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PETITIONER: SARVINDER SINGH

       Vs.

RESPONDENT: DALIP SINGH & ORS.

DATE OF JUDGMENT:       02/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCALE  (6)59

ACT:

HEADNOTE:

JUDGMENT:                 THE 2ND DAY OF AUGUST, 1996 Present:      Hon’ble Mr.Justice K.Ramaswamy      Hon’ble Mr.Justice G.B.Pattanaik R.K.Kapoor,   P.Verma,    S.K.Srivastava   B.R.Kapoor    and S.C.Patel, Advs. for the appellant Mrs. Rekha Palli, Adv. for the Respondents.                          O R D E R Sarvinder Singh V. Dalip Singh & Ors.                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The admitted  facts are  that the  appellant filed suit Case  No.   253-1  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 11 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-same 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 respondents  as party  defendants to the

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suit. Thus this appeal by special leave.      Shri  Kapoor,   learned  counsel   for  the  appellant, contended 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 declaration and  possession was  granted and  in furtherance thereof the  appellant remained  in possession.  His  mother Hira Devi  left behind  him and three sisters and one of the sisters is  Rajender Kaur  whose 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 to  the property  through their  mother. Pending suit, when they  had alienated the property to the respondents. It is hit  by the  doctrine of  lis 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.  Kumkum Mittal  & Ors. [(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. The  placed reliance  on the  judgment of this Court in  Ramesh H.  Kundanmal 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 to them in 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 proponded as basis  for an  exclusive right, title and interest in the said property.  He  impleaded  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 to  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 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

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right, title  and interest  pursuant to  the registered sale deeds said  to have been executed by the defendants-heirs of Rajender Kaur  on December  2, 1991  3nd 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  be transferred  or otherwise  dealt with by any party  to the  suit or  proceeding so  as to  affect the right 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  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 obviously would  be hit  by the  doctrine of  lie 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