Baldev Singh vs Gurbachan Singh and Others

D.V. Sehgal, J.—This revision petition is directed against an order dated 30.1.1987 passed by the Learned Sub Judge 1st Class, Fazilka by which he has allowed an application under Order 1 Rule 10 CPC (for short ''the Code''), filed by Baldev Singh son of Rattan Singh respondent No. 5, herein and has directed him to be impleaded as a defendant to the suit. The petitioner is the plaintiff in the suit and being aggrieved from the said order has approached this Court by way of the present revision petition.

The facts in brief are that one Naranjan Singh executed a Will dated 27.11.1973 by which he bequeathed one half of his land in favour of the petitioner and the remaining half in equal shares in favour of Harnam Kaur, his widow, and Kishan Kaur, his mother, but to the later two he gave life interest only, which meant that on their death their share would revert to the petitioner and he was to be the absolute owner of the same. The petitioner filed a suit on 15.10.1977 impleading Harnam Kaur and Kishan Kaur as defendants on the strength of the Will dated 27.11.1973 for the reason that on the death of Naranjan Singh the land which he left was mutated in favour of his mother and the widow. The suit was decreed on 17.12.1980. The appeal against the same by the defendants was dismissed on 7.9.1982.

In the meantime, Kishan Kaur through her attorney Baldev Singh respondent No. 5 sold the entire land posing herself to be the sole successor of Naranjan Singh vide sale deed dated 28.6.1978 to respondent Nos .1 to 3. The petitioner in view of his success in the earlier litigation filed the instant suit against the said vendees for a declaration to the effect that the sale of land by Kishan Kaur vide the aforesaid sale deed was not binding on him. He also sought consequential relief of permanent injunction. Respondents Nos. 1 to 3 were contesting the suit. On the pleadings of the parties, issues were framed. The petitioner adduced his evidence in support of his case. It was thereafter that respondent No. 5 stepped into file the application under Order 1 Rule 10 of the Code for being impleaded as a defendant. He staked his claim stating that Kishan Kaur executed a Will dated 1.3.1976 in his favour. Therefore, on her death he became the owner of the suit land. Learned trial court accepted this application and directed that respondent No. 5 be impleaded as a defendant to the suit.

Mr. P.N. Aggarwal, Learned Counsel for the petitioner has vehemently contended that respondent No. 5 is neither a necessary nor a proper party to the suit. The real contest is between the petitioner and respondent Nos. 1 to 3. He contends that the facts make it clear that respondent No. 5 has come forward to be impleaded as a defendant at the instance of respondent Nos. 1 to 3. He further submits that respondent No. 5 has otherwise no stake in the dispute for the reason that Kishan Kaur had since sold away the land and on her death he has not come to inherit any estate from her. So, the Will dated 1.3.1976 shall unnecessarily be adjudicated upon in the present suit when the same is not at all the subject matter of the dispute. He has relied on Ram Kishan and Ors. v. Mast Ram and Anr. 1985 PLJ 574, and a Division Bench judgment of this Court in Krishan Lal and Ors. v. Tek Chand and Ors. 1986 PLJ 629.

I find merit in the submission of the Learned Counsel for the petitioner. Only one of the two results could follow the decision of the suit in the trial court. One, the land in dispute could be held to be the limited estate for her life time in the hands of Kishan Kaur. Its consequences would be that the impugned sale of the land by her shall be void and not binding on the petitioner. On the suit being decreed the land would revert to the petitioner on the date of Smt. Kishan Kaur died by virtue of the Will dated 27.11.1973. The other result could be that Smt. Kishan Kaur could be held by the trial court to be the absolute owner of the land in dispute and she had the right to sell the same through the impugned sale deed. In such a situation the suit would be dismissed and the vendee-respondents shall be held to be the owners of the same. In any of the two situations respondent No. 5 does not come to have any interest in the subject matter of the suit. The Will dated 1.3.1976 is rendered otiose for the reason that before her death Smt. Kishan Kaur sold the land in dispute. Thus on her death the land was not left as an estate to be inherited by respondent No. 5 by virtue of the said Will. I am, therefore, of the considered view that the Learned trial court erred in exercise of its jurisdiction in impleading respondent No. 5 as the defendant in the suit. Consequently, this revision petition is allowed. The impugned order of the trial court dated 30th January, 1987 is set aside.

The parties through their counsel, are directed to appear before the trial court on 7.11.1988 on which date it shall fix another date for taking up proceedings in the suit after giving notice to the respondents.