Delhi High Court
Badri Pershad vs Harish Chander And Anr. on 8 May, 1991
Equivalent citations: 1991(21)DRJ41, 1991RLR382
JUDGMENT M.L. Verma, J.
(1) This is an application under order 1 rule 10 Civil Procedure Code . filed one smt. shammi (for short the applicant) seeking to be imploded as a defendant in the above suit for partition.
(2) The above suit has been filed by the plaintiff seeking partition of the property being the lease hold rights in plot No. Ii, Block 3C in Western Extension Area, Karol Bagh, New Delhi, and the super-structure made thereon commonly known as 3-C/11, New Rohtak Road, New Delhi. Defendants 1 & 2, who are brother of the plaintiff, have been imp leaded as parties to the suit. In paragraph 2 & 3 of the plaintiff it has been pleaded that in October 1974, an oral partition of the said house property was effected between the parties. The division following the partition and the portions allotted to the plaintiffs and defendants 1 & 2 pursuant to that partition have been set out in sub-paras (a), (b).(c) and (d) of paragraph 2 and sub-paragraph (i), (ii)and (iii) of paragraph 3 of the plaint.
(3) According to the plaintiff the oral partition in October 1974 was not fully implemented owing to some problem which prima fade appears to be minor. Prayers (a) & (b) in paragraph 15 of the plant read as follows :- (a) for partition of the said house No. 3-C/ 11, New Rohtak Road, New Delhi, between the plaintiff and the defendant No. 1 & 2 in equal shares in such a manner as the Court deems fit and proper. (b) or in the alternative for declaration of partition as mentioned in paragraph 2 & 3 above and its full implementation under supervision of Court.
(4) Along with the plaint an application under Order 39 Rule 1 & 2 of the Code of Civil Procedure (for short CPC) being 1.A. 4350/88 has also been filed inter alia praying that the defendants be restrained from parting with possession or transferring any portion of the said house property to avoid any complications in case the Property in question is ultimately partitioned in a manner different from the oral partitions between the parties in October, 1974.
(5) In the application for impalement under Order 1 Rule 10 Cpc, the applicant herein has contended that she purchased the 1/3 share and interest of defendant No. 1 Shri Harish Chander in the suit property on 14.3.85 for consideration and as such is vitally interested in defending the suit. It is further stated that in June 1984 defendant No. 1 had let out on rent two rooms in the said house to the applicant who is the sister-in-law ('Devrani') of the said defsndanl's only daughter namely Smt. Maya Devi. It is stated that on 14.3.85 the possession of the remaining portion of the said share of defendant No. 1 was handed over to the applicant. The agreement to sell dated 14 3. 85 is stated to have been registered. It is clamed that the applicant is now the owner in possession of 1/3 portion of the suit property. This is alleged to be so as per Section 53A of the Transfer of Property Act (for short T P.A.). The application states that it would b- proper that the applicants be imp leaded as a necessary party to the suit. It is also alleged that the applicant will be able to apprise this Court of all the necessary facts and circumstances required for the decision of the suit. and to enable the Court to effectually and completely, adjudicate upon and settle all questions involved in the suit.
(6) A reply in opposition to this application has been filed on behalf of the plaintiff. It may be noticed that in the written statement filed by defendant No. 1 it has been alleged in preliminary objection No. 3 that the applicant be rein is the owner in possession of the share which was of the said defendant in the suit property. Therefore, it is alleged that the applicant be imp leaded as necessary and proper party in order to enable the court to effectually and completely adjudicate upon and settle the issue involved in the suit and turn determination of the real matter in dispute so, as to avoid multiplicity of proceedings. It may also be noticed here that on 13.2.91 an I.A. No. 10895/90 moved by defendant No. I inter alia praying for an order against the plaintiff restraining him from removing the 'common lock already lying placed on the common main compound gate' was rejected on the ground that he was not residing in any portion of the suit property.
(7) MR.D,S Golani,learned counsel for the applicant, cited various judgments in support of his contention that the application should be imp leaded as a defendant. He submitted that apart from defendant No. 2,. the applicant was the only person interested in the result of this litigation. He submitted that having .received consideration and given possession of his share in the suit property defendant No. 1 was no longer interested in the outcome of the litigation. It was submitted that even though the agreement mentioned that the appellant had 1/3 undivided share in the suit property, it was also clarified therein that the said share had been delivered possession of to the applicant and two rooms were already under the tenancy of the second party It was urged that even though the agreement mentioned about the undivided share, the portion handed over to the applicant was what had fallen to the share of defendant No. 1 pursuant to the oral partition in October. 1974. He placed strong reliance on Section 53A of T.P.A. (8) It is not necessary to notice all the judgments cited by Mr. Golani as some of them are of no help to the applicant. Mr, Golani strongly relied upon a judgment of the Supreme Court in the case of Razia Begum v.. Sahebzadi Anwar Begum and others , and one of this Court in the case of Gurmauj Saran Baluja v. Mrs. Joyee C. Salim and others . He urged that since the applicant would be vitally affected by the final decision in the suit, therefore, she should be imp leaded as a defendant in the suit. A reference was invited, in particular, to paragraph 15 and 16 of the judgment in Gurmauj Saran Baluja's case (Supra) He also cited a judgment of the Full Bench of Rajasthan High Court in the case of Hardeva v. Ismail aud others wherein the test for determining as to who is a necessary party have been given. It was also held in this case that a vendor may be a proper party even though not a necessary party in a case where a suit had been filed by a third person claiming the property as his own although the vendor bad sold the said immovable property and handed over possession to the vendor.
(9) Mr. D.P. Gupta, learned advoca(e for defendant No. 1 argued in support of this application. He submitted that the defendant had specifically raised a plea in the written statement that the applicant was a necessary party and, therefore, a decision on this application may also decide this question. He submitted that an oral partition had taken place in October. 1974 and according to him this fact was not in dispute. Cowever, the plaintiff had made a grievance that the said partition was not implemented folly. The defendant No. 1 transferred his right, title and interest in the suit property to the applicant; under the provisions of Section 44 of the T.P.A., the applicant stepped into the shoes of defendant No I, He submitted that the mention of the 'undivided share' in the agreement dated 14.3.85 was only because of the terms of the lease deed in respect of the said property hereunder that plot could not be sub-divided. He urged that in October 1974 there was an apprehension that the division and partition of the structure, may be construed as the sub division of the plot which may lead to complications with the Delhi Development Authority. Therefore, he submitted, the word 'undivided' was used in the said agreement of 14.3.85.
(10) Mr. Gupta submitted that the applicant would be vitally effected if either prayer 'a' or prayer 'b' of the plaint is allowed by the Court; because, according to the plaintiff, as per the oral partition of 1974; a wall may have to be constructed in a portion .of the property which is in possession of the applicant. He referred to a judgment of the Madras High Court in the case of G. M. V. Krishnamachari v. M. D. Dhanalakshmi and others and submitted that the expression all the questions involved in the suit' in O.I, Rio Civil Procedure Code must be given a wider interpretation and thai a person who had direct interest e;ther legal or equitable in the subject matter of the suit can be imp leaded as a party. He submitted that it had been held in this judgment that the interest of the person in the suit property should be such as the jaw would recognise and uphold. He submitted that there can be no dispute about the fact that the applicant bad such an interest.
(11) Mr. Gupta also cited a judgment of the Madras High Court in the case of Sethu Romalinga v Beeroswami , in support of his argument that an alliance of a Hindu co-partner can maintain a prayer for the allotment of the specific item of the property purchased by him, to the share of the alienating co parcener if that were possible. He, therefore, urged that the applicant can contend before this Court in the instant suit that even if it were to be held that the oral partition in October 1974 did not bind the parties even then, while granting prayer 'a', it should be borne in mind that she is the venture of the share of defendant No. 1 and, therefore, defendant No I should be allotted the same share.
(12) Finally, Mr. Gupta urged that it bad been held in the case of, Hussain Banu v. Satyanarayan that under Section 53A of the T P. A. also. certain rights were acquired by thk person who paid consideration in part performance of the contract and .too possession or continued to be in possession in part performance of an agree h ment. He submitted that such a right is certainly an equitable right which must be upheld by the law. He submitted that if. along with an agreement t sell, as contemplated under Section 54 of the T.PA. possession was also given' then Section 53A comes into play.
(13) Mr. Ishwar Sahai, learned counsel for the plaintiff/non-applicant vehemently opposed this application. He submitted that the application did not make out a case that the applicant was necessary party. He urged that it was settled law that for a party to be a necessary party, firstly there must be a right to some relief against such a party in respect of the matter involved .in the proceedings and that it should not be possible to pass an effective decree in the absence of such a party. He submitted that the applicant would not become a necessary party merely by alleging so in the application and that neither of the aforesaid two tests were stayed in the case of the applicant for her to be a necessary party. He further submitted that no case was made out in the application that the applicant was a proper party and according to Mr Sahai there was no such pleading in the application He submitted that the application must be decided on facts pleaded and not on hypothetical facts He, however, did not dispute that. if a wall was made as alleged by the plaintiff in paragraph 3(ii) of the plaint then it would cut across the verandah in the possession of the applicant.
(14) Mr. Ishwar Sahai, referred to the provisions of Section 54 of the T.P.A. in support of his argument that no interest was created in the suit property in favor of the applicant. He submitted that admittedly there was no sale but only an agreement to sell and under Section 54 of the T.P.A. that did not 'of itself create any interest in or charge on such property. He emphasised that even in the agreement to sell it was clearly stated that what was being sold was the 1/3 undivided share. He submitted that even though under Section 44 of the T.P.A. when a co-owner of immoveable property, who is legally competent in that behalf, transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest .and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or party enjoyment of the property and to enforce a partition of the same. yet, all this is subject to the conditions and liabilities effecting, at the date of the transfer, the share or interest so transferred. He further relied upon the second part of Section 44 of the T.PA. which reads as under : Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this Section shall be deemed to entitle him of joint possession or other common or part enjoyment of the house."
(15) He then submitted that admittedlythe suit property is a dwelling house belonging to the plaintiff and the defendants, and that the applicant was not a member of the family of the three brothers who are parties to the suit Therefore, she was not entitled to joint possession or other common or part enjoyment of the house Mr. Sahai, however, did not urge that the dwelling house in question being the suit property belongs to an undivided family and this is not even the case of the plaintiff in the Plaint.
(16) With reference to the judgment of the Calcutta High Court in the case of Narayan Chandra Garai & ors v. Matri Bhandar Ovt Ltd. & anr . , he submitted that a person whose interest was in necessary nor a proper party. He referred to the judgment of this Court in the case of Siddharth Kumar Modi & ors. v. Jagjit Singh Bindra , to urge that it has been held that in a suit for the dissolution of partnership and accounts the creditor of the partnership firm was not a necessary party and, therefore, could not be imp leaded as a defendant in the suit. He also referred to the judgment of this court in the case of Praveen K. Bhatia v. Dr. (Mrs ) M Ghosh reported in Rajdhani Law Reporter, 1989. 136, to submit that in a case for damages against a doctor for causing death by negligence the insurance company which had ensured the doctor for the risks involved in the professional work was held to be neither a necessary nor a proper party and, therefore, not entitled to being imp leaded. He, therefore, submitted thy merely because a person was likely to be effected by the decision in a matter, that did not entitle him to be imp leaded as a party.
(17) Mr. Ishwar Sahai strongly relied upon a division bench judgment of the Orissa High Court in the case of Pranakrushna and ors v. Umakanta Panda and others . He pointed out that in this case a suit for declaration of title and permanent injunction was filed. The suit property was transferred during the pendency of the litigation Yet it was held that a transferee from the defendant pendente life was neither a necessary nor a proper party and that the presence of such a person was not necessary to adjudicate upon and settle the question involved in the snit effectually and completely. Mr. Ishwar Sahai strongly relied upon the observations in this judgment to the effect that a person is not to be added as a defendant merely because he would be effected by the judgment. However, the judgment of Supreme Court in the case of Razia Begum (Supra) does not appear to have been noticed by the Division Bench of the Orissa High Court.
(18) Finally Mr. Ishwar Sahai submitted that the plaintiff was dominus lIT is and was entitled in law to decide as to who should be the defendant in the suit. He also submitted that in a suit for partition it is only the person having a share in the property who needs to be imp leaded and the presence of no one else is necessary for the Cot to effectually and completely adjudicate upon and settle all disputes involved in the suit. He urged that if a partition had taken place and then an agreement to sell was entered into between the applicant and the defendant No. I the applicant would be bound by such a partition. He further urged that if no partition had taken place then only the undivided share bad been agreed to be sold. In either case, it is defendant No. I who would protect the interest of the applicant. He submitted that in fact the defendant No. I was taking all steps to defend the suit. He, therefore, contended that the application deserved to be dismissed.
(19) In reply, Mr. Golani pointed out that to avoid multiplicity of proceedings, the applicant should be imp leaded as a party in the suit because her interest would be vitally effected and it was not a case of her interest being effected only incidentally. He submitted that it was in the discretion of the Court under Order 1 Rule 10 Civil Procedure Code to implead a party. He pointed out that under Section 2 of the Contract Act, agreement to sell was enforceable by law and was, therefore, a contract.
(20) Before proceeding further it may be noticed that the argument of Mr. Sahai that it is not the case of the applicant that she should be imp leaded as a proper party does not appear to be very correct. As noticed above the applicant has averred that it would be "proper" that the applicant be imp leaded as a necessary party. According to me this is sufficient pleading to the effect that the applicant is a proper party for being imp leaded as the defendant in the suit. It cannot be disputed and Mr. Sahai fairly conceded that under Order I Rule 10(2) Civil Procedure Code . the Court may even suo motu order a person to be joined as aparty in the suit ought to have been joined whether as plaintiff or as defendant.
(21) It is true that the plaintiff is dominus lIT is and he bos to decide as whom be would array as defendants in his suit. However, this is subject to the provisions of Order I Rule 10 Civil Procedure Code as has been held by this Hon, ble Court in the case of Gurmauj Saran Baluja v. Mrs. Joyce C. Salim and ors. . In paragraph 13 of this judgment it has been held that the right of a plaintiff to choose his defendant is not absolute. It is also true that in a suit for partition; as a rule; the co-owners of joint owners are the only necessary and proper parties. It appears to me that this is so because of the fact that it is only those persons who are co-owners or joint owners who have right, title aud interest in the property in question which is sought to be partitioned. However, a person who has acquired either right, title or interest in the persons who admittedly had right, title and interest in the said property, would no doubt be a proper, if not a necessary party. It is such a person who is interested in and is likely to be effected by a decision in a suit partition. In a case, such as this one, a defendant who had divested himself of his right, title and interest and even handed over possession of certain portion of the suit property; may not have any interest in the litigation instituted by the plaintiff. It may be noticed here that the division beach of our Court has observed in paragraph 16 in Gurmauj Saran Baluja Case (supra) that :- "Bat the transferee pendente-lite can be added as improper party if his interest in the subject matter of the suit is substantial and not just peripheral."
(22) The fact that I.A. 10805/90 was dismissed, as noticed above, goes to show that defendant No. 1 could not fully protect the interest of transferee of his share in the suit qroperty. In my opinion the argument of Mr. Sahai based on Sections 44 and 54 of the T. P. A. cannot be accepted. Mr. Sahai did nor dispute that the first part of Section 44 would entitle the applicant to succeed in this application, seeking impleadment. The second part of Section 44 does not apply to the facts of the instant case, in view of the fact that the property in question is not the property of an undivided family. Further, the provisions of Seciioa54oftheT.P.Amust be read with the provisions of Section 53A of the said Act. The argument of Mr. Gupta that a right and interest is created in the property by virtue of provisions of Section 53A of T.P.A. has merit. Further, if the applicant is not imp leaded as a party it may lead to multiplicity of litigation because a decree in favor of the plaintiff may become executable in respect of property in possession of the applicant, and some objections may be filed at the time of execution. Therefore, I am of the opinion that to avoid multiplicity of proceedings and to effectually and completely adjudicate upon and settle all the questions involved in the suit, it is proper to add the applicant as defendant in the suit.
(23) It is evident that the applicant has a direct interest in the suit property and not merely a commercial interest. Further, her interest in the subject matter of the suit is substantial and not just peripheral. The judgments of the Supreme Court in Razia Begum's case (Supra) as well as of this Court in Gurmauj Saran Baluja's case (Supra) support the case of the applicant. The judgments cited by Mr. Ishwar Sahai do not help the plaintiff. As noticed above, the Division Bench of the Orissa High Court in the case of Pranakrushna and Ors. (Supra) has not even noticed the judgment of the Supreme Court in Razia Begum's case (Supra). Besides in view of the judgment of this Court in Gurmauj Saran Baluja's case (Supra), the aforesaid judgment of Orissa High Court cannot help the non-applicant.
(24) In view of the foregoing, this application is allowed. The applicant, Smt. Shammi Dewan, is imp leaded as a defendant in the suit. The plaintiff will file the amended memo of parties within two weeks. No costs.