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2005 Supreme(Del) 365
High Court Of Delhi
S.S.BAKSHI - Appellant
Versus
P.M.MATHRANI - Respondent
I.T.A. : 11116 of 1999
Decided On : 03/16/2005
ANANTMALA, KARTAR K.S.BAKSHI, L.R.GUPTA, MAHENDRA RANA, YAKESH ANAND
The main legal point established in the judgment is the determination of necessary parties in a suit for specific performance based on the claim of partition and the denial of partition by the co-owners.
Headnote:
Partition - Property Dispute - Transfer of Property Act, 1882, Indian Partition Act, 1893 - The court discussed the issue of partition between co-owners and the applicability of Section 44 of the Transfer of Property Act and Section 4 of the Indian Partition Act. The court found the applicant to be a necessary party to the suit and allowed the application for impleadment as defendant No. 2.
Fact of the Case:
The suits sought specific performance of an agreement for sale of a property in New Delhi. The plaintiff claimed that the property had been partitioned between the co-owners, while the applicant, a co-owner, denied the partition.
Finding of the Court:
The court found the applicant to be a necessary party to the suit and allowed the application for impleadment as defendant No. 2.
Issues: The main issue was the entitlement of the applicant to be impleaded as a defendant in the suit for specific performance.
Ratio Decidendi: The court held that the applicant was a necessary party to the suit based on the claim of partition and the denial of partition by the applicant.
Final Decision: The applications were allowed, and the applicant was impleaded as defendant No. 2.
( 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 impleaded 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 favour 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 favour of Sh. M. P. Mathrani, father of the defendant. It is stated in the plaint that Sh. M. P. Mathrani died intestate 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 favour 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 Landdo 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 annexe 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 the agreement to sell entered into by the defendant in favour of the plaintiff (s ). Prayer made in each of the suit is as under:- ?oa) 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 Landdo 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 herto in favour of the plaintiff and deliver the vacant possession of the flat on the first floor of the property bearing No. 9, kautilya Marg,
