Bombay High Court
Sanjay Kachardas Mutha vs Rajeev Kachardas Mutha And Ors on 25 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:15914
Digitally signed
ARUN
by ARUN
RAMCHANDRA
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RAMCHANDRA SANKPAL
SANKPAL Date:
2025.04.05
19:30:14 +0530
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2806 OF 2022
Sanjay Kachardas Mutha
Age: 62 years, Occ: Agriculture & Business
R/at- 166, Mukundnagar, Pune - 411037. ..Petitioner
Versus
1. Rajeev Kachardas Mutha
Age: 56 years, Occ: Agriculture & Business
R/at:- 166, Mukundnagar, Pune - 411 037.
2. Meena Alias Bhagyashree Milind Bhansali
Age:- 50 years, Occ: Housewife,
R/at: I-501, Konark Indrayu Enclave Phase I
NIBM Undri Road, Kondhwa Khurd,
Pune - 411048.
3. Kalpana Kachardas Mutha
Age: 56 years, Occ: Agriculture & Business
R/at:- 166, Mukundnagar, Pune - 411 037. ...Respondents
Mr. Sitesh S. Sharma, with Vijay Upadhyay, for the Petitioner.
Mr. Drupad Patil, for Respondent No.2.
CORAM: N. J. JAMADAR, J.
DATED : 25th MARCH 2025
JUDGMENT:
1. Rule.
2. Rule made returnable forthwith and with the consent of the
learned Counsel for the parties heard finally.
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3. The Petitioner-Plaintiff takes exception to an order dated 3 rd
January 2022, passed by the learned Civil Judge, Senior Division, Khed-
Rajgurunagar, whereby an Application preferred by Respondent Nos. 2
and 3 to implead them as party-Defendants in SCS No. 76 of 2019,
instituted by the Petitioner against his brother, Respondent-Defendant
No.1, came to be allowed.
4. The Petitioner instituted the Suit with the assertion that the suit
properties, bearing Gat Nos. 145/2 and 144/2, are the jointly acquired
properties of the Petitioner and Respondent/Defendant No.1 and, thus,
a decree for partition and separate possession of Plaintiff's share in the
suit properties be passed and Respondent No.1 be restrained from
creating any third party rights in the suit properties.
5. Respondent Nos. 2 and 3, who are the real sisters of the Plaintiff
and Defendant No.1, filed an Application purportedly under Order I
rule 10 of the Code of Civil Procedure 1908 ("The Code") seeking their
impleadment in SCS No. 76 of 2019 as party-Defendants, asserting that
the Plaintiff and Defendant No.1 have deliberately suppressed the fact
that the apart from the Plaintiff and Defendant No.1, Respondents Nos.
2 and 3 are the legal heirs of Kachardas Mutha, their father. The suit
properties are the joint family properties. Those properties were
acquired out of the joint family funds. However, the Sale Deeds were
nominally got executed in the name of the Plaintiff and Defendant No.1
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Therefore, if Respondent Nos. 2 and 3 are not impleaded as party-
Defendants to the Suit, their valuable rights would be impaired and
Respondent Nos. 2 and 3 would suffer grave prejudice. Since
Respondent Nos. 2 and 3 have a definite right, title and interest in the
suit properties, they were necessary parties to the Suit.
6. The Petitioner resisted the prayer for impleadment.
7. By the impugned order, the learned Civil Judge was persuaded to
allow the Application observing inter alia that since Respondent Nos. 2
and 3 were the real sisters of the Plaintiff and Defendant No.1 and they
claimed that the suit properties were acquired out of the joint family
funds, it was necessary to implead Respondent Nos. 2 and 3 as party-
Defendants to the Suit. It would also prevent the multiplicity of the
proceedings.
8. Mr. Sitesh Sharma, the learned Counsel for the Petitioner, would
urge that the learned Civil Judge has proceeded on an incorrect
premise. The suit properties were acquired under a registered Sale Deed
in the name of the Plaintiff and Defendant No.1 only. They are the self-
acquired properties of the Plaintiff and Defendant No.1. Like the suit
properties, the Plaintiff and Defendant No.1 had acquired a number of
properties jointly. There was division of those properties between the
Plaintiff and Defendant No.1 However, since Defendant No.1 refused to
partition the suit properties, and expressed his intention to defeat the
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rights of the Plaintiff, the latter was constrained to constitute the Suit
for partition and separate possession of his share. The impleadment of
Respondent Nos. 2 and 3 as party-Defendants would completely alter
the nature and character of the Suit. The very nature of the properties
would be put in contest. Respondent Nos. 2 and 3 can certainly institute
another Suit, if they want to assert that the suit properties are the joint
family properties. However, the Plaintiff, who is dominus litus, cannot
be compelled to litigate against Respondent Nos. 2 and 3. Mr. Sharma
invited attention of the Court to the copy of the Sale Deed dated 4 th
April 1986 under which suit properties were jointly acquired by Plaintiff
and Defendant No.1.
9. Mr. Sharma, further submitted that the Trial Court committed an
error in holding that the impleadment of Respondent Nos. 2 and 3
would avoid the multiplicity of the proceedings, and, therefore, it was
necessary to implead them. That is not the test for addition of a party
to the suit. To buttress this submission, Mr. Sharma placed reliance on
the judgment of the Supreme Court in the case of Ramesh Hirachand
Kundanmal Vs Municipal Corporation of Greater Bombay,1 wherein the
Supreme Court has clarified that the main object of Order I Rule 10 is
not to prevent the multiplicity of actions.
10. Reliance was also placed by Mr. Sharma, on a judgment of a
learned Single Judge of this Court in Leticia E Dos M Simoes Vs Suresh
1 (1992) 2 SCC 524.
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Tukaram Shirodkar & Anr,2 wherein it was enunciated that where the
reliefs sought in the Suit cannot be said to impinge on any of the rights
of the parties who seek impleadment, such party cannot be impleaded
as party-Defendant.
11. In opposition to this, Mr. Drupad Patil, the learned Counsel for
Respondent Nos. 2 and 3, submitted that there is overwhelming
material to show that the suit properties were joint family properties.
Mr. Drupad Patil would urge that the very Sale Deed under which the
Plaintiff and Defendant No.1 allegedly jointly acquired the suit
properties, indicates that the Plaintiff was then 27 years of age and
Defendant No.1 was just 23 years of age. It could not have been
possible for the Plaintiff and Defendant No.1 to acquire suit properties
independently of the joint family funds.
12. Mr. Patil would urge that the suit properties were acquired by
Kachardas Mutha, the father of the Plaintiff, Defendant Nos. 1 and
Respondent Nos. 2 and 3, and the Sale Deeds were nominally executed
in the name of the Plaintiff and Defendant No.1. Taking the Court
through the material on record in the form of various instruments,
evidencing the acquisition of the properties and the Income Tax
Returns, it was submitted that all the properties were the joint family
properties and the Plaintiff, in connivance with Defendant No.1, has
2 2022 SCC OnLine Bom 419.
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made an endeavour to defeat the legitimate rights of Respondent Nos. 2
and 3, who have the status of coparcenors.
13. Indisputably, Respondent Nos. 2 and 3 are the sisters of the
Plaintiff and Defendant No.1. Incontrovertibly, Kachardas Mutha, the
father of the Plaintiff and Defendant Nos. 1 and 3, had acquired a
number of properties. The suit properties were purportedly purchased
in the names of Plaintiff and Defendant No.1. However, it would be
rather hazardous to draw an inference, on the basis of the instrument
alone that, the suit properties are the self-acquired properties of the
Plaintiff and Defendant No.1. Evidently, there was adequate family
nucleus to finance the acquisition of suit properties. At this stage, the
submission on behalf of Respondent Nos. 2 and 3 premised on the age
of Plaintiff and Defendant No.1 which runs in derogation of their claim
of acquisition of the suit properties jointly at such young age, cannot be
brushed aside.
14. The legal position as regards the addition or deletion of a party is
fairly crystallized. Addition or deletion of a party to a proceeding is not
a matter of initial jurisdiction but one of exercise of judicial discretion
and, as in other branches of law, discretion to implead a party as a
Defendant is required to be exercised in a judicious manner informed by
all the attendant circumstances.
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15. The distinction between a necessary and a proper party is also
well-marked. A necessary party is one, in whose absence no effective
decree can be passed. A proper party is a person, though against whom
no relief is claimed, yet, the presence of such person may equip the
Court to effectively and completely adjudicate the lis. (Mumbai
International Airport Private Limited Vs Regency Convention Centre
And Hotels Private Limited & Ors.3)
16. In the case of Ramesh Kundanmal (Supra), the Supreme Court
enunciated the law as under:
"10. The power of the Court to add parties under Order I
Rule 10, C.P.C. , came up for consideration before this Court
in Razia Begum V Anwar Begum, 1959 SCR 1111. In that
case it was pointed out that the Courts in India have not
treated the matter of addition of parties as raising any
question of the initial jurisdiction of the Court and that it is
firmly established as a result of judicial decisions that in
order that a person may be added as a party to a suit, he
should have a direct interest in the subject-matter of the
litigation whether it be the questions relating to movable or
immovable property.
13. A clear distinction has been drawn between suits
relating to property and those in which the subject-matter of
litigation is a declaration as regards status or legal character.
In the former category, the rule of present interest as
distinguished from the commercial interest is required to be
shown before a person may be added as a party.
3 (2010) 7 SCC 417.
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14. It cannot be said that the main object of the rule is to
prevent multiplicity of actions though it may incidentally
have that effect. But that appears to be a desirable
consequence of the rule rather than its main objectives. The
person to be joined must be one whose presence is necessary
as a party. What makes a person a necessary party is not
merely that he has relevant evidence to give on some of the
questions involved; that would only make him a necessary
witness. It is not merely that he has an interest in the correct
solution of some questions involved and has thought of
relevant arguments to advance. The only reason which
makes it necessary to make a person a party to an action is
so that he should be bound by the result of the action and
the question to be settled, therefore, must be a question in
the action which cannot be effectually and completely settled
unless he is a party. The line has been drawn on wider
construction of the rule between the direct interest or the
legal interest and commercial interest. It is, therefore,
necessary that the person must be directly or legally
interested in the action in the answer, i.e., he can say that
the litigation may lead to a result which will affect him
legally that is by curtailing his legal rights. It is difficult to
say that the rule contemplates joining as a defendant a
person whose only object is to prosecute his own cause of
action. Similar provision was considered in Amon v. Raphael
Tuck & Sons Ltd., (1956) 1 All E.R. 273, wherein after
quoting the observations of Wynn-Parry, J. in Dollfus Mieg et
Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that
the true test lies not so much in an analysis of what are the
constituents of the applicants' rights, but rather in what
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would be the result on the subject-matter of the action if
those rights could be established, Devlin, J. has stated:-
"The test is 'May the order for which the plaintiff is asking
directly affect the intervener in the enjoyment of his legal
rights'."
17. In the instant case, it is pertinent to note that, it is the positive
case of Respondent Nos. 2 and 3 that they have a right, title and interest
in the suit properties in the capacity of the daughters of Kachardas
Mutha. It is their claim that there were a number of joint family
properties, including the suit properties. Those properties were
nominally purchased in the name of the Plaintiff and Defendant No.1.
On the contrary, the Plaintiff asserts that the suit properties were jointly
acquired by the Plaintiff and Defendant No.1 and the Respondent Nos. 3
and 4 have no semblance of right, title and interest therein.
18. The submission of Mr. Sharma that Respondent Nos. 3 and 4 may
institute an independent Suit asserting their claim in the suit properties
but they cannot be permitted to implead themselves in the instant Suit
and change the very character of the Suit, does not merit countenance.
It appears that, Respondent Nos. 2 and 3 have a direct interest in the
subject matter of the Suit, rather than a commercial interest. Once the
character of the properties is put in contest, the presence of Respondent
Nos. 3 and 4, who are the daughters of Kachardas Mutha, appears
necessary, as in their absence, no effective decree can be passed.
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19. The submission that the reliefs claimed in the Suit are qua
Respondent No.1 alone, does not advance the cause of the submission
on behalf of the Petitioner. If this argument is accepted, the the
statutory rights of the daughters can be legitimately defeated if the sons
approach the Court with a case that the suit properties are their self-
acquired properties. Such a course has the propensity to defeat the
statutory rights of the daughters as the non-impleadment of the
daughters, would necessarily augment the shares of the sons.
20. Viewed through the abovesaid prism, the impleadment of
Respondent Nos. 2 and 3 appears to be necessary for a complete and
effective adjudication of the dispute.
21. Thus, the learned Civil Judge seems to have committed no error
in allowing the Application for impleadment of Respondent Nos. 2 and
3. Therefore, this Court does not find any reason to interfere with the
impugned order.
22. Hence, the following order:
:ORDER:
(i) Petition stands dismissed.
(ii) In the circumstances, there shall be no order as to costs.
(iii) Rule discharged.
[N. J. JAMADAR, J.]
