Harpreet Kaur vs Sardar Kanwaljit Singh & Ors.
1998 Latest Caselaw 184 Del

JUDGMENT

K.S. Gupta, J.

1. Manohar Lal Sharma, his wife Smt. Satyawati Sharma and son Gajender Sharma have filed application under Order 1 Rule 10 CPC etc. alleging that Sardar Kanwaljit Singh, defendant No. 1, was the co-owner in property No. 1-C/35, New Rohtak Road, Delhi and after the family settlement dated August 2, 1989 he became exclusive owner of the portion of the property which fell to his share. Defendant No. 1 entered into an agreement to sell his share in the aforesaid property to the applicants and he received part sale consideration. Possession of the part of the property was also given by him to the applicants. This partition suit has been filed to delay the execution of the sale deed and to deprive the applicants of their right in the aforesaid property. Applicants are very much interested in the suit. It was prayed that they may be allowed to be imp leaded as defendant in the suit.

2. Plaintiffs and also defendant No. 1 have contested the application by filing replies. In the reply filed by the defendant No. 1 it is, inter alia, alleged that the alleged agreement to sell is based on misrepresentations. The applicants do not have either sufficient funds or the intention to purchase the property. It is denied that possession of any part of the property was delivered by defendant No. 1 to the applicants as alleged. It is stated that in the suit filed by the applicants against defendant No. 1 for specific performance before the District Judge, Delhi relief sought by the applicants is for delivery of possession of the property agreed to be sold by defendant No.1. It is alleged that the applicants are neither necessary nor proper parties to the suit.

3. Plaintiffs in their reply have alleged that no family settlement took place either on August 2, 1989 or any other date as alleged. The question of defendant No.1 becoming exclusive owner of any specific portion in the aforesaid property, therefore, does not arise. It is denied that possession of any part of the property was handed over by defendant No. 1 to the applicants. Even defendant No.1 was not legally competent to part with possession to anyone. Further, by the order dated March, 13, 1992 defendant were restrained from alienating, letting or leasing etc. the whole or any part of the property in question and the stay order was confirmed on September 4, 1992. In a suit for partition applicants cannot be treated either as necessary or proper parties and the application, therefore, deserves to be dismissed.

4. Submission advanced by Sh. Bawa Shiv Charan Singh, Sr. Advocate appearing for the applicants was that the applicant to whom defendant No.1 agreed to sell his specific portion of property No.1-C/35, New Rohtak Road, are necessary parties to the suit which defendant No. 1 got filed in collusion with the plaintiffs and the other defendants. Strong reliance was placed on the decisions in Nagubai Ammal and others Vs. B. Shama Rao & Others, , Champaran Cane Concern Vs. State of Bihar & Another, , Smt. Mohinder Kaur Vs. Smt. Sudershan Krishnamurthy & Others, and C.P. Raman & Others Vs. Ram Pyari Sharma, .

5. Suit for partition was filed on the allegations that Sardar Lal Singh who died on July 14, 1983, was the owner of property No. 8759 (1-C/35), New Rohtak Road. Under the will dated August 17, 1982 executed by Sardar Lal Singh aforesaid property was bequeathed in favour of defendants 1 & 2 and Baljit Singh, Baljit Singh died on June 7, 1986 leaving behind his widow, defendant No.3 and two minor son and daughter i.e. the plaintiffs. By operation of law plaintiffs are entitled to 1/9th share each in the property. Since defendants 1 to 3 are not maintaining the property properly and the plaintiffs also do not want to keep it joint, the same be partitioned by metes and bounds. Suit is being contested only by defendant No. 1 but the case taken by him in the written statement being not necessary for disposal of the present I.A need not be referred to here.

6. In the decision in Razia Begum Vs. Sahebzedi Anwar Begum & Others, (1959) S.C. R. 1111, it was held by the Supreme Court that in a suit relating to property in order that a person may be added as a party he should have a direct interest as distinguished from a commercial interest in the subject-matter of the case. Ratio in Razia Begum's case was approved by the Apex Court in Ramesh Hiranand Kundanmal Vs. The Municipal Corporation of Greater Bombay & Others. and Anil Kumar Singh Vs. Shivnath Mishra @ Gadasa Guru, .

7. In Nagubai Ammal's case (supra) distinction was drawn between collusive proceedings and fraudulent proceedings. Difference between partnership and co-ownership was drawn in Champaran Cane Concern's case (supra) by the Supreme Court. Obviously Both these decisions have no relevance on the issue at hand. In yet another decision in Smt. Mohinder Kaur's case (supra) relied on behalf of the applicants, in a suit for specific performance the subsequent performance the subsequent purchaser was held to be necessary party. Further DDA and MCD were held to be necessary parties taking note of the plea taken by the defendants in the written statement that the plaintiffs had encroached upon the land belonging to DDA and the MCD which fact was admitted by the plaintiffs in the replication and were allowed to be imp leaded in a suit for permanent injunction in C.P. Raman's case (supra). Both the latter decisions were rendered on the peculiar facts of those cases and are of little help to the applications.

8. Applying the test of direct interest laid down by the Supreme Court in Razia Begum's Case, in this suit for partition wherein the plaintiff's claim 1/9th share each in the aforesaid property No. 1-C/35 the applicants cannot be said to be either necessary or proper parties to the suit. Application, therefore, deserves to be dismissed.

Dismissed.