Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1076 (MAD)

P. P. Kalaivani & Another v. M. Arumugam & Others

2005-07-15

R.BANUMATHI

body2005
Judgment :- This Revision arises out of the order dated 28-08-2003 made in I.A.No. 229 of 2002 in O.S.No. 77 of 1996, by the learned District Munsif, Gobi. Third parties/Proposed Defendants 7 and 8 are the Revision Petitioners. 2. The relevant facts could briefly be stated thus:- a) O.S.No. 77 of 1996:- The suit relates to Agreement of Exchange dated 7-12-1988. The case of the First Respondent/ Plaintiff is that the Defendants 1 and 2 have entered into an Agreement of Exchange. The parties have agreed that the 'A' schedule property is to be that of the Plaintiff and the 'B' schedule property is to be that of the Defendants 1 and 2. According to the Plaintiff, pursuant to the Agreement of Exchange, 'A' schedule property has been in possession of the Plaintiff and 'B' schedule property has been in possession of the Defendants 1 and 2. The Plaintiff had executed an Agreement of Sale for selling 1109 sq.ft. to one Palaniammal, who is the wife of the Second Defendant. Accordingly, the Plaintiff has executed the Sale Deed on 25-4-1989 conveying 560 1/2 sq.ft. The Defendants have been evading to execute the Exchange Deed. Though, the Plaintiff has been requesting the Defendants to execute the Exchange Deed, they have been avoiding the same. In February 1992, the Defendants have sent the Notice containing false allegations, which was suitably replied by the Plaintiff by the Reply Notice dated 26-03-1992. Since, the Defendants have not executed the Exchange Deed and not performed their part of contract, the Plaintiff has filed the suit for specific performance of Agreement of Exchange and to convey the 'A' schedule property to the Plaintiff. b) The Defendants 1 and 2 have filed the written statement denying Agreement of Exchange dated 7-12-1988. The case of the Defendants is that, the First Defendant has got two sons and a daughter, who are also entitled to a share in the suit property (5/12th share). The sons and daughter of the First Defendant are necessary parties. The Agreement of Exchange would not bind the share of the sons and daughter of the First Defendant. Interalia denying the possession of the Plaintiff in the 'A' schedule property, the Defendants have filed the written statement. c) I.A.No. 229 of 2002:- Revision Petitioners/Third parties have filed this Application in December 2002. The Agreement of Exchange would not bind the share of the sons and daughter of the First Defendant. Interalia denying the possession of the Plaintiff in the 'A' schedule property, the Defendants have filed the written statement. c) I.A.No. 229 of 2002:- Revision Petitioners/Third parties have filed this Application in December 2002. According to the Revision Petitioners along with their father, namely, the Second Defendant, they are entitled to 5/12th share in the suit property. Claiming right in the suit property under Act 1/1990 and further claiming that they are necessary parties to the suit, the Revision Petitioners have filed this Application under Or.1 R.10 r/w. Sec. 151 C.P.C. to implead themselves as Defendants 7 and 8. d) Resisting the Application, the Plaintiff has filed the counter statement contending that the Application has been filed only with a view to delay the trial proceedings. According to the Plaintiff, the suit Agreement of Exchange is dated 7-12-1988, which was entered into between the Plaintiff and the Defendants 1 and 2, even prior to passing of the Act 1/1990. In the suit for specific performance of the Agreement of Exchange, the proposed parties/Revision Petitioners are not necessary parties. The Agreement of Exchange dated 7-12-1988 is binding on the proposed parties, since the same has been executed by their father. e) Upon consideration of the contention of both parties, the learned District Munsif, dismissed the Application finding that the Agreement of Exchange dated 7-12-1988 is prior to the Act 1/1990 and that the Agreement of Exchange is binding on the proposed parties. It was further held that the suit has already been left to be decreed exparte for three times and that when the suit has been posted in the Special List, the Application has been filed with a view to delay the trial proceedings. On such findings the Application for impleading the proposed parties was dismissed. 3. Aggrieved over the dismissal of the Application to implead themselves as Defendants 7 and 8, the Revision Petitioners have preferred this Revision. The learned counsel for the Revision Petitioners has contended that as per Act 1/1990, the Revision Petitioners have the right in the suit property and that the same cannot be nullified saying that the Agreement of Exchange is binding on the Revision Petitioners. Placing reliance upon the decision reported in 1993-2-L.W.72 (M.SHANMUGHA UDAYAR Vs. The learned counsel for the Revision Petitioners has contended that as per Act 1/1990, the Revision Petitioners have the right in the suit property and that the same cannot be nullified saying that the Agreement of Exchange is binding on the Revision Petitioners. Placing reliance upon the decision reported in 1993-2-L.W.72 (M.SHANMUGHA UDAYAR Vs. SIVANANDAM AND 8 OTHERS), the learned counsel for the Revision Petitioners has submitted that the provisions of Tamil Nadu Act 1/1990 would also apply to the pending cases. It is submitted that till the properties are divided by metes and bounds, the daughters cannot be deprived of their share. It is her further contention that by impleading the proposed parties, multiplicity of proceedings could be avoided. 4. When the matter came up for hearing, despite several opportunities there was no representation for the Respondents.The points urged by the First Respondent/Plaintiff in the trial Court was taken into consideration for the disposal of this Revision Petition. 5. In the suit for performance of Agreement of Exchange whether the daughters of the Second Defendant are proper and necessary parties and whether the impugned order suffers from any material irregularity warranting interference, are the main points that arise for consideration in this Revision. 6. The suit (O.S.No. 77 of 1996) for specific performance of the Agreement of Exchange dated 7-12-1988 has been pending from 1996. The written statement was filed by the Defendants 1 and 2 in April 1994. In their written statement, the Defendants have setforth the plea that the two sons of the First Defendant are also entitled to a share in the suit property and that the Exchange Deed dated 7-12-1988 is not binding upon the sons and daughters of Defendants 1 and 2. Though, such a plea had been putforth in the written statement, no steps had been taken to implead the Revision Petitioners as parties to the suit. After the filing of the suit, nearly six years thereafter, the Revision Petitioners have filed the Application to implead themselves as Defendants 7 and 8. No reasonable explanation is forthcoming as to, why such step had not been taken in the earlier stage. It is relevant to note that the suit in O.S.No. 77 of 1996 had been decreed exparte atleast three times and thereafter, Petitions have been filed for setting aside the exparte decree. No reasonable explanation is forthcoming as to, why such step had not been taken in the earlier stage. It is relevant to note that the suit in O.S.No. 77 of 1996 had been decreed exparte atleast three times and thereafter, Petitions have been filed for setting aside the exparte decree. By a reading of the impugned order, it is seen that when the case was posted in the Special List, at that stage, the Application has been filed to implead the Revision Petitioners as Defendants 7 and 8. There is every reason to doubt the bonafide of the Application. The learned District Munsif has rightly observed that the Application has been filed only to delay the trial proceedings. 7. Be that as it may. The Revision Petitioners – daughters of the Second Defendant claim to be entitled to 5/12th share along with their father in the suit property. According to them, their paternal aunties are each entitled to 1/12th share in the suit property. According to the Revision Petitioners/proposed parties, they were married on 17-11-1996 and 5-7-2000 respectively. When the Tamil Nadu Act 1/1990 came into force (w.e.f. 25-3-1989), the Revision Petitioners were unmarried and hence, as per Section 29-A of Hindu Succession Act, they have equal rights in the coparcenary property. Section 29-A enables the daughter to claim her rights in the joint family property on par with her brothers. By virtue of Section 29-A the daughter becomes a coparcener in her own right by birth and shall rank with the son in all respects. The Section imposes restrictions that the daughter should not have been married prior to the commencement of the Amendment Act. The further restriction is that no partition should have been effected before the commencement of the Amendment Act. Claiming that they were unmarried at the time when the Amendment Act came into force the Revision Petitioners/Proposed Parties claim right to 5/12th share along with their father. 8. For the sake of arguments, even if we assume that the Revision Petitioners are entitled to a share in the family properties, the remedy of Revision Petitioners would be only to file a suit for partition in respect of all the family properties. They cannot claim to a share in piecemeal in respect of one item of property, particularly regarding the suit property. They cannot claim to a share in piecemeal in respect of one item of property, particularly regarding the suit property. If they are entitled to a share in the joint family property, their rights and equities are to be worked out only in a comprehensive suit for partition and not in this present suit. Even, if the Revision Petitioners are entitled to any share in the suit property regarding which there was an Agreement of Exchange the Revision Petitioners cannot seek to implead themselves as parties in the suit. The document in question is not an ordinary Agreement of Sale; but, on the otherhand, it is an Agreement of Exchange, which is said to have been arrived at between the parties for the beneficial enjoyment of both the parties. If the Revision Petitioners are impleaded as parties in this suit, the subject matter and the issues involved would be complicated in going into the question, whether the Agreement of Exchange was not in the interest of the family and such other relevant aspects. Those issues would complicate the simple issues involved in O.S.No. 77 of 1996, namely – i) The genuineness of Agreement of Exchange and ii) whether the Plaintiff was ready and willing to perform his part of contract to get the Exchange Deed executed and such other aspects. 9. The incidental interest of the Revision Petitioners in the litigation cannot be held to be the true test to implead them. The necessary parties are those, who ought to have been joined and without whom no order can be passed effectively as their presence is necessary for the constitution of the suit itself. Without that party no effective decree could be passed. Proper party is one, without whom no effective order can be made, whose presence is necessary for a complete and final adjudication of the dispute. For determining the question, who is a necessary party, there are two tests:- i.There must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and ii.it should not be possible to pass an effective decree in the absence of such party. In the facts and circumstances of the case, it cannot be said that no effective decree could be passed without impleading the Revision Petitioners. As noted earlier, the presence of the Revision Petitioners would only complicate the issues involved. In the facts and circumstances of the case, it cannot be said that no effective decree could be passed without impleading the Revision Petitioners. As noted earlier, the presence of the Revision Petitioners would only complicate the issues involved. The Plaintiff is the Dominus Litus and he has the choice to implead those persons. The Plaintiff cannot be compelled to implead all the sons and daughters of the Defendants 1 and 2. Considering the facts and circumstances of the case, the learned District Munsif, has rightly declined to implead the Revision Petitioners as Defendants 7 and 8. 10. This Revision is filed under Article 227 of the Constitution of India. Article 227 of the Constitution of India can be invoked only when there is erroneous assumption of jurisdiction or excess of jurisdiction or where there is gross dereliction of duty and that the finding is based on no material. The impugned order does not suffer from any such material irregularity warranting interference invoking the power under Article 227 of the Constitution of India. This Revision has no merits and is bound to fail. 11. For the foregoing reasons, the order made in I.A.No. 229 of 2002 in O.S.No. 77 of 1996, dated 28-08-2003 by the learned District Munsif, Gobi, is confirmed and this Revision Petition is dismissed. Consequently, the connected C.M.P.No. 18144 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs.