement to (CS-89/2016) (Page 2 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
Sell and duly registered Will and General Power of Attorney. Hence, according to the Plaintiff, Defendants No.3 & 4 have allegedly purchased the property from Defendant No.1 unauthorisedly and illegally. It is stated that Defendants No.3 & 4 were in possession of the suit property.
6. In the order dated 18.07.2008, it is recorded as follows:
"It is submitted by Ld. Counsel for Plaintiff that since the only legal heir of deceased Defendant No.4 is Defendant No.3 (her husband) so the name of deceased Defendant No.4 may be deleted from the arrays of the parties. He is making prayer accordingly".
7. The prayer of the plaintiff was opposed by Ld. Counsel for Defendants No.3 & 4 on the ground that Defendant No.3 was not the sole legal heir of Defendant No.4 and since an application for substitution of LRs has not been moved within 90 days, therefore, the suit of the Plaintiff qua Defendant No.4 stands abated. On the Statement of the Plaintiff that Defendant No.3 was the sole legal heir of deceased Defendant No.4, the name of deceased Defendant No.4 was deleted from the array of parties.
8. The Ld. Counsel for the Plaintiff has argued that owing to the fact that the sale transaction between Defendant No.1 and (CS-89/2016) (Page 3 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
Defendants No.3 & 4 took place on 10.05.1999 i.e. during the pendency of the suit proceedings, the same would be hit by the doctrine of lis pendens and thus Defendants No.3 & 4 are not necessary and proper parties to the suit. In support of his contention, Ld. Counsel for the Plaintiff has relied upon the judgment in Sarvinder Singh v. Dalip Singh & Ors 1996 SCALE (6) 59 wherein the Hon'ble Supreme Court has held that the alienation during the pendency of the suit or proceedings would obviously be hit by the doctrine of lis pendens by operation of Section 52 of the Transfer of Properties Act. Under such circumstances, a transferee pendente lite cannot be considered to be either necessary or property party to the suit.
9. The Ld. Counsel for the Plaintiff has contended that Defendants No.3 & 4, being subsequent purchasers, derive their title through Defendant No.1, who has illegally sold the property to Defendants No.3 & 4 and therefore, Defendants No.3 & 4 are not a necessary and proper parties to the instant suit. Ld. Counsel for the Plaintiff has placed reliance upon the Judgment of Hon'ble Delhi Court in the matter of Neeraj Sharma v. Rakesh Kumar Sharma AIR 2005 Delhi 345 wherein it was observed as under:
"27. Transferees who obtain possession during the pendency of suit are neither necessary nor proper parties as the alienation is hit by the doctrine of lis (CS-89/2016) (Page 4 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
pendens."
10.The Ld. Counsel for the Plaintiff has also urged that be that be that as it may, the legal heirs of Defendant No.4 stood duly represented through Defendant No.3, who is the husband of Defendant No.4 and father of legal heirs of Defendant No.4. In order buttress his arguments, Ld. Counsel for the Plaintiff has relied upon the judgment of the Hon'ble High Court of Orissa, in the matter of Suren Prasad Jaiswal @ Suren Jaiswal v. Santibai Jaiswal & Others, C.R.P No.116 of 2007, decided on 03.02.2012 wherein it was held by the Hon'ble High Court of Orissa that in view of the fact that the son-defendants are already on record, as heirs and representatives of the deceased Defendant No.1 and the fact that non-pleaded widow of Defendant No.1 was sufficiently represented by the Defendant-son, already on record, it would be too technical to set aside the entire judgment of the Ld. Appellate Court for non-bringing the widow on record.
11. The Hon'ble Supreme Court in the case of Custodian of Branches of BANCO' National Ultramarino v. Nalini Rai Naique, AIR 1989 SC 1589 has held that Section 2 (11) of the CPC defines the Legal Representative as a person who in law represents the estate of a deceased person, and (CS-89/2016) (Page 5 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party or suing or sued. The definition is inclusive of character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased.
12. Hence it is apparent from the above that the term, "Legal Repesentative" which is used in Order 22 CPC is a wider term than Legal Heirs. The requirement of Order 22 Rule 4 CPC would stand complied with once the legal representative/s of the Defendant is/are brought on record. It is not a essential that each and every legal heir be made a party to the suit/ proceedings if the legal representative of the deceased/ Defendant has been brought on record and the right to sue survives against the said legal representative.
(CS-89/2016) (Page 6 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
13. In this regard, it is relevant to note that in the matter of Mohd. Hussain (Dead) by LRs Vs. Gopibai and others, 2008(3) SCC 233, the question before the Hon'ble Supreme Court was whether the Second Appeal of respondent Nos. 1 to 4, who were appellants before the High Court had abated as they failed to make an application to bring legal heirs and representative of Mohd. Hussain, one of the respondents in the High Court who had died during the pendency of that Second Appeal. The Hon'ble Supreme Court taking into consideration that sons of Mohd. Hussain were already on record, held as follows:-
"It is an admitted position that some of the heirs and legal representatives of Mohd. Hussain were already on record in the file of the Second Appeal. Such being the position, in our view, the question of abatement of the Second Appeal on the death of Mohd. Hussain could not arise at all as some of his heirs and legal representatives were admittedly on record. Only the question of noting the death of Mohd. Hussain could arise and his name could be deleted from the array of the respondents in the Second Appeal. That being the position, even if the judgment was delivered after the death of Mohd. Hussain whose entire body of heirs and legal representatives were not brought on the record, even then the only requirement under the law was to take note of the death of Mohd. Hussain and delete his name from the array of the respondents in the Second Appeal and the rest of the heirs and legal representatives (CS-89/2016) (Page 7 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
who had not brought on record could be added in the cause title of the memorandum of appeal. Therefore, in our view, it would be considered too technical to set aside the entire judgment of the High Court on the ground of not bringing the entire body of heirs and legal representatives of Mohd. Hussain because some of his heirs and legal representatives were on record and the left our heirs and legal representatives were sufficiently represented by the other heirs on record. Accordingly, the first question as posed herein above is decided in favour of the present respondents."
14. Accordingly, it is argued by the Ld. Counsel for the Plaintiff that husband of Defendant No.4, being the legal representative of other legal heirs of defendant No.4 was duly representing them and was already on record, it was not mandatory to implead the other legal heirs of deceased Defendant No.4.
15.Ld. Counsel for the Defendant, on the other hand has argued that the suit stands abated since the legal heirs of deceased Defendant No.4 have not been brought on record. He further states that the Plaintiff has filed the instant suit for possession of the suit property and therefore, it cannot be argued that Defendant No.3 & 4, who are in possession of the suit property are not necessary and proper parties to the suit.
16. In the instant case, admittedly Defendant No.3 who is the (CS-89/2016) (Page 8 of 9) Kanak Singh v. R.N.Chaudhary & Ors..
legal representative of Defendant No.4, is already on record and has been contesting the suit. Defendant No.3 has sufficiently represented the interest of deceased Defendant No.4 including the interest of children/ legal heirs of deceased Defendant No.4. It is not the case of the other Defendants that non-substitution of other legal heirs of deceased/ Defendant No.4 was a result of fraud or collusion. It is also no body's case that there is any conflict in the interest of the heirs of Defendant No.4. Since the heirs of deceased Defendant No.4 is sufficiently protected and duly represented through Defendant No3, hence non- impleadment of other legal heirs i.e. children of deceased/ Defendant No.3, would not be fatal to the suit. The right to sue survives against the surviving Defendant No.3 who is the Legal Representative of deceased Defendant No.4 and is on record.
17. In view of the aforesaid, the additional issue as framed on 21.07.2014 is decided in favour of the Plaintiff and hence the suit of the Plaintiff will not abate for not bringing on record other legal heirs of deceased Defendant No.4. It is ordered accordingly.
ANNOUNCED IN OPEN COURT TODAY 18.04.2016.
(DEEPALI SHARMA) Addl.District Judge-14 (Central):
Tis Hazari Courts, Delhi.
(CS-89/2016) (Page 9 of 9)