Baldev Kaur etc. Vs Gurdev Singh and Ors.

Th e present Regular Second Ap p eal has been directed against the judgment and d ecree dated 28.08.2009 passed by the learned Additional Dis t rict Judge, Faridko t , whereby the appeal filed by the plaintiff-respondent No.1 w as allowed, the ju d gment and decree of the learn e d trial Court dated 17.03.2009 w as set aside, and t h e suit of the plaintiff-responde n t No.1 for partition to the extent of one-half share w as decreed.

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Brief facts

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Th e facts in brief are that the plai n tiff-Gurdev Singh instituted a suit for partition a n d separate possession of his one-half share in joint prop e rty measuring 46 k anals 16 marlas, being Gair M u mkin Abadi land situated in P atti Sada Thula U m ra, Tehsil Jaitu, District Farid k ot, as per Jamabandi for the y ear 1999-2000. Th e case of the plaintiff was that h e was co-sharer to the extent of h alf share, while th e remaining half belonged to J a ng Singh. It was alleged that Jang Singh had sold m ore land than his recorded sh a re to several vendees and that s u ch TRIPTI SAINI 2025.09.03 15:04 I attest to the accuracy and integrity of this document

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sales could not bind the plaintiff beyond Jan g Singh’s half share. The plai n tiff sought separati o n of his half share by metes an d bounds. 3. Th e suit was contested by defe n dants no. 2 and 41. They ra i sed preliminary obj e ctions that the suit was not mai n tainable on account of non-joi n der of necessary p arties, as all transferees fr o m Jang Singh and their l e gal representatives h ad not been impleaded. It was also pleaded that the suit was b ad for partial parti t ion, as the entire joint khata ha d not been brought into hotchpo t ch. On merits, the plaintiff’s entitlement was de n ied and it was pleaded that Jang Singh had not s o ld more than his share.

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O n the pleadings of the parties, t h e trial Court framed the follo w ing

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issues:-

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Whether the plaintiff is ent i tled to the separate possessio n by wa y of partition? OPP

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Whether the defendant is en t itled to counter claim for partiti o n?

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O P D-2.

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Whether the suit is not main t ainable? OPD

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Whether the suit is not valu e d properly for the purpose of c o urt

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fee and jurisdiction? OPD

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Whether the suit is bad on a c count of non-joinder of parties and

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pa r tial partition? OPD

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Relief.

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Bo t h the parties have led their resp e ctive evidence.

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Findings of the trial Court

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Th e learned trial Court, upon a p preciation of evidence, held t hat although the pl a intiff had proved his half shar e , he could not be granted a de c ree TRIPTI SAINIbecause necess a ry parties had not been impl e aded. It was noticed that sev e ral 2025.09.03 15:04 I attest to the accuracy and integrity of this document

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transferees had died and their heirs were not impleaded. The suit was there f ore held not mainta i nable for non-joinder of necessary parties, though the objectio n of partial partition was rejected. Consequently, the suit was dismissed on 17.03.20 0 9. Findings of the Appellate Court

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O n appeal, the learned Additiona l District Judge, Faridkot, reve r sed the finding of t h e trial Court. It was held that d e fendants no. 1 to 3, being the heirs of Jang Singh, a dequately represented his estat e and the interests of his transfer e es. Placing relianc e upon Jaskirat Datwani vs. Vidyawati, AIR 2002 SC 2180 , the lower appellate court held that the absence of individual transferees would not render the suit i ncompetent. Accordingly, the a p peal was allowed and the suit w as decreed to the e x tent of one-half share in favou r of the plaintiff.

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Fe e ling aggrieved, the present app e al has been filed by the appellants, namely, Baldev Kaur alias Jangir Kaur, Tarsem Singh and Harjinder Kaur. 9. Upon notice, contesting responde n t No.1 appeared and contested the appeal.

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Submissions on behalf of the appellants/LRs of defendant No.2

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Be f ore this Court, learned counse l for the appellants has argued t hat the decree of th e lower Appellate Court cannot be sustained. It is contended th a t in a suit for par t ition, all co-sharers are nece s sary parties, and the subseq u ent purchasers fro m Jang Singh, having stepped in t o his shoes, were co-sharers in the joint khata. T h eir legal representatives, in the event of their death, were a lso indispensable p arties. It is submitted that wi t hout impleading such subseq u ent vendees, no e x ecutable decree could be pas s ed. Reliance has been placed on Prafulla Chorone Requitte vs. Satya Chorone Requitte, AIR 1979 SC 1682 , a nd Ali Amad vs. Sindhi Ebrahim Kasam, AIR 1983 Gujarat 156 , to urge that the TRIPTI SAINIabsence of necessary parties is fatal and the suit cannot be maintained. 2025.09.03 15:04 I attest to the accuracy and integrity of this document

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Submissions on behalf of contesting respondent No.1/plaintiff

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O n the other hand, learned couns e l for respondent No.1/plaintiff has argued that the p resence of defendants No. 1 to 3, who are the heirs of Jang Si n gh, is sufficient re p resentation of his estate and the decree passed would bind all transferees und e r them. Reliance is placed on Razia Begum vs. Anwar Begum, AIR 1958 SC 886 , and Jaskirat Datwani vs. Vidyawati (supra) , to argue that n onimpleadment o f alienees is not necessarily fata l if their interest is represented. I t is also urged tha t substantive rights cannot b e defeated on technical pleas, as reiterated in Life Insurance Corporation of India vs. Sanjeev Builders (P) Ltd., (2022) 10 SCC 401 .

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Findings of this Court

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Ha v ing considered the rival submi s sions, this Court is of the view t hat the trial Court was correct in dismissing the suit for non-joinder of neces s ary parties, and the lower Appellate Court erred i n reversing that finding. It is not in dispute that the plaintiff is a co-sharer to the e xtent of one-half share in the j o int khata. Howeve r , once Jang Singh had sold portions of his share to sev e ral transferees muc h prior to the filing of the prese n t suit, such transferees became cosharers in thei r own right. Upon their death, their heirs also stepped into t h eir shoes. In a sui t for partition, all co-sharers a re necessary parties, because any decree of part i tion must bind every co-ow n er and allot separate posses s ion accordingly. T h e non-impleadment of such su b sequent purchasers and their heirs renders the suit defective. 13. Th e reliance placed by the respon d ent on Razia Begum and Jaskirat Datwani (supra) is misplaced, because in that case, the original parties on re c ord sufficiently rep r esented the interest of transfere e s. In the present case, however, the TRIPTI SAINIevidence itsel f shows that several transf e rees had died and their l e gal 2025.09.03 15:04 I attest to the accuracy and integrity of this document

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representatives were not impleaded. The p l aintiff, during cross-examinat i on, candidly admitted that he was unaware of the s tatus of many vendees and had not taken steps to i m plead their heirs. In such circ u mstances, the absence of neces s ary parties is fatal. The principle laid down in Ali Amad’s case (supra) squa r ely applies to the f a cts of the present case, as it w as held therein that all the persons entitled to sh a re in property by inheritanc e are necessary parties and n onimpleading of a ny necessary party renders the s uit liable to be dismissed. In v i ew of the ratio of t he law citied above, the suit i s bad for non-joinder of neces s ary parties.

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Conclusion

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Th i s Court, therefore, holds that th e suit as instituted was not prop e rly constituted and was not maintainable for no n -joinder of necessary parties. T he decree of the l o wer Appellate Court cannot be sustained and is liable to be set aside.

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Ac c ordingly, the present appeal is allowed. The judgment and de c ree dated 28.08.20 0 9 passed by the learned Additi o nal District Judge, Faridkot, are set aside and the j u dgment and decree dated 17.0 3 .2009 of the trial Court dismis s ing the suit are rest o red.

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Pe n ding application(s), if any, also stands disposed of.

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September 01, 2 025 (MANDEEP PANNU) tripti JUDGE W h ether speaking/non-speaking : Speak i ng W h ether reportable : Yes/N o .

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TRIPTI SAINI 2025.09.03 15:04 I attest to the accuracy and integrity of this document

Baldev Kaur etc. v. Gurdev Singh and Ors.

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Baldev Kaur etc. v. Gurdev Singh and Ors.

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