An agreement to sell does not create any interest in property; thus, a party claiming rights based on such an agreement cannot be joined in a partition suit without a legal interest.

ORDER :

(SANGEETA K. VISHEN, J.) 

Learned advocate Mr.P.S. Datta has tendered the draft amendment. Amendment is allowed in terms of the draft and shall be carried out forthwith.

2. Mr.P.S. Datta, learned advocate for Mr.S.P. Majmudar, learned advocate for the applicant submitted that with respect to the lands in question, agreement to sell-cum-memorandum of understanding (hereinafter referred to as “the agreement”) has been executed in his favour. The applicant has agreed to purchase undivided share of the land in question on various terms and conditions and an amount of Rs.3.00 lakh towards earnest money was paid. It is further agreed that the applicant shall pay an amount of Rs.61.00 crore to the appellant No.2 within a period of 18 months from the date of clearance of the title. Hence, the right has been created in his favour and the applicant, shall be joined as a party respondent inasmuch as, the outcome of the captioned appeal, is likely to affect his right. It is next submitted that in connection with the agreement the applicant, has also filed a Special Civil Suit No.125 of 2022 seeking declaration and permanent injunction which, is pending consideration together with application Exh.5. Considering the nature of agreement and the recitals, the applicant is not only a proper but a necessary party and hence, he be joined in the captioned proceedings.

3. Reliance is placed on the judgment in the case of Sumitbhai v. Paras Finance Co. Rg. Partnership Firm Beawer (Raj.) Through Smt. Mankanwar W/o. Parasmal Chordia (Dead) reported in (2007) 10 SCC 82. The principle laid down is that when a third party shows some semblance of title or interest in the property in dispute, he cannot be said to be a mere busybody or interloper and should be joined as a party respondent. Further reliance is placed on the judgment in the case of Khemchand Shankar Choudhari v. Vishnu Hari Patil reported in (1993) 1 SCC 18. It has been observed that when a person who is not a party in the suit before the civil court; can take part and can claim equitable partition before the Collector in civil proceedings.

4. Mr.Prakash Jani, learned senior counsel appearing with Mr.Amit Barot, learned advocate for respondent Nos.1.1 and 1.2, submitted that the applicant is neither necessary nor proper party inasmuch as, the agreement that has been executed does not make any reference of the possession; however, in the suit filed stand taken is that the applicant is in possession of the suit property. It is further submitted that the genesis of the suit, is the partition among the family members. It is submitted that Bhalabhai Bhailalbhai Patel was the son of Ishwarbhai Shankarbhai Patel who pre-deceased his father. Appellant no.2 claims to be the daughter of appellant no.1 and Bhalabhai Bhailalbhai Patel, the pre-deceased son of Ishwarbhai Shankarbhai Patel. The wife i.e. appellant No.1 remarried immediately and settled with her new husband. The issue, revolves around the provisions of various enactments related to the widow remarriage; women’s right to property and the Hindu Succession Act. It is submitted that appellant No.2, claims her share in the property of her grandfather through her father. That the suit filed seeking partition, came to be dismissed on 12th September, 2007 and therefore, there is a conclusive declaration that appellant Nos.1 and 2 have no right.

5. It is further submitted that the agreement which has been executed and contents whereof would indicate that the property involved, is a huge parcel of land running into crores of rupees whereas, consideration paid is a meager amount of Rs.3.00 lakh. Moreover, the agreement is an unregistered document and hence, the present applicant, has no locus standi to file any application. The applicant, is neither the necessary nor the proper party. Even otherwise, since the applicant, has already filed a suit seeking a declaration and a permanent injunction, if any right accrues in his favour, the court below sh