S S BAKSHI Vs. P M MATHRANI

JUDGEMENT

(1.) These are applications under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (for short Civil Procedure Code), for impleading applicant Mrs. Sarla Mishra as party to suit. Brief facts necessary for the disposal of these applications are : that the plaintiff filed a suit for a decree of specific performance and for possession of a flat in Bungalow 9, Kautilya Marg, Chanakya Puri, New Delhi, on the basis of agreement to sell, seeking directions to the defendant to perform his part of the obligation and execute the sale deed after obtaining necessary permission from the Government. It is alleged that M.P. Mathrani was the owner of the Bungalow No. 9, Kautilya Marg, Diplomatic Enclave, New Delhi measuring 1547 sq. yards, which is a 2 storied building. He died intestate leaving behind 6 legal heirs, 2 sons and 4 daughters, including the applicant (daughter) and the defendant (son). On 27/03/1970, a preliminary decree was passed in Suit No. 24/70, declaring each of his legal representatives/ heirs to be 1/6th owner of the said property. Thereafter, the defendant also purchased 1/24th share of the property from one of his sisters and became co-owner of the said property to the extent of 5/24th share, which is fully described in the plaint, flat measuring 2000 sq ft on the first floor rear portion of the building (for short the flat).

(2.) It is alleged that on 26/03/1996 the defendant executed five agreements to sell agreeing to sell his 1/24th share in the flat each for Rs. 46 lakhs, in favour of five plaintiffs, who have filed suits (Nos. 225 /98 to 229/98), for specific performance and possession of 1 /24th share in the said flat on the basis of said agreements to sell, against the defendant. Paragraph 5 of the plaint, reads as under:

(3.) The defendants filed written statements denying the averments made in suits and in reply to paragraph five of the plaint it is specifically pleaded that the defendant has only undivided share to the extent of 5/24 of the total area in the property in question, which is not partitioned by metes and bounds between the co- owners so far. It is only for convenience and enjoyment that different undivided shareholders have been .in possession of different portions, as a matter of mutual arrangement and this does not result in any legal division and does not confer any separate legal tide to the co-owners in respect of the different portions.