SARVINDER SINGHversusDALIP SINGH AND ORS.

                             SARVINDER SINGH                                           A
                                         v.
                          DALIP SINGH AND ORS.

                               AUGUST 2, 1996
                                                                                       B
             (K. RAMASWAMY AND G.B. PATTANAIK, JJ]


        Code of Civil Proced11re, 1908 :

        Order 1, R11/e l!J-Pa1ties to s11it-Suit for declaration by appellant
claiming mvneiship of suit land on basis of a registered will dated 26.5.1952          c
executed by his mother and statillg that a declaration to that effect was already
given by Civil Cowt in another decree dated 29.3.1974-He also moved all
application for ad inte1im injunction to restrain defendants from illte1feiing
lvith his possession-lnterint injunction granted initially but vacated later on
2.12.1991 as meanwhile defendants alienated the suit land in favour of                 D
mpo11dem,-Respondel!ts filed application under Order 1, Rule JO, seeking
to come on record as defendants-Tiial Court rejected applicatioll holding
that res11ondents were neither necessary1 nor proper pa1ties to the suit-High
Court directed impleadment of respondents as pa1ty defendants to the
suit-Held, re.\pondents cannot be said to be either necessary or properpa1ties
to the suit in which pli1na1y relief lvas based on the registered will-Respon-         E
dents clailned right, title and interest pursuant to the registered sale deed which
is hit by s.52 of Transfer of Prope1ty Act, 1882-'Nessessaiy party' and 'proper
party' to suit-Explained.

        Tramfer of Prope1ty Act, 1882 :                                                F

        SSl--Doctiine of tis pendens--Plaintiff filed suit for declaratioll of title
on the basis of a will and filed application for ad inteiim injunction seekillg
to restrain defendams from intelfe1ing with his possession and enjoymellt of
s11it property--Pellding suit defendants alienated suit land by a registered sale      G
deed-Held, the aliellation is hit by docoine of /is pendens by operation of
s.52.

    New Redbank Tea Co. Pvt. Ltd. v. Kwnkwn Mittal & o,,-, [1994] 1
SCC 402 and Ramesh H. Kunda11mal v. Mu11icipal Corporation of Greater
Bombay, (1992] 2 sec 524, cited.                                      H
                                        271
    272                      SUPREME COURT REPORTS [1996] SUPP. 4 S:C:.R.

A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10663 of
    1996.

         From the Judgment and Order dated 13.5.93 of the Punjab &
    Haryana High Court in C.R. No. 323 or 1993.

B         R.K. Kapoor, P. Verma, S.K. Srivastava, B.R. Kapoor and S.C. Patel
    for the Appellant.

            Mrs. Rekha Palli for the Respondents.

            The following Order of the Court was delivered
c
            Leave granted.

            We have heard learned counsel on both sides.

            The admitted facts are that the appellant filed suit Case No. 253-1
D before the Sub-judge, Ferozepur for declaration that he is the owner of the
    property on the basis of a registered Will dated May 26, 1952 executed by
    his mother Smt. Hira Devi and that a declaration to that effect was already
    given by the civil Court in another.decree dated March 29, 1974. He filed
    an application under Order 39, Rule 1, CPC for ad interim injunction to
    restrain the defendants from interfering with his possession and enjoyment
E
    of the plaint schedule property situated in village Dabbla Kalan Tehsil
    Fazilka. The interim injunction was granted on June 14, 1991 which sub-
    sequently came to be vacated on December 2, 1991. It would appear that
    the defendants alienated the self-sa;ne lands by registered sale deeds dated
    December 2, 1991 and December 12, 1991 in favour of the respondents
F   before this Court. On the basis thereof, they sought to come on record as
    defendants under Order 1, Rule 10, CPC. The trial Court dismissed the
    application holding that they were neither necessary nor proper parties to
    the suit. On revision, the High Court in the impugned order in C.R. No.
    323/93, dated May 13, 1993 directed impleadment of the respondent as
G   party defendants to the suit. Thus this appeal by special leave.

        Shri Kapoor, learned counsel for the appellant, conten.ded that the
  claim for declaration of title is founded upon the registered will executed
  by his mother dated May 26, 1952 which was upheld in an earlier suit in
  which the ileclaration and possession was granted and in furtherance
H thereof the appellant remained in possession. His mother Hira Devi left
                       SARVINDERSINGHv. DALIPSINGH                          273

    behind him and three sisters and one of the sisters is Rajender Kaur whose A
    sons are the defendants in the suit. The second suit came to be filed when
    his possession was sought to be interdicted asserting their right lo the
    property through their mother. Pending suit, when they had alienated the
    property to the respondents. It is hit by the doctrine of /is pendens under
'   section 52 of the Transfer of Property Act. The respondents are neither
                                                                                  B
    necessary nor proper parties. In support thereof, he placed reliance on the
    judgment of this Court in New Redbank Tea Co. Pvt., Ltd. v. Kwnkum
    Mittal and 01'., [ 1994] 1 SCC 402. Mrs. Rekha Palli, learned counsel for
    the respondent contended that the declaration sought is in respect of
    immovable property. Having purchased the property, though pending suit,
    they are proper parties for defending the title of their predecessor in       c
    interest. Therefore, the High Court was right in bringing them on record
    under Order 1, Rule 10 CPC.She Placed reliance on the judgment of this
    Court in Ramesh H. K1111da11mal v. Municipal Corporation of Greater Bom-
•   bay, [1992] 2 SCC 524. The ratio in either of the cases has no application
    to the facts in this case. Therefore, it is not necessary to refer lo them in D
    extenso.

          Having regard to the respective contentions, the question that arises
    for consideration is : whether the respondents are necessary or proper
    parties to the suit? It cannot be disputed that the foundation for the
    exclusive right, title and interest in the property, the subject matter of the E
    suit, is founded upon the registered Will executed by Hira Devi, the mother
    of the appellant as on May 26, 1952. The trial Court noted that in a suit
    filed on a previous occasion by the appellant, the will was propounded as
    basis for an exclusive right, title and interest in the said property. He
    impleaded Rajender Kaur, one of the daughters of Hira De,;, to the suit F
    along with two other sisters and suit came to be decreed by the trial Court
    on March 29, 1974. The decree became final. In view of those facts, the
    necessary conclusion that can be deduced is that the foundation for the
    relief of declaration in the second suit is the registered Will executed by
    Hira Devi in favour of the appellant on May 26, 1952. The respondents
    indisputably cannot challenge the legality or the validity of the will executed G
    and registered by Hira Devi on May 26, 1952. Though it may be open to
    the legal heirs of Rajender Kaur, who was a party to the earlier suit, to
    resist the claim on any legally available or tenable grounds, those grounds
    are not available to the respondents. Under those circumstances, the
    respondents cannot, by any stretch of imagination, be said to be either H
    274                   SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A   necessary or proper parties to the suit. A necessary party is one whose
    presence is absolutely necessary and without whose presence the issue
    cannot effectually and completely be adjudicated upon and decided be-
    tween the parties. A proper party is one whose presence would be neces-
    sary to effectually and completely adjudicate upon the disputes. In either
    case the respondents cannot be said to be either necessary or proper
B
    parties to the suit in which the primary relief was found on the basis of the
    registered Will executed by the appellant's mother, Smt. Hira Devi.
    Moreover, admittedly the respondents claimed right, title and interest
    pursuant to the registered sale deeds said to have been executed by the
    defendants-heirs of Rajendcr Kaur on December 2, 1991 and December
c   12, 1991, pending suit.

          Section 52 of the Transfer of Property Act envisages that "during the
    pendency in any Court having authority within the limits of India .... of any
    suit or proceeding which is not collusive and in which any right to immov-
                                                                                    •
    able property is directly and specifically in question, the property cannot
D   be transferred or otherwise dealt with by any party to the suit or proceeding
    so as to affect the rights of any other party thereto under the decree or
    order which may be made therein, except under the authority of the court
    and on such terms as it may impose. " It would, therefore, be clear that the
    defendants in the suit were prohibited by operation of Section 52 to deal
E   with the property and could not transfer or otherwise deal with it in any
    way affecting the rights of the appellant except with the order or authority
    of the Court. Admittedly, the authority or order of the Court had not been
    obtained for alienation of those properties. Therefore, the alienation ob··
    v:ously would be hit by the doctrine of /is pendens by operation of Section
    52. Under these circumstances, the respondents cannot be considered to
F   be either necessary or proper parties to the suit.

         The appeal is accordingly allowed and the petition under Order 1,
    Rule 10, CPC stands dismissed, but in the circumstances without costs.

    R.P.                                                        Appeal allowed.