Page No.# 1/8 GAHC010251662024 2025:GAU-AS:9364 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/4073/2024 BIRU KUMAR SINGH AND ANR S/O SRI MONURANJAN SINGH, R/O BOIRAGIMOTH, KACHARI GAON, P.S. AND DIST. DIBRUGARH, ASSAM. 2: SMTI MALOBIKA SINGH D/O SRI MONURANJAN SINGH W/O SRI NABAJYOTI BORAH R/O SABOTI P.O. AND P.S. SABOTI DISTRICT LAKHIMPUR ASSAM PIN 787051 VERSUS MONURANJAN SINGH AND ANR S/O LATE AJYODHYA SINGH, R/O BOIRAGIMOTH, KACHARI GAON, P.S. AND DIST. DIBRUGARH, ASSAM. 2:MR ADILUR REHMAN SAIKIA S/O LATE ABDUR RAHMAN R/O M. RAHMAN ROAD NALIAPOOL P.S. AND DIST. DIBRUGARH ASSAM Advocate for the Petitioner : MS B DAS, Advocate for the Respondent : MR S DUTTA, Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 19-07-2025 Heard learned Senior Counsel Mr. A. Dasgupta and learned Senior Counsel Mr. S. Dutta for the applicants. Also heard Mr. B. Baruah for the opposite party No. 2. 2. This application has been filed under Order I Rule 10(2) read with Section 151 of Code of Civil Procedure, 1908 (CPC for short) with prayer for impleadment of the applicants No. 1. Sri Biru Kumar Singh and 2. Smt. Malobika Singh as parties in RFA No. 37/2018. Both are siblings and children of opposite party No. 1. Sri Monuranjan Singh, who has initiated the present RFA, challenging the validity and legality of the judgment and decree dated 12.03.2018 passed by the learned Civil Judge, Dibrugarh in Title Suit No. 44/2013. 3. It is submitted that the opposite party No. 2 has brought up a title suit against the opposite party No. 1 seeking specific performance of the agreement for Sale Deed dated 20.11.2012, relating to sale of the parcel of land ad- measuring 1 Katha 16.56 Lechas appertaining to Dag No. 661 of PP No. 299, situated at Boiragimath Kacharigaon under Mouza Mancotta Khanikar, Dibrugarh. The agreement was entered into by both the opposite parties Nos. 1 and 2. 4. It is submitted that the applicants are governed by Mitakshara Hindu Law of Inheritance, and they along with the opposite party No. 1 are coparceners Page No.# 3/8 with respect to the aforementioned plot of land. 5. It is contended that the plot of land mentioned in the schedule-1 of the application is the ancestral property of the applicants as well as the opposite party No. 1 and thus, both the applicants being coparceners as they are his children, are also entitled to the aforementioned property, even as per Section 6 of the Hindu Succession Act, 1956 (as amended). 6. It is thus contended that the opposite party No. 1 could not have entered into any sort of agreement for sale without the approval or consent of the applicants and consequently, in view of the same, the very execution of the agreement for sale dated 20.11.2012 by the opposite party No. 1 is ex facie illegal and void and cannot be made binding upon the applicants. 7. It is also contended that the applicants have not been made parties in Title Suit No. 44/2013, which had been initiated by the opposite party No. 2 as plaintiff. 8. The respondent No. 1 however has no objection if the applicants are impleaded as parties to the RFA No. 37/2018 whereas the respondent No. 2 has raised serious objection and has inter-alia denied that the applicants are governed by Mitakshara Hindu Law of Inheritance and as per Hindu Successions Law of 1956. 9. It is contended that the applicants have no right to get themselves impleaded in RFA No. 37/2018 as they were not parties to the Title Suit No. 44/2013 which was decreed in favour of the opposite party No. 2. Their rights to the aforementioned plot of land commences only after the death of the opposite Page No.# 4/8 party No. 1. When the opposite party No. 1 is alive, the applicants No. 1 and 2 have no right over the suit property. 10. It is further contended that at no point of time, it was decided that the suit property was joint property nor there is any evidence on record, but to frustrate the decree dated 12.03.2018 in Title Suit No. 44/2013, the applicants have adopted this delaying tactics. 11. It is further contended that the applicants cannot be impleaded to start a new cause of action, which is not permissible by law. 12. Time is the essence of the contract which is specifically appeared in the agreement dated 20.11.2012 (Exhibit-1) between the plaintiff and the defendant to sell the suit property. The plaintiff/opposite party No. 2 has paid part consideration amount of Rs.7,00,000/- (Rupees Seven Lacs) towards the full consideration amount of Rs.27,37,500/- (Rupees Twenty Seven Lacs Thirty Seven Thousand and Five Hundred) in the year 2012 with due acknowledgement by the opposite party No. 1 and as per Clause 5 & 6 of Exhibit-1, opposite party No. 1 was bound to take necessary steps for obtaining sale permission from the concerned authority, which has not been complied with by the opposite party No. 1. 13. Rather, the opposite party No. 1/defendant fraudulently took Rs.7,00,000/- (Rupees Seven Lacs) as per agreement to perform the agreement for sale and he has already sold a part of the suit land measuring 15.44 Lechas to one Neelam Devi in the year 2015 out of the same Dag No. 661 and PP No. 299, which clearly indicates that the opposite party No. 1 has committed breach of Page No.# 5/8 trust with the opposite party No. 2. 14. It is averred that considering the conspectus of the issues, the learned Civil Judge, Dibrugarh in Title Suit No. 44/2013, decreed the suit in favour of the opposite party No. 2 and passed an order permanently restraining the opposite party No. 1 from alienating the suit land and creating any charge thereon. 15. Opposite party No. 2 has thus prayed to dismiss the interlocutory application filed by the applicants at the behest of the opposite party No. 1 by resorting to delaying tactics. 16. It is submitted that a Title Execution No. 01/2019 has already been filed for implementation of the judgment and decree of Title Suit No. 44/2013. 17. I have considered the submissions at the bar with circumspection. 18. The petitioner has relied on the decision of the Hon’ble Supreme Court in Sumitbai and others Versus Paras Finance Co. reported in (2007) 10 SCC 82 wherein it has been observed that :- “14. In view of the aforesaid decisions we are of the opinion that Kasturi case is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced. 15. Also, merely because some applications have been rejected earlier it does not mean that the legal representatives of late Kapoor Chand should not be allowed to file an additional written statement. In fact, no useful purpose would be served by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement. In our opinion, this will clearly violate natural justice. 16. For the reasons aforementioned, the impugned orders of the High Court dated 7.1.2000 as Page No.# 6/8 well as the trial court dated 6.8.1997, are set aside. The appellants shall be allowed to file additional written statement and thereafter the suit should proceed expeditiously in accordance with law.” 19. It is submitted on behalf of the opposite party No. 2 that the ratio of Sumitbai’s case is not applicable to the present application as the opposite party No. 1 is not to be substituted by his legal heirs during his lifetime. 20. I find force in the argument of the learned counsel for the respondent No. 2. 21. The applicants have also relied on the decision of the Hon’ble Supreme Court in Vineeta Sharma Versus Rakesh Sharma reported in (2020) 9 SCC 1 wherein it has been observed that :- “22. A joint Hindu family is a larger body than a Hindu coparcenary. A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. A joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation, as observed in Sri Raghunadha Anunga Bhima Deo Kesari v. Brozo Kishoro Patta Deo. 23. Hindu coparcenary is a much narrower body. It consists of propositus and three lineal descendants. Before 2005, it included only those persons like sons, grandsons, and great- grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great-grandson, and E is a great-great-grandson. The coparcenary will be formed up to D, i.e., great-grandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confined to three lineal descendants. Since grandsons and greatgrandsons become coparceners by birth, they acquired an interest in the property. 24. Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great-grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. 25. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted Section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great-great-grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, Page No.# 7/8 even a fifth descendant, can claim partition. In case they are alive, he is excluded.” 22. Per contra, learned counsel for the respondent No. 2 has submitted that the applicants are not governed by Mitakshara Hindu Law of Inheritance. It was not specifically mentioned if the extent was upto three lineal descendants to claim their right over the suit property. 23. Learned counsel for the respondent No. 2 has relied on the decision of the Hon’ble Supreme Court in Sudhamayee Pattnaik and Others Versus Bibhu Prasad Sahoo and Others reported in 2022 0 Supreme (SC) 919 wherein it has been held that :- “5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the dominus litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs.” ***** ***** ***** “8. In view of the above and for the reasons stated above and with the aforesaid observations, the present appeal is allowed. The impugned judgment and order passed by the High Court and that of the trial Court allowing application under Order 1 Rule 10 CPC are hereby quashed and set aside, however, with the observations as above. The instant appeal is allowed in the aforesaid terms. In the facts and circumstances of the case, there shall be no order as to costs.” 24. I have also relied on the decision of the Hon’ble Supreme Court in Vineeta Sharma (supra), as it is a fact that both the applicants are coparceners and they have a right to their ancestral property. However, the applicants cannot be impleaded in this case as the suit was initiated by the opposite party No. 2, who is the dominus litis, being the plaintiff initiating Title Suit No. 44/2013. Page No.# 8/8 25. It is also not clear from the prayer in the application if the applicants are willing to be impleaded as appellants or respondents. 26. The plaintiff/opposite party No. 2 has strongly resisted the prayer of the applicants. Not impleading any other person as parties against the wish of the plaintiff shall undoubtedly be at the risk of the plaintiff/opposite party No. 2. The agreement was executed between the opposite party No. 1 and the opposite party No. 2. 27. In the light of the decision of the Hon’ble Supreme Court in Sudhamayee Pattnaik (supra), this application is hereby dismissed. 28. The applicants are at liberty to resort to relief in accordance with law. 29. In terms of the above observation, this interlocutory application stands disposed of. JUDGE Comparing Assistant