JUDGMENT
S.K. Agarwal, J.
1. These are applications under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (for short CPC) for impleading applicant Mrs. Sarla Mishra as party to suit. Brief facts necessary for the disposal of these applications are; that the plaintiff filed a suit for a decree of specific performance and for possession of a flat in Bungalow 9 Kautilya Marg, Chanakya Puri, New Delhi, on the basis of agreement to sell, seeking directions to the defendant to perform his part of the obligations and executes the sale deed after obtaining necessary permission from the Government. It is alleged that M.P. Mathrani was the owner of the Bungalow No 9. Kautilya Marg, Diplomatic Enclave, New Delhi measuring 1547 sq. yards, which is a 2-1/2 storied building. He died intestate leaving behind 6 legal heirs, 2 sons and 4 daughters, including the applicant (daughter) and the defendant (son). On 27th March, 1970, a preliminary decree was passed in Suit No. 24/70, declaring each of his legal representatives/heirs to be 1/6th owner of the said property. Thereafter, the defendant also purchased 1/24th share of the property from one of his sisters and became co-owner of the said property to the extent of 5/24th share, which is fully described in the plaint, flat measuring 2000 sq. ft. on the first floor rear portion of the building (for short the flat).
2. It is alleged that on 26th March, 1996 the defendant executed five agreements to sell agreeing to sell his 1/24th share in the flat each for Rs. 46 lakhs, in favour of five plaintiffs; who have filed suits (Nos. 225/98 to 229/98) for specific performance and possession of 1/24th share in the said flat on the basis of said agreements to sell, against the defendant. Paragraph 5 of the plaint, reads as under:
” That since 12th June, 1973, the defendant has been a co-owner of the aforesaid property to the extent of 5/24th share. Under a mutual arrangement/oral partition regarding possession of the suit property, a portion of the said property approximately 2000 sq. ft. covered area on the rear of the first floor of the building came to the actual and physical possession and enjoyment of the defendant. The said portion in the possession and enjoyment of the defendant falling to his share out of the entire building is comprised of one drawing-cum-dining room, one pantry, one kitchen, two bed rooms with attached toilets, a family room, one store room, one pooja room, passage and open terrace measuring about 500 sq. ft. Apart from the said portion of the main building, the defendant also got in his possession and enjoyment a servant room measuring about 100 sq. ft, with common bath and toilet in the 2nd floor of annexe to the main building as well as exclusive use of the car parking under the porch area in front of entrance to the first floor. These portions namely portion in the main building and protion in the annexe along with common passage and a proportionate share in the plot of land etc. have been in possession and enjoyment of the defendant by virtue of and in exercise of his right as a co-sharer of 5/24th share in the entire property known as 9 Kautilya Marg, Diplomatic Enclave, New Delhi.
3. The defendants filed written statement denying the averments made in suits and in reply to paragraph five of the plaint it is specifically pleaded that the defendant has only undivided share to the extent of 5/24th of the total area in the property in question, which is not partitioned by metes and bounds between the co-owners so far. It is only for convenience and enjoyment that different undivided shares holders have been in possession of different portions, as a matter of mutual arrangement and this does not result in any legal division and does not confer any separate legal title to the co-owners in respect of the different portions.
4. The applicant-one of the sister-has filed applications for impleading herself as a party in all the five suits. The plaintiff has chosen not to file the reply despite several opportunities and despite last opportunities granted on 14.7.2000 and 25.9.2000.
5. I have heard learned counsel for the parties and have been taken through the record.
6. The learned counsel for the plaintiff has argued that the applicant is a total stranger to the agreements to sell dated 26th July, 1996 executed by the defendant in favour of plaintiffs, therefore, the applicant is neither necessary nor proper party, for effective adjudication of the dispute between them. Learned counsel for the applicant, on the other hand, has argued that only a preliminary decree and not the final decree for partition determining the shares of the parties in the property has been passed, that Section 4 of the Partition Act, 1893, where a share of dwelling house belonging to an undivided family is sought to be transferred to a person who is not a member of such family, and such transfree files a suit for partition, member of the family being the shareholder, is to be given first option to purchase and this right is available even upto the execution stage. In support of his contentions reliance was placed on Supreme Court decision in Ghantesher Ghosh v. Madan Mohan Ghosh and Ors., wherein it was held:-
” As a result of the aforesaid discussion, it must be held that Section 4 of the Act can validly be pressed in service by any of the co-owners of the dwelling house belonging to the undivided family pending the suit for partition till final decree is passed and thereafter even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has not been fully executed and satisfied by putting the shareholders in actual possession of their respective shares. Beyond that stage, however, Section 4 will go out of commission.”
7. Although plaintiffs have alleged that by mutual arrangement and oral partition the flat in question fell to the share of defendant exclusively but the same has been denied even by the defendant in the written statement. In view of Section 4 of the Partition Act, the applicant admittedly, being one of the co-shares of an undivided portion in a dwelling house would have the option to purchase the share in preference to the stranger. Therefore, in my considered view the, applicant is a necessary and proper party, to avoid multiplicity of proceedings.
8. Learned counsel for the plaintiffs in support of his contention that a stranger to the contract cannot be joined as a party in a suit for specific performance and placed reliance on Supreme Court decisions in New Redbank Tea Co. Pvt. Ltd. v. Kumkum Mittal and Ors., , Anil Kumar Singh v. Shiv Nath Mishra, (1995) SCC 147 and a decision of this court in Sanjay Gupta v. Kala Wati, The facts in these cases were quite different. In none of these cases, the applicant who prayed for being imp leaded as the party to the suit was the co-owner having undivided share in the dwelling house of joint family based his claim on the strength of Section 4 of the Partition Act. In my view the observations made in these cases are not applicable to the facts of this case.
9. For the foregoing reasons, all the five applications noted above are allowed. Applicant is imp leaded as defendant No. 2 in each suit. No order as to costs. Copy of this order be placed in respective suits.