Intervenor Can't Insist On Being Added As Party In Partition Suit When Claim Is Based On Unregistered Gift Deed: Patna High Court

While allowing a plea against an order which permitted the impleadment of an intervenor in a partition suit, the Patna High Court observed that the intervenor cannot insist on being added as a party to the suit as her claim was based on an unregistered gift deed. 

In doing so the high court observed that intervenor may make her claim in her independent capacity on the basis of her right and title over the suit property wherein such claim needs to be adjudicated separately from the petitioner's claim. 

A single judge bench of Justice Arun Kumar Jha observed, “In the present case, intervenor has asserted her right on the basis of some gift deed in her favour. The gift deed is not registered and it is merely a notorised document. If on this ground, the intervenor seeks her impleadment, such impleadment in partition suit would not be permissible for the reason that the intervenor would be making claim in her independent capacity on the basis of her right and title over the suit property and such claims needs to be adjudicated separately from the claim of the petitioner.”

“The intervenor has to chart her own course in a separate and independent proceeding and could not insist to be impleaded as a party in the partition suit of the plaintiff because she is neither a necessary party not a proper party in the light of the relief claimed against the defendants who are the husband and other family members of the intervenor. Since respondent no. 7 has her independent cause of action, I do not think there could be any impleadment of the respondent no. 7 as necessary or even as a proper party in the present case”, the court added.

The petitioners–who are plaintiffs in the suit, had filed for partition of their one-third share in the family property. During the pendency of the case, respondent no. 7 applied for impleadment, asserting that the suit property had been given to her by her father-in-law, who is the father of petitioner no. 1. The Sub Judge allowed her application on April 24, 2019, against which the petitioners moved the high court. 

The Counsel for the Petitioners submitted that the sub judge's order was not sustainable and was passed in violation of the law. It was contended that the intervenor was neither a necessary nor proper party in the case and was making a claim of title over the suit property based on forged documents. The Counsel further argued that immovable property cannot be transferred by way of an affidavit before a notary public.

The Counsel for the Respondent, on the other hand, argued that although petitioner no. 1 was the elder brother, he had not taken care of his father. As a result, the father of petitioner no. 1 and father-in-law of the respondent no. 7 transferred the land to her name, as she had been residing with them and taking care of her father-in-law. The Counsel contended that the father of the petitioner had purchased the land in his wife's name, and thus, he had the right to transfer the property through his Will.

The High Court meanwhile in its order said that the property in question belonged to the mother of petitioner-plaintiff no. 1 and respondent no. 1, who passed away intestate (who died without having a will made). Following her death, the property would pass to her heirs or legal representatives.

The Court further noted, “It has also been held 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. 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. 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.”

Based on this reasoning, the Court concluded, “I do no think the impugned order dated 02.09.2019 is sustainable and hence, the same is set aside.”

The high court thereafter allowed the petitioners' plea and set aside the sub judge's order. 

Case Title: Suman Kumar & Ors. v Ashok Kumar & Ors.

LL Citation: 2024 LiveLaw (Pat) 99

Click Here To Read Judgement