Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4748 (MAD)

E. Rajalakshmi, Chennai v. J. Girija, Chennai

2012-11-21

VINOD K.SHARMA

body2012
Judgment : VINOD K. SHARMA, J. 1. A.No.5123 of 2009 has been filed by the applicant/plaintiff for amendment of the plaint in C.S.No.962 of 2008 to incorporate the subsequent events of demolition and reconstruction and sale of property in favour of third parties. 2. A.No.5124 of 2009 has been moved by the applicant/plaintiff under Order I Rule 10 (2) r/w 151 of Code of Civil Procedure, for impleading the proposed respondent nos. 10 to 13, being subsequent purchasers, as parties to the suit. 3. The applicant/plaintiff filed a suit for declaration to challenge the release deed executed by defendant no.1 in favour of defendant no.6, with consequential relief of permanent injunction, restraining respondent no.6 from in anyway alienating or creating any encumbrance on the property, acquired under the challenged release deed. 4. It is the case of the applicant/plaintiff, that during the pendency of the suit, defendant no.6 transferred the property in favour of the proposed defendants 10 to 13. 5. It is contended by the learned counsel for the plaintiff / applicant that subsequent events are necessary to be pleaded for just and proper adjudication of the case, and that it is in the interest of justice, that the applicant / plaintiff be allowed to amend the suit to incorporate the subsequent events to challenge further transfer and sale of property in favour of the proposed defendant nos.10 to 13. 6. A.No.5124 of 2009 has been moved for impleading the proposed defendants 10 to 13 as parties to the suit, being necessary parties, as the interest has been created in their favour in the suit property. 7. Both the applications are opposed by the learned counsel appearing on behalf of the proposed defendants 10 to 13, by vehemently contending that defendants 10 to 13 have purchased ‘B’ Schedule property, which is not the subject matter of the release deed, therefore, the applicant / plaintiff has no claim over the suit property. 8. It is also the contention of the learned counsel for the proposed defendants, that the suit as framed is not competent, as the applicant / plaintiff is the daughter of defendant no.1, who is still alive, therefore, the applicant / plaintiff cannot claim any right in the property during the life time of defendant no.1. 9. 8. It is also the contention of the learned counsel for the proposed defendants, that the suit as framed is not competent, as the applicant / plaintiff is the daughter of defendant no.1, who is still alive, therefore, the applicant / plaintiff cannot claim any right in the property during the life time of defendant no.1. 9. Learned counsel for the 6th defendant has also opposed these applications by contending, that the applications are barred, as it is not open to applicant / plaintiff to maintain two parallel remedies, as he has already filed a suit to challenge the subsequent transfer in favour of defendant nos.10 to 13. 10. On consideration, I find that these applications deserve to succeed. Admittedly, the facts sought to be pleaded now are subsequent events, which are necessary for the just and proper adjudication of the case. 11. The contention of the learned counsel for the proposed defendants 10 to 13, that the applicant has no right during the life time of defendant no.1 cannot be accepted, as the applicant / plaintiff has challenged the release deed, which already stands executed, therefore cause of action has accrued to defendant no.1 to challenge the release deed in favour of defendant no.6. 12. It is not disputed, that the suit property has not been partitioned, therefore, the defense of the defendants that ‘B’ schedule property is not a subject matter of suit, cannot be the ground to reject the application, as co-sharer has the right over every inch of the property subject to share before it is partitioned. The applicant/plaintiff, therefore, has right in the suit property, if established in law. 13. It is now well settled, that law for amendment is very liberal and all pleadings, which are necessary for the proper and final adjudication are to be allowed. 14. Consequently, keeping in view that the facts sought to be pleaded, are subsequent events and are necessary for the just and proper adjudication of the case, A.No.5123 of 2009 for amendment is allowed. 15. 14. Consequently, keeping in view that the facts sought to be pleaded, are subsequent events and are necessary for the just and proper adjudication of the case, A.No.5123 of 2009 for amendment is allowed. 15. The contention of the learned counsel for the proposed defendants 10 to 13, that the rights of the applicant/plaintiff is protected under lis pendens and that the proposed defendants 10 to 13 are not necessary parties to the suit, cannot be accepted, as admittedly in the event of success of the suit, the property will have to be partitioned, which will affect the rights of the proposed defendants 10 to 13, even if taken to be not necessary or proper parties, therefore, A.No.5124 of 2009 is allowed. The plaintiff / applicant shall carry out necessary amendment within two weeks of the date of receipt of a copy of this order.