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2019 DIGILAW 462 (HP)

Pronoti Singh v. P. Southby Tailyour

2019-04-24

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition filed under Article 227 of the Constitution of India, petitioner/plaintiff assails order dated 13.03.2015, passed by the Court of learned Civil Judge (Junior Division), Court No. V, Shimla, H.P. in RBT No. 19-1 of 14/95 V, titled as Smt. Pronoti Singh and another Vs. Mrs. P. Southby Tailyour and others, vide which, an application filed under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure by respondent No. 4 for being impleaded as defendant' in the suit, stood allowed. 2. Brief facts necessary for the adjudication of the present petition are that present petitioner Smt. Pronoti Singh and Ratanjit Singh (since dead, whose name has been deleted vide order dated 22.11.2018 from the array of petitioners) instituted a suit, i.e., Civil Suit No. 250 of 1995, RBT No. 19-1 of 14/95, titled as Smt. Pronoti Singh and another Vs. Mrs. P. Southby Tailyour, which is pending adjudication before the learned Trial Court praying for the following reliefs: "(a) Pass a decree of declaration in favour of the plaintiff No. 1 against the defendants to the effect that plaintiff No. 1 is the sole beneficiary, as owner of the whole of the corpus and income of the Estate of Lady Constance Ker Trust, in view of the wills and codicils of Lady Constance Ker and late Mrs. Montagu; and also pass a decree to the effect that the appointment of defendant No. 1, as a trustee is void ab initio and illegal, and that she is not entitled to act as a trustee, or to deal with the trust properties in any manner what so ever. (b) Issue a mandatory injunction in favour of plaintiff No. 1 and against the defendants directing them to hand over the complete estate including corpus and income of Lady Constance Ker Trust and her residual estate to the plaintiffs and to act in respect thereof strictly in consultation with plaintiff No. 1. (b) Issue a mandatory injunction in favour of plaintiff No. 1 and against the defendants directing them to hand over the complete estate including corpus and income of Lady Constance Ker Trust and her residual estate to the plaintiffs and to act in respect thereof strictly in consultation with plaintiff No. 1. The defendants 4 and 5 further need to be directed to place before this Hon'ble Court the complete list of assets as well as the corpus and income of the Lady Constance Ker Trust and any estate held by them on behalf of the trust; the other defendants also need to be directed to give details and particulars of any such corpus or income that they may have in their possession or which is known to them. (c) To allow such other relief as may be deemed just and proper in favour of the plaintiffs and against the defendants in the peculiar facts and circumstances of the present case. (d) Allow costs of the suit in favour of the plaintiffs and against the defendants." 3. Respondents No. 1 to 3 before this Court are original defendants in the said suit. The suit was filed in the year 1995. 4. In the year 2014, respondent No. 4 herein, filed an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure before the learned Court below with the prayer that the applicant be impleaded as a party in the suit and be heard. This application was filed before the learned Trial Court on 24.03.2014. 5. It was averred in the same that the applicant Dalhousie Holdings Limited was Administrator to the estate of Lieutenant Colonel William Hall Nixon Kerr and Letters of Administration of the entire estate of Lieutenant Colonel William Hall Nixon Kerr were obtained by the applicant in 217 of 1957 from the High Court at Calcutta. It was further averred in the application that without specifically dealing with other assets of Lady Constance Kerr and Smt. P. Southby Tailyour, the applicant understands that shares, securities and lodgements with ANZ Grindlays vest upon the estate of Lieutenant Colonel William Hall Nixon Kerr. It was further averred in the application that without specifically dealing with other assets of Lady Constance Kerr and Smt. P. Southby Tailyour, the applicant understands that shares, securities and lodgements with ANZ Grindlays vest upon the estate of Lieutenant Colonel William Hall Nixon Kerr. Recently, in the course of administration of the estate of Lieutenant Colonel William Hall Nixon Kerr, applicant vide letter dated 8th July, 2013 wrote to Standard Chartered Bank seeking details and release of the accounts and securities held in the name of Lady Constance Kerr Trust Account and the Bank vide letter dated 4th October, 2013 informed the applicant about the pendency of a suit at Shimla under the title Parnoti Singh Vs. P. Southby Tailyour. According to the applicant, Bank due to pendency of the suit and to maintain customer confidentiality, declined to part with the information. It was further mentioned in the application that inquiries made from the Court of learned Additional District Judge (Fast Track) revealed that the matter was pending and after collecting relevant record, the applicant was filing the application to implead it as a defendant in the Court as it was a necessary party, whose presence was must for proper adjudication of the case. It was further mentioned in the application that one Sir Arthur Milford Ker was owner of several properties in India. He made a Will dated 12.12.1914 appointing his wife Lady Constance Kerr, George Darling Kerr and Williams James Litster as executors of his estate and to be trustees thereby. After making various bequests and bequeathing certain pecuniary legacies, he bequeathed the residue of his estate to his trustees upon trust to pay of the income of his residuary trust fund to his wife Lady Constance Kerr during her life and remainder of his residuary fund to his brother George Darling Kerr and thereafter to Mr. Kerr (then infant). Lady Constance Kerr died on 23.01.1928 and Mr. George Darling Kerr pre-deceased her, as he passed away on 11.02.1920. After their deaths, the properties of estate of Arthur Milford Ker, which were held in the name of trustees, were wrongfully included in the estate of Lady Constance Kerr and the same were wrongfully dealt with in terms of the Will and Codicils of Lady Constance Kerr. George Darling Kerr pre-deceased her, as he passed away on 11.02.1920. After their deaths, the properties of estate of Arthur Milford Ker, which were held in the name of trustees, were wrongfully included in the estate of Lady Constance Kerr and the same were wrongfully dealt with in terms of the Will and Codicils of Lady Constance Kerr. As per the applicant, said properties could not form part of the estate of Lady Constance Kerr as she had only life interest in the same and upon her death, these properties rightfully accrued to Lieutenant Colonel William Hall Nixon Kerr. As per the applicant, after attaining the age of majority of Lieutenant Colonel William Hall Nixon Kerr, said discrepancies were brought to the notice of trustees to the estate Lady Constance Kerr, who not only acknowledged him to be sole beneficiary of the estate of Sir Arthur Milford Ker, but also acknowledged him as a claimant and creditor to the estate of Lady Constance Kerr. This, as per the applicant, was reduced in the terms of settlement vide decree dated 26.02.1930 filed in the High Court Calcutta as also Deed of Compromise of claims executed in United Kingdom on 12th May, 1947. The properties, subject matter of the suit, after the death of lady Constance Kerr, stood passed on to Lieutenant Colonel William Hall Nixon Kerr. Application for impleadment as party was thus being moved by applicant Dalhousie Holdings Limited, being the Administrator to the estate of Lieutenant Colonel William Hall Nixon Kerr, who was entitled to the properties belonging to and owned by Arthur Milford Ker, which had been wrongfully dealt with by Lady Constance Kerr herself and after her death by her trustees. Further, as per the applicant, the proceedings in the Court to the extent relating to shares and securities lying with Standard Chartered Bank, Kolkata to Lieutenant Colonel William Hall Nixon Kerr could not proceed in view of the order in 217 of 1957 appointing Dalhousie Holdings Limited as Administrator to the estate of Lieutenant Colonel William Hall Nixon Kerr. In this background, prayer was made that the applicant be impleaded as a party in the suit and be heard in accordance with law. 6. In this background, prayer was made that the applicant be impleaded as a party in the suit and be heard in accordance with law. 6. The application was opposed by the non-applicant/plaintiff inter alia on the ground that it was not demonstrated as to how Lieutenant Colonel William Hall Nixon Kerr had any relation with Lady Constance Kerr and how Lieutenant Colonel William Hall Nixon Kerr had succeeded to the property of Lady Constance Kerr. It was mentioned in the reply that it was not shown by the applicant that on what basis Lieutenant Colonel William Hall Nixon Kerr claimed title to the shares etc. of Lady Constance Kerr. According to the non-applicant, a false story stood concocted and in fact applicant had no right to be impleaded as a party in the suit. It was denied in the reply that properties belonging and owned by Arthur Milford Ker amongst others were wrongfully dealt with by Lady Constance Kerr herself or by her trustees. It was denied that applicant was a necessary party in any manner. It was denied for want of knowledge that Sir Arthur Milford Ker was owner of several properties in India. It was also denied that Arthur Milford Ker had made a Will dated 12.12.1914 appointing his wife Lady Constance Kerr, George Darling Kerr and Williams James Lister as executors of his Estate and to be trustees thereby. It was denied that the properties of Estate of Arthur Milford Ker were held in the name of trustees and were wrongfully included in the Estate of Lady Constance Kerr. Non-applicant also denied that said properties were dealt with in terms of the Will and Codicils of Lady Constance Kerr. It was specifically denied that Lady Constance Kerr had only life interest in the said properties and upon her death, titled and interest accrued to Lieutenant Colonel William Hall Nixon Kerr. It was stated in the reply that no succession table was given to substantiate as to how and in what manner Lieutenant Colonel William Hall Nixon Kerr succeeded to the properties of Lady Constance Kerr. Non-applicant also denied that shares in various companies stood established as part of the Estate of Sir Arthur Milford Ker and they had actually accrued to Lieutenant Colonel William Hall Nixon Kerr. 7. Vide impugned order, the application filed by respondent No. 4 for impleadment as defendant in the suit stood allowed. Non-applicant also denied that shares in various companies stood established as part of the Estate of Sir Arthur Milford Ker and they had actually accrued to Lieutenant Colonel William Hall Nixon Kerr. 7. Vide impugned order, the application filed by respondent No. 4 for impleadment as defendant in the suit stood allowed. Learned Court below after taking into consideration the respective contentions of the parties, allowed the application by returning the following findings: ".The applicant is claiming to be the beneficiary of the estate of Lady Constance Ker and further received the information from the Standard Chartered Bank on 4th October, 2013. It is stated that Lady Constance Ker had only life interest in the property and upon her death authorities rightly accrued to Lieutenant Colonel William Hall Nixon Kerr. However, wrongly after the death of Lady Constance Ker, George Darling Ker and Williams James Litster, the properties were wrongly included in the estate of Lady Constance. However, upon attaining the majority of Lieutenant Colonel William brought the above discrepancies and the disputes to the notices of the trustees to the estate of Lady Constance Kerr, however, they acknowledged him to the sole beneficiary to the estate. In the present case, the applicant appears to be a necessary party in the present case since the case has been filed on behalf of the plaintiff for administrator of the estate of Lady Constance Ker and all the claims to the estate are necessary party in order to decide the dispute between the parties finally and put it at rest. Moreover, it will also reduce the multiplicity of litigation between the parties. Accordingly, the applicant in order to make his claim has also filed the terms of settlement vide decree dated 26.02.1930 and deed of compromise of claims executed in United Kingdom on 12th May, 1947. Accordingly, all these documents shows that the applicant appears to be necessary party in the present case and no order can be passed by this Court in absence of such, application is allowed." 8. I have heard learned counsel for the parties and have also gone through the impugned order as well as the record of the case. 9. Accordingly, all these documents shows that the applicant appears to be necessary party in the present case and no order can be passed by this Court in absence of such, application is allowed." 8. I have heard learned counsel for the parties and have also gone through the impugned order as well as the record of the case. 9. At this stage, it is relevant to deal with a preliminary objection taken by learned counsel for respondent No. 4 with regard to the maintainability of the present petition on the ground that this petition filed under Article 227 of the Constitution of India against the impugned order is not maintainable. According to him, petitioner should have had assailed the impugned order under the provisions of Section 115 of the Code of Civil Procedure. He has relied upon the judgment of Hon'ble Supreme Court in Sameer Suresh Gupta through PA Holder Vs. Rahul Kumar Agarawal, (2013) 9 SCC 374 . 10. In my considered view, the preliminary objection raised by learned counsel for respondent No. 4 is not maintainable. Unlike the case before the Hon'ble Supreme Court in Sameer Suresh Gupta (supra), the petitioner herein has not assailed the order passed by the learned Trial Court under Article 226 read with Article 227 of the Constitution of India. He has assailed the same solely under Article 227 of the Constitution of India, thus, invoking supervisory jurisdiction of this Court. The petition cannot be thrown out on the ground that it ought to have been filed under Section 115 of the Code, for the reason that as per law laid down by the Hon'ble Supreme Court, which stands reiterated in Jogendrasinghji Vijaysinghji Vs. State of Gujarat and others, (2015) 9 SCC 1 , High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the Courts subordinae to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted, provided that in exercise of its power of superintendence, High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Courts subordinate to it, is a possible view. Thus, in my considered view, this petition is very much maintainable. Thus, in my considered view, this petition is very much maintainable. However, whether or not the impugned order can be interfered with in exercise of its power of superintendence under Article 227 of the Constitution of India, of course, will be dictated by the parameters laid down by the Hon'ble Supreme Court supra. 11. It is settled law that general rule qua impleadment of parties is that plaintiff being dominus litis, may choose persons against whom he wishes to litigate and plaintiff cannot be compelled to sue a person against whom he does not seek any relief. This general rule, mentioned hereinabove, is of course subject to the provisions of Order 1 Rule 10(2) of the Code. 12. Sub-Rule (2) of Order 1 Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code') provides that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 13. In Kasturi Vs. Iyyamperumal and others, (2005) 6 SCC 733 , a three Judge Bench of Hon'ble Supreme Court has held that two tests which are to be satisfied for determining the question as to who is necessary party are (i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (ii) no effective decree can be passed in the absence of such party. Hon'ble Supreme Court has also held that jurisdiction of the Court to add an applicant arises only when the Court finds that such applicant is either a necessary party or a proper party. It has also held that an application so filed, cannot be allowed for adjudication of collateral matters. 14. Hon'ble Supreme Court has also held that jurisdiction of the Court to add an applicant arises only when the Court finds that such applicant is either a necessary party or a proper party. It has also held that an application so filed, cannot be allowed for adjudication of collateral matters. 14. Coming to the facts of the present case, it is a matter of record that no relief has been sought by the plaintiff against respondent No. 4 in respect of the issues raised in the suit nor it can be said that no effective decree can be passed in the same, in the absence of respondent No. 4. The suit is primarily filed for a decree of declaration in favour of plaintiff No. 1 therein and against the original defendants impleaded in the suit to the effect that plaintiff No. 1 was the sole beneficiary as owner of whole of the corpus and income of the estate of Lady Constance Kerr trust in view of the Will and Codicils of Lady Constance Kerr and late Mrs. Montagu. Respondent No. 4 wanted its impleadment in the said suit on the ground that Lieutenant Colonel William Hall Nixon Kerr had succeeded to the estate of Sir Arthur Milford Ker, which stood wrongly included in the estate of Lady Constance Kerr and, therefore, applicant being the administrator of the estate of Lieutenant Colonel William Hall Nixon Kerr, was a necessary party to the suit. However, a perusal of the averments made in the application filed under Order 1 Rule 10 of the Code as also documents appended therewith, demonstrate that applicant has not been able to spell out as to how Lieutenant Colonel William Hall Nixon Kerr was related to Sir Arthur Milford Ker. Incidentally, in para 9 of the application, it is averred that the right of Lieutenant Colonel William Hall Nixon Kerr to succeed to the estate of Sir Arthur Milford Ker upon being brought to the notice of trustees to the estate of Lady Constance Ker, stood acknowledged to the effect that Lieutenant Colonel William Hall Nixon Kerr was the sole beneficiary to the estate of Sir Arthur Milford Ker. This, as per the applicant stood acknowledged in terms of settlement vide decree dated 26.02.1930 filed with the High Court of Calcutta, as also Deed of Compromise of Claim executed at United Kingdom on 12th May, 1947. This, as per the applicant stood acknowledged in terms of settlement vide decree dated 26.02.1930 filed with the High Court of Calcutta, as also Deed of Compromise of Claim executed at United Kingdom on 12th May, 1947. A perusal of the record demonstrates that alongwith the application filed under Order 1 Rule 10 of the Code, applicant filed certain documents, which includes Letter of Administration No. 217 of 1957, which reads as under: "Hereby maketh known that on the twenty first day of August in the year one thousand nine hundred and fifty seven Letters of Administration of the property and credits of Lieutenant Colonel William Hall Nixon Kerr late of the Bengal Club Ltd., 33, Chowringhee Calcutta deceased who as appears from the petition filed herein died at Elgin Nursing Home Calcutta on the sixth day of February in the year one thousand nine hundred and fifty seven were granted to Dalhousie Holdings Limited of 4D, Gasstin Place Calcutta the duly constituted attorneys in India of Sylvia Jackson and Shelagh Dorolley Foster who are at present residing beyond jurisdiction of this Court the daughters and two of the kin of the deceased with effect throughout the whole of the Union of India for the use and benefit of the said Sylvia Jackson and Shelagh Dorolley Foster shall obtain from this Court Letters of Administration they the said Dalhousie Holdings Limited having undertaken to administer the said property and credits and to make a ful and true inventory thereof and exhibit the same in this Court within six months from the date of this grant or within such further time as the Court may from time to time appoint and also to render to this Court a true account of the said property and credits within one year from the same date or within such further time as the Court may from time to time appoint. 15. Incidentally, during the course of arguments, learned counsel for respondent No. 4 could not spell out the present status of Sylvia Jackson and Shelagh Dorolley Foster, who stand mentioned in the Letter of Administration. This Letter of Administration was issued on 19th September, 1957 and as already mentioned above, the present status of Sylvia Jackson and Shelagh Dorolley Foster is not known. This Letter of Administration was issued on 19th September, 1957 and as already mentioned above, the present status of Sylvia Jackson and Shelagh Dorolley Foster is not known. Be that as it may, as per the applicant, the factum of Lieutenant Colonel William Hall Nixon Kerr, being the sole beneficiary of the estate of Sir Arthur Milford Ker is borne out from settlement decree dated 26.02.1930 and Deed of Compromise dated 12th May, 1947. There is no Deed of Compromise of Claims dated 12th May, 1947, but there is a Deed of Compromise of Claim dated 12th May, 1942, which was filed by the applicant alongwith the application and incidentally, in this document, there is no mention of Lieutenant Colonel William Hall Nixon Kerr. A perusal of the said document demonstrates that 'Mr. Ker' referred to in this deed is Major Johnne George Skipton Ker and not Lieutenant Colonel William Hall Nixon Kerr, as learned counsel for the respondent wants this Court to believe. During the course of arguments, learned counsel for respondent No. 4 could not point out any reference of Lieutenant Colonel William Hall Nixon Kerr in this particular document. As far as the second document referred to in para 9 of the application, i.e., Settlement decree dated 26.02.1930 is concerned, there is no such document filed alongwith the application. 16. During the course of arguments, on a query of the Court as to how as per the applicant, Lieutenant Colonel William Hall Nixon Kerr was related to Sir Arthur Milford Ker, answer of learned counsel for respondent No. 4 was that respondent No. 4 was not to answer the said query at the stage of filing of the application for being impleaded as defendant and once the applicant stood impleaded as defendant, then the same shall be spelt out in the written statement. In my considered view, said contention of respondent No. 4 is not sustainable in the eyes of law. When a party files an application for being impleaded as a defendant in the suit, it is incumbent upon the party to demonstrate as to what interest it has in the suit and unless the Court is satisfied that said party has an interest in the suit and no adjudication is possible in the absence of said party, no such party can be ordered to be impleaded as defendant. This extremely important aspect of the matter has not been appreciated by the learned Court below while allowing the application filed by the applicant for being impleaded as a party defendant. 17. I have already quoted the reasons given by the learned Court below in extensio while allowing the application. In my considered view, the application stood allowed by the Court below in a mechanical manner without appreciating either the contents of the application filed under Order 1 Rule 10 of the Code as also documents appended therewith or the averments made in the reply to the application or for that matter, the contents of the suit filed by the petitioner. 18. As proposed defendant was claiming that Lieutenant Colonel William Hall Nixon Kerr was successor to the estate of Lady Constance Kerr, it was incumbent upon the proposed defendant to have had established through the application and documents appended therewith the factum of Lieutenant Colonel William Hall Nixon Kerr being related to Sir Arthur Milford Ker and his having succeeded to the estate of Lady Constance Ker. This, the proposed defendant miserably failed to do. In such circumstances, when the proposed defendant had failed to prove that Lieutenant Colonel William Hall Nixon Kerr had any interest in the suit property, Administrator of whose estate the proposed defendant claimed itself to be, prayer of applicant could not have been allowed for being impleaded as party defendant. This extremely important aspect of the matter has been ignored by the learned Court below and, therefore, there is a patent perversity in the order impugned, which has resulted in a gross and manifest failure of justice. Present case is not a case of mere errors of law or fact, but as I have already mentioned above, it is a case of patent perversity in the order passed by the learned Court below, which has erred in not appreciating the scope of Order 1 Rule 10(2) of the Code in its true mandate. 19. In view of the reasons given hereinabove, this petition is allowed. Order dated 13.03.2015, vide which, an application filed under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure by respondent No. 4 for being impleaded as defendant in the suit stood allowed, is quashed and set aside. Parties through counsel are directed to appear before the learned Court below on 6th May, 2019. Order dated 13.03.2015, vide which, an application filed under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure by respondent No. 4 for being impleaded as defendant in the suit stood allowed, is quashed and set aside. Parties through counsel are directed to appear before the learned Court below on 6th May, 2019. Miscellaneous applications, if any, also stand disposed of.