Partly allowed

Smt. Kejiya Bai Since Dead Through Lrs 1. Baharu v. Ashwani Kumar Sahu

Chhattisgarh HC2 Sept 2025FA/499/2017

Case brief

AI extract

What is this about?

Defendants' first appeal against decree declaring sale-deed void and plaintiff co-owner. High Court held daughters are coparceners post-2005 amendment and necessary parties; set aside decree, remitted suit for fresh decision after impleading them, restricting declaration to plaintiff's share.

What did the court decide?

Trial Court decree set aside; suit remitted for fresh adjudication after impleading daughters Sumitra Bai and Kamla Bai; interim bar on alienation of suit property.

Smt. Kejiya Bai Since Dead Through Lrs 1. Baharu… — Specific Performance | Chhattisgarh HC (2025)

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2025:CGHC:44825

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 499 of 2017

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Reserved on : 18.06.2025

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Delivered on : 03.09.2025

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Smt. Kejiya Bai Since Dead Through LRs.

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1 - Baharu S/o Bikeram Sahu, Aged About 50 Years, Occupation Agriculturist, R/o Village Borsi, Tahsil Patan, District Durg Chhattisgarh.

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2 - Laharu Ram S/o Bikeram Sahu, Aged About 48 Years Occupation Agricuturist, R/o Village Parsahi, Tahsil Patan, District Durg Chhattisgarh.

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3 - Kanhaiya Sahu S/o Bikeram Sahu, Aged About 45 Years Occupation Agriculturist, R/o Village Fekari, Tahsil Patan, District Durg Chhattisgarh.

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4 - Prahlad Kumar Sahu S/o Bikeram Sahu, Aged About 42 Years Occupation Parsahi, Tahsil Patan, District Durg Chhattisgarh.

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5 - Smt. Ganeshiya Bai W/o Lor Singh, Aged About 40 Years Occupation Agriculturist, R/o Village Umada, Bhilai - 3, Tahsil Patan, District Durg Chhattisgarh.

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... Appellants

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versus

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1 - Ashwani Kumar Sahu S/o Taran Das, Aged About 65 Years R/o Bohardih, Tahsil Patal, District Durg Chhattisgarh.

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2 - Bhola Ram Dead Through Lrs.

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(a) - Smt. Krishna Bai W/o Bhola Ram Sahu, Aged About 65 Years

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(b) - Purushottam Sahu S/o Bhola Ram Sahu, Aged About 40 Years.

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(c) - Gayatri D/o Bhola Ram Sahu, Aged About 38 Years.

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Resp. No. (a) to (c) are R/o Village Bargaon, Tahsil Dongergaon, District Rajnandgaon Chhattisgarh.

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(d) - Harishchand S/o Bhola Ram Aged About 36 Years.

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(e) - Hemant Kumar S/o Bhola Ram Sahu, Aged About 32 Years.

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ARUN KUMAR DEWANGAN

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Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.09.03 15:45:03 +0530

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Resp. No. (d) & (e) are R/o Near Harish Welding Workshop, Bus Stand, Larabod, Tahsil And District Balod Chhattisgarh.

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3 - State of Chhattisgarh, Through The Collector, District Durg Chhattisgarh.

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---- Respondents

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For Appellants : Mr. Praveen Dhurandhar, Advocate.

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For resp. No. 1 : Mr. Sourabh Sahu & Ms. Sakshi Chhabra, Advocate on behalf of Mr. Malay Shrivastava, Advocate.

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For State : Mr. Aman Tamboli, Panel Lawyer.

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Hon'ble Shri Justice Narendra Kumar Vyas

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C.A.V. JUDGMENT

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This is defendants’ first appeal filed under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 31.08.2017 (Annexure A/1) passed by learned Third Additional District Judge, Durg, District- Durg (C.G.) in Civil Suit 76A/2013 (Ashwani Kumar Sahu Vs. Bholaram) whereby the suit filed by the plaintiff for declaration of title and permanent injunction, has been decreed.

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For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the Civil Suit No. 76A/2013 filed before the trial Court.

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The plaintiff filed civil suit for declaration of title and permanent injunction mainly contending that:-

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(A) The lands bearing Khasra No. 522, 32, 396/1, 513, 386 area admeasuring 0.13, 3.21, 069, 2.24, 0.03 Hectare respectively situated at Village- Bohardih, Patwari Halka No. 19, Revenue Circle- Bhilai, Tahsil & District- Durg (hereinafter referred as “the suit land”) were sold by defendant No. 1 to defendant No. 2- Kejia Bai. It has been further contended that as per genealogy mentioned in the plaint, Ashwani Kumar & defendant No. 1-Bhola Ram are real brothers who are sons of

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Late Tarandas. Tarandas had two sons and two daughters, the daughters are married and living with their husbands.

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(B) It is also case of the plaintiff that the suit property belongs to Smt. Paisarnin Bai W/o Gangadin Sahu who died on 28.09.1995 at VillageBargaon and Smt. Laxmi Bai was only daughter of Smt. Paisarnin Bai. It is also case of the plaintiff that after death of Parsarnin Bai who is grandmother of the plaintiff and defendant No.1, the suit land was inherited by Laxmi Bai and Taran Das who are mother & father of the plaintiff and defendant No.1.

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(C) It is also case of the plaintiff that after death of Paisarnin Bai, Bholaram has transferred the suit property in the name of his son namely Harishchandra and thereafter the said property was sold to various persons. The plaintiff has filed Civil Suit No. 69-A/2000 before the learned Fifth Civil Judge Class-II, Durg for declaration of sale-deed to be null and void which was decreed in favour of the plaintiff on 16.09.2005 and accordingly, the sale-deed was declared null and void and the right and possession was given to the plaintiff. It is also case of the plaintiff that the defendant- Bholaram sold the suit property bearing Khasra No. 32 area admeasuring 3.21 Hectare situated at VillageBohardih to Janaki Bai daughter-in-law of Kejia Bai, therefore, the plaintiff has filed Civil Suit No. 74A/2007 before the learned Additional District Judge, Durg which was decreed in favour of the plaintiff vide order dated 16.02.2010 and it has been held that the sale-deed dated 15.02.2002 has been declared as null and void and not binding upon the plaintiff.

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(D) It is also case of the plaintiff that the land bearing Khasra No.32 area admeasuring 3.21 hectare was sold by defendant No.1 to

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defendant No.2 through sale-deed dated 15.02.2002, thus the plaintiff sought for declaration that it be declared that the plaintiff and defendant No. 1 are title holders of the suit property bearing Khasra No. 522, 32, 396/1, 513, 386 area admeasuring 0.13, 3.21, 069, 2.24, 0.03 Hectare respectively situated at Village- Bohardih, Patwari Halka No. 19, Revenue Circle- Bhilai, Tahsil & District- Durg being legal heir of Late Paisarnin Bai.

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Defendant No.1 has filed written statement denying the allegation made in the plaint mainly contending that the plaintiff is not Ashwani Kumar, in fact he is resident of Indore and his name is Kunj Bihari S/o Banshidhar. It has been further contended that as per the records of registry of plot from Housing Board Indore, his address has been mentioned as Deendayal Upadhyay Nagar, Sukhaliya, Indore and said Kunj Bihari while admitting has mentioned that his son Ramesh Kumar Thakur has filed the present suit by impersonating himself as Ashwani Kumar claiming his share which is fraud to acquire the property. It has also been denied that daughters of Late Tarandas have no share or interest in the suit property and has prayed for rejection of the suit.

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Defendant No. 2, who is the purchaser of the part of suit property has also filed written statement contending that the land in question was purchased by defendant No. 2 through registered sale-deed dated 15.02.2002. He has admitted that the land originally belongs to Paisarnin Bai and Laxmin Bai is daughter of Paisarnin Bai. It has been further contended that when defendant No.1 Bhola Ram was 10 to 11 years old then Paisanin Bai i.e. her maternal grandmother has adopted Bholaram as son and Bholaram has done last rituals of Paisarnin Bai and her husband Ganga Ram. After the death of Paisarnin Bai,

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defendant No.1 and his son are in possession of the land. It has been further contended that the plaintiff and her sisters have no right over the suit property as they were never in possession of the land or the suit property is joint family property and would pray for dismissal of the suit.

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The learned trial Court on the pleadings of the parties has framed as many as nine issues out of which Issue Nos. 1, 2, 4 & 6 are relevant, therefore, they are extracted below:-

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^^1- D;k oknh v’ouh dqekj izfroknh dzekad 1 Hkksykjke dk lxk HkkbZ gS\

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2- D;k oknh iljuhu ckbZ ds okfjlku gksus ds ukrs okn Hkwfe [k-ua- 522] 32] 396@1]513]386 jdck 0-13] 3-21] 0-69] 2-24] 0-03 gsDVs;j dk lgLokeh gS\

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4- D;k fodz; i= fnukad 15-2-2002 voS/k ,oa 'kwU; gksus ds dkj.k mijksDr fodz; i= esa of.kZr laifRr esa izfroknh dzekad 1 dk dksbZ gd o vf/kdkj ugha gS\

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6- D;k oknh QthZ v’ouh dqekj cudj laifRr ij nkok djrs gq, okn fd;k gS**

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The plaintiff to substantiate the averment made in the plaint has examined plaintiff- Ashwani Kumar (PW-1) and exhibited documents order dated 02.04.2005 passed by Eighth Civil Judge Class-II, Durg (Ex. P/1), decree of aforesaid order (Ex. P/2), order dated 16.09.2005 passed by Fifth Civil Judge Class-II, Durg (Ex. P/3), decree of aforesaid order (Ex. P/4), order dated 16.05.2001 passed by Tahsildar, Patan, Durg (Ex. P/5), copy of sale-deed dated 15.02.2002 (Ex. P/6), order dated 16.02.2010 passed by Twelth Additional District Judge, Durg (Ex. P/7), decree of aforesaid order (Ex. P/8), Khasra Panchshala (Ex. P/9) & copy of B-1 (Ex. P/10).

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The defendants to substantiate their case has examined Prahlad Sahu (DW/1) and exhibited document copy of revenue register for year 2007-08 (Ex. D/1) & copy of mutation register (Ex. D/2).

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Plaintiff- Ashwani Kumar (PW-1) has been examined by way of an affidavit as provided under Section 18 Rule 4 of the C.P.C. wherein he has reiterated the stand taken by him in the plaint. In the crossexamination, he has admitted that the suit property has been received by him through his maternal grandmother as his mother was only daughter of his maternal grandmother and his mother expired prior to his maternal grandmother and his and his brother/deceased defendant No. 1 names have been recorded in the revenue record. He has also admitted that his sisters have not been made party to the case as their names were not recorded in the revenue record. He has also admitted that his and his brother’s names have been recorded as owner of the suit property. He has also admitted that the possession of the land which has been sold by Bholaram who received from Paisarnin Bai, has been received by him and at present he is in possession of 12 acres of land. He has denied that possession of the land which Bholaram sold to Janki Bai, has been received by him. He has admitted that he and Bholaram are real brothers and they have equal right over the land received from grandmother Paisarnin Bai. He has also denied that only Bholaram’s name has been recorded in the revenue record.

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Prahlad Sahu (DW-1) has examined by way of affidavit provided under Order 18 Rule 4 of C.P.C. wherein he has reiterated the stand taken by him in the written statement. He has admitted that on 15.2.2002 Bhola Ram, who is the brother of plaintiff Ashwani, executed a sale-deed of land situated at village Bohardih, Tahsil Patan in the name of his wifeJanki Bai and his mother Kejia Bai and Hemant Kumar is the son of Bhola Ram. He has also admitted that the land which has been

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recorded in the name of Hemant Kumar was sold by Bhola Ram to Janaki Bai. He has also admitted that Ashwani Kumar had filed a claim to declare the sale-deed executed in the name of Janki Bai as illegal. In the said claim, the sale-deed was cancelled and in the said order, Janaki Bai was directed to hand over possession to Ashwani Kumar. The appeal of the said case is also pending in the High Court. He has denied that on 16.5.2001, the Tahsildar had directed to register the name of Ashwani Kumar on the suit property. He has also denied that by the order of Tahsildar, the name of Ashwani Kumar was registered in Khasra B1.

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In the further cross-examination, the witness has denied that name of Ashwani Kumar was registered in Khasra B-1 and despite knowing this, they have deliberately purchased the said land from Bholaram. He has also denied that Bhola Ram has filed a civil case in respect of Ashwani Kumar's land wherein Bhola Ram has stated that Ashwani Kumar is not his brother and later the decision was given in favour of Ashwani Kumar and he does not know the persons Nos. 05 to 09 mentioned in Ex.P. 03. He has denied that the land was recorded in the name of Bhola Ram and Ashwani Kumar and he along with his mother got the sale-deed of the land registered on behalf of Bhola Ram. He has also denied that Patwari had told him everything before getting the same registered. He has also denied that after death of his mother Kejia Bai, his brothers and sisters gave up their right over the suit land through a registered document. He has further stated that all of them have agreed before the Tahsildar for transfer of title in his name alone and he came to know that the suit land belongs to Bholaram's maternal grandmother Pasarnin Bai.

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Learned trial Court after appreciating the evidence, material placed on record vide judgment and decree dated 31.08.2017 has decreed the suit in favour of the plaintiff by recording its finding that Ashwani Kumar is real brother of deceased defendant No. 1- Bholaram and he is coowner of the suit property bearing Khasra No. 522, 32, 396/1, 513, 386 area admeasuring 0.13, 3.21, 069, 2.24, 0.03 Hectare respectively situated at Village- Bohardih, Patwari Halka No. 19, Revenue CircleBhilai, Tahsil & District- Durg and defendant No. 1 has no right to sell the suit property, as such, the sale-deed dated 15.02.2002 is null and void and not binding upon the plaintiff. It has also been recorded that no document has been placed on record by the defendant to refute the fact that the said land was not acquired from Paisarnin Bai and also not brought on record any document to establish that the same is selfacquired property whereas the plaintiff has placed on record copies of the decisions of other courts in which also the plaintiff had filed a case against the deceased defendant Bholaram for sale of other properties in a similar manner, all the cases were decided in favour of the plaintiff, in which the plaintiff has been considered as co-owner of all these properties with the deceased defendant Bholaram. Being aggrieved with the judgment and decree dated 31.08.2017, the defendant No. 2/purchaser of the suit property has preferred the instant appeal before this Court.

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Learned counsel for the appellant would submit that the impugned judgment and decree dated 31.08.2017 passed by the learned trial Court is bad-in-law as well as on the fact, therefore, the same is not sustainable. He would further submit that the learned trial Court ought to have held that the part of the suit property bearing Khasra No. 32

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admeasuring area 3.21 hectare is the property purchased by defendant No.2 through registered sale-deed dated 15.02.2002 as bonafide purchaser and ought to have held that even if the property is ancestral property and no partition has been taken place between plaintiff, still defendant No.1 can very well execute the sale-deed to the extent of his share, as such he would pray for allowing the appeal. To substantiate his submission, he has referred to the judgment of Coordinate Bench of this Court in SA No. 430/2001 (Phoolobati & others Vs. Khirobati & others) (decided on 06.12.2018).

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He would further submit that the learned trial court ought to have held that the plaintiff is not Ashwani Kumar, in fact he is Kunj Bihari as stated by defendant No.1. Learned trial Court ought to have held that the suit property is not the property of joint ownership of plaintiff and defendant No.1. It has also been submitted that the learned trial court ought to have held that defendant No.1 was adopted son of Paisarnin Bai, hence the property is separate property of defendant No. 1 and the appellant is the bonafide purchaser of the suit property as there was no information given by the plaintiff to defendant No. 2 regarding the dispute at the time of sale, as such he would pray for setting aside the judgment and decree dated 31.08.2017 passed by the learned trial Court.

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On the other hand learned counsel for the respondent/plaintiff would submit that the finding recorded by the learned trial Court is just and proper which does not warrant any interference by this Court and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the documents available on record with utmost satisfaction.

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From pleadings of the parties, the Point emerges for determination of this Court is:-

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“Whether the finding recorded by the learned trial Court declaring the sale-deed dated 15.02.2002 as null and void, is legal and justified ?”

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To appreciate this point, this Court has to briefly consider the evidence brought on record. The plaintiff in his examination-in-chief has reiterated the averment made in the plaint and in the crossexamination, it has been brought on record that the suit property was inherited by him from his maternal grandmother as his mother was only child of her mother. He has also admitted that the property was recorded in the name of plaintiff and defendant No. 1 and also admitted that he has filed the suit for cancelling the sale-deed executed by Bholaram and he has received the properties admeasuring 12 acres through intervention of the Court. He has also admitted that they have received 25 acres land from their maternal grandmother in which the plaintiff and defendant Bholaram have equal share being real brothers.

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From perusal of the records, it is quite vivid that neither defendant No. 1 nor his legal heirs have been examined before the trial Court. On 28.04.2017, legal representatives of defendant No. 1 were proceeded ex-parte and on 04.08.2017 defendant No. 2’s legal representatives have been examined and closed their evidence. Defendant No. 2 Prahlad examined by way of affidavit but he has not led any evidence to demonstrate that his mother Kejia Bai was bonafide purchaser in fact, he has admitted that Ashwani Kumar/plaintiff has filed a suit for declaring the sale-deed to be null and void which was decreed wherein

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it has been ordered for giving possession of the suit property. He has also stated that the appeal against that judgment is pending.

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From the evidence and material on record, it is quite vivid that the plaintiff was able to prove that the suit property is ancestral property and the plaintiff and defendant No. 1 were legal heirs of Paisarnin Bai as both are real brothers but the learned trial Court has committed illegality in declaring the entire sale-deed dated 15.02.2002 as null and void as defendant No. 1, plaintiff and their two sisters are co-sharers of the suit property and every co-sharer can sell the suit property to the extent of his/her share.

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The trial Court should have also seen that during pendency of the suit before it, Section 6 of the Hindu Succession Act, 2005 has been amended and daughters have become coparcener in the property owned by the Hindus. Section 6 of the Hindu Succession Act, 2005 after amendment reads as under:-

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“ Section 6. Devolution of interest in coparcenary property-

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(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

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(a)by birth become a coparcener in her own right in the same manner as the son;

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(b)have the same rights in the coparcenary property as she would have had if she had been a son;

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(c)be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

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(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding

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anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

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(3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

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(a) the daughter is allotted the same share as is allotted to a son;

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(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and(c)the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

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Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

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(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or greatgrandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect—

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(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or(b)any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

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Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

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(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.”

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Hon’ble the Supreme Court in case of Vineeta Sharma Vs. Rakesh

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Sharma [(2020) 9 SCC 1] has held that the daughter being coparcener is entitled to inherit the share equivalent to son of a deceased Hindu. Hon’ble the Supreme Court has held in paragraphs 137 & 138 as under:-

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“137. Resultantly, we answer the reference as under:

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137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

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137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6 (1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

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137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

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137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

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137.5. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

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We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.

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In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits.”

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On this legal premises, the submission made by defendant No. 1 that two daughters namely Sumitra Bai and Kamla Bai are the necessary party to the case and without impleading them, the suit filed by the plaintiff is not maintainable and liable to be dismissed on this count alone, is being considered by this Court. From perusal of the judgment and decree passed by the learned trial Court, it is crystal clear that learned trial Court while deciding Issue No. 7 & 8 has not taken into consideration the objection raised by the defendant regarding maintainability of the suit for non-joinder of necessary party. As such in view of the amendment in the Hindu Succession Act, 2005 and the law laid down by Hon’ble the Supreme Court in case of Vineeta Sharma (supra), it is more necessary for the plaintiff to implead sisters as party to the case which he has not made party to the case. Even the learned

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trial Court has not taken into consideration the defect of non-joinder of necessary party in whose absence the effective decree cannot be passed, as such the daughters are proper party to the suit as per the provisions of Order 1 Rule 9 of CPC which provides the effect of nonjoinder of necessary party. Order 1 Rule 9 of CPC reads as under :-

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“ Order 1 Rule 9 CPC- Misjoinder and non-joinder - No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court in every suit may deal with the matter in controversy so far as the rights and interests of the parties actually before it:

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Provided that nothing in this rule shall apply to non-joinder of a necessary party.”

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Since the daughters are coparceners and their presence is necessary for effective and complete adjudication of all the dispute between the parties irrespective of the wishes of the plaintiff, the learned Courts below should have exercised the power and join the daughters a party to the proceeding. In the present case, the daughters are directly or legally interested in the suit and may lead to a result which will have effect them legally by curtailing their legal right. Considering these parameters, it is directed that the plaintiff shall move an application before the learned trial Court to implead the daughters as parties to the case.

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It is also well settled position of law that very object of doctrine of necessary and proper party is to include all such parties as would be necessary to grant an effective relief which is pendeltite in the matter before the trial Court. Hon’ble the Supreme Court in case of Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi [2022 SCC OnLine 1307] has considered the effect of not arraying the necessary party and has held in paragraphs 17 to 21 as under:-

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“17. This Court, in the case of Mumbai International Airport Private Limited (supra), has observed thus:

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“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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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.

¶119

As already discussed hereinabove, the plaintiff himself has admitted in the plaint that the suit property is jointly owned by the defendant, his wife and three sons. A specific objection was also taken by the defendant in his written statement with regard to non-joinder of necessary parties. Since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant’s wife and three sons without impleading them. Even in spite of the defendant taking an objection in that regard, the plaintiff has chosen not to implead the defendant’s wife and three sons as party defendants. Insofar as the reliance placed by Shri Chitnis on the judgment of this Court in the case of Kasturi (supra) is concerned, the question therein was as to whether a person who claims independent title and possession adversely to the title of a vendor could be a necessary party or not. In this context, this Court held thus:

¶120

“7. …….From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are — (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.”

¶121

Page 17 of 18

¶122

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.

¶123

In view of the plaintiff’s own admission that the suit property was jointly owned by the defendant, his wife and three sons, no effective decree could have been passed in their absence.”

¶124

Considering all the facts, evidence and material placed on record, this

¶125

Court is of the view that the judgment and decree passed by the trial Court deserves to be set aside and accordingly it is set aside. The suit is remitted back to the trial Court for deciding the case afresh in accordance with law after impleading the daughters namely Sumitra Bai and Kamla Bai as party to the case only. The parties are at liberty to amend their pleadings or to lead evidence to the extent of examining the effect of impleading the daughters namely Sumitra Bai and Kamla Bai as party to the suit and remaining pleading and evidence shall remain intact. Thereafter, the trial Court shall decide the share of individual parties to the suit considering their stand to hold what extent the sale-deed is null and void. The finding of the learned trial Court as to the extent of finding recorded by it that defendant No. 1 has no right to sell the suit property and the sale-deed dated 15.02.2002 is null and void, is modified to the extent that declaration of sale-deed dated 15.02.2002 will be null and void to the extent of share of the plaintiff and share of the sisters namely Sumitra Bai and Kamla Bai will be dependent upon the outcome of the decision of trial Court on the issue after recording of the evidence and material placed before it by the parties.

¶126

Page 18 of 18

¶127

In view of the above factual and legal position, it is directed that the legal heirs of defendant No. 1-Kejia Bai shall not alienate the suit property till the suit is finally decided by the trial Court as per direction given by this Court. The trial Court is directed to make an endeavour to complete the trial Court within outer limit of one year and six months from the date of first appearance before the trial Court. The parties are also directed to appear before the trial Court on 9^th October, 2025 . The record be sent to the trial Court.

¶128

Accordingly, the instant First Appeal is partly allowed to the extent indicated hereinabove. A decree be drawn up accordingly.

¶129

Sd/(Narendra Kumar Vyas) Judge

¶130

Arun

Smt. Kejiya Bai Since Dead Through Lrs 1. Baharu v. Ashwani Kumar Sahu

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Smt. Kejiya Bai Since Dead Through Lrs 1. Baharu v. Ashwani Kumar Sahu

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