Pavittar Singh vs Rai Singh and Others

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 19.11.2010, passed by learned Additional Civil Judge, Senior Division, Khanna, vide which application filed by Respondents No. 2 and 3 under order 1 Rule 10 of the CPC (hereinafter to be referred as the ''Code'') for impleading them as party was allowed.

I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that an agreement to sell dated 23.6.2004 was executed by Respondent No. 1-Rai Singh, father of contesting Respondents No. 2 and 3 in favour of present Petitioner-Plaintiff for selling the land in dispute. However, as he committed breach in the terms and conditions of the agreement to sell, the present suit for specific performance was filed by Petitioner-Plaintiff against Respondent No. 1-Defendant. During pendency of the suit, the present application under Order 1 Rule 10 of the Code was filed by Respondents-applicants No. 2 and 3, being sons of Respondent No. 1, for impleading them as party on the plea that the property in dispute is ancestral and coparcenary joint property in the hands of their father, i.e., Rai Singh, and that he is having no right to alienate the same, therefore, it is stated that agreement is not a valid one and hence, they are necessary party to be impleaded.

Application was contested by the present Petitioner mainly on the ground that Respondents-applicants are having no right to restrain their father from alienating the property in dispute and they being strangers to the agreement are not necessary party to be impleaded.

However, application was allowed by learned trial Court and Respondents No. 2 and 3 were ordered to be impleaded as party in the suit. Aggrieved by the said order, the present civil revision has been filed by the Petitioner-Plaintiff.

Though the fact that the property in dispute is ancestral in the hands of Respondent No. 1 has been denied by Petitioner-Plaintiff and, however, even if it is taken that property is ancestral in the hands of Respondent No. 1-Plaintiff, Respondents No. 2 and 3, being sons of Respondent No. 1, are having no right to restrain their father from alienating the property in dispute, being Karta of the Joint Hindu Family. Law on the point has been well settled by Hon''ble Apex Court in Sushil Kumar and Anr Vs. Ram Prakash and Ors, . Relevant paragraph of the same reads as under:

I do not think that these submissions are sound. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right had interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the Court to grant relief by injunction restraining the karta from alienating the coparcenary property."

On the same point reliance is placed upon another judgment rendered by a Coordinate Bench of this Court in Satish Kumar v. Sat Parkash 2010 (3) PLR 605.

Respondents-applicants also filed suit for permanent injunction against Respondent No. 1 restraining him from alienating the property in dispute and in the said suit, application for ad interim injunction order was

It has been argued by learned Counsel for the Petitioner that in the said suit, injunction application was dismissed. This fact has not been disputed by learned Counsel for the Respondents.

This Court while issuing notice of motion in the present petition passed the following order:

Heard.

Learned Counsel for the Petitioner by relying upon the judgment of the Apex Court reported in Sushil Kumar and Anr Vs. Ram Prakash and Ors, , submitted that Respondents No. 2 and 3/ applicants filed a suit for permanent injunction restraining their father Rai Singh-Respondent No. 1 from alienating the land in dispute in which they moved the application for ad interim injunction, which was refused and that they could only challenge the alienation affected by the Karta and they have no right to restrain him from alienating the coparcenary property. He further submitted that the order passed by the trial Court suffers from illegality as the impleading of these applicants as the Defendants in the suit will amount to giving right to them for challenging the intended alienation of the coparcenary property.

Notice of motion for 9.2.2011. In the meanwhile, the operation of the impugned order is stayed.

Hence, if the order passed by learned trial Court impleading Respondents-applicants as party to the suit is allowed to stay, the same would amount to give right to applicants to stop the intended alienation of the alleged coparcenary property, which is not permitted by law, as has been held by Hon''ble Apex Court in Sunil Kumar and another''s case (supra).

Another point argued by learned Counsel for the Respondents-applicants is that they are having right in the property in dispute by birth being sons of Respondent No. 1 and hence they are necessary party. It is also contended that Court had wide powers to add any party if the Court finds it necessary for an effective determination of the matter in dispute. On the point he has placed reliance upon Roshan Lal v. Mohit 2009 (1) Law Herald (P&H) 505.

Learned Counsel for the Respondents has also placed reliance upon Sumtibai and Ors. v. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) and Ors. 2007 (4) CCC 593 (S.C.). However, in aforesaid case legal heirs of deceased-Defendants were permitted to file written statement as purchase of the property in dispute was not only in the name of predecessor-in-interest of the legal heirs, but also the legal heirs, i.e., sons of Kapoor Chand. Hence, the said judgment is not applicable to the facts of present case.

Law is well settled that in a suit for specific performance, a third party to a contract is not a necessary party to be added. Hence, in the present case, it cannot be said that no effective decree can be passed in favour of Petitioner-Plaintiff in the absence of Respondents-applicants. Hence, learned trial Court has committed illegality and material irregularity in passing the impugned order allowing Respondents-applicants to be impleaded as party. Impugned order cannot be sustained in the eyes of law.

In view of these facts, the present revision petition is accepted. Impugned order is set aside.