Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1128 (HP)

Ram Parkash v. Anil Kumar

2017-10-03

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral) - The plaintiff propounded the testamentary disposition of the deceased testator, one Santosh Kumari, wife of late Sunder Dass, resident of Una, H.P. The plaintiff claimed a declaratory decree qua the aforesaid Will being declared to be validly executed. However, during the pendency of the suit before the learned trial Court, the suit property was alienated by the GPA of co-defendant No. 3 Asha Rani vis-a-vis the latters'' off springs'' namely Dinesh and Rajni Bala, consequence whereof being, of, an application cast under the provisions of Order 1 Rule 10 CPC standing instituted before the learned trial Court, wherein a prayer, was made, that the aforesaid alienees lis pendens being impleaded as parties to the lis, their impleadment being imperative, for ensuring a complete adjudication upon the entire gamut of the controversy, engaging the parties at contest. The aforesaid application was allowed by the learned trial Court, being aggrieved therefrom, the plaintiff has instituted the instant petition before this Court. 2. The learned counsel for the plaintiff has contended with vigor that the order under challenge before this Court, is ridden with a vice of illegality besides material irregularity, arising, from the factum of the learned trial Court remaining oblivious to the fact of impleadment of the alienees lis pendens, being neither just nor essential, nor theirs being either a necessary or a proper party. For carrying forward his submission, he has relied upon a judgment of Hon''ble Apex Court, rendered in 1997 (Suppl.) Civil Court Cases, page 50 titled as Sarvinder Singh v. Dalip Singh and others, the relevant paragraphs 5 and 6 whereof are extracted hereunder:- "5. Having regard to the respective contentions, the question that arises for consideration is: whether the respondents are necessary or proper parties to the suit? It cannot be disputed that the foundation for the exclusive right, title and interest in the property, the subject matter of the suit, is founded upon the registered Will executed by Hira Devi, the mother of the appellant as on May 26, 1952. The trial court noted that in a suit filed on a previous occasion by the appellant, the will was propounded as basis for an exclusive right, title and interest in the said property. The trial court noted that in a suit filed on a previous occasion by the appellant, the will was propounded as basis for an exclusive right, title and interest in the said property. He impleaded Rajender Kaur, one of the daughters of Hira Devi, to the suit along with two other sisters and suit came to be decreed by the trial Court on 29.3.1974. The decree became final. In view of those facts, the necessary conclusion that can be deduced is that the foundation for the relief of declaration in the second suit is the registered Will executed by Hira Devi in favour of the appellant on May 26, 1952. The respondents indisputably cannot challenge the legality or the validity of the will executed and registered by Hira Devi on 26.5.1952. 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 to 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. 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 2.12.1991 and 12.12.1991, pending suit. 6. 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 2.12.1991 and 12.12.1991, 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 property 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 right 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." 3. On anvil of the aforesaid extracted relevant paragraphs 5 and 6, he submits that with theirs'' encapsulating an absolute interdiction, against, impleadment in the apposite suit, of alienees lis pendens, given theirs attracting vis-a-vis them the doctrine of lis pendens, rendering hence perse void all alienation(s) lis pendens, even without a specific relief in respect of, it, being prayed to be quashed and set aside. For the aforesaid submission(s) addressed before this Court by the learned counsel for the petitioner, to hold vigor, he was enjoined to display, of, it falling in absolute tandem with the ratio decidendi encapsulated in the judgment relied upon by him, whereas, upon its incisive reading, its, unfolding its not expostulating the aforesaid either as an omnibus stare decision nor as a ratio decidendi, thereupon this Court would be constrained to reject his submissions. In summa for the hereinafter ascribed reasons, the Court is constrained to reject the espousal''s, of, the learned counsel for the petitioner. In summa for the hereinafter ascribed reasons, the Court is constrained to reject the espousal''s, of, the learned counsel for the petitioner. (a) The learned counsel for the petitioner inappropriately relying upon the aforesaid citation, to concomitantly, inaptly espouse of his submissions'' embodying the ratio decidendi propounded in the judgment relied upon by him. (b) The judgment (supra) rendered by the Hon''ble Apex Court for its in tandem with his submission(s), hence propounding a vigorous ratio decidendi also its being rendered binding upon this Court, is enjoined to unveil, of, absolute similarity besides complete analogity existing also emerging inter-se the factual matrix therein vis-a-vis the facets at hand. Contrarily if there is a display of gross indistinctivity(s) inter-se the factual matrix prevailing therein vis-avis the facets prevailing hereat, thereupon the citation as relied upon by the learned counsel for the petitioner would be rendered inapplicable hereat. 4. Be that as it may, upon a cumulative reading of the judgment (supra) rendered by the Hon''ble Apex Court, along with, the factual matrix prevailing therein and the one prevailing hereat, for hence discerning, of, apt compatibilities making their emergence besides hence its propounding, in tandem, with the espousal of the counsel for the petitioner, a, binding principle of law, it, emanates (a) of, in the citation relied upon by the learned counsel for the petitioner, a binding declaratory decree being rendered in respect of validity of the Will propounded by the plaintiff herein, also therein, the apt pronouncement occurring earlier to the subsequently suit instituted by the alienees lis pendens. Obviously therein, the alienation(s) lis pendens, did not occur, during the pendency of the earlier suit, rather occurred during the pendency of the subsequent suit. Tritely hence the validity of the testamentary disposition, at stake thereat, stood, under binding judicial verdicts hence clinchingly rested, whereas hereat, the validity of the testamentary disposition propounded by the plaintiff herein, has not been, under any apt judicial verdict, hence firmly rested. (b) secondarily in the citation, relied upon by the learned counsel for the plaintiff, the alienees lis pendens are also not related to any of the party(s) to the lis, contrarily hereat the alienees lis pendens are offspring(s) of one of the co-defendants rendering hence eruption of a prima facie inference of the hereat transfer lis pendens, hence being collusive, for defeating the rights of the plaintiff vis-a-vis the suit property. (c ) Since transfer(s) lis pendens hereat hence occur, in gross distinctivity vis-a-vis the factual matrix prevailing, in the citation (supra) relied upon by the learned counsel for the plaintiff, thereupon the learned counsel for the petitioner, cannot, contend that the Hon''ble Apex Court, has, therein firmly pronounced any principle of binding vigor, that, in all cases where alienation''s of suit property(s) occur lis pendens, thereupon the plaintiff being completely barred to seek impleadment of alienees lis pendens, in the civil suit nor it propound(s) any mighty legal principle, of, alienees lis pendens being not enjoined to be impleaded as party(s) to the lis, merely, when they attract upon themselves the principle of lis pendens contemplated in section 52 of the Transfer of Property Act nor it expostulates any principle, that, ipso facto upon the aforesaid anvil, all alienation(s) lis pendens being nullified, without theirs being sought to be quashed and set aside. Predominantly, also when hence the alienees lis pendens would be barred to rear any plea, for validating the relevant lis pendens alienation''s also would be unjustly condemned unheard. 5. In aftermath, this Court is of the firm view that the alienees lis pendens are necessary parties, for completely adjudicating upon the entire gamut of the controversy(s), whereupon the parties at lis are engaged. Consequently, there is no merit in the instant petition. Accordingly it is dismissed. Parties are directed to appear before the learned trial Court on 7.11.2017. The learned trial Court is directed to conclude the trial of the suit within six months thereafter. All pending applications are also disposed of.