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2012 DIGILAW 2494 (DEL)

Harish Kumar Dua v. Narender Kumar Dua

2012-08-21

REVA KHETRAPAL

body2012
ORDER Reva Khetrapal, J. 1. The applicants in the present application, filed under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908, seek to be impleaded as party defendants on the basis of an unregistered Sale Deed in respect of the front half portion of the second floor of the property bearing No. H-104, Lajpat Nagar-I, New Delhi, entered into between the defendant No. 2 Mr. Ashok Kumar Dua and the applicants, namely, Vinay Prakash Sadh, Mr. Naveen Parkash and Mr. Neeraj Parkash. 2. At the outset, it may be mentioned that the subject matter of the dispute in the above-mentioned suit is the partition of immovable property bearing No. H-104, Lajpat Nagar-I, New Delhi between the plaintiff and the defendant Nos. 1 to 3, who are the legal representatives of one Shri Bhagwan Dass Dua, who expired intestate leaving behind his wife Smt. Maya Devi and four sons, i.e., the plaintiff and the defendant Nos. 1 to 3 as well as one daughter, namely, Smt. Shashi Chawla. On 12.04.1989, the suit property was mutated in the name of Smt. Maya Devi, wife of the deceased Shri Bhagwan Dass Dua, on all the aforementioned legal heirs, i.e., the plaintiff and the defendants to the suit as well as Smt. Shashi Chawla relinquishing their shares in the suit property. On 29.10.1993, the aforesaid property was transferred in the name of Smt. Maya Devi, mother of the parties to the suit by the competent authority, i.e., Land and Development Office by virtue of a Conveyance Deed duly registered with the Sub-Registrar, New Delhi and she became the absolute owner of the same. Smt. Maya Devi, mother of the parties to the suit also expired leaving behind her a registered Will dated 02.05.1997 in respect of the property bequeathing the same to the plaintiff and the defendants in equal shares. Subsequent to the Will, Smt.Maya Devi sold for consideration some portions of the suit property. Since the shares of the plaintiff and the defendants in the remaining portions of the suit property were undivided, the present suit for partition of the property by metes and bounds was filed by the plaintiff. Subsequent to the Will, Smt.Maya Devi sold for consideration some portions of the suit property. Since the shares of the plaintiff and the defendants in the remaining portions of the suit property were undivided, the present suit for partition of the property by metes and bounds was filed by the plaintiff. A decree of permanent injunction in favour of the plaintiff and against the defendant No. 2 was also sought since according to the plaintiff there was an apprehension that the defendant No. 2 was negotiating for the sale of his undivided share of the suit property. 3. A written statement was filed by the defendant No. 2, inter alia, claiming that Smt. Maya Devi had sold to the defendant No. 2, one portion measuring about 100 sq. yards (30? x 30?) on basement, a shop measuring about 15? x 30? on the ground floor and front portion measuring 100 sq. yards on the second floor of the suit property by a registered Sale Deed dated 5th October, 2000. 4. The applicants, in the present application, claim that the defendant No. 2 Mr. Ashok Kumar Dua, being the sole and exclusive owner of the front portion on the second floor of the suit property, had approached the applicants to sell the said portion of the suit property to the applicants. The applicants also assert that it was declared by the defendant No. 2 that Smt. Maya Devi had sold to him the front half portion of the second floor built in area measuring 100 sq. yards of the said property vide Sale Deed duly registered as Document No. 9310, in Additional Book No. 1, Volume No. 2130, on pages 80 to 88, on 05.10.2000, in the office of the Sub-Registrar, New Delhi. Thus, the applicants agreed to pay a total sale consideration of Rs. 13.50 Lacs for the aforesaid portion of the suit property, out of which a sum of Rs. 2.0 Lacs was paid by way of cheque dated 31.05.2010 bearing cheque No. 400497 drawn on HDFC Bank, Defence Colony, New Delhi, which was duly encashed by the defendant No. 2. Five pay-orders/bank drafts/cheques were also handed over to the said defendants by the applicants for the remaining amount of Rs. 11.50 Lacs as follows:- (i) Bank Draft bearing No. 647270 dated 18.06.2010 drawn on Punjab National Bank, Lajpat Nagar, New Delhi amounting to Rs. Five pay-orders/bank drafts/cheques were also handed over to the said defendants by the applicants for the remaining amount of Rs. 11.50 Lacs as follows:- (i) Bank Draft bearing No. 647270 dated 18.06.2010 drawn on Punjab National Bank, Lajpat Nagar, New Delhi amounting to Rs. 2,90,000/-; (ii) Cheque bearing No. 300015 dated 22.06.2010 drawn on Punjab National Bank, Defence Colony, New Delhi to the tune of Rs. 11,260/-; (iii) Bank Draft bearing No. 038011 dated 19.06.2010 drawn on HDFC Bank, Defence Colony, New Delhi amounting to Rs. 4,30,000/-; (iv) Bank Draft bearing No. 028487 dated 18.06.2010 drawn on State Bank of India, Sadhwara, Farukhabad, New Delhi amounting to Rs. 3,18,740/-; (v) Bank Draft bearing No. 028509 dated 19.06.2010 drawn on State Bank of India, Sadhwara, Farukhabad, New Delhi amounting to Rs. 1,00,000/-. 5. The applicants state that after receiving the aforesaid pay-orders/bank drafts/cheques and even an additional amount of Rs. 5 Lacs in cash, the defendant No. 2 failed to get the Sale Deed registered on 30th June, 2010 as agreed to between the parties and in fact returned to the applicants the pay-orders received by him, which were subsequently got cancelled by the applicants. The applicants, therefore, have legitimate interest in the property and are required to be impleaded as parties for the proper adjudication of the lis involved in the present suit. 6. The prayer of the applicants for being impleaded as parties is contested by the plaintiff as well as the defendant No. 2 on the ground that in the garb of the present application under Order I Rule 10 Code of Civil Procedure, the applicants cannot be permitted to seek specific performance of a frustrated contract for which admittedly neither the consideration has been received by the defendant No. 2 nor possession handed over to the applicants. Additionally, it is contended that the alleged Sale Deed is not a registered agreement and in any case is of no legal effect as it was entered into during the subsistence of the injunction order passed by the Court in the present suit restraining the parties from creating any third party interest in the property. It is submitted that the sale consideration has not been received from the applicants except Rs. 2 Lacs towards earnest money as mentioned in the Sale Deed. It is submitted that the sale consideration has not been received from the applicants except Rs. 2 Lacs towards earnest money as mentioned in the Sale Deed. It is contended that a party claiming a right to be impleaded has no right to litigate its independent claim unconnected with the dispute in the suit. It is also stated that the applicants have subsequently filed a suit for specific performance which is pending adjudication in the trial court. 7. In the course of hearing of the present application, reliance was placed by the learned counsel for the applicants on a decision of the High Court of Judicature at Madras in the case of C.M.V. Krishnamachari v. M.D. Dhanalakshmi Ammal, (1966) 2 MLJ 298 = (1967) 80 LW 1 . In the said case, which was a partition suit between the parties claiming the property as joint family property, an agreement to sell was allegedly entered into between the first defendant to the suit and the applicant on the express representation of the defendant that the property agreed to be conveyed was his own self-acquired property. A learned Single Judge of the Madras High Court while allowing the application for impleadment held as follows:- "Finally, I am unable to agree with the contention of learned Counsel for the respondent that the applicant is converting the suit for partition into a suit for specific performance, and that too without the payment of any Court-fee. This contention proceeds upon a misapprehension of the real position. The applicant will not get any relief by way of specific performance in this suit and this he can obtain only in a separate suit of his own. He is impleaded only for the limited purpose of (a) establishing that the property is the separate property of his vendor, the first defendant, or alternatively (b) for suggesting to the Court that without prejudice to the interest of the plaintiffs the property agreed to be sold may be allotted to the share of the first defendant, so that in a separate suit of his own he can either obtain specific performance or enforce a charge under section 55(6)(b) against the property in the hands of the first defendant after a final allotment in the partition suit." 8. The learned counsel for the applicants also relied upon a decision of the Gujarat High Court in Navnitbhai Harmanbhai Patel v. Patel Rameshbhai Ambalal, (1996) 1 GLH 659 = (1996) 2 GLR 129 . In that case one of the co-parceners, being the father of the plaintiff, on receiving substantial amount of earnest money, agreed to transfer one of the properties to a third party. Thereafter a suit for partition was filed by one of his sons impleading his brothers and father for partition. A learned Single Judge of the Gujarat High Court, setting aside the order passed by the trial court refusing impleadment of the proposed vendee, held that the petitioner-third party deserved to be impleaded but will have no right to interfere with the proceedings of partition vis-`-vis the properties, excepting the property which is the subject matter of agreement to sell. 9. In order to rebut the contentions of the learned counsel for the applicants, Mr. Sumeet Verma, Advocate on behalf of the defendant No. 2 contended that the applicants were neither necessary nor proper parties as it was settled law that in order to implead a necessary party to the suit it must be shown that there is some right to relief against such party in respect of controversies involved in the proceedings and no effective decree can be passed in his absence. Relying upon the judgment of the Supreme Court in the case of Kasturi v. Iyyamperumal and Ors., (2005) 6 SCC 733 , the learned counsel contended that the Court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the parties. Additionally, he relied upon the following judgments:- (i) Shringar Impex Pvt. Ltd. v. Punita Singh, 190 (2012) DLT 400, (ii) Kumari Harpreet Kaur v. Sardar Kanwaljit Singh, 1998 (45) DRJ 384 and (iii) Sarvinder Singh v. Dalip Singh and Ors., 1996 (6) SCALE 59 . 10. In the case of Shringar Impex Pvt. Ltd. (supra), the subject matter of the suit was two properties sought to be partitioned between two sisters. A preliminary decree was passed by the Single Judge in the said suit holding that the two sisters had half share each in the suit properties and a Local Commissioner was appointed to suggest means to partition the property. A preliminary decree was passed by the Single Judge in the said suit holding that the two sisters had half share each in the suit properties and a Local Commissioner was appointed to suggest means to partition the property. Before the final decree could be passed an application was filed for impleadment by the applicant on the basis of an agreement to sell entered into between the applicant and the two sisters on 20.10.2000 by virtue of which Rs. 4 Lacs was paid as advance money by the applicant to both the sisters by way of cheques. On consideration of the application, the Court held that the fact that a person is likely to secure a right/interest in the suit property after the suit was decided will not make such person either a necessary or a proper party to the suit for partition. The order of the learned Single Judge was upheld by the Division Bench in FAO(OS) 283/2012. 11. In the case of Kumari Harpreet Kaur (supra) relied upon by the counsel for the defendant No. 2, it was alleged that the partition suit in which the applicants sought impleadment had been filed to delay the execution of the Sale Deed and to deprive the applicants of their right in the aforesaid property arising out of an agreement to sell entered into between the defendant No. 1 and the applicants, whereunder possession of the property was also given by the defendant No. 1 to the applicants. A learned Single Judge of this Court, held that in a suit for partition, the applicants, the proposed vendees under the Agreement to Sell, were neither necessary nor proper parties. The test laid down in the decision of the Supreme Court in Razia Begum v. Sahebzadi Anwar Begum, (1959) SCR 1111 whereunder the Supreme Court held 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 was held to be applicable. 12. The learned counsel for the defendant No. 2 also heavily relied upon the decision of the Supreme Court in the case of Sarvinder Singh (supra). 12. The learned counsel for the defendant No. 2 also heavily relied upon the decision of the Supreme Court in the case of Sarvinder Singh (supra). The admitted facts in the said case were that a declaration was sought by the plaintiff that he was the owner of the property on the basis of a registered Will executed by his mother. He filed an application under Order XXXIX Rule 1 CPC for ad interim injunction to restrain the defendants from interfering with his possession and enjoyment of the plaint schedule property situated in Village Dabbla Kalan Tehsil Fazilka. The interim injunction was granted, which, however, subsequently came to be vacated. The defendants alienated the suit lands by registered Sale Deeds after the interim injunction was vacated in favour of the respondents. On the basis thereof, they sought to come on record as defendants under Order I Rule 10 CPC. The trial court dismissed the application holding that they were neither necessary nor proper parties to the suit. On revision, the High Court directed the impleadment of the respondents as party-defendants to the suit. Reversing the judgment of the High Court, the Supreme Court held as follows:- "5. ..The respondents indisputably cannot challenge the legality or the validity of the will executed and registered by Hira Devi on May 26, 1952. Though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available or tenable grounds, those grounds are not available to the respondents. Under those circumstances, the respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the appellant's mother, Smt. Hira Devi. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the appellant's mother, Smt. Hira Devi. Moreover, admittedly the respondents claimed right, title and interest pursuant to the registered sale deeds said to have been executed by the defendants-heirs of Rajender Kaur on December 2, 1991 and December 12, 1991, pending suit. 6. Section 52 of the Transfer of Property Act envisages that "during the pendency in any Court having authority within the limits of India...of any suit or proceeding which is not collusive and in which any right to immovable properly is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose." It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit." 13. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid case to the facts of the present case, the alleged alienation would be hit by the doctrine of lis pendens by operation of Section 52 of the Transfer of Property Act, 1882. The applicants claim to be impleaded on the basis of a Sale Deed stated to have been executed by the defendant No. 2 in their favour during the pendency of the suit in this Court. The present case in fact stands on a higher footing than the case of Sarvinder Singh (supra). The applicants claim to be impleaded on the basis of a Sale Deed stated to have been executed by the defendant No. 2 in their favour during the pendency of the suit in this Court. The present case in fact stands on a higher footing than the case of Sarvinder Singh (supra). The applicants in the said case had sought impleadment on the basis of registered Sale Deeds, whereas in the instant case the applicants seek impleadment on the basis of an unregistered Sale Deed. Further, in the said case the suit property was alienated subsequent to the vacation of the interim injunction, whereas in the instant case there is no dispute as to the fact that an unregistered Sale Deed was executed during the subsistence of the interim injunction. The interim injunction in the present suit was passed on 25th June, 2010 while the Sale Deed was executed on 29th June, 2010. 14. Under the circumstances, the applicants cannot be said to be either necessary or proper parties to the suit for partition in which the primary relief sought is the division by metes and bounds of the suit property between the legal representatives of the deceased Shri Bhagwan Dass Dua. The application under Order I Rule 10 CPC is accordingly dismissed, but in the circumstances without costs.