Smt. Bhagwanti vs Smt. Gurmit Kaur and others

J.S. Sekhon, J.—Bhagwanti petitioner has directed these revision petitions against the order of the trial Court dismissing her application for being impleaded as a party under the provisions of Order 1, Rule 10 of the Code of Civil Procedure.

The facts in brief for the disposal of this revision petition are that originally Anokh Singh, husband of Smt. Bhagwanti, was the owner of the property in dispute. After the death of Anokh Singh, his son Bhagwan Singh transferred the property to the latter''s wife Gurmit Kaur. This property was mortgaged with Gurdial Singh by aforesaid Bhagwan Singh, vide mortgage deed dated 12.8.1981. The aforesaid Gurmit Kaur filed a suit for redemption of the mortgaged property against Gurdial Singh and others. During the pendency of this suit, Smt. Bhagwanti petitioner filed an application for impleading her as a party, contending that her husband Anokh Singh during his lifetime in a family arrangement had recognized her right of ownership of his entire estate and she has been receiving the rent of the property in dispute. She further alleged having filed a suit challenging the aforementioned mortgage deed, besides the sale of the property by Bhagwan Singh in favour of his wife Gurmit Kaur. Thus she maintained that she is a necessary party in the present suit. This application was resisted by Gurmit Kaur, contending that it was a simple suit for possession of the property by way of redemption from Gurdial Singh mortgagee and that Smt. Bhagwanti was not a necessary party as she has yet to establish her right of ownership to the estate of her late husband Anokh Singh. It was further maintained that aforesaid Anokh Singh had executed a will in favour of his son Bhagwan Singh. It was also conteded that Smt Bhagwanti had contracted a second marriage with one Bachna during the life time of her previous husband Anokh Singh and that she had filed an affidavit in a suit titled Babu Singh v. Mohinder Kaur depicting herself to be the widow of aforesaid Bachna. A certified copy of Jamabandi for the year 1980-81 was also relied upon in order to establish that Smt. Bhagwanti had claimed the property of Bachna by depicting herself as his widow.

The trial Court, in the light of the aforesaid affidavit and the entry in the Jamabandi, dismissed this application by holding that Smt. Bhagwanti is neither a proper nor a necessary party.

The learned counsel for the petitioner, relying on the findings of this Court in Rajinder Singh v. Jaswant Singh 1987 P.L.J. 68, contended that the petitioner should have been impleaded as a party in the present suit as she had a bona fide claim regarding the ownership of the, property in dispute He also referred to the provisions of Order 34, Rule 1, Code of Civil Procedure, in support of the proposition that, in a suit for redemption of mortgage of immoveable property, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. Reliance was also placed on the provisions of section 91 of the Transfer of Property Act in this regard.

Mr. Joginder Singh, learned counsel for the respondents on the other hand maintained that a co-mortgagor is not even a necessary party as held by this Court in Sham Lal v. Mst. Jagwanti 1976 R.L.R. 79. He further stressed that Smt. Bhagwanti had filed this application in order to delay the proceedings at the instance of Gurdial Singh mortgagee. Reliance was also placed on the findings of the Patna High Court in Lachhmi Narain and Others Vs. Ganga Mahton and Another, that conversion of a suit for redemption of immoveable property into a suit for title is not permissible by addition of a party. The learned counsel for Gurdial Singh mortgagee, on the other hand, had no serious objection to the impleading of Smt. Bhagwanti as defendant by accepting this revision petition.

There is no dispute with the legal position that a party having a bona fide claim regarding the ownership of the property in dispute should be impleaded as a party as held by this Court in Rajinder Singh''s case (supra) In that case, in a suit for specific performance of the contract of sale of property, the subsequent vendee was held to be a necessary party and allowed to be impleaded as such. But, it is not applicable to the facts of the present case, as herein the controversy relates to the redemption of the mortgaged property in dispute. In the suit for redemption, the only controversy is whether the plaintiff had a right to redeem the property on the basis of the mortgage deed. At the most, even if the case of Smt. Bhagwanti petitioner is taken to be true, she can be said to be a co-mortgagor and in that case also, in view of the finding of this Court in Sham Lal''s case (supra), she is not a necessary party. In that case, the Court, after considering the provisions of section 91 of the Transfer of Property Act and Rule 1 of Order 34, Code of Civil Procedure, held that the provisions of this Order being subject to the other provisions of the Code of Civil Procedure, it cannot be said that a co-mortgagor is a necessary party.

The Patna High Court in Lachhmi Narain''s case (supra) further held that an intervener should not be impleaded as a party during the pendency of the suit in order to change the nature of the suit from the one for redemption to the one for title of the disputed property.

In the present case also, if Smt. Bhagwanti petitioner is allowed to be impleaded as a party, then it will certainly amount to converting the suit for redemption of the property to the one for its title, as she had challenged the genuineness of the will of her late husband Anokh Singh in favour of his son Bhagwan Singh, besides the sale of the property by Bhagwan Singh in favour of his own wife Gurmit Kaur. Moreover, she had already filed a separate declaratory suit, challenging the will of her late husband Anokh Singh and the transfer of property by the legatee in favour of his wife.

The findings of the Division Bench of this Court in Arjan Singh v. Kartar Singh AIR 1975 P&H. 184, can also be referred to in support of the proposition that a necessary party is one in the absence of which the controversy cannot be effectively decided. In that case, the controversy related to the impleading of Mst. Ind Kaur as a party before the trial Court on depicting herself to be the daughter of the paternal uncle of the plaintiff, who in turn had earlier successfully challenged the alienation of the disputed land by Harnam Singh to the effect that the said alienation will not bind and affect their reversionary interests. Under these circumstances, it was held that though Mst. Ind Kaur could be said to have interest in the property in dispute but she was not a necessary party as the controversy could be disposed of in her absence.

For the foregoing reasons, there is no merit in the revision petitions and the same are hereby dismissed. The parties are, however, left to bear their own costs in view of the peculiar circumstances of the case.