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2025 DIGILAW 461 (CAL)

Mukesh Kumar Jain v. Dilip Kumar Modi

2025-08-16

BISWAROOP CHOWDHURY

body2025
Judgment : BISWAROOP CHOWDHUR, J. This application is filed by the applicant/intervener praying for the following reliefs: a) Condone the delay if any; b) The applicant be impleaded as party defendant to the instant suit; c) Upon impleading the applicant as party defendant to the instant suit, the department of this Hon’ble Court be directed to carry out necessary amendments in the cause title of the plaint filed in the instant suit, within such period as this Hon’ble Court may deem fit and proper. d) Upon impleading the applicant as party defendant to the instant suit and amendments in the cause title of the Plaint filed in the instant suit within such period leave be granted to the applicant to file a written statement in the instant suit. e) Stay of all proceedings in the present suit till the disposal of the instant application. f) Ad interim orders in terms of prayer (e). g) Such further order and/or orders and/or direction and/or directions as deem fit and proper. 2. It is the contention of the applicant that on 27-01-2024 one Shyam Sundar Sarawgi son of Late Hemant Sarawgi died testated. The deceased prior to his death on 26-09-2023 made and published his Last Will and Testament in English Language. The deceased was settler of a Trust namely Jain Seba Mondal Trust and the petitioner was/is president of trust. After demise of Shyamsundar Sarawgi and after knowing his Last Will and Testament the applicant filed an application for grant of probate before this Court being PLA No. 415 of 2024. It is further contended that the petitioner found some documents lying on the table of the deceased. After going through the documents the petitioner came to know that Shyamsundar Sarawgi (since deceased) had filed an application being GA. No-14 of 2022 before this Court in the instant suit being C.S. No. 136 of 2010 for addition of party. By order dated 28th February 2022 a co-ordinate Bench of this Court was pleased to pass an order granting liberty to Shyamsundar Sarawgi (since Deceased) to file an application in accordance with law. 3. An application earlier being GA No-14 of 2022 for addition of party was filed by Shyamsundar Sarawgi by contending that it is an admitted fact that 2/3rd share in ‘Modi Garden’ belongs to Shyamsundar Sarawgi the applicant. 3. An application earlier being GA No-14 of 2022 for addition of party was filed by Shyamsundar Sarawgi by contending that it is an admitted fact that 2/3rd share in ‘Modi Garden’ belongs to Shyamsundar Sarawgi the applicant. The said property was purchased by the grandfather of Shyamsundar Sarawgi in the year 1967. On 21.11.2024, the application GA 14/2022 was dismissed for default. It is also contended by the applicant that the plaintiff and the Defendants are not the sole and absolute owners to the Landed Property being ‘Modi Garden’ as mentioned in serial No. a) of Schedule C appended to and/or being a part of the plaint in the instant suit, thus applicants is necessary party in the suit. 4. This application is opposed by the plaintiff by filing affidavit in opposition. 5. It is contended that the alleged predecessor of the applicant being Shyamsundar Sarawgi and also the applicant are imposter. It is also contended that the purported transactions in favour of Babulal Sarawgi was a Sham transaction, however owing to the existence of the said deed in favour of Babulal Sarwagi whereby and whereunder purported 2/3rd share in the Jasidih property was transferred in favour of Babulal Sarawgi the legal heirs of the said Babulal Sarawgi were added as party in the suit being defendant nos. 16 to 20 pursuant to order dated 10th March 2010. It is also contended that deed of sale which was produced along with said GA No. 14 of 2022 was forged. It is contended that the applicant as well as Shyamsundar Sarawgi in order to grab the property at Jasidih and delay the suit had filed the applications for being added as party. 6. The applicant filed affidavit in reply denying the allegations made in the affidavit in opposition and reiterating the contentions made in the petition. 7. Heard Learned Advocate for the applicant and Learned Advocate for the plaintiff. Perused the petition filed and materials on record. Learned Advocate for the intervenor/applicant submits that the suit filed by the Plaintiff is one for partition of various properties including an immoveable property described as ‘Modi Garden’ at Plot no. 519 and 520 Jasidih District-Deoghar Jharkhand. 8. 7. Heard Learned Advocate for the applicant and Learned Advocate for the plaintiff. Perused the petition filed and materials on record. Learned Advocate for the intervenor/applicant submits that the suit filed by the Plaintiff is one for partition of various properties including an immoveable property described as ‘Modi Garden’ at Plot no. 519 and 520 Jasidih District-Deoghar Jharkhand. 8. Learned Advocate further submits that it is the specific case of the applicant that Shyamsundar Sarawgi (during his life time) the owner of 2/3rd share in Modi Garden by way of inheritance of the property through his grandfather Babulal Surawgi, bequeathed the property. Babulal Sarowgi had purchased the said 2/3rd share in Modi Garden from Keshari Lal Modi and Gouri Shankar Modi by way of an Indenture dated 7 th August 1967. 9. Learned Advocate also submits that the applicants case is that the applicants predecessor Shyamsundar Sarawgi, is the son of Hemant Sarawgi who is the only son of Babulal Sarawgi. The said Shyamsunder Sarawgi died on 27th January 2024 leaving behind a Will whereunder the applicant was appointed executor. The Will refers to and deals with the 2/3rd undivided share in Modi Garden. It is submitted that the chain of succession as shown by the applicant (directly from Babulal Sarawgi) entitles the applicant to be added as party to the suit, since the applicant has an interest directly in the Modi Garden property being subject matter of the suit. It is further submitted that on the strength of the Will of Shyamsunder Sarawgi itself the applicant has the ostensible authority to represent the estate of the deceased and the entire estate of Shyamsunder Sarawgi (including the 2/3rd share in Modi Garden) vests in the applicant under Section 211 of the Indian Succession Act 1925. It is also submitted that the disputed questions as to the validity of 1967 indenture is to be adjudicated. 10. Learned Advocate for the Plaintiff opposite Party submits that the instant application is not maintainable on the ground that the previous application for addition of party was filed by Shyam Sundar Sarawgi was dismissed for default. Thus the proper course left open to the petitioner was to get the previous application restored. 11. Learned Advocate relies upon the following decisions: Ram Chandra Agarwal and Anr. VS State of Uttar Pradesh and Anr., 1966 SCC. Online S.C. 232. Thus the proper course left open to the petitioner was to get the previous application restored. 11. Learned Advocate relies upon the following decisions: Ram Chandra Agarwal and Anr. VS State of Uttar Pradesh and Anr., 1966 SCC. Online S.C. 232. Jaswant Singh and Ors VS Prakash Kaur and Anr., 2018 12 SCC-P-249. Balaji Govinda Narin VS Hiralal and Anr., 1957. SCC Online AP-212. 12. Learned Advocate submits that Shyam Sunder Sarawgi was an imposter who was set up by a Land broker known as Brajesh Rai and his antisocial associate, Amal Dutta. He and his successor-in-interest the applicant herein sought to rely on forged and fabricated documents and incorrect facts to set up their case. 13. Learned Advocate further submits that the true legal heirs of Babulal Sarawgi were already added as defendants to the matter being defendant nos 16A to 20, in respect of the transaction that purportedly took place with respect to the subject share. 14. Learned Advocate also submits that the deed annexed is forged. The copy of the real deed purporting to transfer the subject share to BSG executed by the predecessors-in-interest of the original defendant no-6 to 9, and 10 to 14, respectively being the brothers of Biswanath Modi, Kishori Lal Modi, and Gauri Shankar Modi, which is printed and not handwritten. The writing on the deed @ pg- 59 of the affidavit in opposition is by the same person and all signatures are by the same person. 15. Learned Advocate also draws attention to the property tax receipt and submits that the heading of the receipt mentions “Bombay Municipality” when the Municipal Corporation of Greater Bombay existed from 1889 under the City of Bombay Municipal Act 1888. It is also submitted that the hand writing in the said tax receipt is by the same person as the same in forged death certificate of hemant sarawgi from Jaipur 1996, and during License 1960 and death certificate of other state in 1996. 16. Learned Advocate relies upon the following decisions: Jagannath Khanderao Kedar VS Gopinath Bhmagi Kedar, Reported at 2022 SCC Online Bom 1228. And Union of India and Ors VS Prahlad Guha and ors., Reported at 2024 SCC Online. 17. Learned Advocate submits that the Petitioner/applicant has failed to establish any clear flow of title from Babulal Sarawgi to himself. 16. Learned Advocate relies upon the following decisions: Jagannath Khanderao Kedar VS Gopinath Bhmagi Kedar, Reported at 2022 SCC Online Bom 1228. And Union of India and Ors VS Prahlad Guha and ors., Reported at 2024 SCC Online. 17. Learned Advocate submits that the Petitioner/applicant has failed to establish any clear flow of title from Babulal Sarawgi to himself. In fact it is clear that the existence of Hemant Sarawgi and Shyamsunder Sarawgi as heirs of Babulal Sarawgi is a wholly incorrect fact which has been sought to be canvassed in this matter. Learned Advocate further submits that the present proceedings orginate from fraudulent, forged and fabricated documents, and fraud vitiates all proceedings. Learned Advocate also submits that the present application is not maintainable and should be dismissed. 18. Before proceeding to decide the material in issue it is necessary to consider the provisions contained in Order 1 Rule 10(2) of the Code of Civil Procedure. 19. Order 1 Rule 10(2) of the Code of Civil Procedure provides as follows: Court may strike out or add parties:-The Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit be added. 20. In the case of Ratan Kumar Sarawgi VS Vesivanath Sarawgi, Reported in AIR- 2023 Patna-146 the Hon’ble Court observed as follows: ‘9. The provisions of Order 1 Rule 10(2) of the Code are very wide and the powers of the Court are equally extensive. Even without an application to be impleaded as a party, the Court may, at any stage of the proceedings order that the name of any party, who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 10. 10. It is well settled that the underlying principle regarding the addition of parties is that there must be finality to litigation and to secure that purpose it would be incumbent upon the Court to add a party whose presence would be necessary to put an end to all the controversy in the litigation finally, "questions involved in the suit" referred to in Order 1 Rule 10 means not only the questions involved in the suit originally framed between the parties to the suit but also any dispute between the parties of the suit and a third party, and that the object of the provision is that where several disputes arise out of on subject matter all the parties interested in such disputes should be brought before the Court and all questions in contest between them should be completely settled in the action.’ 21. In the case of Vidur Implex and Traders (p) Limited and others VS Tosh Apartment (P) Ltd. reported in AIR-2012 S.C. 2925 the Hon’ble Court observed as follows: ‘41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.’ 22. Upon hearing the Learned Advocates and considering the relevant judicial decisions one thing is clear that the object of addition of necessary party is effectually made for settlement of all disputes. It is further clear from the plain reading of the provisions contained in Order 1 Rule 10 of the Code of Civil Procedure that Courts have discretion to implead a person in a proceeding suo-moto if the Court thinks fit. 23. As the application for addition of party made by Shyamsundar Sarawgi was earlier dismissed on default and not on merits this Court upon considering relevant facts has the duty to decide as to whether the present applicant is necessary or proper party. 24. The applicant in the instant case has relied upon the Will of Shyamsundar Sarawgi in which he is appointed as executor and the application for probate is pending being PLA No-415 of 2024. The applicant has also given the particulars of the transaction with regard to 2/3rd share in ‘Modi Garden’ which is claimed to belong to Shyam-Sundar Sarawgi since deceased. The applicant has given necessary particulars of sale transaction by virtue of which Shyam Sundar Sarawgi raised his claim over the said property and bequeathed it in favour of the applicant. As probate application is pending with regard to the said suit property it has to be held that the applicant is a proper party having legal interest in the subject matter of the suit. 25. Thus this application should be allowed. 26. Let there be an order in terms of prayer b, c, and d of the notice of motion dated 12th December 2024. 27. The amendment be carried out within 4 weeks.