ORDER
Vikramajit Sen, J.
1. In this suit the plaintiff has sought partition, rendition of accounts and declaration against the legal heirs of her deceased brother in respect of properties belonging to her mother late Dr. (Mrs.) Raseel Kohli. One of the properties which falls for consideration is 6-B, Jangpura Extension, Mathura Road, New Delhi (suit property).
2. In this suit the Applicants, namely, Mrs. Harnam Kaur, Mrs. Mahinder Kaur and Shri Jagjit Singh,all partners of M/s. Texla Service Centre, 6-B, Jangpura Extension, Mathura Road, New Delhi, have filed an application under Order XXII Rule 10 and under Order 1 Rule 10 read with Section 151 of the Civil Procedure Code through their Advocate Shri K.C. Dewan. It has been pleaded, inter alia, that the Plaintiff has prayed for a Declaration that she is the absolute owner of the suit property. These applicants, who are admittedly in possession of the suit property, claimed to be the owners thereof by virtue of “being assignees of the interest of the deceased Major K.V. Kohli”.
3. This application has been strenuously opposed by the Plaintiff and it is her submission that the Applicants are trespassers of the suit property; that they are not the assignees of her brother late Major K.V. Kohli who had been restrained from transferring the said property by Court orders; that they have always been fully aware of the orders passed by various Courts; that the application is hopelessly time barred; that they have taken illegal possession of the suit; property, in contempt of the orders of this Court from the Judgment Debtor Shri Khairati Lal in S. No. 1080/79 who had undertaken to this Court to handover possession only to late Dr. (Mrs.) Raseel Kohli; that three Sale Deeds dated 6.12.1988 were allegedly executed in defiance of the status qua order passed by this Court on 23.1.1986, 8.4.1986 and 3.10.1986; that the Applicants herein had withdrawn their suit on 1.9.1989 for Specific Performance, being Suit No. 188/86: that the suit property was restrained from being sold, transferred or assigned by orders dated 14.3.1978, 18.4.1978 and 2.3.79 in Suit No. 259/ 78: that mutation was illegally carried out on the basis of fabricated and forged documents: that Late Major K.V. Kohli’s Probate Petition bearing No. 379/87, wherein he had propounded an alleged will deter 7.3.1986, had been dismissed in default on 13.5.1992; that the Applicants were neither necessary nor proper parties in the present suit; and that the alleged assign- ment of the suit property in their favour has been challenged by the Plain- tiff in Suit No. 695/90.
4. I will first deal with the objection pertaining to limitation. The Applicants were fully aware of the pendency of this suit, at least on 14.3.1990. when they were served with a copy of the plaint of Suit No. 695/90 alongwith the Injunction passed on that date. No Rejoinder has been filed and, therefore, these averments contained in para 3 of the Prelimi- nary Objection of the Plaintiff’s reply remained uncontroverted and untra- versed. No. explanation has been proffered as to why the application has been filed in 1998 whereas knowledge of the pendency of the suit had been obtained by the Applicants on 14.3.1990. The application is, therefore, clearly barred by limitation and is rejected, inter alia, on this ground.
5. Even otherwise, if the merits of the case are to be considered, there is no justification for impleading the Applicants in these proceedings, which are admittedly for the partition of properties to which the Plaintiff and the legal heirs of her late brother have succeeded, being properties of late Dr. (Mrs.) Raseel Kohli. Some capital was sought to be made by the Applicants predicated from the prayers in the plaint inasmuch as the Plain- tiff had sought a partition determining the shares in the suit property, which was described to be in the absolute ownership of late Dr. (Mrs.) Raseel Kohli. It was argued that since that Applicants were relying on an assignment in their favour, the suit property could not be treated as the absolute property of Dr. (Mrs.) Raseel Kohli and/or of the Plaintiff. In allowing this prayer, it was submitted, the Applicants would be completely dislodged from their plea that they are the legitimate owners of the suit property. This argument is untenable for the reason that the word “abso- lute” has been employed in the prayer clause in contradistinction to the partial ownership of Dr. (Mrs.) Raseel Kohli in the properties mentioned in the prayer. This prayer, therefore, even if granted, would not have the effect of returning a finding that the Plaintiff and/or the other parties to the suit were owners of the suit property even against the Applicants. Learned counsel for the Plaintiff has rightly emphasised question falls to be decided in different proceedings.
6. In Razia Begum Vs. Sahebzadi Anwar Begum & Ors., , Razia Begum had prayed for two declarations in the suit: (1) that she was the legally wedded wife of the Defendant and (2) that she was entitled Rs. 2000/- as maintenance. An application under Order I Rule 10 C.P.C. was filed by the applicants, claiming to be the lawful and legally wedded wife and son. It was, inter alia, pleaded that litigation was collusive. In this context the Apex Court made the following observations: the second having assumed the proportions of a jurisprudential ground norm.
“As a result of these considerations, we have arrived at the following conclusions:
(1) That the question of addition of parties under R. 10 of O. 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in S.115 of the Code :
(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation :
(3) Where the subject matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy.
(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Ss.42 and 43 of the Specific Relief Act :
(5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admis- sion of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission.
(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the Court, but generations to come, and in view of that consideration, the rule of ‘present interest’ as evolved by case law relating to disputes about property does not apply with full force; and
(7) The rule laid down in S. 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another.
7. It has later been observed in this very decision as follows:
“The submission presupposes that Respondents 1 and 2 would sur- vive respondent No. 3. During the life time of respondent No. 3 neither the appellant nor her children on the one hand nor respondents 1 and 2 on the other have any rights whatsoever in his estate under the Mohammedan Law. During the life, respondents 1 and 2 would have the right to be maintained by him and if the appellant is also his wife, then she and her children would also have the right to be maintained by him. The appellant and re- spondent No. 1 would also have rights arising out of a contract, if any, between them and respondent No. 3. None of these/rights, however, are rights or interests in the estate of respondent No. 3. The submission also presupposes that on the death of respond- ent No. 3 he would have left behind some estate to be inherited by his heirs. These submissions are entirely speculative and afford no basis for the impleading of respondents 1 and 2 as parties to the appellant’s suit. It was said, however, that the right to inherit is a present right in respondents 1 and 2 and if the appellant is declared to be the wife of respondent No. 3, then that right to inheritance is affected. This contention is erroneous and there is no legal basis to support it. If the appellant is declared to be the wife of respondent No. 3 such a declaration could not affect the right to inherit on the part of respondents 1 and 2 in the estate of respondent No.3, assuming that respondent No. 3 on his death left an estate to be inherited and that the appellant and her children and respondents 1 and 2 survived him. The extent of the inheritance of each one of these may thus become less but so far as that is concerned it cannot be predicated during the life time of respondent No.3 as to what would be the extent of the inheritance of his heirs. Under the Mohammedan law by which the parties are governed, respondents No. 3 could yet validly marry two other women and have children from them, in which case, the inheritance, if any, could not be to the same extent if respondent No.3 died leaving only respondents 1 and 2 as heirs. The entire question raised by respondents 1 and 2 is based on the supposition that they have rights in the estate of respondent No.3. Under the Mohammedan law they have no such rights. It is only in the event of their surviving respondent No. 3 that their rights will vest in his estate and the extent of their inheritance will be calculated on the number of persons entitled to inherit his estate at the time of his death”.
8. Applying these observations to the facts of the present case, it will be clear that, at the highest, the applicants might have a commercial interest in the suit property. That too is yet to be established and is fraught with numerous obstacles including Section 52 of the Transfer of Property Act. The suit for partition is between two sibling in respect of the property belonging, absolutely, to their mother. The applicants are claiming title through the Defendant’s brother, who in turn had predicated his rights on a Will purporting to be that of the mother. This Will was sought to be probated, but these orders were not obtained. Accordingly, the applicants have no direct interest in the suit property. This reasoning was relied upon by the Supreme Court in the case of New Redbank Tea Company (Pvt.) Ltd. Vs. Kumkum Mittal, . The Applicants are there- fore neither necessary nor proper parties to the present lis.
9. In Sarvinder Singh Vs. Dalip Singh & Ors., 1996 (4) CCC 20 (SC) the facts were similar to the case before me. A suit for declaration and in- junction had been filed on the basis of a Registered Will executed by the mother of the Plaintiff and an application was filed under Order I Rule 10 by the person claiming to have purchased the property from the Defendants during the pendency of the suit. The Apex Court held that the Applicants/Respondents were not entitled to be imp leaded. Section 52 of the Transfer of Property Act was also found to be applicable but with this proposition of law I am not immediately concerned. The following observa- tions were made in the said case :
“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. He imp leaded 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 March 29, 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 May 26, 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 or 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 adjudi- cated 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. Hari 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 Decem- ber 2, 1991 and December 12, 1991, pending suit.”.
10. In Anna Poorani Ammal Vs. Jayavel Mudaliar & Another 1974 MLJ 285 a similar application under Order I Rule 10 as well as under Order XXII Rule 10 of the Code of Civil Procedure was rejected although the applicants in that case had purchased an item of property from a party to the suit for partition. In Pranakrushna Vs. Umakanta Panda & Others a Division Bench held that “in a suit for Declaration of title a transferee from the Defendant pendente lite is neither a necessary nor a proper party in as much as he would be bound in decree in suit in view of the principle contained in Section 52 of the Transfer of Property Act. The intervener could not have added as party to a suit in the beginning.” In Panne Khusha- li Vs. Jeewanlal a Full Bench similarly declined to allow an application under Order I Rule 10 filed in a suit for Specific Performance of a contract, by the applicants who were strangers to the Contract sought to be specifically enforced and had made a claim adverse to the title of the Defendants, contending that the Applicants were the co-owners of the property. It was held that the applicant was neither a necessary nor the proper party. In P.S. Muthukrishna Chettiar Vs. Meenakshi Ammal and Another an application under Order I Rule 10 by a person who claimed adverse titled to the estate of the deceased was reject- ed in an Administration suit on the ground that allowing such a person to come in as a Defendant to get his claim adjudicated, when the Plaintiff does not want to implead it, would only embarrass the trial of the proceed- ings.
11. On a consideration of these precedents also, I am of the opinion that this application deserves to be dismissed. The Applicants have no direct interest in the property. Even their commercial interest is suspected for the reason that their title is based on a transfer from the Defendant, late Shri K.V. Kohli, who had in turn predicated his title on an alleged Will of his mother in respect of which Probate was not granted. Their interest is also clogged because the transfer was in violation of Section 52 of the Transfer of Property Act. Be that as it may, a suit has already been filed by the applicants, which is pending adjudication in this Court. Therefore, there is no justification to broaden the scope of the present suit by impleading the Applicants. This is not a case of which the facts are such that the doctrine of dominus lIT is should be cast adrift and ignored.
12. In my view the application is vexatious having been filed at a stage where the suit itself was to be finally disposed of. No explanation for the filing of this application after a lapse of nine years has been even perfunctorily brought.
13. In these circumstances, the application is dismissed with costs of Rs. 10,000/- half of which shall be paid to the Plaintiff and half to be deposited in Partial Legal Aid for Middle Income Group, High Court of Delhi, New Delhi.