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2013 DIGILAW 444 (KAR)

Nagananda v. Gowramma dead by LRs

2013-04-03

A.N.VENUGOPALA GOWDA

body2013
ORDER A.N. Venugopala Gowda, J. An I.A. filed by the petitioners under Order 1, Rule 10(2) CPC seeking permission of the Court to implead them as parties to FDP No.3/1982 pending in the Court of Principal Sr. Civil Judge and CJM, Mysore, having been dismissed on 17.9.2012, the unsuccessful applicants have filed this writ petition. 2. Undisputed facts of the case are: That Smt. Gowramma instituted O.S.No.73/1969 against Sri T.G. Harinath and others to pass a decree for partition and separate possession of the suit properties, which included premises bearing door No.1770, Upadhyaya Building, Sayyaji Rao Road, Mysore. Mr. T.S.L. Upadhyaya was defendant No.10. The suit was decreed on 30.6.1980 and Mr. T.S.L. Upadhyaya was held entitled to 2/11th share in the joint family properties. FDP No.3/1982 was filed to draw the final decree as per the said preliminary decree and to hand over possession of the first item of suit property, i.e., premises situated at Sayyaji Rao Road, Mysore. 3. The petitioners and Mr. T.S.L. Upadhyaya, the 10th defendant in the suit, entered into a partnership on 28.10.1988 to carryon business of partnership firm of 'Sri Maruthi Matching Center' at Door No.1770, Upadhyaya Building, Sayyaji Rao Road, Mysore, wherein Mr. T.S.L. Upadhyaya was running Agarbatti business. According to the petitioners, Mr. T.S.L. Upadhyaya put his place of business as capital contribution and the petitioners put their skill and expertise as capital for the partnership business. The said partnership was reconstituted on 20.5.1992. In view of the death of Mr. T.S.L. Upadhyaya, the said partnership firm was again reconstituted on 29.8.2012. 4. Petitioners filed an application on 6.9.2012 under Order 1, Rule 10(2) CPC, for grant of permission for getting themselves impleaded as additional respondents in FDP No.3/1982. Application was opposed by the parties to the said case, including the L.Rs., of 10th defendant Mr. T.S.L. Upadhyaya, by filing separate statement of objections. 4. Petitioners filed an application on 6.9.2012 under Order 1, Rule 10(2) CPC, for grant of permission for getting themselves impleaded as additional respondents in FDP No.3/1982. Application was opposed by the parties to the said case, including the L.Rs., of 10th defendant Mr. T.S.L. Upadhyaya, by filing separate statement of objections. Learned Trial Judge having considered the case and finding that the suit was of the year 1969 and the FDP is of the year 1982 and the alleged partnership having come 'into existence on 28.10.1988, the property which was the subject matter of dispute could not be contributed by 10th defendant to the alleged partnership firm, since 10th defendant himself did not had a specific share over the said item of the property as there was no demarcated and allocated share to the 10th defendant, held that, if at all the applicants have any right as claimed by them, they should proceed against the 10th defendant, but not in the Final Decree Proceedings. Consequently, the application was dismissed on 17.9.2012. 5. Sri Sandesh Shetty T., learned Advocate contended that in view of contribution of an item of the suit property by the 10th defendant Mr. T.S.L. Upadhyaya to the partnership business to offer effective opportunity and to decide all the questions which arise for consideration in the case and to avoid multiplicity of proceedings, the Trial Judge ought to have allowed the application. He submitted that there is material irregularity and the impugned order is illegal. 6. Perused the record. The point for consideration is, whether the Trial Court is justified in dismissing the application filed by the petitioners for their impleading in the Final Decree Proceedings? 7. Even according to the petitioners, they entered into the partnership with Mr. T.S.L. Upadhyaya on 28.10.1988. That a preliminary decree in respect of the item of the property which Mr. T.S.L. Upadhyaya allegedly contributed to the partnership business, was passed on 30.6.1980 and the FDP was initiated in the year 1982. Indisputably, Mr. T.S.L. Upadhyaya did not seek leave of the Court as required under S.52 of the Transfer of Property Act, since after passing of the preliminary decree on 30.6.1980 and during pendency of the FDP, the alleged partnership business with the petitioners in an item of suit property came into existence on 28.10.1988. Indisputably, Mr. T.S.L. Upadhyaya did not seek leave of the Court as required under S.52 of the Transfer of Property Act, since after passing of the preliminary decree on 30.6.1980 and during pendency of the FDP, the alleged partnership business with the petitioners in an item of suit property came into existence on 28.10.1988. Petitioners who fall within the meaning of transferee/s pendente lite, without leave of the Court, cannot as a matter of right, seek impleadment as parties in the Final Decree Proceedings. 8. In this case, the Trial Court has assigned reasons for rejecting the plea of joinder of the petitioners stating that the preliminary decree was passed on 30.6.1980 and FDP was initiated in the year 1982 and that the alleged partnership came into being long thereafter. The alleged action of the 10th defendant in entering into partnership with the petitioners on 28.10.1988 does not appear to be bona fide since leave of the Court was not sought as the premises wherein he was carrying on business which was allegedly contributed towards partnership business was an item of suit property in respect of which the preliminary decree was passed in O.S.No.73/1969 on 30.6.1980 and in pursuance thereof FDP No.3/1982 was filed. Further, the partnership which came into existence on 28.10.1988 was reconstituted on 20.5.1992 to be effective from 1.4.2002 and there is no contribution of the premises/place of business by Mr. T.S.L. Upadhyaya as his share capital. The relevant portion of the reconstituted partnership deed dated 20.5.1992 reads as follows: "6. CAPITAL: The Capital contribution of the partners shall be the amount standing to their credit in their capital account as on 31.03.1992. The partners may also bring in additional capital whenever required for the purpose of business. 7. INTEREST ON CAPITAL:- The firm may pay Simple interest at the rate of 18% of the Capital Contribution of the partners calculated on product basis on Credit balance of such capital accounts from time to time. The aforesaid interest may either be paid or credited to their respective capital account at the end of the year and such interest shall be the common expenditure of the firm and may be revised by mutual consent of the partners from time to time. For the current year the interest shall be calculated from 01.04. 1992. 8. The aforesaid interest may either be paid or credited to their respective capital account at the end of the year and such interest shall be the common expenditure of the firm and may be revised by mutual consent of the partners from time to time. For the current year the interest shall be calculated from 01.04. 1992. 8. PROFITILOSS SHARING RATIO :- The Profit and Loss of the business shall be divided among the partners under the following ratio - FIRST PARTY: 33.33 SECOND PARTY: 33.33 THIRD PARTY: 33.33" 9. In the case of Sarvinder Singh Vs. Dalip Singh and others, (1996) 5 SCC 539 , in similar circumstances, after referring to and quoting S.52 of the Transfer of Property Act, Apex Court has held as follows: "6. xxxxx It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit." 10. In view of the factual matrix noticed supra and the above statement of law by the Apex Court, in my opinion, the Trial Court is justified in dismissing the application for impleading of the petitioners as a party to the FDP. There is neither any misdirection much less any material irregularity on the part of the learned Trial Judge in the matter of consideration and also in passing the impugned order. For the foregoing, the writ petition being devoid of merit is rejected.