Reserved on 19.12.2018 Delivered on 26.04.2019
Case :- FIRST APPEAL FROM ORDER No. - 3074 of 2014 Appellant :- Virendra Singh Respondent :- Narendra Singh And 3 Others Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- B.L. Ojha,Kamal Singh,Nirvikar Gupta,Ramesh Pundir,Rekha Pundir
Hon'ble Saral Srivastava,J.
1. Heard Sri Dinesh Kumar Singh, Advocate holding brief of Sri Rahul Sahai, learned counsel for the appellant and Sri Vikas Rastogi, Advocate holding brief of Smt. Rekha Pundir, learned counsel for the respondents.
2. The present appeal is directed against the judgment and order dated 26.7.2014 passed by Additional District Magistrate Court No. 5 Mathura, whereby the court below has allowed the appeal of the respondent no. 1 Narendra Singh and remanded the matter to the trial court.
3. The brief facts giving rise to the present appeal are that one Mahendra Singh purchased plot from Govind Nagar Sahkari Grih Nirman Samiti Limited Mathura by sale deed dated 13.12.1968 and constructed the house over the plot. The house was numbered as House No. 72A Govindnagar Sector A Tehsil, District Mathura.
4. Mahendra Singh died in the year 1970 leaving behind four sons namely Virendra Singh, Narendra Singh, Shailendra Singh and Yogendra Singh.
5. Yogendra Singh died leaving behind his widow Smt. Surendri and one son Akhhil Verma.
6. Virendra Singh appellant instituted a suit for partition claiming 1/4th share in the aforesaid house on the ground that after the death of his father he became owner of 1/4th share of the aforesaid house. It was pleaded that three brothers of the appellant were residing outside Mathura, and the appellant used to look after the entire property for the last few years. The respondent no. 1 Narendra Singh (defendant no. 1) has been residing in the house after retirement since two years and has started interfering with the peaceful life of the appellant. The appellant is the owner of the undivided house and, is entitled to use and enjoy the aforesaid property being co-owner of the property. The appellant prayed for a decree of partition of 1/4th share in the aforesaid house by metes and bounds.
7. The suit was contested by respondent no. 1 by filing written statement contending therein that the partition of the aforesaid house has taken place during life time of the Mahendra Singh and appellant is in possession over his share in the property.
8. He further pleaded that the respondent no. 2 Shailendra Singh executed a sale deed dated 12.2.2002 in favour of respondent no. 1 with respect to his share in the property wherein the partition of the property has been acknowledged, and respondents no. 3 and 4 sold their share of property by sale deed dated 28.12.2002 to respondent no. 1.
9. Respondent no. 2 also filed written statement contending therein that the appellant has no cause of action against him and, therefore, suit is liable to be dismissed as against him. He further pleaded that no partition in respect of aforesaid property had taken place yet.
10. The respondent nos. 3 and 4 also filed written statement contending therein that the property has been partitioned by metes and bounds long back and they have sold their share of property to respondent no. 1.
11. On the basis of aforesaid pleadings the trial court framed as many as three issues.
12. Issue no. 1 is relevant in the present case which reads as under:
१. कया वादपत मे विणरत कथनो के आधार पर वादी ि वािदत सपित को अपने १/४ भाग अलग कराकर बटवारा करा पाने का अिधकारी है?
13. The trial court found that from the statement of the respondent no. 1, it is evident that no partition had taken place, therefore, the trial court rejected the contention of the respondent and held that no partition in respect of aforesaid property has taken place. The trial court passed an order for preparation of preliminary decree.
14. Feeling aggrieved, the respondent no. 1 preferred the appeal on the ground that the trial court failed to consider the sale deed dated 12.2.2002 executed by respondent no. 2 in favour of the respondent no. 1, wherein it has been stated that the aforesaid property has been partitioned by metes and bounds. It was further contended in appeal that the trial court has misread the statement of respondent no. 1 in coming to the conclusion that no partition has taken place.
15. The appellate court though noticed in the judgment the aforesaid ground taken by the respondent no. 1 in the memo of appeal, but it was of the view that since the daughters of Mahendra Singh were not impleaded as a party in the suit, therefore, the suit was bad for non-joinder of necessary parties, and consequently, it set-aside the judgment of the trial court and remanded the matter to the court below to decide afresh after impleading the daughters of late Mahendra Singh.
16. Challenging the aforesaid judgment, learned counsel for the appellant has contended that the daughters of late Mahendra Singh has no interest in the property inasmuch as, Mahendra Singh had died in the year 1970 whereas the amendment in Section 6 of the Hindu Succession Act, has come into effect from 9.9.2005, and thus on the date of the death of Mahendra Singh, daughters of Mahendra Singh were not co-parcener, therefore, they had no interest in the property. Thus, they were neither necessary nor proper party in the suit.
17. It is further submitted that the trial court has erred in carving out a new case in allowing the appeal inasmuch as, it was nobody's case that the suit was not maintainable for non impleadment of daughter's of Mahendra Singh.
18. Per contra, learned counsel for respondents contended that the appellate court has correctly held that the suit was bad for non- joinder of necessary parties and further, as partition between the parties had taken place, therefore, the suit of appellant deserves to be dismissed.
19. I have considered the rival submissions of the parties and perused the record.
20. It is not in dispute that the property in dispute was purchased by one Mahendra Singh, who died in the year 1970. The amendment in Section 6 of the Hindu Succession Act have been brought into effect in the year 2005.
21. The Apex Court in the case of Prakash and Others Vs. Phulavati and others (2016) 2 SCC 36 while considering the applicability of Hindu Succession Act (Amendment) Act, 1939 of 2005) held that the act is not retrospective in operation and applies only when both coparcener and his daughter were alive on the date of commencement of Amendment Act i.e. 9.9.2005 Para 18, 22, and 23 are relevant in the context of the present case and are being extracted herein below:
“18. The Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute.
22. In this background, we find that the proviso to Section 6(1) and sub- section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”
22. As Mahendra Singh had died before amendment in Section 6 of Hindu Succession Act,1956, therefore, the daughters of Mahendra Singh had no right or legal interest in the aforesaid property, hence, they are neither necessary nor a proper party in the suit.
23. The Apex Court in the case Ramesh Hiranand Kundamal Vs. Municipal Corporation of Creator Bombay & Others 1992 SCC (2) 524 interpreted the scope of order 1 Rule 10 and held that the person to be joined must be one whose presence is necessary as a party. Paragraphs 13 and 14 of the said judgment are extracted herein below:
“13. A clear distinction has been drawn between suits relating to property and those in which the subject-matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party.
14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., (1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that the true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated:-
“The test is `May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights."
24. For the reasons stated above, the appellate court did not consider the correct preposition of law in the present case, and further acted illegally in carving out a new case in holding that daughters of Mahendra Singh were necessary party in the suit. Accordingly, this court is of the opinion that finding of the appellate court that the daughter of late Mahendra Singh was also necessary party and they should have been impleaded is erroneous on the face of the record.
25. Thus, for the reason stated above, the judgment of the appellate court is set-aside and the matter is remanded back to appellate court to decide the appeal afresh preferably within a period of one year from the date of production of certified copy of this order.
26. The appeal is allowed. There shall be no order as to costs.
Order Date :- 26.4.2019 Ishan