Ranjit Singh Sethi v. Ranbir Singh Sethi & Ors.

Delhi High Court · 23 Jan 2023 · 2023:DHC:682

Sachin Datta

CS (OS) 277/2019

civil appeal_dismissed Significant

AI Summary

The Delhi High Court dismissed the appeal and upheld the impleadment of the deceased's second wife as a necessary party in a partition suit due to her claimed interest under a Will.

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Neutral Citation Number: 2023/DHC/000682

CS (OS) 277/2019
HIGH COURT OF DELHI
Date of Decision: 23.01.2023

CS (OS) 277/2019 & I. A. Nos. 7701/2019, 7702/2019, 12667/2021, 12668/2021, 17372/2022, 17373/2022
MR. RANJIT SINGH SETHI ..... Plaintiff
Through: Mr. Anupam Srivastava and Dr. Chandra Shekhar, Advs.

VERSUS

MR. RANBIR SINGH SETHI & ORS. ..... Defendants
Through: Mr. Subham Agarwal, Adv. for D-1, 6 & 7.
Mr. Jagrup Singh Hazra, Adv for D-4 & 5.
Mr. Mohit Kumar Auluch, Adv. for D-3.

CORAM:

HON'BLE MR. JUSTICE SACHIN DATTA SACHIN DATTA, J. (Oral)
O. A. No. 44/2022

JUDGMENT

1. The present Original Appeal under Chapter-II Rule-5 of the Delhi High Court (Original Side) Rules, 2018 has been filed on behalf of the plaintiff/appellant against the order dated 07.09.2022 of the Joint Registrar (Judicial), whereby the application bearing I.A. No. 6407/2022 preferred under Order I Rule 10 of the Code of Civil Procedure (CPC), 1908 by one Smt. Jayanti, seeking impleadment of herself in the present suit, was allowed.

2. The present suit seeks partition and permanent injunction qua the estate of deceased Shri Mehtab Singh Sethi comprising of property bearing Khasra No. 2165/1523/4, 2275/1519 and 2276/1519 measuring 15,876 square yards situated in Revenue Estate of Village Tughlakabad, H-Block, Gali No. 16, Ratiya Marg, Sangam Vihar, New Delhi-110062. The plaintiff and the defendant no. 1 alongwith the defendant nos. 3 & 4 are the sons of the deceased Shri Mehtab Singh Sethi, whereas the defendant nos. 5 & 6 are the daughters of the deceased Shri Mehtab Singh Sethi; the defendant no.2 is the wife of the deceased Shri Mehtab Singh Sethi. The suit is premised on the basis that Mehtab Singh Sethi died intestate on 13.04.2012 leaving behind the parties to the instant suit as the only surviving legal heirs to inherit his estate. In I. A. No. 6407/2022, the applicant/Smt. Jayanti Sethi avers that she is the lawfully married wife of the deceased Mehtab Singh Sethi having been married to him on 24.09.1976. The said marriage is stated to have been duly registered with the Registrar of Marriage under the Hindu Marriage Act, 1955.

3. It is asserted in I.A. 6407/2022 that the defendant no.2, Mrs. Mary Sethi, the first wife of the deceased Shri Mehtab Singh Sethi, had deserted the deceased and left for United Kingdom and she never returned to India. Thereafter, the deceased disinherited Mrs. Mary Sethi, the plaintiff and the defendant nos. 3 to 5 from his property and executed the Will dated 25.12.2009 in favour of the applicant/Smt. Jayanti Sethi in respect of all his properties. Significantly, the said Will has also been referred to in the written statement filed on behalf of the defendant nos. 1 and 6. The said defendant nos. 1 and 6 had taken an objection in the written statement with regard to the non-impleadment of the applicant/Smt. Jayanti Sethi, since according to the said defendants, the applicant/Smt. Jayanti Sethi is a necessary party to this proceeding.

4. The impugned order rightly takes note of the judgment of the Supreme Court in Kasturi vs. Iyyamperumal And Ors., 2005 (6) SCC 733, in which the Supreme Court has laid down two tests for determining whether any party is a necessary party to a suit. The two tests are (i) there must be a right to some relief against such party in respect of controversies involved in the proceedings, (ii) No effective decree can be passed in the absence of such party. The relevant extracts of Kasturi (supra) are as under:

“13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.”

5. Likewise in the case of Vidur Impex and Traders Pvt. Ltd. and Ors. Vs. Tosh Apartments Pvt. Ltd. and Ors. 2012, 8 SCC 384, it has been held by the Supreme Court as under:

“36. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.

2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.

3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.

6. In Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited (2010) 7 SCC 417, it has been held has under:-

“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.”

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7. Likewise, in Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi (D) thr. LRs. and Ors., 2002 SCC OnLine SC 1307, it was held as under:-

“18. It could thus be seen that 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. It has been held that if a “necessary party” is not impleaded, the suit itself is liable to be dismissed. XXX XXX XXX 20. It can thus be seen that what has been held by this Court is that for being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party.”

8. The entire controversy in the present suit is with regard to the entitlement of the plaintiff and the defendants to the estate of the deceased late Shri Mehtab Singh Sethi. It is axiomatic that if the alleged Will dated 25.12.2009, in favour of Smt. Jayanti Sethi is found to have been validly executed, then the same will have a direct bearing on the claim(s) of the plaintiff in the suit. As mentioned, the said Will is referred to not only in the I.A No. 6407/2022 filed by Smt. Jayanti but also in the written statement filed on behalf of the defendant nos.[1] and 6.

9. In the fact and circumstances, it is evident that for the purpose of adjudicating the real controversy between the parties, the validity of the Will as mentioned in the written statement submitted by the defendant nos. 1 and 6 and by the applicant in the I.A. No. 6407/2022 will have to be gone into.

10. It is also noticed that vide order dated 12.11.2021, one of the issues which has been framed is as under: “(iii) Whether late Shr. Mehtab Singh Sethi executed a legal and valid Will dated 25th September, 2009 and, if so, the effect of the Will? Whether the suit is liable to be dismissed in view of the said Will stated to have been executed by Mr. Mehtab Singh Sethi ? OPD-1 & 6”

11. As such, the applicant, who is the beneficiary of the aforesaid Will dated 25.12.2009, is clearly both a necessary and a proper party to the present proceedings, as rightly held in the impugned order.

12. In the aforesaid circumstances, no merit is found in the instant appeal and the same is consequently dismissed. I.A. Nos. 144/2022 & 145/2022 Renotify on 14.02.2023.

SACHIN DATTA, J JANUARY 23, 2023

Ranjit Singh Sethi v. Ranbir Singh Sethi & Ors.

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