SARVINDER SINGH v.

DALIP SINGH AND ORS.

AUGUST 2, 1996

(K. RAMASWAMY AND G.B. PATTANAIK, JJ]

Code of Civil Proced11re, 1908 :

Order 1, R11/e l!J-Pa1ties to s11it-Suit for declaration by appellant claiming mvneiship of suit land on basis of a registered will dated 26.5.1952 executed by his mother and statillg that a declaration to that effect was already given by Civil Cowt in another decree dated 29.3.1974-He also moved all application for ad inte1im injunction to restrain defendants from illte1feiing

lvith his possession-lnterint injunction granted initially but vacated later on 2.12.1991 as meanwhile defendants alienated the suit land in favour of D mpo11dem,-Respondel!ts filed application under Order 1, Rule JO, seeking to come on record as defendants-Tiial Court rejected applicatioll holding that res11ondents were neither necessary1 nor proper pa1ties to the suit-High Court directed impleadment of respondents as pa1ty defendants to the suit-Held, re.\pondents cannot be said to be either necessary or properpa1ties to the suit in which pli1na1y relief lvas based on the registered will-Respondents clailned right, title and interest pursuant to the registered sale deed which is hit by s.52 of Transfer of Prope1ty Act, 1882-'Nessessaiy party' and 'proper party' to suit-Explained.

Tramfer of Prope1ty Act, 1882 :

SSl--Doctiine of tis pendens--Plaintiff filed suit for declaratioll of title on the basis of a will and filed application for ad inteiim injunction seekillg to restrain defendams from intelfe1ing with his possession and enjoymellt of

s11it property--Pellding suit defendants alienated suit land by a registered sale G deed-Held, the aliellation is hit by docoine of /is pendens by operation of

s.52.

New Redbank Tea Co. Pvt. Ltd. v. Kwnkwn Mittal & o,,-, [1994] 1 SCC 402 and Ramesh H. Kunda11mal v. Mu11icipal Corporation of Greater Bombay, (1992] 2 sec 524, cited.

H 271

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10663 of 1996.

From the Judgment and Order dated 13.5.93 of the Punjab & Haryana High Court in C.R. No. 323 or 1993.

B R.K. Kapoor, P. Verma, S.K. Srivastava, B.R. Kapoor and S.C. Patel for the Appellant.

Mrs. Rekha Palli for the Respondents.

The following Order of the Court was delivered c Leave granted.

We have heard learned counsel on both sides.

The admitted facts are that the appellant filed suit Case No. 253-1 D before the Sub-judge, Ferozepur for declaration that he is the owner of the property on the basis of a registered Will dated May 26, 1952 executed by his mother Smt. Hira Devi and that a declaration to that effect was already given by the civil Court in another.decree dated March 29, 1974. He filed

an application under Order 39, Rule 1, CPC for ad interim injunction to

restrain the defendants from interfering with his possession and enjoyment of the plaint schedule property situated in village Dabbla Kalan Tehsil Fazilka. The interim injunction was granted on June 14, 1991 which subsequently came to be vacated on December 2, 1991. It would appear that the defendants alienated the self-sa; ne lands by registered sale deeds dated December 2, 1991 and December 12, 1991 in favour of the respondents before this Court. On the basis thereof, they sought to come on record as defendants under Order 1, Rule 10, CPC. The trial Court dismissed the application holding that they were neither necessary nor proper parties to the suit. On revision, the High Court in the impugned order in C.R. No. 323/93, dated May 13, 1993 directed impleadment of the respondent as G party defendants to the suit. Thus this appeal by special leave.

Shri Kapoor, learned counsel for the appellant, conten.ded that the claim for declaration of title is founded upon the registered will executed by his mother dated May 26, 1952 which was upheld in an earlier suit in which the ileclaration and possession was granted and in furtherance H thereof the appellant remained in possession. His mother Hira Devi left

SARVINDERSINGHv. DALIPSINGH 273

behind him and three sisters and one of the sisters is Rajender Kaur whose A sons are the defendants in the suit. The second suit came to be filed when his possession was sought to be interdicted asserting their right lo the property through their mother. Pending suit, when they had alienated the property to the respondents. It is hit by the doctrine of /is pendens under section 52 of the Transfer of Property Act. The respondents are neither necessary nor proper parties. In support thereof, he placed reliance on the judgment of this Court in New Redbank Tea Co. Pvt., Ltd. v. Kwnkum Mittal and 01'., [ 1994] 1 SCC 402. Mrs. Rekha Palli, learned counsel for the respondent contended that the declaration sought is in respect of immovable property. Having purchased the property, though pending suit, they are proper parties for defending the title of their predecessor in interest. Therefore, the High Court was right in bringing them on record under Order 1, Rule 10 CPC.She Placed reliance on the judgment of this Court in Ramesh H. K1111da11mal v. Municipal Corporation of Greater Bombay, [1992] 2 SCC 524. The ratio in either of the cases has no application

to the facts in this case. Therefore, it is not necessary to refer lo them in D extenso.

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 impleaded Rajender Kaur, one of the daughters of Hira De,;, 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 G 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 H

A 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 adjudicated 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. Hira 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 Rajendcr Kaur on December 2, 1991 and December 12, 1991, pending suit.

Section 52 of the Transfer of Property Act envisages that "during the pendency in any Court having authority within the limits of India .... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot D be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. " It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal E with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation ob· v:ously would be hit by the doctrine of /is pendens by operation of Section

52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.

The appeal is accordingly allowed and the petition under Order 1, Rule 10, CPC stands dismissed, but in the circumstances without costs.

R.P.

Appeal allowed.