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2017 DIGILAW 817 (GUJ)

Vinod Keshavji Nanda v. Anjana Ajitsinh

2017-04-17

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present Civil Application is filed by the applicants-third party to be pleaded as party respondents in main matter being First Appeal No. 1313 of 1985 on the grounds stated in the application inter alia that the applicants have stepped in the shoes of the original respondent Nos. 10 to 21 and, therefore, they have right title interest in the suit property and are therefore interested in the outcome of the Appeal, which would directly affect their interest. 2. The background of the facts is that the aforesaid First Appeal No. 1313/1985 with Civil Application No. 2350/1991 came to be preferred by the original appellants-respondent Nos. 1 to 9 for the prayer to restrain the original respondents in the First Appeal from selling and alienating the suit property pending First Appeal. Reliance is placed on the order of the Hon'ble Division Bench of the High Court (Comam: B.S. Kapadia & K.J. Vaidya, JJ.) dated 27.09.1991, where Civil Application was partly allowed filed by the original appellants restraining the present respondent Nos. 20 to 27 from alienating or transferring their share in the suit property observing that as per the judgment of the trial court, the respondent Nos. 20 to 27 have been held to be having no share in the suit property. However, the prayer of the appellant in the aforesaid Civil Application No. 2350/1991 to restrain the present respondent Nos. 10 to 21 from selling or alienating the share in the suit property was not granted and specific order was passed that the respondent Nos. 10 to 21 shall be at liberty to sell their respective share in the suit property without transferring actual possession in the suit property and it would be subject to the outcome of the main First Appeal. Therefore in background of these facts, the permission was granted to the respondent Nos. 10 to 21 for alienating their share consisting 91.66% in the suit property in favour of the applicants herein by way of registered sale deed dated 05.02.2008 produced at Annexure-B of this application and, therefore, claim has been made to implead as party. 3. Affidavit-in-rely has been filed on behalf of the respondent Nos. 10 to 21 for alienating their share consisting 91.66% in the suit property in favour of the applicants herein by way of registered sale deed dated 05.02.2008 produced at Annexure-B of this application and, therefore, claim has been made to implead as party. 3. Affidavit-in-rely has been filed on behalf of the respondent Nos. 1 to 9 contending inter alia that the applicants have no locus standi to file such application for joining party as they are neither necessary nor proper party as required under Order 1, Rule 10(2) of the Civil Procedure Code. It has been contended that aforesaid First Appeal No. 1313/1985 has been filed challenging the judgment and decree in Special Civil Suit No. 54/1974 by the respondents and decree has been challenged on the ground that there cannot be partial partition of the property specifically contending that the applicants, who are third party, are not the family members of any of the branch of late Shri Vallabhdas Kanji nor they are the partners of partnership firm of Vallabhdas Kanji & Co. Therefore it is contended that the applicants, who are third party, have no right title interest in the suit property and they do not satisfy the test of necessary and proper party. Reference is made to the background of the facts and also the judgment of the Hon'ble Apex Court in case of Dhurandhar Prasad Singh Vs. Jai Prakash University, reported in (2001) 6 SCC 534 . It is also contended that the applicants are obliged to file suit for partition which they have not done and they cannot by-pass the obligation under the Partition Act. It is also contended that third party has no right title interest to seek possession of the property, which is dwelling house belonging to undivided family and any such transfer of property shall be deemed to be void under Section 52 of the Transfer of Property Act, 1882. It is further contended that sale deed executed between the respondent Nos. 10 to 21 of the First Appeal No. 1313/1985 and the present applicant is again subject matter of challenge in the Civil Court, Jamnagar in Special Civil Suit No. 33/2008. It is therefore submitted that the impleadment of the applicant as party would have bearing on the Special Civil Suit No. 33/2008. It is further contended that the sale deed executed by the respondent Nos. It is therefore submitted that the impleadment of the applicant as party would have bearing on the Special Civil Suit No. 33/2008. It is further contended that the sale deed executed by the respondent Nos. 10 to 21 is in the nature of contingent contract under Section 31 of the Indian Contract Act. It is contended that such contract is dependent upon happening of any event and outcome of First Appeal No. 1313/1985. Therefore it is contended that the applicants cannot be joined as parties in the First Appeal as the sale deed as a contract cannot be enforced and same is contingent upon outcome of the First Appeal No. 1313/1985. 4. In rejoinder, it has been contended relying upon the order passed by the Hon'ble Division Bench of the High Court that as the respondent Nos. 10 and 21 have already sold their share in the suit property, they have no longer interest in the lis or the subject matter of the property and under the circumstances First Appeal in the absence of contesting respondent will go undecided. Therefore, it is incumbent for the applicant to be joined as party respondents in the First Appeal as they have interest in the outcome of the First Appeal. It is contended that the suit property is big chunk of land, where there is industry viz., "Vishnu Industry" and contesting respondents are staying or having dwelling unit, is misconceived as they are staying at Mumbai. Therefore, it is contended that there is no connection with the contention raised referring to the "dwelling unit". 5. Heard learned Senior Counsel, Shri Mehul S. Shah appearing with learned advocate, Shri Vivek Mapara for the applicants-third party, learned Senior Counsel, Shri Deven Parikh appearing for Nanavati Associates for the respondent Nos. 1 to 9 and learned advocate, Shri A.J. Yagnik for the respondent Nos. 22 to 27. 6. Learned Senior Counsel, Shri Mehul Shah referred to the chequered history and background of the facts and submitted that an issue arose out of the property of the partnership firm, Vallabhdas Kanji & Co. and/or family partition, where the decree has been passed, which is a subject matter in the First Appeal No. 1313/1985. He, however, submitted that when the suit for partition filed was decreed, which is under challenge in the First Appeal No. 1313/1985, some of the respondents i.e. the respondent Nos. and/or family partition, where the decree has been passed, which is a subject matter in the First Appeal No. 1313/1985. He, however, submitted that when the suit for partition filed was decreed, which is under challenge in the First Appeal No. 1313/1985, some of the respondents i.e. the respondent Nos. 10 to 21 in the present application sold their share to the applicants and that is how the applicants are the subsequent purchaser pending proceeding with the permission of the Court and, therefore, they have every right, title, interest in the property as well as outcome of the proceeding of First Appeal No. 1313/1985. 7. Learned Senior Counsel, Shri Mehul Shah submitted that 96% of share in the property of the respondent Nos. 10 to 21 has been conveyed by registered sale deed in favour of the applicants and other respondent Nos. 1 to 9 also will not have now any interest in the litigation or the lis, meaning thereby, the First Appeal would remain without any contest in absence of the applicants. Learned Senior Counsel, Shri Mehul Shah strenuously submitted that as the applicants-third party are now interested having purchased the share in the property by registered sale deed would step in the shoes of the original respondent Nos. 10 to 21 and any order that may be passed in the First Appeal will cause prejudice to their rights. He emphasized that those, who have conveyed and sold their share now would not be interested in pursuing the litigation or the lis, which would adversely affect the applicants-third party and, therefore, it is necessary and desirable that the applicants may be permitted to be impleaded as party respondents. 8. Learned Senior Counsel, Shri Mehul Shah submitted that in peculiar circumstances, opportunity is granted for the purpose of transfer of the undivided share in the property by the High Court. He pointedly referred to the order of the Hon'ble Division Bench in Civil Application No. 2350/1991 in First Appeal No. 1313/1985 (Comam: B.S. Kapadia & K.J. Vaidya, JJ.) dated 27.09.1991 produced at Annexure-A. He emphasized that the Hon'ble Division Bench has granted such permission knowing the background of the facts and the controversy. He submitted that as per the permission of the Court, registered sale deed dated 05.02.2008 is executed in favour of the applicants qua the property in question to the extent of undivided share of the respondents. He submitted that as per the permission of the Court, registered sale deed dated 05.02.2008 is executed in favour of the applicants qua the property in question to the extent of undivided share of the respondents. He, therefore, submitted that the applicants will have the locus standi in the First Appeal as they have stepped in the shoes of the original vendor and it has been purchased to the knowledge of every one and also with the permission of the Court. He submitted that the right of the applicant could not be prejudice. Learned Senior Counsel, Shri Mehul Shah referred to the Order 1, Rule 10(2) of the Civil Procedure Code and submitted that it has been clearly provided "Court may at any stage". He has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Savitri Devi Vs. District Judge, Gorakhpur & Ors., reported in (1999) 2 SCC 577 . Learned Senior Counsel, Shri Mehul Shah submitted that though the aspect of delay and laches as sought to be raised contending that the applicants were aware about the pending proceeding and, therefore, may not be joined as party, is misconceived. He submitted that it is also the fact that prejudice is likely to cause and, therefore, the applicants cannot be shut out merely on the ground of delay depriving the right to pursue the remedy. He submitted that therefore the applicant could have made application or filed suit for partition and, therefore, as per the provision of the Transfer of Property Act, necessary steps have been taken including filing of the present Civil Application. Learned Senior Counsel, Shri Mehul Shah submitted that as provided in Section 44 of the Transfer of Property Act, which is enabling provision, the applicant could be substituted. Moreover, he submitted that suit is already pending for cancellation of the sale deed of the applicants. 9. Learned Senior Counsel, Shri Mehul Shah therefore referred to the order in Civil Application No. 14875/2011, which is at Page No. 39 and also referred to the background and submitted that result in the First Appeal would be directly affecting the applicant. In support of his contentions, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Dhanalakshmi & Ors. Vs. P. Mohan & Ors., reported in AIR 2007 SC 1062 (Paragraph Nos. In support of his contentions, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Dhanalakshmi & Ors. Vs. P. Mohan & Ors., reported in AIR 2007 SC 1062 (Paragraph Nos. 5 and 6), in case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr., reported in AIR 2005 SC 2209 (Paragraph Nos. 16, 17 and 18). He, therefore, submitted that by allowing the applicant to be impleaded as party, it would not cause any prejudice. However if it is not granted, it would cause prejudice to the rights of the party though they have purchased the share in the property by registered sale deed and with the permission of the Court and, therefore, may be joined as party respondents. 10. Learned Senior Counsel, Shri Deven Parikh submitted that from the background of the facts, it is evident that the suit for partition has been decreed, against which, aforesaid First Appeal No. 1313/1985 was filed, which is pending. However pending appeal, some of the share in the property which is of HUF property, is transferred by registered sale deed to the applicants. Learned Senior Counsel, Shri Deven Parikh submitted that under the provision of the Hindu Law, every member will have undivided share and it will not get crystallized till the partition is made fully. In other words, he submitted that it has no reference qua the property but it will be a community of interest and unity of possession, meaning thereby, the rights are not crystallized nor the share is finalized. Learned Senior Counsel, Shri Deven Parikh therefore submitted that in HUF property, all the co-parcener will have interest in the property and as a co-parcener, when the partition takes place finally with metes and bounds, the rights and share will be crystallized and till then, it is uncertain. He strenuously therefore submitted that undivided share which is said to have been purchased by the applicant is not crystallized and till the First Appeal is finally heard and decided, they cannot have any say in the matter. Learned Senior Counsel, Shri Deven Parikh submitted that the applicants, who claim to have purchased undivided share in the property by registered sale deed have entered into the transaction with open eyes that they will not get any right or possession till the issue is finally settled. Learned Senior Counsel, Shri Deven Parikh submitted that the applicants, who claim to have purchased undivided share in the property by registered sale deed have entered into the transaction with open eyes that they will not get any right or possession till the issue is finally settled. He, therefore submitted that by such application, they cannot be permitted to intervene in the family matters as they are third party having no right, title, interest in such dispute amongst the members of the family, particularly, it is of dwelling house. Learned Senior Counsel, Shri Deven Parikh referred to the judgment of the Hon'ble Apex Court in case of T.G. Ashok Kumar Vs. Govindammal & Anr., reported in (2010) 14 SCC 370 and submitted that Section 52 of the Transfer of Property Act refers to the doctrine of lis pendens and has observed that effect of transfer pendente lite would be that by such transfer, it cannot affect the right of any party. Learned Senior Counsel, Shri Parikh, therefore, submitted that this is the distinction between the property and HUF property. He submitted that normally with the registered sale deed, person may get right or title but in the property. However where the property is that of HUF, pending litigation what is transferred is a limited right or share of a co-parcener or a member of the family and not entire property itself. He, therefore, strenuously submitted that unless the First Appeal is decided regarding the partition by metes and bounds, the exact share or right of the co-parcener in the property including present property cannot be crystallized. He also referred to the sale deed and submitted that it has been clearly agreed and accepted that it was without the possession and it is made clear that it will be subject to the order that may be passed by the High Court. Learned Senior Counsel, Shri Parikh referred to the provision of Section 52 of the Transfer of Property Act and also the provision of the Partition Act. He submitted that Section 4 of the Partition Act provides "Partition suit by transferee of share in dwelling-house". He submitted that even at later stage, if the members of the family undertakes to buy such share, it will be open for them and option is left to them. He submitted that Section 4 of the Partition Act provides "Partition suit by transferee of share in dwelling-house". He submitted that even at later stage, if the members of the family undertakes to buy such share, it will be open for them and option is left to them. He therefore submitted that occasion would also arise in future and, therefore at this stage, the applicants cannot be permitted to be impleaded as party. Learned Senior Counsel, Shri Parikh submitted that the claim made by the applicants-third party is dependent upon the outcome of the proceeding in the First Appeal regarding the partition decree. He emphasized that again the issue is as to whether it is HUF property or it is the property of the partnership firm, it will have to be considered. Learned Senior Counsel, Shri Parikh submitted that unless the rights are crystallized, there is no question of joining party at this stage. 11. Learned Senior Counsel, Shri Parikh submitted that ethos of HUF is required to be examined, particularly, with reference to Section 4 of the Partition Act. In support of his submission, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Parbati Devi Vs. Purana Patra & Ors., reported in AIR 1997 SC 2331 . He, therefore, submitted that except co-parcener, nobody can claim partition and again even at later stage, when the partition takes place, one of the co-parcener or the member of the family will have option to purchase the share, meaning thereby, he will have the right to purchase. He also referred to Section 44 of the Transfer of Property Act and submitted that if the applicant is permitted to be joined as party at this stage, it would amount to allowing the rights of the third party and negating the rights under Section 44 of the Transfer of Property Act, which is taken away. He emphasized that if it is dwelling-house, it has been specifically provided with regard to the possession and, therefore, the applicants-third party is very much aware as it is stated in the recital itself that it is without possession. Learned Senior Counsel, Shri Parikh, therefore, submitted that some of the members of the family are residing there and the application for joining party cannot be permitted as there is an embargo in law qua the rights of third party. Learned Senior Counsel, Shri Parikh, therefore, submitted that some of the members of the family are residing there and the application for joining party cannot be permitted as there is an embargo in law qua the rights of third party. He again emphasized that the provision of the Transfer of Property Act, Partition Act and the Rules of lis pendens have to be considered, which would not allow the applicants-third party to have any say at this stage. He, therefore, submitted that it is not possible for the members of the HUF to show that there could be a partition qua one of the properties and he could sell. In support of his submissions, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Kenchegowda (since deceased) by Legal Representatives Vs. Siddegowda @ Motegowda, reported in (1994) 4 SCC 294 (Paragraph No. 16) and in case of R. Mahalakshmi Vs. A.V. Anantharaman & Ors., reported in (2009) 9 SCC 52 (Paragraph Nos. 21 and 22). Again learned Senior Counsel, Shri Parikh submitted that much emphasis given on the order of the Civil Application No. 14875/2011 at Annexure-A passed by the Hon'ble Division Bench cannot be understood permission for absolute transfer dehors the statutory provision. Therefore, learned Senior Counsel, Shri Parikh submitted that the present application may not be granted. 12. Learned Senior Counsel, Shri Shah reiterated the submissions and submitted that there is no requirement to file a separate suit and even in the present Appeal, the application could be made, particularly, when the Hon'ble Division Bench has permitted such transfer of undivided share in HUF property. He submitted that the provision of the Partition Act would refer to only dwelling-house but it a huge chunk of land and, therefore, the submission that it is dwelling-house may not be accepted. 13. In view of the rival submissions, it is required to be considered whether the present Civil Application deserves consideration. 14. The background of the facts with chequered history regarding the litigation arising from the suit for partition being Special Civil Suit No. 54/1974, which has been decreed, against which, the present First Appeal No. 1313/1985 is filed and is pending. However pending such Appeal, as stated, some of the respondents i.e. the respondent Nos. 10 to 21 have transferred their undivided share in the particular property to the applicant by registered sale deed. However pending such Appeal, as stated, some of the respondents i.e. the respondent Nos. 10 to 21 have transferred their undivided share in the particular property to the applicant by registered sale deed. Therefore, the moot question is whether the applicants, who are the purchaser of undivided share in a particular property of HUF can claim to be impleaded as party in the First Appeal No. 1313/1985 challenging the decree of partition. The emphasis which has been given on the order of the Hon'ble Division Bench in Civil Application No. 2350/1991 in First Appeal No. 1313/1985 dated 27.09.1991 requires a closer scrutiny. The Hon'ble Division Bench has only enable the respondent Nos. 10 to 21-original defendant the permission for alienation but it has made clear that how the transaction will take shape that the possession shall not be parted with and it has been observed that actual or constructive possession would not be claimed and the purchaser will have limited right which can also be verified from recital in the sale deed. Thus when the applicants-third party can purchase a share in HUF property, it had entered into a transaction with open eye and understanding about the limitation qua such transaction. Though sale deed has been executed, the recital make it clear that it is not out and out sale or transfer of property but it is a sale or transfer of undivided share in HUF property. It may be stated that such undivided share in the property could be transferred or dealt with but then again it has to be with a clear understanding that it will have the same limitation as it is not a sale and transfer of absolute right in the property or the property itself, but it is a transfer of undivided share in HUF property. In other words, the property which belonged to HUF itself is not transferred or alienated but only undivided share in such HUF property is permitted to be transferred, meaning thereby, it will have the limitation qua the operation of other statutory provision including Partition Act and/or Transfer of Property Act. Very basic concept of HUF is community of interest and unity of possession will prevail and when there is any such transaction, it will have to be considered vis-avis such concept of joint interest of all coparcener or joint family and limited undivided share of one of the co-parcener. Very basic concept of HUF is community of interest and unity of possession will prevail and when there is any such transaction, it will have to be considered vis-avis such concept of joint interest of all coparcener or joint family and limited undivided share of one of the co-parcener. Therefore as the undivided share in the property is fluctuating and could get crystallized only on partition, which will finalize each share of each co-parcener. Therefore till the partition takes place by meats and bounds finally, every member will have interest and share in every property of HUF, meaning thereby, a share of co-parcener qua one property of HUF would have a limited rights. Therefore as submitted referring to the provision of Section 52 of the Transfer of Property Act, which has a reference to the doctrine of lis pendens, it will have to be considered. The underlying purpose is that pending proceeding, the parties to the suit who are members of the family, are not affected and any proceeding including decree passed in the suit will be binding on the subsequent purchaser. Therefore if he happens to be third party and though he may not be party to the partition suit like in the present case, it will be binding on him. Thus the applicant-third party, who claims to be a bona fide purchaser by registered sale deed with the permission of the Court has to accept that he has entered into transaction with open eyes that it is subject to the limitation as provided in the Transfer of Property Act as well as Partition Act and has also the limitation of the HUF property as the parties were very much aware about the limitation. The recital in the sale deed itself clearly suggests about the possession that the purchaser will not claim the possession. Again as rightly submitted referring to Section 4 of the Partition Act, when it is dwelling--unit, one of the co-parcener will have the option to purchase. Therefore till that stage is reached, the rights are not crystallized. In the facts of the case also, that stage has not been reached. Therefore any such application made would have bearing on a statutory provision and right of the members/co-parcener of a HUF to exercise to option for purchase under Section 4 of the Partition Act read with Transfer of Property Act. In the facts of the case also, that stage has not been reached. Therefore any such application made would have bearing on a statutory provision and right of the members/co-parcener of a HUF to exercise to option for purchase under Section 4 of the Partition Act read with Transfer of Property Act. Reliance placed by learned Senior Counsel, Shri Shah referring to the provision of the Order 1, Rule 10(2) of the Civil Procedure Code emphasizing "Court may at any stage" is required to be considered in background of the controversy and the nature of proceeding. Civil Procedure Code provides "at any stage", which will have to be considered qua the nature of the proceeding and the rights, which are likely to be affected including other statutory provision like Transfer of Property Act and/or Partition Act. It is well accepted that the Appeal is a continuation of the proceeding and the main First Appeal No. 1313/1985 would therefore mean that it is a continuation of the proceeding qua the partition decree in suit which has been subject matter in the Appeal. Therefore till the same is finalized with partition by meats and bounds, the rights of the parties of the family are not crystallized. Therefore any transaction with regard to the transfer of interest of undivided share in a particular property of HUF will be dependent upon the outcome of such proceeding in the First Appeal and till then, the rights cannot be said to have been crystallized. The right of the purchaser like the applicant, who has purchased undivided share in the property from one of the co-parcener or members of the family has only limited right, which has been purchased, meaning thereby, share in the property is purchased and no property itself is purchased. Again that share is subject to necessary adjustment in the partition decree at the time of finalizing before the partition is affected by meats and bounds. It is in this background of the facts qua the property of HUF with underlying concept of community of interest and unity of possession where the rights get fluctuated till it is crystallized by final decree of partition by meats and bounds. It is in this background of the facts qua the property of HUF with underlying concept of community of interest and unity of possession where the rights get fluctuated till it is crystallized by final decree of partition by meats and bounds. Therefore, the person, who got some right by the purchase of undivided share will not have any say for the purpose of partition decree and the proceeding challenging such decree as it would be only when the share of one co-parcener or the members, which is purchased, is crystallized, he could not have claim for that. Therefore the sale by one of the members of the family in favour of third party like the applicant herein may be permissible as it is not void but it will be subject to the rights that may be declared finally and such pendente lite would therefore be subject to final decision in the First Appeal No. 1313/1985 regarding the decree in the partition suit. Therefore till the First Appeal is decided, the rights which is claimed, would not have been crystallized for making any claim. Again the recital in the sale deed coupled with the statutory provision like the Partition Act expressly provide for the procedure that one of the co-parcener will have the option to purchase the share and that eventuality would also come at later stage and before that if the party like the applicant-third party has entered into any transaction with one of the co-parcener or the member of the family with open eyes, he will have to bear consequence and it could not be said that it would affect his right, title, interest as till the First Appeal is decided, he cannot have say in the partition suit or the proceeding in the appeal, which is restricted to members of the family. If it is not done, it would allow any third party to intervene in such proceeding of the family dispute leaving not only a question for the provision of the Partition Act, Transfer of Property Act or basic concept of HUF but it would also affect the rights of other members of the family in the proceeding itself. Therefore it is not permissible for a party like the applicant to make any claim to be impleaded as party respondent in the proceeding arising out of the partition suit in the First Appeal. Therefore it is not permissible for a party like the applicant to make any claim to be impleaded as party respondent in the proceeding arising out of the partition suit in the First Appeal. Any such submission based on the basis of the permission or bona fide purchaser pending suit or the proceeding in the First Appeal are misconceived as the person, who purchases undivided share in the property belonging to the HUF has entered into such transaction with open eyes and subject to limitation. Therefore on the contrary, on principle of estoppel, they are estopped from raising any such issues once having entered into the transaction for the purchase of undivided share in one of the property of HUF from one of the members or few members knowing limitation, which is also to be traced in the recital in the sale deed when there is a specific provision with regard to the possession though it will not be claimed. 15. Therefore, the present Civil Application for being impleaded as party respondent cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Notice is discharged. FURTHER ORDER After the order was pronounced, learned advocate, Shri Mapara appearing for the applicants requests for the stay of the operation of the order to enable his client to move the Hon'ble Apex Court. Learned advocate, Shri Nisarg Desai for Nanavati Associates for the respondents has reservation on the ground that the matter is old one, which has been remanded by the Hon'ble Apex Court. In view of the submissions and having regard to the background of the facts, though the matter is old one, the operation of the order is stayed for a period of six weeks to enable the applicants to move the Hon'ble Apex Court with a clear understanding that no extension shall be granted.