Surender Singh vs Tara Chand

S. Ravindra Bhat, J.—This order will dispose of IA 11667/2007, under Order I, Rule 10, CPC (CPC) whereby the applicant, Kanta Devi, (hereafter called "the applicant") wishes to be impleaded as a party defendant. The plaintiff seeks a decree for specific performance of an agreement to sell, entered into with the defendant, on 14.10.2006. According to the plaint averments, the subject matter of the agreement is 10 Bighas 6 Biswa out of Khasra No. 5.1.1.2., Pandwala Kalan, New Delhi; the total consideration agreed was Rs. 1,19,09,375/-out of which the plaintiff alleges to have paid Rs. 25,00,000/- (Rupees twenty five lakhs). After summons were issued, the defendant appeared, and filed his written statement on 30th November, 2007. According to averments in the written statement, the plaintiff has withheld material facts that the suit property is ancestral, and owned by other members of the defendant''s family. It is alleged that the suit, as framed is not maintainable, because of non-joinder of the others parties, who are necessary for a proper decision in the case. The defendant has set out the particulars of other alleged co-owners who, according to him, are necessary parties.

The applicant, a widowed daughter of Tara Chand, the defendant, contends that she filed a suit for partition, being Suit No. 1712/2007, claiming 1/8th share in various properties, including the suit property. She alleges that the defendant came to inherit the property from his father, and that she is entitled to claim partition. It is argued, on her behalf, that since the suit is pending consideration on the file of this court, and further that the court has permitted the plaintiff, in this case, to be impleaded in those proceedings, it would be just and necessary, for a full resolution of the case, to implead the applicant.

The application is resisted by the plaintiff, who alleges that impleadment is not permissible, having regard to the nature and character of the suit. The defendant alone entered into an agreement to sell and the plaintiff, who is dominus litis, has a duty to implead only the other party. If the application were to be allowed, the character of the proceeding would be changed. It is averred, and contended by Shri Anil Grover, for the plaintiff, that the applicant, a married daughter cannot claim rights in respect of the suit lands, because they are subject matter of the Delhi Land Reforms Act, 1954, which stipulates the order of succession. Besides, argues the counsel, the rights under that act, such as Bhumidari rights, are statutory and special rights, not subject to customary laws, such as those created under the Hindu Succession Act. He relied on the judgment reported as Hatti Vs. Sunder Singh, Nathu Vs. Hukam Singh and Others, and Ram Mehar Vs. Dakhan, Reliance was placed on the judgment of the Supreme Court reported as Kasturi Vs. Iyyamperumal and Others,

The question to be decided here is whether the applicant fails in the category of a necessary party, who has to be added in the proceedings.

Two judgments of this court: Jado Ram Gupta Vs. Kehar Singh and Others, and S.S. Bakshi through its Karta K.S. Bakshi Vs. P.M. Mathrani, considered the question of adding parties who were not signatories to agreements for sale of land and held, that the applicants were claiming to be family co-owners, and entitled to be impleaded. In Jado Ram Gupta it was held that:

The two applicants allege that they have a share in the land by virtue of an award made in their favour and a decree has been passed and the same is in their possession. Applicants would definitely be necessary parties to the suit where decree is claimed by the plaintiff on the basis of agreement to sell, which the plaintiff claims to have been entered between him and Dr. Kehar Singh. Presence of the applicants otherwise will also be necessary for complete adjudication of the rights of the parties. Power to add party at any stage of the proceedings cannot be disputed......

Similarly in S.S. Bakshi the court examined the position after considering relevant decisions of the Bombay and Madras High Courts, and held that:

Shivshankareppa Mahadevappa Parakanhatti Vs. Shivappa Parappa Kupati, may be noted. It was observed that where possession of a third party was likely to be defeated in a suit for specific performance of a contract for sale of land, said person would be a necessary and a proper party.

Counsel for the plaintiff also relied upon a decision of the Supreme Court reported as Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, to urge that a person not being a party to an agreement for sale could not be impleaded as a party in a suit for specific performance.

Decision of the Supreme Court does not record that Their Lordships were dealing with a suit for specific performance where possession was also claimed.

An interesting judgment on the issue is the Full Bench decision of the Madras High Court reported as 1981 Mad 681, T. Rangayya Reddi v. R. Subramanya Aiyar. The facts of the case were that the plaintiffs suit for specific performance against defendant No. 1 with a consequential relief for possession of the property sold, by seeking partition. Other members of the joint family were impleaded as defendants on the allegation that they were necessary parties. Issue arose whether the suit was liable to be rejected for misjoinder of parties and misjoinder of cause of action. On a difference of opinion between Old-field, J. and Sada Siva Aiyar, J., matter was referred for opinion to a Full Bench. Two questions were referred to a Full Bench. The first question was: (a) Whether defendant Nos. 2 to 5 are proper parties to the suit? (b) Whether the relief of partition and possession could be claimed by the plaintiffs in one suit?

Wallis, C.J., answered the second question by holding that issue of partition may often involve a more variety of complicated questions and it would not be satisfactory to deal with such a suit as an appendage to the suit for specific performance of a contract by a co-sharer to sell his share. On the first question, Wallis, C.J., expressed no separate opinion but concurred with the opinion of Srinivasa Aiyangar, J. He held that a right to sue for partition does not arise till after the legal title is transferred. He held that the issue of defendant Nos. 2 to 5 being proper parties or not depended upon a further issue whether they were subsequent transferees to the property agreed to be sold to the plaintiff or they had a prior right, it was held that:

It is now settled so far as Court is concerned that this contract, even if completed by a conveyance, would not entitle the plaintiff to joint possession with the other coparceners -That in fact he is not entitled to any sort of possession-But that his purchase if completed, would enable him to bring a suit for partition in which, if the Court making a division considers it fair having due regard to the rights of other coparceners to allot the property sold to the vendor, the vendee standing in his shoes may obtain that property.

Decision of the Full Bench of the Madras High Court shows that the issue came up in a reverse context where the purchaser impleaded the other coparceners. These coparceners opposed the suit by alleging that there was a misjoinder of cause of action for the reason that the purchaser had to first perfect his title and thereafter step into the shoes of the vendor coparcener and thereafter sue for possession.

Necessary parties are those without whom the Court will not proceed to any judgment. Included in this category would be the persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interest or without causing some prejudice to their rights. Additionally, a party may be a necessary party where the decision of the Court would leave the controversy in such a condition that its final determination would be inconsistent with the rights of a party......

Kasturi Vs. Iyyamperumal and Others, , was a case where a question arose as to whether a third party or stranger to the contract could be added in a suit for specific performance merely in order to find out who is in possession of the contracted property or to avoid multiplicity of suits. The Supreme Court answered the question in the negative. This was followed recently in Bharat Karsondas Thakkar Vs. Kiran Construction Co. and Others,

The analysis indicated above shows that the general rule appears to be that strangers to a contract for sale of property cannot seek impleadment in a suit brought for its specific performance, by an intending, and aggrieved purchasers. Therefore, applicants seeking to be impleaded have been thwarted in their efforts on the ground that the character of the proceeding would change. In these decided cases, a discernable concern expressed by courts was that strangers, who claimed to be subsequent transferees, (even innocent purchasers without notice) could not seek entry into such suits, for specific performance. Yet, the Supreme Court has not indicated that such a rule, if one is to characterize it as such, would also apply where the property has several claimants, within the family, one of whom is alleged to have entered into the contract for specific performance. The judgment of the Full Bench of the Madras High Court, in Ranganayaki Reddi (supra) and the two previous judgments in Jadoo Ram Gupta and S.S. Bakshi (Supra) of this court are two clear authorities where members of the family or co-owners, claiming shares in the property for which a suit for specific performance was filed, were held to be proper parties, and impleaded in the action. These two previous decisions of this court are authorities, in such cases; the court is un-persuaded that the rule indicated in those decisions is not applicable here.

As regards the question that customary law is inapplicable to Bhumidari rights; is concerned, the plaint does not assert that the property is comprised of Bhumidari right, the relief claimed is specific performance and the pleadings, prima facie, bespeak of absolute title and interest in the suit property, inhering in the defendant. Furthermore, the question about the applicant''s rights under the Delhi Land Reforms Act, or Hindu Succession Act, cannot be agitated, or gone into in these proceedings; if they are appropriately raised, they would have to be considered in later stages of the proceeding. Another consideration: the plaintiff does not deny having sought, and being impleaded in Suit No. 1712/2007, i.e. the applicant''s suit for partition. In view of this last circumstance, too, the applicant''s presence is necessary for a just and complete resolution of the dispute in this case. In view of the above discussion, the application is entitled to be allowed. IA 11667/2007 is therefore, allowed; the applicant defendant is added as a party defendant. The plaintiff shall, in view of this order, amend the plaint, in terms of Order I, Rule 10 (4), to incorporate the consequential changes, to the suit, within four weeks.