Delhi High Court

Nitin Arora vs Yashoda Nand Sharma & Others on 31 March, 2011

Author: V. K. Jain

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Pronounced on: 31.03.2011

+           CS(OS) No. 2528/2008

NITIN ARORA                                     .....Plaintiff

                            - versus -

YASHODA NAND SHARMA & OTHERS                   ....Defendants

Advocates who appeared in this case:
For the Plaintiff:      Mr Manish Vashisht and Mr
                        Sameer Vashisht, Advs.
For the Defendant:      Mr Yatish Mohan and Ms Pooja,
                        Advs. for D 1 to 5
                        Mr Hem C. Vashisht, Adv. for
                        Intervener Divya Guha

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?              No

2. To be referred to the Reporter or not?       No

3. Whether the judgment should be reported
   in Digest?                             No

V.K. JAIN, J. (ORAL)

IA No. 12212/2010 (O.1 R.10 CPC)

1. This is an application filed by Smt. Divya Guha,

daughter of Defendant No. 3 Manorma Sharma, for

impleading her as a party to this suit. The admitted position

is that Property No. K-1, Malviya Nagar, New Delhi was

owned by late Shri Pandit Krishan Datt, who died leaving

five legal heirs behind, namely, Kuldev Prasad Sharma,

Yashoda Nand Sharma, Baldev Prasad Sharma, Gopal Datt

Sharma and Dr (Miss) Vijay Lakshmi. Yashoda Nand

Sharma has been impleaded as defendant No. 4, whereas Dr

(Miss) Vijay Lakshmi has been impleaded as defendant No.

5 in the suit. Shri Kuldev Prasad Sharma died on 30 th

March, 1989, leaving six legal heirs comprising his widow,

two sons and three daughters. The children of late Shri

Kuldev Prasad Sharma relinquished their share in the

aforesaid property in favour of their mother Kanta Sharma

vide registered relinquishment deed executed on 13th May,

2005. Shri Gopal Dutt Sharma died on 03 rd May, 1991

leaving his widow, i.e. defendant No. 4 Prem Lata Sharma

and two sons, namely, Ashwini Sharma and Deepak

Sharma as his legal heirs. Ashwini Sharma and Deepak

Sharma relinquished their share in the suit property in

favour of their mother vide registered relinquishment deed

executed on 16th May, 2005. Shri Baldev Prasad Sharma

expired on 09th April, 2000 leaving four legal heirs behind

him comprising his widow, Smt. Manorma Sharma, who has

been impleaded as defendant No. 3 and three daughters,

namely, Bharti Sharma, Poonam Sharma, Divya Sharma. A

relinquishment deed has been executed by Bharti Sharma

on 16th May, 2005 on her behalf as well as on behalf of

sisters Poonam Sharma and Divya Sharma, relinquishing

the shares of all of them in the suit in favour of their mother

Smt. Manorma Sharma.

2. The case of the applicant Divya Guha is that in

January, 2005, her elder sister Bharti Sharma and

defendant No. 1 approached her and told her that they had

to get the mutation transferred in the name of surviving

heads of the legal heirs of their grandfather and therefore

she will have to execute a relinquishment deed only for the

purpose of getting mutation and nothing else. It is further

alleged that while getting the relinquishment deed executed,

Bharti Sharma and defendant No. 1 promised that as and

when the property is divided, she would get her share in it.

It is further alleged that the applicant was assured by the

defendant as also by her sister Bharti Sharma that they

would neither enter into a sale transaction with any third

party without her consent nor execute any document

without her consent and permission. It is further alleged

that on persistent request from the defendant, the applicant

and her sister Poonam Sharma executed a relinquishment

deed in favour of their mother Smt. Manorma Sharma, for

the particular purpose of mutation and nothing else.

3. Though the case, as setup in the application is that

the applicant had executed a relinquishment deed in favour

of her mother for the limited purpose of getting the mutation

transferred, the documents filed by the parties show that in

fact a special power of attorney was executed by the

applicant Divya Guha and her sister Poonam Sharma in

favour of their other sister Bharti Sharma specifically for the

purpose of executing a relinquishment deed in favour of

their mother Smt. Manorma Sharma on their behalf in the

office of Sub-Registrar. On the strength of the special power

of attorney executed in her favour, Bharti Sharma executed

a relinquishment deed in favour of her mother Smt.

Manorma Sharma.

4. Defendants 1 to 5, who at the relevant time, owned

Property No. K-1, Malviya Nagar, New Delhi, entered into an

agreement to sell the aforesaid property to the plaintiff for a

consideration of Rs 1, 25,00,000/-and a part payment of Rs

50 lakhs is stated to have been made to them. Smt.

Manorma Sharma received a sum of Rs 10 lakhs out of

which Rs 5 lakhs were paid vide cheque No. 315980 dated

08.01.2006 drawn on Syndicate Bank, New Delhi and Rs 5

lakhs is stated to have been paid cash to her.

5. Admittedly, the applicant Diva Guha is not an

illiterate person, she being a graduate and her photograph

also has been affixed on the special power of attorney

executed by her and her sister Poonam Sharma in favour of

Bharti Sharma. The special power of attorney was registered

before the Sub-Registrar on 11th February, 2005. Since the

applicant expressly authorized her sister Bharti Sharma to

execute a relinquishment deed in favour of her mother Smt.

Manorma Sharma and Bharti Sharma accordingly executed

a relinquishment deed relinquishing the share of applicant

as also her own share and the share of other sister Poonam

Sharma in favour of their mother Smt. Manorma Sharma, it

is only Manorma Sharma who became the owner of the

share which her husband had in Property No. K-1, Malviya

Nagar, New Delhi.

6. The applicant is not a party to the agreement to

sell set up by the plaintiff. Her case for impleadment is

based solely on the ground that she being one of the legal

heirs of late Shri Baldev Raj has a share in the suit

property and, therefore, her mother could not have agreed

to sell her share in the suit property to the plaintiff. The

plea taken by the applicant is falsified from the registered

documents executed by her. Even otherwise, I find nothing

unnatural in the daughters relinquishing their share in the

property of the father in favour of their mother. In fact, this

has been done not only by the children of late Shri Baldev,

but also by the children of Kuldev Prasad Sharma and

Gopal Dutt Sharma.

7. As a general principle of law, the plaintiff being

dominus litis, it is for him to chose the persons against

whom he wants to litigate and ordinarily he cannot be

compelled to implead a person against whom he did not

seek any relief but, this general rule is subject to the

provision of Order 1 Rule 10(2) of the CPC, which provides

for impleadment of proper and necessary parties. This

provision confers a power on the Court to direct to direct

addition of a person, who ought to have been joined as a

party to the suit but has not been joined, or a person,

whose presence before the Court may be necessary in order

to enable it to effectively and completely adjudicate upon

and settle the questions involved in the suit as a party to

the suit. A person, who ought to have been joined as a

party to the suit and in whose absence, no effective decree

can be passed by the Court, is a necessary party whereas a

person is a proper party though not a necessary party if his

presence would enable the Court to completely, effectively

and adequately adjudicate upon all the matters in dispute

in the suit even though no relief against him has been

claimed in the suit.

8. In Kasturi v. Iyyamperumal and others, (2005)

6 SCC 733, the appellant had filed a civil suit against

respondent Nos. 2 and 3 for specific performance of

contract, entered into between him and respondent Nos. 2

and 3. Respondent Nos. 1 and 4 to 11, who were not

parties to the contract and were setting up a claim of

independent title and possession over the contracted

property filed an application to implead them as defendants.

The trial Court allowed them to be added as parties and its

decision was upheld by the High Court. Reversing the

decision of the High Court, Supreme Court held that

stranger to the contract namely respondent Nos. 1 and 4 to

11, who were making claims independent and adverse to the

title of respondent Nos. 2 and 3 were neither necessary nor

proper parties and, therefore, were not entitled to join as

party defendants to the suit for specific performance of

contract for sale. The Supreme Court was of the view that

the persons seeking addition in the suit for specific

performance of the contract for sale who were not claiming

under the vendor but were claiming adverse to the title of

the vendor do not fall in any of the categories enumerated in

sub-sections (a) to (e) of Section 19 of the Specific Relief Act.

During the course of the judgment, Supreme Court, inter

alia, observed as under:-

"11. As noted hereinearlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all....

13......They were also not necessary parties as they would not be affected by the contract entered into between the appellant and Respondents 2 and 3. In the case of Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC 147, it has been held that since the applicant who sought for his addition is not a party to the agreement for sale, it cannot be said that in his absence, the dispute as to specific performance cannot be decided. In this case at para 9, the Supreme Court while deciding whether a person is a necessary party or not in a suit for specific performance of a contract for sale made the following observation:

"Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined.

Therefore, he is not a necessary party." (emphasis supplied)

15....As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from

the suit for specific performance to a suit for title and possession which is not permissible in law.

15..... As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.

In Bharat Karsondas Thakkar v. Kiran

Construction Company, (2008) 13 SCC 658, the issue

before the Supreme Court was as to whether the appellant,

who had acquired an independent right in the suit property

by way of separate decree but was not a party to the

agreement between respondent No.1 and M/s Modern

Development Corporation could be added as a party in the

suit for specific performance, which respondent No.1 had

filed and whether the decree passed in his favour could be

assailed by respondent No.1 in his suit for specific

performance. The Division Bench of the High Court had

allowed the amendment so as to implead the appellant as a

party to the suit for specific performance, which respondent

No.1 had filed. It had also allowed amendment of the prayer

in the plaint so as to include declarations with respect to

the decree, which had been passed in another suit and for

damages. Supreme Court, relying upon its earlier decision

in Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC

147, held that respondent No.1 was not entitled to be joined

as a party to the suit and he could file a separate suit to

challenge the consent decree. During the course of the

judgment, the Court, inter alia, observed as under:-

"28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether

a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title."

9. The learned counsel for the applicant has relied

upon the decision of Supreme Court in the case of Sumtibai

and Ors. Vs. Paras Finance Co. Regd. Partnership Firm

Beawer (Raj.) Thru Smt. Mankanwar W/o Parasmal

Chordia (Dead) and Ors. 2007 (10) SCC 82. In the case

before Supreme Court, one Kapoor Chand had entered into

an agreement to sell the suit property to the plaintiff Paras

Finance Company stating therein that the property in

dispute was his self-acquired property. During the pendency

of the suit, Kapoor Chand died and his wife and sons were

impleaded as his legal representatives. After their

impleadment as legal representatives of late Shri Kapoor

Chand, they filed an application under Order 22 Rule 4(2)

read with Order 1 Rule 10 CPC, seeking permission to file

additional written statement and to take such plea as are

available to them. The application having been rejected by

the Trial Court and the Revision Petition having been

dismissed by the High Court, the matter was taken to

Supreme Court by way of Special Leave. A perusal of the

judgment would show that in the registered sale deed dated

12th August, 1960, the shop which was subject matter of the

agreement had been mentioned and the sale was shown in

favour of Kapoor Chand and his sons Narainlal, Devilal and

Pukhraj. Supreme Court noted that the registered sale deed

itself showed that the purchaser was not Kapoor Chand

alone but also his sons as co-owners. Prima facie, Supreme

Court was of the view that sons of Kapoor Chand are also

co-owners of property in dispute. During the course of

arguments before Supreme Court, the learned counsel for

the plaintiff/respondent placed reliance upon the earlier

decision of Supreme Court in the case of Kasturi (supra).

The Court was of the view that Kasturi (supra) was clearly

distinguishable and it cannot be laid down as absolute

principles that whenever the suit for specific performance is

filed by filed by A against B, a third party C can never be

impleaded in that suit. It was observed that if C can show a

fair semblance of title or interest he can certainly file an

application for impleadment and he need not wait until a

decree is passed against B, and then file a suit for

cancellation of the decree on the ground that A had no title

in the property in dispute. The proposition of law which

emerges from the above decision of Supreme Court is that

though ordinarily, a person who has a stranger to an

agreement to sell cannot be impleaded as a party to the suit

against the wishes of the plaintiff, the Court may in the

facts and circumstances of a particular case, may allow

such a person to become a party to the suit if he is able to

satisfy the Court that he has a subsisting title in the

property, subject matter of the agreement.

However, in the present case, the applicant has not

been able to show any title in her favour, she already having

executed a special power of attorney authorizing her sister

to execute relinquishment deed in favour of her mother and

the sister in turn having already executed the

relinquishment deed in favour of their mother. Thus,

whereas in the case of Sumtibai (supra), Supreme Court

had found a prima facie case in favour of the sons of Kapoor

Chand on account of their having been shown as purchaser

in the sale deed, whereby the property subject matter of the

agreement was purchased, in the case before this Court, the

material available on record indicates otherwise and does

not make out even a prima facie case in favour of the

applicant.

10. In State of Orissa v. Sudhansu Sekhar Misra,

AIR 1968 SC 647, Supreme Court, inter alia, observed as

under:-

"there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. "

In Bhavnagar University v. palitana Sugar Mill

(P) Ltd., (2003) 2 SCC 111, Supreme Court, inter alia,

observed as under:-

"It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

In Bharat Petroleum Corporation Ltd. v. N.R.

Vairamani, (2004) 8 SCC 579, Supreme Court, inter alia,

observed as under:-

"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

Since the facts of this case are altogether different

from the facts of Sumtibai (supra), and prima facie the

applicant was left with no right, title and interest in the suit

property on the date of agreement in favour of the plaintiff

was executed, she is neither a necessary nor a proper party

to the suit.

The application is therefore dismissed and stands

disposed of.

It is made clear that the observations made in this

order will not influence the decision of the suit which the

applicant has filed and is stated to be pending in the

District Courts.