When the rights of one party, if any, are yet to be determined in the suit for specific performance, the party cannot claim a right to be impleaded, in the suit for partition: High Court of Delhi
An unregistered Agreement to Sell cannot be the basis of claiming ownership, the said Agreement to Sell cannot, in law, be a ground or the basis for the impleadment of the Petitioner in a partition suit as upheld by the High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of Rajbala Ghiloria v. Ashok Kumar Sethi &amp; Anr (C.R.P. 67/2021 &amp; CM APPL. 31940/2021). The brief background of the matter is that a suit for partition was filed in respect of the property bearing no. C-2/21, Malka Ganj, Delhi –17 by the Plaintiff in the suit/ Respondent No. 1 herein. Respondent No. 2 herein is the Defendant in the suit. It is the admitted position between the Plaintiff and the Defendant that the Plaintiff owns 1/3rd share of the suit property and the Defendant owns 2/3rd share in the same. However, the case of the Applicant/Petitioner herein is that the Defendant in the suit has sold his share of the property to the Petitioner. Accordingly, in view of the fact that the interest of the Petitioner could be affected in the said suit proceedings, the Petitioner filed an application under Order I Rule 10 CPC, for impleadment as a necessary party, which has been rejected by the Trial Court. Hence this present revision petition has been filed under Section 115 of the CPC. The Hon’ble High Court held, “A suit for partition has to be adjudicated between the co-owners of the property. Since the rights of the Petitioner, if any, are yet to be determined in the suit for specific performance which is pending before the Trial Court, the Petitioner cannot claim a right to be impleaded, in the suit for partition. Thus, the Trial Court is not at fault, in holding that the suit for partition would have to be adjudicated only between the co-owners. With these observations, the petition is disposed of. All pending applications are also disposed of. Let a copy of the present order be sent to C.R.P. 67/2021 Page 13 of 13 the ld. District Judge, Central District, Tis Hazari Courts, so as to list both the suits before the same ADJ.”
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25th October 2021 C.R.P. 67 2021 & CM APPL. 31940 2021 Through: Mr. Yash Vardhan Singh Advocate ASHOK KUMAR SETHI & ANR Through: Mr. Rajat Aneja Advocate Respondent No.1by the Plaintiff in the suit Respondent No. 1 herein. Respondent No. 2 herein is the Defendant in the suit. It is the admitted position between the Plaintiff and the Defendant that the Plaintiff owns 1 3rd share of the suit property and the Defendant owns 2 3rd share in the same. However the case of the Applicant Petitioner herein is that the Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 Defendant in the suit has sold his share of the property to the Petitioner Accordingly in view of the fact that the interest of the Petitioner could be affected in the said suit proceedings the Petitioner filed an application under Order I Rule 10 CPC for impleadment as a necessary party which has been rejected by the Trial Court. Hence this present revision petition has been filed under Section 115 of the CPC Mr. Singh ld. Counsel for the Petitioner submits that in the Written Statement the Defendant admits the fact that sale has taken place. He places specific reliance on paragraph 13 of the Written Statement filed before the Trial Court which reads as under the contents of the para under reply are admitted to the extent that the defendant has already sold his 2 3rd undivided share in the entire 1st Floor with its roof rightsin the suit property to one Smt. Rajbala Galoria W o Sh. Jai Hind Galoria R o 94 Nehru Kutia Malkaganj Delhi 07 Ld. Counsel submits that his client’s interest would be severely prejudiced if a decree for partition is passed behind his back inasmuch as he has an interest in the suit property and therefore he would be a proper party to the suit He relies upon the judgment of the Madras High Court in C.M.V Krishnamachari vs M.D. Dhanalakshmi Ammal And Ors.2 MLJ 298] where the Court has specifically held that though a suit for specific performance in certain circumstances may be pending since the Petitioner has an interest in the property he is entitled to be impleaded in a suit concerning the said property Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 7 Mr. Aneja ld. Counsel appearing for the Plaintiff in the suit on the other hand submits that the Petitioner does not have any registered agreement or instrument in his favour. In fact the Defendant who is stated to be the vendor of the Petitioner has stated in the reply to the application under Order I Rule 10 CPC that the Petitioner was put in possession only for the purposes of carrying out repairs and renovation and only bayana payment was given. The same has also been forfeited as the Petitioner has violated the terms of the Agreement to Sell. He relies upon the following paragraphs of the reply filed by the Defendant in the application under Order 1 Rule 10 CPC before the Trial Court no reply being matter of record That the contents of the para under reply 2. That the contents of para under reply are denied as sated. It is most respectfully submitted that only an agreement to sell was entered into between the applicant and the answering defendant on the payment of bayana for the sale of the share of the defendant in the suit property The applicant was put in possession only for the purpose of carrying out repairs and renovation however the applicant failed to perform her part obligation and arrange payment within the agreed time and hence the bayana payment was forfeited and now she is in unauthorized occupation of the part of the suit property and liable to be evicted from the same. The defendant reserves his right to initiate appropriate legal According to Mr. Aneja the prayer in the suit in question is for partition and for appointment of a local commissioner to suggest the mode Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 of partition. He submits that the shares of the two parties to the suit i.e. the Plaintiff and the Defendant are admitted as to being 1 3rd and 2 3rd respectively. However possession of the share of the Defendant is with the Petitioner who currently is in occupation of some part of the property pursuant to the Agreement to Sell entered into with the Defendant. He submits that this Agreement to Sell is not valid in law as the same is not registered in terms of the judgement of the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana1 SCC 656. Further according to Mr. Aneja the defense under Section 53A of the Transfer of Property Act 1882 is also not available to the Petitioner post amendment to the said provision in 2001 He relies upon the judgment of the Supreme Court in The Greater Bombay Cooperative Bank Limited v. Mr. Nagaraj Ganeshmal JainSCC 316] and judgment of this Court in Sunil Kapoor v. Hemant Singh and OthersNo.1215 2007 decided on 29th January 2010 in support of his argument that a mere Agreement to Sell which is not registered does not create or confer any rights to the vendee as the suit for partition is between registered co owners 10. Mr. Parasher ld. Counsel appearing for the Defendant submits that the Defendant is contesting the suit for specific performance which has been filed by the Petitioner herein post the impugned order being passed. The said suit being CS DJ 246 21 titled Rajbala Ghiloria v Gurucharan Singh Pahwa is stated to be pending before the ADJ 03 Central Tis Hazari Courts. The stand of the Defendant in this suit for specific performance is that the amount which was paid as bayana by the Petitioner stands forfeited 11. Heard ld. Counsel for the parties Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 12 The Petitioner’s case in the present revision petition is that he has purchased 2 3rd of the property from the Defendant in the suit and accordingly he ought to be impleaded under Order I Rule 10 CPC in the suit for partition. The fact that the Respondent has a 2 3rd share in the suit property is not in dispute in these litigations The question that arises is as to whether the Petitioner would be a necessary or proper party in the present suit pending between the Plaintiff and the Defendant. The application under Order 1 Rule 10 has been rejected by the Trial Court by holding that the suit is between the Plaintiff and the Defendant and not with the Petitioner and therefore she is not a necessary party. The Trial Court in the impugned order has held “The plaintiff has filed the present suit for partition and possession qua the suit property and he has claimed his share to the extent of 1 3rd only. The plea that he had purchased the the suit property vide remaining 2 3rd share of agreement to sale dated 04.03.2011 and applicant has also staked her claim in that share only on basis of to sale entered with the defendant and defendant has admitted that he entered into agreement to sale qua his share with the applicant. The crux of the matter is that applicant is deriving her interest in the suit property on the basis of agreement entered with the defendant which is not the direct and substantial question in the present suit and whatever remedy he has that is against defendant only and qua his share only. In view of the same I held that presence adjudication of the case since she has independent aforesaid facts and circumstances the application in to pursue the said remedy is not necessary In view of Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 hand is dismissed. The application is accordingly 14. A perusal of the judgment of the Supreme Court in The Greater Bombay Cooperative Bankclearly shows that an Agreement to Sell which is not registered would not give the Petitioner a right to claim ownership in the property. The Supreme Court in the said judgment relied upon the rationale rendered the Supreme Court in Suraj Lampand “Immoveable property can be transferred only by a Registered document. There can be no transfer of any right title or interest in any immoveable property except by way of a registered document. In this behalf we may make reference to the judgment of this Court in Suraj Lamp & IndustriesLtd. v. State of Haryana1 SCC 656 wherein it was held as follows is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyanceno right title or interest in an immovable property can be transferred 19. Any contract of salewould fall requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable propertyhas held that an Agreement to Sell executed in favour of the Petitioner being unregistered would not give a right to the petitioner to be recognized as the owner of the property. The relevant portion of the said judgment reads Thus even if A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement the petitioner defendant would to occupy that property as an not get any right in Jiwan Das Vs Narain Das AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed the petitioner has to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour.” Thus in law 16. Mr. Singh ld. Counsel for the Petitioner has placed reliance on the judgment of the Madras High Court in C.M.V. Krishnamacharito argue that in the said case the Court had held that such a Petitioner ought to have been impleaded as a supplemental defendant to the suit proceedings by exercising powers under Order I Rule 10(2) CPC. The Petitioner in the said case did not claim to be a necessary party to the suit. The Madras High Court in the said judgment had noted the following fact “It is not claimed that the petitioner is a person who ought to have been joined as a necessary party to the suit and the only question is whether he could be Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 impleaded as a party whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle the questions involved in the suit.” Thus the Madras High Court has in the above decision permitted the presence of the person by impleading as a supplemental defendant. The said “28. He is impleaded only for the limited purpose ofestablishing that the property is the separate the first defendant or property of his vendor alternativelyfor suggesting to the Court without prejudice to the interest of the plaintiffs the property agreed to be sold may be allotted to the share of the first defendant so that in a separate suit of his own he can either obtain specific performance or enforce a charge under Section 55(6)(b) against the property in the hands of the first defendant after a final allotment in the partition suit the trial Court and direct impleaded as a supplemented defendant.” For all these reasons I set aside the order of the petitioner be Further the present case is slightly distinguishable from the facts in C.M.V Krishnamacharias the said judgment was passed prior to the judgment of the Supreme Court in Suraj Lampwherein it was held that no unregistered document can be used to determine ownership or legitimate sale of property. The Supreme Court in Suraj Lamphad recognized the said principle and rendered it prospectively applicable by Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 “16. We therefore reiterate that immovable property can be legally and lawfully transferred conveyed only by a registered deed of conveyance GPA sales or the nature of SA GPA WILL transfers do not convey title and do not amount to transfer nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable They cannot be recognized as deeds of title except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA GPA WILL transactions known as GPA 17. It has been submitted that making declaration that GPA sales and SA GPA WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of is also submitted that should be made applicable prospectively to avoid 18. We have merely drawn attention to and reiterated the well settled legal position that SA GPA WILL transactions are not transfers or sales and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 said existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to transactions may also be used to obtain specific performance or to defend possession under Section 53A of Transfer of Property Act. If they are entered before this day they may be relied upon to apply for regularization of allotments leases by Development Authorities. We make it clear that if the documents relating to SA GPA WILL transactions has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation they need not be disturbed merely on account of this decision.” 17. Accordingly given the fact that the Agreement to Sell was entered into by the Petitioner herein on 21st March 2018 post the judgment in Suraj Lampwherein the Supreme Court clearly held that an unregistered Agreement to Sell cannot be the basis of claiming ownership the said to Sell cannot in law be a ground or the basis for the impleadment of the Petitioner in a partition suit 18. A suit for partition has to be adjudicated between the co owners of the property. Since the rights of the Petitioner if any are yet to be determined in the suit for specific performance which is pending before the Trial Court the Petitioner cannot claim a right to be impleaded in the suit for partition Thus the Trial Court is not at fault in holding that the suit for partition would have to be adjudicated only between the co owners This Court however agrees with the spirit of the rationale in C.M.V Krishnamachariespecially because the Petitioner herein claims to have paid more than a sum of Rs. One Crore as in terms of the Agreement to Sell dated 21st March 2018 Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 20. On a query put to the Counsels it is confirmed that the subject suit for partition being CS DJ No. 1330 2018 titled Ashok Kumar Singh vs Gurcharan Singh Pahwa and the suit for specific performance filed by the Petitioner being CS DJ 246 21 titled Rajbala Ghiloria v Gurucharan Singh Pahwa are pending before the same Court i.e. Central District Tis Hazari Courts New Delhi. Since both the suits are in respect of the same suit property and broadly involve the same parties the following directions are Both the suits being CS DJ No. 1330 2018 titled Ashok Kumar Singh vs. Gurcharan Singh Pahwa and CS DJ 246 21 titled Rajbala Ghiloria v Gurucharan Singh Pahwa shall be listed before the same ADJ at the Tis Hazari Courts so that the said Court is conscious of the pendency of the specific performance suit while deciding the suit for partition ii) Both the suits shall proceed independently for trial iii) However prior to passing of any decree of preliminary decree of partition or physical division by metes and bounds or any other directions which may affect the possession of the Petitioner being disturbed the Petitioner herein who has filed the suit for specific performance and is in possession of some part of the suit property shall be allowed to make his submissions so that the relief to be granted in the partition suit is balanced in accordance with the law 21. With these observations the petition is disposed of. All pending applications are also disposed of. Let a copy of the present order be sent to Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 the ld. District Judge Central District Tis Hazari Courts so as to list both the suits before the same ADJ The digitally signed copy of this order duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority entity or litigant OCTOBER 25 2021 PRATHIBA M. SINGH Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 