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2017 DIGILAW 414 (ALL)

Snehlata Mishra v. Deep Raj Shukla

2017-02-03

ATTAU RAHMAN MASOODI

body2017
JUDGMENT Attau Rahman Masoodi, J. -- Heard learned counsel for the revisionists. 2. Since both the aforementioned revisions involving a similar question were heard together, therefore, the same are decided by a common order. 3. These two revisions filed under Section 25 of Provincial Small Causes Court Act, 1887 (hereinafter referred to as the Act) against separate orders of the same date i.e. 27.4.2016 rejecting the application moved by the revisionist under Order 1 Rule 10 (2) of Code of Civil Procedure (CPC) in SCC Suits question the legality of the impugned orders passed by the court below. The rejection of applications filed by the revisionist proceeds on the finding that the revisionist though being a legally wedded wife of the transferor who has transferred the disputed property in favour of opposite party no. 1 (plaintiff), is neither necessary nor proper party in the suit which has been filed on the basis of landlord-tenant relationship between the opposite party no. 1-landlord (plaintiff) and opposite party no. 2-tenant (defendant), hence the application is non-maintainable. 4. It is admitted to opposite party no. 1 (plaintiff) that the revisionist is a legally wedded wife of Sri Rajendra Kumar Misra from whom the property in question has been purchased under a sale deed dated 28.11.2015 for a sum of Rs. 25 lakhs. The sale deed executed by husband of the revisionist in favour of opposite party no. 1 clearly recites the premises being occupied by his wife i.e. revisionist and two tenants on the ground and second floor. It is also mentioned in the sale deed that the existing tenants have paid rent to the owner up to the date of sale deed whereafter the rent would be payable to the transferee i.e. opposite party no. 1 who is plaintiff in the suit before the court below but full description as regards the creation of tenancy and receipt of rent were not disclosed. 5. The occupation of the disputed house by the revisionist and two tenants was a well known fact to the opposite party no. 1 at the time of transfer, yet by exercising his right of ownership-landlord, the tenancy rights of the tenants were terminated under a notice non-compliance whereof has given rise to the suit for eviction, arrears of rent and damages for occupation. 1 at the time of transfer, yet by exercising his right of ownership-landlord, the tenancy rights of the tenants were terminated under a notice non-compliance whereof has given rise to the suit for eviction, arrears of rent and damages for occupation. Although the suit is proceeding against the tenants but an application under Order X Rule 1 (2) CPC was filed by the revisionist asserting her rights of being a deserted wife and claim over the property in dispute in the nature of maintenance out of rent proceeds treating it to be a charge on the property belonging to her husband and being partly in her possession is attempted to be laid. In the cirumstances disclosed above, the revisionist filed an application before the court below seeking her impleadment in the said proceedings. 6. The application filed by the revisionist was strongly opposed by the opposite party (plaintiff) on the ground that a deserted wife on the strength of her rights of maintenance which is a personal obligation of the husband, cannot be treated to be a person aggrieved against the alienated property of her husband, as such, she not being a necessary or proper party to the proceedings, may not be allowed to be impleaded as defendant in the suit. 7. Looking to the rival contentions of the parties and the categorical stand of the revisionist that the property in dispute was purchased with due knowledge of she being partly in occupation of the house, as a deserted wife of Sri Rajendra Kumar Misra, has a right to oppose the suit, so that, termination of tenancy which certainly goes to cause a financial loss, may stand effectively defended. It is true that the obligations of maintenance of a married Hindu woman by virtue of Section 18 (1) and (2) of Hindu Adoption and Maintenance Act rest on the husband and this obligation, as per the statute is personal and subsists during the lifetime of wife. The obligation though being personal has not to be understood in isolation but is to be viewed in the background of the financial status of the husband, therefore, charge upon the employment and property belonging to the husband would only serve the purpose of statute. The personal obligation understood in any other manner would not serve the purpose of beneficial legislation conferring rights on married women. The personal obligation understood in any other manner would not serve the purpose of beneficial legislation conferring rights on married women. The Courts while examining this aspect of the matter must bear in mind the provisions of Section 14 of the Hindu Succession Act which lays emphasis on the property possessed by a married Hindu female. 8. The explanation appended to Section 14 (1) further shows that possession in lieu of maintenance or arrears of maintenance is a valuable property right envisaged under the Statute. Transfer of Property Act, 1882 by virtue of Section 39 provides as under: "39. Transfer where third person is entitled to maintenance.--Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands." 9. A plain reading of Section 39 would clearly demonstrate that where a wife has a right to receive maintenance from the profits of immovable property and such property is transferred, the right may be enforced against the transferee, provided the transferee has a notice of the existing rights of the wife. In the present case, the sale deed itself is clear of the existing rights and status of the property yet the transferee stepped into the sale transaction in respect of the property which is subject to a statutory charge and to this extent, the grievance of the revisionist cannot be overlooked, therefore, the revisionist cannot be prevented from being heard in the proceedings of SCC suit. 10. In the present case, a suit for injunction filed in the year 2013 i.e. R.S. No. 340 of 2013 was already pending between the revisionist and the transferor (husband). Moreover, the possession of revisionist over a portion of the property coupled with creation of tenancy in respect of two portions i.e. ground floor and second floor is alleged to be a subsisting right. The alleged sale deed in favour of opposite party no. Moreover, the possession of revisionist over a portion of the property coupled with creation of tenancy in respect of two portions i.e. ground floor and second floor is alleged to be a subsisting right. The alleged sale deed in favour of opposite party no. 1 is a deed under Section 53-A of the Transfer of Property Act, inasmuch as the entire sale consideration of the disputed property has yet not been paid, therefore, the rights embodied under Section-39 of the Transfer of Property Act have to be viewed within widest scope of benefit available to a married Hindu woman. 11. In the totality of circumstances, even if there is no decree of any court creating a charge upon the disputed property but the possession and receipt of rent by the revisionist, as alleged, is an interest that would entitle her to be a party for being heard within the scope of Order I Rule 10 (2) CPC. As held by the apex court in the case of Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar AIR 1963 SC 786 , there is a distinction between "necessary party" and proper party". In that case, the Court observed as under: "The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding." 12. Looking to the nature of the statutory rights of the revisionist, it cannot be said that she does not have any interest in the property for at least being a proper party to the proceedings. The finding recorded by the lower court that the revisionist is neither a necessary nor proper party to the suit, in my considered opinion, is erroneous and deserves to be interfered with in exercise of jurisdiction of this Court under Section 25 of the Provincial Small Causes Courts Act, 1887. The case laws cited by the opposite party on the subject of necessary party are thus of no help. 13. The impugned order is accordingly set aside and the applications filed by the revisionist under Order 1 Rule 10 (2) CPC deserve to be allowed in the interest of justice. 14. The case laws cited by the opposite party on the subject of necessary party are thus of no help. 13. The impugned order is accordingly set aside and the applications filed by the revisionist under Order 1 Rule 10 (2) CPC deserve to be allowed in the interest of justice. 14. The Court below shall afford reasonable opportunity to the revisionist in the suit proceedings which itself may be decided expeditiously in accordance with law. In case it is found that the suit proceedings, on the strength of any existing proceedings being pending, or the questions involved in the SCC suit seeming intricate questions of facts dependent upon recording of evidence on some issues involve, cannot proceed in a summary manner, necessary orders are open to be passed by the court below in accordance with law. 15. The revisions are accordingly allowed with no order as to cost.