JUDGMENT
Pradeep Nandrajog, J.
1. Present order disposes of applications number being IAs No. 11116/1999 in CS (OS) No. 225/1998; 11121/99 in CS(OS) No. 226/1998; 11119/1999 in CS(OS) No. 227/1998; 11142/1999 in CS(OS) No. 228/1998; and 11140/99 in CS(OS) No. 229/1998 filed by Smt. Sarla Mishra under Order 1 Rule 10 CPC praying to be imp leaded as a defendant in the suit(s).
2. All applications are identical. In all the captioned suits, plaintiffs are different but the defendant is common. Defendant is Sh. P.M. Mathrani.
3. Suits seek specific performance of an agreement for sale stated to have been executed by the defendant in favor of the plaintiff(s). It is stated in the plaints that the defendant is co-owner of 5/24th share in property bearing No. 9, Kautilya Marg, Diplomatic Enclave, New Delhi. It is stated that the land in question is comprised of a plot admeasuring 1547 square yards held under a perpetual lease from the President of India executed in favor of Sh. M.P. Mathrani, father of the defendant. It is stated in the plaint that Sh. M.P. Mathrani died interstate on 16.1.1968 leaving behind six legal heirs, 2 sons and 4 daughters. Defendant is one out of the two sons.
4. It is stated in the plaint that in a suit for partition registered as Suit No. 24/1970, a compromise decree was passed by this court on 27.3.1970. As per partition decree, defendant was declared to be owner of 1/6th share in the land and the building constructed thereon. Subsequently, Mrs. Sita Nagdev, one of the sister of the defendant relinquished 1/4th out of her 1/6th share in favor of the defendant. Thus, defendant became owner of 1/6th plus 1/24th share i.e. 5/24th share in the property. It is asserted in the plaint that mutation has been carried out in record of Land DO showing defendant to be co-owner having 5/24th share in the property.
5. In para 5 of the plaint, it is asserted that under a mutual arrangement/oral partition regarding possession of the suit property, a built-up portion of the property measuring approximately 2000 Sq.ft. on the rear of the first floor came under physical possession of the defendant. It is further asserted that apart from said portion, defendant is in possession of a servant quarter admeasuring about 100 sq.ft. with common bath and toilet on the second floor of the annexes to the main building as also in exclusive possession of car parking space under the porch area in front of entrance to the first floor.
6. After referring to certain acts of the defendant relating to grant of lease of the said portions by the defendant, it is asserted that the defendant has been contributing 5/24th towards property tax and maintenance expenses on the property.
7. Plaintiff(s) claim that under 5 agreements, defendant and the plaintiff(s) agreed to purchase 1/24th share each out of 5/24th share of the defendant. Plaintiff(s) claim to have paid a sum of Rs. 1,00,000/- at time of execution of the agreement to sell. Alleging non-performance of obligation by the defendant and readiness and willingness of the plaintiff(s) to perform their/it’s obligation under the agreement to sell, each of the 5 plaintiffs have filed a separate suit seeking specific performance of he agreement to sell entered into by the defendant in favor of the plaintiff(s). Prayer made in each of the suit is as under:-
“a) that a decree for specific performance of the agreement to sell dated 26th March, 1996 directing the defendant to perform his part of the obligation and to obtain the necessary permission to sell from Land DO and various other permissions, no objections and clearances including income tax clearance certificate from competent authorities which are required for the execution and registration of the sale deed of the suit property shown red in colour in plan annexed her to in favor of the plaintiff and deliver the vacant possession of the flat on the first floor of the property bearing No. 9, Kautilya Marg, Diplomatic Enclave, New Delhi after getting it vacated from the tenant and execute the sale deed against the payment of balance sale consideration of Rs. 5 lakhs as per the terms of the aforesaid agreement to sell and get the same duly registered in the office of the Sub-Registrar, New Delhi in favor of the plaintiff; AND
b) a permanent injunction restraining the defendant from transferring, alienating, encumbering and parting with possession of the aforesaid property in question, agreed to be sold to the plaintiff as mentioned in the agreement to sell dated 26th March, 1996 to any third party other than the plaintiff; be passed in favor of the plaintiff and against the defendant;”
8. Applicant, Mrs. Sarla Mishra, who is the sister of the defendant and a co-owner has filed the above captioned applications in each suit praying to be imp leaded stating that she is a necessary and a proper party. It is asserted that the applicant is a co-owner of the property 9, Kautilya Marg, Diplomatic Enclave, New Delhi. She states that the property has not been partitioned by meets and bounds. It is asserted that the brothers and sisters occupied different portions as a matter of convenience to enjoy the property. At no point of time a division took place. It is asserted that the house continues to be undivided. In para 10 of the application, it is specifically averred:-
“Though a collusive preliminary decree dated 27.3.1970 for partition was passed by the Hon’ble Delhi High Court, no actual division and partition of the said property by meets and bounds has taken place. No discussion between the brothers and sister’s co-owners for partition, division, separation of portion of the property as per their respective shares has taken place.”
9. Shri Lala Ram Gupta, learned senior counsel appearing for the plaintiff in each of the cases, opposed the application by urging that plaintiff’s suit for specific performance could not be converted into an inter se dispute between the brother and sister. Counsel urged that it was a wrong assertion by the applicant to state that the decree dated 27.3.1970 passed in suit No. 24/1970 was a preliminary decree. Counsel urged that the decree expressly stated that it was a final decree for partition.
10. Suit No. 240/1970 was filed by Sh. R.M. Mathrani, Mrs. Sita Nagdev and Mrs. Sarla Mishra, the son and two daughters of late Sh. M.P. Mathrani. Defendants to the suit were Sh. P.M. Mathrani, Mrs. Silu Thakur and Mrs. Vimla Arni, the other son and other two daughters of Sh. M.P. Mathrani. Prayer made in the suit was as under:-
“The plaintiffs claim the following reliefs:-
(a) The properties mentioned in Schedule A and B be divided or partitioned amongst the plaintiffs and the defendants in equal shares.
(b) A receiver may be appointed to manage the suit properties.”
11. Schedule A entered two properties, first being the present property with which the five suits concern themselves and the second being plot No. S-156, Greater Kailash Part-II, New Delhi.
12. There was no opposition to the suit. On 27.3.1970, following order was passed:-
“Present: Mr. D.P. Singh, counsel for the plaintiffs.
Defendant No. 1 in person.
Mr. R.S. Sharma for defendants No. 2 and 3.
It is stated that defendants No. 2 and 3 have filed the written statement. Defendant No. 1 had filed his written statement on 17th March, 1970. The written statements filed on behalf of defendants No. 2 and 3 are similar.
The defendants admit the suit. It is expressly stated in the written statement that the suit be decreed. The suit is hereby ordered to be decreed. The parties are directed to appear before the JR (J) on 1st April, 1970 who will settle the decree.
Sd/-
(P.S. Safeer)
Judge”
13. Decree drawn pursuant to the order aforesaid reads as under:-
“This suit coming on for hearing and final disposal before this court on the 27th Day of March, 1970 in the presence of the counsel for the parties aforesaid UPON the defendants admitting in their written statements the claim of the plaintiffs in the sit AND UPON hearing Sh. D.P. Singh, counsel for the plaintiffs and Sh. R.S. Sharma, counsel for defendants No. 2 and 3 THIS COURT DOTH ENTER JUDGMENT for the plaintiffs and DOTH AWARD to the plaintiffs herein a FINAL DECREE for partition among the plaintiff and defendants in equal share of the properties in dispute as mentioned in the Schedules A and B annexed with the plaint against the defendants. WITNESS the Hon’ble Sh. H.R. Khanna, Chief Justice of the High Court of Delhi at the court house, Tilak Marg New Delhi this the Twenty Seventh Day of March One Thousand Nine Hundred and Seventy.
Sd/-
(GURU DATTA)
REGISTRAR”
14. Confronted with the order dated 27.3.1970 and the decree passed thereon in suit No. 24 of 1970, Sh. Lala Ram Gupta, learned senior counsel for the plaintiff(s) urged that the decree records that it is a final decree for partition and therefore this court has to treat the property as being partitioned.
15. It is rather unfortunate that this court, when it passed the order dated 27.3.1970 in Suit No. 24 of 1970 did not notice that unless shares are separated by meets and bounds, no partition comes into existence as a matter of fact. Probably, the suit was collusive. Defendants admitted the claim of the plaintiffs. The court was led to decree the suit.
16. What was the decree passed? Decree passed was that since the defendants admitted, suit properties were being partitioned in equal share. The equal share was 1/6th each of the 3 plaintiffs and the 3 defendants. Neither the order nor the decree separates the 6th shares by physically identifying six different portions of the property as falling to the share of the 6 parties to the suit.
17. In a suit for partition, a preliminary decree is generally drawn up wherein share of the parties is determined, followed by a final decree in which specific portions of the property are assigned to the co-owners. In a suit for partition, unity of title and unity of possession is severed, with each co-owner thereafter having separate and independent title as also separate and independent possession. There may be certain common areas for beneficial enjoyment of all parties, but in essence, there has to be a physical separation of the shares.
18. Unfortunately, under the order and decree dated 27.3.1970 this has not happened.
19. If law contemplates a fact to happen de-facto, that it has happened de-jure would be of no help for the reason that till the fact actually occurs, it would not be possible to determine consequences there from.
20. Sh. Lala Ram Gupta, learned senior counsel for the plaintiff made an alternative submission. Counsel urged that since the decree dated 27.3.1970 in suit No. 24/1970 was a final decree, finality to the physical partition could be ascertained from the conduct of the parties. Counsel urged that the exclusive possession of the defendant over a part of the building showed that the parties had effected a partition at site.
21. Issue of partition between the children of late Sh. M.P. Mathrani assumes importance for the fact that if the shares are separated, a separated co-owner would be competent to sell his divided and partitioned share to any third party and his erstwhile co-owner would neither be a necessary nor a proper party in a suit for specific performance filed by the proposed buyer, should there be a dispute under the agreement to sell.
22. Issue of physical partition between the parties is not emanating from the judgment and decree dated 27.3.1970 passed in suit No. 24/1970. If the plaintiffs have to assert a partition on the basis of conduct, would the applicant be affected by the said decision, and therefore, would be a necessary and a proper party? This issue requires to be adjudicated in the present application.
23. Learned counsel for the applicant relied upon Section 44 of the Transfer of Property Act which reads as under:-
“44. Transfer by one co-owner.-
Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interests transferred.”
24. Counsel for the applicant also relied upon Section 4 of the Partition Act which reads as under:-
“4. Partition suit by transferee of share in dwelling-house. – (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.”
25. Sh. Lala Ram Gupta, learned counsel for the plaintiff urged that since the property was already partitioned, neither Section 4 of the Partition Act nor Section 44 of the Transfer of Property Act was attracted.
26. In my opinion, issue of applicability of Section 4 of the Partition Act or Section 44 of the Transfer of Property Act would arise only if the status of the property is determined first. If it is held that the property stood partitioned, applicants would not be entitled to maintain any action under aforesaid provisions for the house would neither be a dwelling house belonging to an undivided family nor would it be a transfer of a share by a co-owner in the undivided house.
27. Issue which I have to decide at present is the entitlement of the applicant to be imp leaded as a defendant before proceeding ahead with the suit.
28. I have noted above the prayer in the suits. Plaintiff has prayed to be put in possession of the portion shown in red in the plan annexed to the plaint. The plan shows that the plaintiff seeks to be put in possession of a specific part of property bearing municipal number 9, Kautilaya Marg, Diplomatic Enclave, New Delhi.
29. Learned counsel for the plaintiff relied upon a few decisions, I need, therefore, note the same and deal with them.
30. Panne Khushali v. Jeewan Lal, a full bench decision of the Gwalior Bench of the Madhya Pradesh High Court was relied upon. Decision cited deals with the issue of a stranger to a contract claiming title adverse to the vendor and seeking impleadment in a suit for specific performance filed by the plaintiff seeking specific performance of an agreement to sell. It was held by the full bench that a suit for specific performance of a contract for sale of immovable property could not be converted into a title suit to adjudicate a dispute of title between a third party and the vendor.
31. The issue which fell for consideration before the full bench of the Madhya Pradesh High Court was clearly distinct and different from the issue at hand.
32. Second decision relied upon was Ram Bilash Pandey v. Jai Narayan Gupta.
33. Decision deals with the claim of an applicant stating to be a co-owner seeking impleadment in a suit for specific performance filed by a prospective purchaser against the vendor. Vendor was a member of a Joint Hindu Family. It was held that the co-owner could not be imp leaded as a party as impleadment would convert the list between the plaintiff and the defendant into an enlarged controversy having no direct concern or connection with the original litigation.
34. Decision relied upon does not show whether the plaintiff had prayed to be put in possession on the allegation that there was a partition of the property, portion of which was sought to be purchased by the plaintiff.
35. Third decision relied upon was Rasik Lal Shankar Lal Soni v. Natver Lal Shankar Lal Upadhyaya. Decision of the learned single Judge of the Gujarat High Court would reveal that the suit sought mere specific performance of an agreement to sell by requiring the defendant to execute a sale deed. It was specifically noted that no relief for possession of the suit property was claimed. It was in this context that application of the sisters of the defendant seeking impleadment was rejected holding that the sisters were neither a necessary nor a proper party.
36. Next decision relied upon was Krishan Lal and Ors. v. Tek Chand and Ors. Division Bench of the Punjab High Court was dealing with a similar issue, whether in a suit for specific performance of a contract of sale, a third person claiming to be a joint owner of the property (the subject matter of the suit) is entitled to be imp leaded as a defendant. It was held that impleadment could not be allowed. However, in para 9 it was specifically observed that where there is no prayer for possession in the suit for specific performance, third party cannot enlarge the scope of the suit.
37. Though not cited by any party, decision of the Bombay High Court reported as AIR 1943 Bombay 27 S. Mahadevappa v. S. Parappa may be noted. It was observed that where possession of a third party was likely to be defeated in a suit for specific performance of a contract for sale of land, said person would be a necessary and a proper party.
38. Counsel for the plaintiff also relied upon a decision of the Supreme Court reported as Anil Kumar Singh v. Shiv Nath Mishra to urge that a person not being a party to an agreement for sale could not be imp leaded as a party in a suit for specific performance.
39. Decision of the Supreme Court does not record that their Lordships were dealing with a suit for specific performance where possession was also claimed.
40. An interesting judgment on the issue is the Full Bench decision of the Madras High Court reported as 1918 Madras 681 T. Rangayya Reddi v. R. Subramanya Aiyar. The facts of the case were that the plaintiff’s suit for specific performance against defendant No. 1 with a consequential relief for possession of the property sold, by seeking partition. Other members of the joint family were imp leaded as defendants on the allegation that they were necessary parties. Issue arose whether the suit was liable to be rejected for misjoinder of parties and misjoinder of cause of action. On a difference of opinion between Oldfield, J. and Sada Siva Aiyar, J., matter was referred for opinion to a Full Bench. Two questions were referred to a Full Bench. The first question was: (a) Whether defendants No. 2 to 5 are proper parties to the suit? (b) Whether the relief of partition and possession could be claimed by the plaintiffs in one suit?
41. Wallis, C.J., answered the second question by holding that issue of partition may often involve a more variety of complicated questions and it would not be satisfactory to deal with such a suit as an appendage to the suit for specific performance of a contract by a co-sharer to sell his share. On the first question, Wallis, C.J., expressed no separate opinion but concurred with the opinion of Srinivasa Aiyangar, J. He held that a right to sue for partition does not arise till after the legal titles transferred. He held that the issue of defendants No. 2 to 5 being proper parties or not depended upon a further issue whether they were subsequent transferees to the property agreed to be sold to the plaintiff or they had a prior right, it was held that:-
“It is now settled so far as this court is concerned that this contract, even if completed by a conveyance, would not entitle the plaintiff to joint possession with the other coparceners-that in fact he is not entitled to any sort of possession-but that his purchase if completed, would enable him to bring a suit for partition in which, if the court making a division considers it fair having due regard to the rights of other coparceners to allot the property sold to the vendor, the vendee standing in his shoes may obtain that property.”
42. Decision of the full bench of the Madras High Court shows that the issue came up in a reverse context where the purchaser imp leaded the other coparceners. These coparceners opposed the suit by alleging that there was a misjoinder of cause of action for the reason that the purchaser had to first perfect his title and thereafter step into the shoes of the vendor co-parcener and thereafter sue for possession.
43. Necessary parties are those without whom the court will not proceed to any judgment. Included in this category would be the persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interest or without causing some prejudice to their rights. Additionally, a party may be a necessary party where the decision of the court would leave the controversy in such a condition that its final determination would be inconsistent with the rights of a party.
44. Plaintiff(s) seeks to be put in possession of a specific portion of property No. 9, Kautilya Marg, Chanakya Puri by alleging that there has been a partition of the property between the children of M.P. Mathrani. Partition is alleged on the basis of a
court decree and subsequent acts of the parties. Applicants claim to be co-owners of the property and deny a partition. In my opinion, applicant would be a necessary party to the suit.
45.At this stage, I refrain from dealing with the judgments relied upon by the parties relating to Section 4 of the Partition Act and Section 44 of the Transfer of Property Act for the reason said issue relates to the merit of the controversy between the parties. At present, I am only concerned with a limited issue, whether the applicant is a necessary party to the suit.
46. Applications are allowed. Applicant is imp leaded as defendant No. 2.
47. Plaintiff to file amended memo of parties within one week.