Full Text
HIGH COURT OF DELHI
Date of Decision: 01.02.2023
HAKIKAT RAJ BAJAJ ..... Plaintiff
Through: Mr. Mahesh K. Chaudhary and Ms. Sushmita Chaudhary, Advocates.
Through: Mr. Gaurav Tyagi and Mr. Honey Chhibber, Advocates.
I.A. No. 12990/2022 (for impleadment)
JUDGMENT
1. The present suit has been filed by the plaintiff seeking a decree of partition in respect of industrial property bearing No. B-26, admeasuring 602 sq. yds., situated at Rewari Line Industrial Area (popularly known as Mayapuri Industrial Area), Maya Puri, Phase -1, New Delhi (hereinafter referred to as the „suit property‟).
2. The plaintiff is the son of late Gurbaksh Rai Bajaj and the defendant is the son of late Ramesh Kumar Bajaj, the grandson of late Gurbaksh Rai Bajaj. It is averred in the plaint that the suit property was initially allotted in the name of the plaintiff by the Delhi Development Authority (hereinafter referred to as „DDA‟) vide perpetual lease deed dated 22.11.1971. The possession of the said property was also handed over to the plaintiff by the DDA. The construction over the said property was raised after getting the plan sanctioned from the competent authority. It is averred in the suit that the plaintiff executed a registered Gift Deed dated 18.10.1976 by virtue of which the plaintiff transferred 1/3rd share of the suit property in favour of his father Shri Gurbaksh Rai Bajaj and another 1/3rd share in favour of his brother Shri Ramesh Kumar Bajaj. The plaintiff remained the owner of the remaining 1/3rd share of the suit property. It is further averred that Shri Gurbaksh Rai Bajaj expired on 12.08.2001 and that during his lifetime Shri Gurbaksh Rai Bajaj had executed a Will dated 06.08.1994 which was registered on 25.08.1994 with the office of the Sub Registrar, Delhi. Vide the said Will, Shri Gurbaksh Rai Bajaj bequeathed his 1/3rd undivided share in the suit property in favour of the plaintiff. Consequently, the plaintiff is stated to have become the owner of the 2/3rd share of the suit property whereas the remaining 1/3rd share of the property remained with Shri Ramesh Kumar Bajaj. Both the plaintiff and the defendant admit the Will dated 06.08.1994.
3. The present application has been filed by Sh. Kewal Krishan Bajaj, brother of the plaintiff, on the basis of the assertion that the father of the applicant, who admittedly had 1/3rd share in the suit property during his lifetime, transferred 1/4th share in the property (i.e., 3/4th of 1/3rd ) in his favour. In support of the said contention, reliance is placed on a registered indemnity bond dated 11.06.1986 in respect of transfer of the said 1/4th share.
4. It is averred in the application that the said transfer of 1/4th share in the name of the applicant was notified to the DDA and that certain correspondence was exchanged between the DDA and the applicant with regard thereto. On the basis of the aforesaid averments, it is contended that the applicant is a necessary party in the present suit and accordingly, he seeks his impleadment as a defendant for appropriate adjudication of the matter.
5. The indemnity bond executed by the father of the applicant on the basis of which the present application has been filed reads as under:- “This Bond is made on this 11th day of June 1986 by Gurbaksh Rai S/o Late Shri Balhari Lal R/o D/E-114, Tagore Garden, New Delhi-I I 0027, (hereinafter called the transferor) in favour of the President of India (hereinafter called the Lessor).
2. Whereas S/Shri Gurbaksh Rai, Ramesh Kumar and Hakikat Rai are the co-lessees in equal share i.e. 1/3rd each unspecified and hole lease hold rights in respect of Plot No. 26, Block 'B', situated at Rewari Line Industrial Area, Phase-I, New Delhi-27 measuring about 602 Sq. Yds., by virtue of Gift Deed dated 18.10.76 registered as No.2291, in Addl. Book No.I, Vol. No. 2679, on pages 21 to 26 on 19.10.76 in the office of Sub-Registrar, Sub-Distt. No. II, Delhi, read with Lease Deed registered as No. 14033, in Addl. Book No. I, Volume No.1570, on pages I 64 to I 69 on 25.11.71 in the office of Sub-Registrar, Sub-Distt. No.II, Delhi read with Supplemental Deed registered as No. 14035, in Addl. Book No. I, Volume No.1570, on page 176 on 25.11.1971 in the office of Sub-Registrar, Sub-Distt. No.II, Delhi.
3. And whereas the Co-Lessee wished to gift through a Gift Deed 3/4th unspecified share out of this 1/3rd unspecified share/lease hold rights in the Plot to Shri Kewal Krishan s/o Shri Gurbaksh Rai r/o D/E-114, Tagore Garden, New Delhi (hereinafter called transferees) out of natural love and affection being his real son after having obtained necessary permission of the Competent Authority under the Land (Ceiling & Regulation Act, 1976).
4. And whereas the co-Lessee has applied to the Lessor under the terms of lease for grant of permission to transfer his 3/4th unspecified share/lease hold rights out of his 1/3rd unspecified share in the plot to the transferee named above.
5. And whereas the aforesaid transferred has agreed to accept the gift of 3/4th unspecified share out of his 1/3rd unspecified share/lease hold rights in the plot from the colessee on the same terms and conditions as contained in the said lease deed dated 25.11.71.
6. And whereas on the faith of representation made by the transferor/the Lessor has agreed to give consent to the colessee for transfer to his 3/4th unspecified share/lease hold rights out of his 1/3rd unspecified share of the transferred furnished an Indemnity Bond to the Lessor indemnifying the Lessor against all losses or damages that it may sustain on account of giving consent for the said transfer.
7. Therefore, in consideration of the aforesaid agreement, the said Shri Gurbaksh Rai s/o Late Shri Balhari Lal r/o D/E-114, Tagore Garden, New Delhi and his heirs, successors, executor and administrator jointly and severally undertake to keep the Lessor harmless and indemnified against all losses or damages whatsoever that may be sustained by it or any other claim litigation, proceedings etc. that may be taken out against it, or in respect thereof, whatsoever arising out of the transfer of 3/4th unspecified share/lease hold rights out of his 1/3rd unspecified share in the plot in favour of the transferee Shri Kewal Krishan.
8. In witness whereof, the transferor Shri Gurbaksh Rai s/o Late Shri Balhari Lal r/o D/E-114, Tagore Garden, New Delhi, has signed and delivered this Bond on this day 11th June, 1986.”
6. It is apparent from a reading of the aforesaid indemnity bond that the same records the desire of the father, i.e., Shri Gurbaksh Rai to gift a portion of the property to the applicant. Paragraph 3 of the aforesaid indemnity bond refers to the „wish‟ of the father to gift “through a gift deed” a part of his share in the suit property to the applicant Shri Kewal Krishan. Further, paragraph 4 of the said indemnity bond makes a reference to an application filed before the lessor for transfer of 1/4th share in the said property to the applicant. During the course of arguments, it is admitted by learned counsel for the applicant that no gift deed came to be executed in favour of the applicant.
7. Further, no application filed by the father before the lessor to transfer his 3/4th share out of his 1/3rd share in favour of the applicant has been placed on record by the applicant.
8. Learned counsel for the plaintiff draws attention to the contents of the Will dated 06.08.1994 executed by the father of the parties wherein it has been specifically stated that the said Will is in revocation of the previous three Wills executed by late Shri Gurbaksh Rai Bajaj. In the recital of the said Will it is specifically mentioned as under:- “AND WHEREAS I hereby revoke my only three earlier Wills, one made on 13.10.1978, second made during June 1986 bequeathing 4/5 portion of my 1/3 share. Covered and uncovered area in factory built on plot bearing No. B-26, Phase-1, Maya Puri, New Delhi, in favour of my son Kewal Krishan and the third made on 5.6.1993 or 5.7.1993 or the other previous Will (If any.)”
9. It can be seen that there is a specific reference to the revocation of the earlier Will of late Shri Gurbaksh Rai Bajaj, executed in June 1986 whereby certain portion of the property in question has been sought to be bequeathed to the applicant herein.
10. The will dated 06.08.1994 bequeaths the various properties of late Sh. Gurbaksh Rai Bajaj, in favour of the beneficiaries mentioned therein. It is notable that as far as the suit property is concerned, the Will specifically provides as under:- “My 1/3rd Share of Factory No. B-26, Maya Puri, Phase- 1, New Delhi, which was gifted to me by him. This bequeathing is, however, subject to the express condition that the decision of demarcation of this 1/3 area will be taken by Shri Ramesh Kumar exclusively and his decision in this respect will be final and firmly binding on Shri Hakikat Rai and he will have to follow it any circumstances.”
11. The said Will dated 06.08.1994 also bequeaths a property to the applicant herein as under:-
“I. Release Deed dated 30th November, 1978 depriving Kewal Krishan shares of my certain properties is hereby cancelled. However I am practically no more a partner in Foreign Traders and Hakikat Rai Plastic Works since long and I have not been given income/ profit nor I wish to receive any income/ profit from these companies. Hence question of inheritance from these companies to Sh. Kewal Krishan does not arise.
II. Two rooms, half varanda at rear side as present being used as Kitchen and one bathroom adjoining House No. DE- 113 of Shri M.T. Chakoo.”
12. Learned counsel for the plaintiff also draws attention to the fact that based on the same Will dated 06.08.1994, in terms of which the entire share of late Shri Gurbaksh Rai Bajaj in the suit property was bequeathed to the plaintiff herein, the applicant filed a suit seeking appropriate declaration/s with regard to the property bequeathed in his favour by virtue of the aforesaid Will.
13. Although the suit for declaration filed by the applicant came to be dismissed in the first instance, the Appellate Court in RC.REV. 6/2013, vide judgment dated 17.04.2014 specifically records the contention of the applicant herein with regard to the Will dated 06.08.1994, as under:- “(i) Ld. Trial court has failed to appreciate that none of the respondent has stated that the will dated 06.08.1994 is not the last will of Sh. Gurbax Rai Bajaj.
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(iv) Ld. Trial court has failed to appreciate that the will dated 06.08.1994 is a proved document because the respondents have availed the benefit in terms of the will and will is not disputed by the respondent.”
14. In the light of the aforesaid contention of the applicant, the aforesaid judgment dated 17.04.2014, gives the following findings:-
15. Thus, the Will dated 06.08.1994 was proved and found to be validly executed. It is notable that the said judgment was issued in a proceeding initiated by the applicant herein itself. Admittedly, there was no averment made by the applicant in the said proceedings asserting any rights in respect of the share of the father, late Sh. Gurbaksh Rai Bajaj, in respect of the suit property.
16. In the aforesaid circumstances, it is evident that the present impleadment application, filed on 10.08.2022, is completely without merit.
17. The Supreme Court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417 considered the scope and ambit of Order 1 Rule 10(2) of the Code of Civil Procedure and held as under:
13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: “10. (2) Court may strike out or add parties.—The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. ….
22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.”
18. The Supreme Court in Razia Begum v. Sahebzadi Anwar Begum 1959 SCR 1111, held that a person who seeks to be added as a party to a suit, should have a direct interest as in the subject-matter of the litigation. The said decision laid down the following principles regarding court‟s power to implead the parties as under:-
19. In Ramesh HirachandKundanmal v. Municipal Corpn. of Greater Bombay, (1992) 2 SCC 524, it has been held, as under:
20. In the facts of the present case, the applicant, ex-facie, has no rights in respect of the suit property. The impleadment of the applicant is also not necessary to adjudicate the lis between the parties.
21. In the circumstances, no merit is found in the present application and the same is, accordingly, dismissed.
SACHIN DATTA, J FEBRUARY 01, 2023