While allowing a plea against an order permitting the implementation of an intervener in a partition suit, the Patna High Court observed that the intervener cannot insist on being added as a party to the suit because his application was based on an unregistered deed of gift.

In doing so, the High Court observed that the intervener can present her claim in her independent capacity on the basis of her right and title to the property in question, such claim to be adjudicated separately from that of the petitioner.

A single judge bench composed of Justice Arun Kumar Jha observed, “In the present case, the intervener asserted her right on the basis of a deed of donation in her favor. The deed of gift is not registered and is simply a notified document. If, for this reason, the intervener requests its implementation, such implementation within the framework of a partition action would not be permitted because the intervener would present a claim in its independent capacity on the basis of its right and title to the property of the action and that such claims are necessary. must be judged separately from the applicant’s claim.

“The intervener must chart her own course in a separate and independent proceeding and cannot insist on being made a party to the plaintiff’s partition action because she is neither a necessary nor an appropriate party to the light of the requested recovery. against the defendants who are the husband and other family members of the intervener. Since respondent no. 7 has its independent cause of action, I do not think there can be any indictment of the respondent no. 7 if necessary or even as a legitimate party in the present case”, added the court.

The petitioners, who are the plaintiffs in the suit, had sought partition of their one-third of the family property. While the matter was pending, respondent no. 7 moved for impeachment, claiming that the suit property was given to him by his father-in-law, who is the father of petitioner no. 1. The Deputy Judge allowed his application on 24 April 2019, against which the applicants filed an appeal before the High Court.

The petitioners’ counsel contended that the sub-judge’s order was not viable and was passed in violation of law. It was contended that the intervenor was neither a necessary nor proper party in the suit and was claiming title to the suit property on the basis of false documents. The lawyer further submitted that immovable property cannot be transferred by way of an affidavit before a notary public.

The respondent’s counsel, on the other hand, submitted that even if the petitioner no. I was the older brother, he didn’t take care of his father. Accordingly, the father of petitioner no. 1 and father-in-law of respondent no. 7 transferred the land into her name, as she was residing with them and taking care of her father-in-law. The lawyer argued that the petitioner’s father had purchased the land in his wife’s name and therefore had the right to transfer the property through his will.

The High Court on the other hand stated in its order that the property in question belonged to the mother of the petitioner-complainant no. 1 and respondent no. 1, died intestate (died without a will). After his death, the property would be passed to his heirs or legal representatives.

The Court further noted: “It was also held that a ‘necessary party’ is a person who ought to have been a member as a party and in whose absence no effective decree could be passed. A “proper party” is a party who, although not a necessary party, is a person whose presence would enable the court to fully, efficiently and adequately decide all issues in the suit. If a person is not considered a lawful 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 not think that the impugned order dated 02.09.2019 is sustainable and hence it is set aside.”

The High Court subsequently allowed the plea of ​​the petitioners and set aside the order of the sub-judge.

Case title: Suman Kumar and Ors. against Ashok Kumar and others.

Citation LL: 2024 LiveLaw (Pat) 99

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