AI Structured Summary
Not yet generated for this judgment
Judgment
Prabha Sridevan, J.—These Civil Revision Petitions are against the dismissal of the application filed under Order 26, Rule 13 read with
Sections 146and 151 C.P.C. The petitioners who came forward with the aforesaid petition have filed C.R.P.No.1263 of 2000 and sixth
respondent in the said application has filed the other C.R.P. No. 1299 of 2000. Since the issue in both the C.R.Ps. are with regard to the rights of
the petitioners in C.R.P. No.1263 of 2000 to maintain the petition, I will deal with that C.R.P. and the reference to the parties in this order will be
based on C.R.P. No. 1263 of 2000.
The background against which this C.R.P. arises is this:
The first respondent here in filed O.S.No.4486 of 1983 for partition and separate possession of his 1/5 the share in the suit property against one
Pattammal, the first defendant ( the respondents 6 to 8 herein are her L.Rs) and the respondents 2, 3, 4 and 5 herein.
The said Pattammal, and second, third and fourth respondents herein had entered into an agreement with the fifth respondent on 5.6.1982
agreeing to sell items 3 to 5 of the plaint schedule ( hereinafter referred to as the properties) and a sum of Rs.20,000/- was received as part
payment and the fifth respondent had also taken possession of the properties. The fifth, respondent herein, only an agreement holder, from the
sharers mentioned above, was arrayed as the fifth defendant The agreement was signed by the four persons mentioned above, and though the first
respondent herein, the plaintiff was shown in the recital of the agreement, he did not sign and execute the agreement. A preliminary Decree was
passed on 17.12.1986, where in it was held that the fifth respondent could seek equity at the time when properties were allotted.
Against this preliminary decree, the first respondent viz., the plaintiff did not file any appeal but the deceased first defendant and the 3rd and 4th
respondents alone filed the appeal. The first Appellate Judge held that there was some basis for holding that there was part performance of the
agreement in favour of fifth respondent and the plaintiff viz., the first respondent here in, who had not filed any appeal against the preliminary decree
could not object to this, nor could the third respondent here in who had confirmed The agreement in the written statement. The first Appellate
Judge dismissed the appeal saying that it was open to the fifth respondent here in to pray that the properties sold to him could be allotted in equity
to the defendants 1 to 4. Against that, Second Appeal No.363 of 1991 appears to have been filed, which was dismissed in liming.
The Petitioners here in purport to have entered into an agreement on 25.5.1995 with the fifth respondent. He had assigned his right under the
agreement of sale dated 5.6.1982. According to the petitioners, right from 1995, they had been in possession of the properties to the knowledge
of the respondents. They have filed the present application for appointment of Commissioner to divide the properties by metes and bounds and the
same was dismissed by the learned IV Assistant City Civil Judge on the ground that it is not maintainable.
Mr. N.S. Varudachari, learned counsel for the petitioners vehemently argued that the lower court grievously erred in dismissing his application
for appointment of Commissioner. The learned counsel referred to Sec.146 C.P.C., which enables a person to initiate proceedings or make an
application, if the person under whom he claims, could have initiated such proceedings or make such application. According to the counsel, this
would avoid multiplicity of proceedings and the person claiming under the party, who could have filed the application need not be driven to
separate proceedings.
According to the learned counsel for the petitioners, their alienor viz., the fifth respondent herein was arrayed as defendant in the suit. He had
filed his written statement setting out his right to the properties under the agreement dated 5.6.1982. The written statement filed by the third
respondent herein was adopted by the first defendant, whose legal heirs are the respondents 6 to 8 herein and also the fourth respondent herein
who was the fourth defendant. The second and third respondents filed their separate written statements. The second respondent stated that the
agreement dated 5.6.1982 had expired on 14.12.1982, since time was the essence of the contract, on the contrary, the third respondent herein
referred to the sale agreement and would state that the first respondent herein is estopped from taking any stand contrary to the sale agreement.
Learned counsel submitted that whatever may be the stand taken by the separate defendants in the suit, ultimately a preliminary decree was
passed, in which, the fifth respondent herein was given the right to ask for equity against the defendants 1 to 4 at the time of passing of Final
Decree. This has also become final, having been confirmed by this court in Second Appeal, The first respondent who was the plaintiff in the said
suit, had not filed any appeal and had therefore allowed this finding to become final. Therefore, none of the parties herein could challenge the right
of the fifth respondent to ask for equity and according to the learned counsel, the fifth respondent has also been put in possession. The learned
counsel thereafter submitted that, in 1995, the petitioners had been put in possession pursuant to an agreement and this was to the knowledge of all
the parties to the suit. Though the preliminary decree was passed over a decade ago, none of the parties was interested in a division by metes and
bounds since it was their intention to frustrate the rights of the petitioners and their transferor. Therefore the petitioners had filed the present
application. According to him, there are several decisions in his support. He referred to the following decisions in support of his case;
Seth Bhabhootimal Seth Nathamal Oswal v Moolchand Munnalal Sagetia (A.I.R.1943 Nagpur 266).
Andalammal v Alamelu Ammal (A.I.R. 1962 Madras 378 = 75 L.W. 89).
Sakalaguna Naidu and another v Chinna Munuswami Nayakar (A.I.R. 1928 P.C. 174 = 28 L.W. 51)
Mrs. Saradambal Ammal Vs. E.R. Kandasamy Goundar and Others,
R. Gurubasavidh v Rumale Karibasappa & others (A.I.R. 1955 Mysore 6)
Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another,
Conugunta Subbarayadu v Eluri Brahmanandan & others (A.I.R. 1970 Andhra Pradesh, 211).
Mr. Ragunatha Reddy, learned counsel appearing for fifth respondent, while adopting the arguments of the learned counsel for the petitioner
would state that the fifth respondent''s right had been recognised by this court and had become final and when he has stated categorically and put
other respondents on notice that he had agreed to convey his rights under the agreement dated 5.6.1982 to the petitioners whatever right he had
must be presumed to have devolved on the petitioners and therefore, the petitioners application for appointment of a Commissioner had to be
allowed.
In reply, Mr. S.D.N. Vimalanathan, learned counsel for the first respondent has stated that this application ought not to be allowed and that even
in the preliminary decree, the learned Judge had said that the agreement would not bind him. He submitted that though it would not, strictly
speaking affect his share, if items 3 to 5 of property are allotted to the petitioners, the share that the first respondent would have got in each of the
properties would be denied to him by virtue of the allotment and therefore, according to him, he had a right to object and oppose this application.
The learned counsel vehemently argued that even the fifth respondent was given only the share to ask for equity at the time of Final Decree
proceedings which meant that when the Final Decree application came up for hearing, the fifth respondent could pray for allotment of these
properties to the share of his alien or/defendant. This did not mean that he could move the court for appointment of Commissioner for division of
the properties by metes and bounds. This being the position, the alienee from the fifth respondent has even less right to do so and according to the
learned counsel for fifth respondent it was unheard of for a party who was not before the court to move an application without being impleaded.
Mr. P. Seshadri, learned counsel appearing for respondents 2, 3 and 6 to 8 submitted that an assignee from an alienee is not entitled to equity.
Learned counsel submitted that when the agreement in favour of the petitioner was not before the Court, it was not possible for the Court to
entertain the application and to grant relief. Unless the document was before the Court the validity of the assignment and the rights flowing
therefrom could not be decided. He pointed out, that, even the agreement dated 5.6.1982 was not marked either before the Court passed the
preliminary decree or before the Court below. So according to him, the agreement could not be looked into for any purpose, none of the Courts
could actually look into the agreement. But since the learned counsel for the petitioners had referred to the documents to show that all the parties of
the suit, except the plaintiff, had signed the agreement, he pointed out the clause in the agreement which according to him only gave them
permission to enter the property and to demarcate the plots. Therefore, according to the learned counsel, this did not amount to delivery of
possession, but only a permission to enter. Even otherwise, granting that the agreement had been performed in part, Sec.53 (A) of Transfer of
Property Act would only give the agreement holder a right to defend his possession and not to initiate any action. For this purpose, he referred to
the decisions reported in Paramaeshwari, T. and 4 others v. S.S. Investments Private Limited (1993 1 L.W. 109 (DB) and the decision reported
in V.C. Thani Chettiar v. Dakshinamurthy Mudaliar (A.I.R. 1955 Madras 288 = 68 L.W. 166) for the proposition that a person who purchases an
undivided share cannot claim to be put in possession of any definite piece of family property. All he could do was to sue for partition.
It is relevant to note the events that had transpired before this application had been filed. On 5.6.1982, the agreement appears to have been
entered into and the fifth respondent herein had been made a party to the suit for partition in O.S.No.4486 of 1983.Whatever may be the nature of
his rights, it has to be granted that the first respondent/plaintiff had recognised that his presence is necessary for a full and complete adjudication of
all the questions that arose in the suit. On 17.12.1986, the preliminary decree was passed declaring the first respondent''s l/5th share in all the
properties and observing ""However, the fifth defendant can ask for equity at the time of passing a Final Decree against Dl to D4"".
In the appeal filed there against the learned VI Additional Judge was of the pinion that it must be held that the agreement of the year 1982 had
been performed in part; and that while it was open to the parties who entered into the agreement with the fifth respondent to raise questions
regarding the sale consideration, the learned Judge held that it was not open to them to raise any objection regarding the properties which were put
in his possession. The learned VI Additional Judge also said that during the Final Decree proceedings, there could be no objection to the fifth
respondent asking for allotment of these properties to the share of the parties who entered into the agreement with him. On 5.4.1991, Second
Appeal No.363 of 1991 filed against this judgment was dismissed by this Court. On 31.8.87, the first respondent herein viz., the plaintiff filed the
application in I.A.No.15070 of 1988 under Order 26, Rules 13,14 and 15 C.P.C. In this, the fifth respondent herein filed his counter, where in
specifically stated that the Commissioner should be directed to partition in such a way that the improvements made by him in items 3 to 5 are not
affected. The first respondent also filed I.A.No.15071 of 1988 on the same day for passing of Final Decree. Both these applications appear to
have been dismissed for default on 16.7.1996. The fourth respondent herein filed I.A.No.21397 of 1996 on 14.8.1996 for restoration of the final
decree application Viz. I.A.No.15071 of 1988. On 2.11.1998 the petitioners filed I.A.No. 17800 of 1998 to be impleaded as party in the suit. To
this, the first respondent herein filed a counter denying the agreement dated.5.6.1982 as well as the agreement date 25.5.1995. On 11.2.1999, the
petitioner filed I.A.No.2531 of 1999 from which, the present C.R.P. arises. There after, they made an endorsement that they would not prosecute
I.A.N0. 17800 of 1998 and the same was dismissed on 17.3.1999. The application for restoration viz. I.A.No. 21397/96 was dismissed on
12.4.99, since there was no representation on behalf of the petitioner therein. Though nineteen years have passed, since passing of the preliminary
decree, there is no attempt by the parties to see that the properties are divided. In the decision referred to by the learned counsel for the petitioner
reported in Smt. Saillabala Dassi v Smt. Nirmala Sundari Dassi & another (A.I.R. 1958 Supreme Court 394), the Supreme Court has set out the
object for which Sec. 146 C.P.C. was introduced. ""Section 146 was introduced for the first time in the CPC 1908 with the object of facilitating
the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision, should be
construed liberally and so as to advance justice and not in a restricted or technical sense.
Sec. 146, C.P.C. reads as follows ""Save as otherwise provided by this Code, or by any law for the time being in force, where any proceeding
may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any
person claiming under him."" The a for said decision arose out of a suit on mortgage. The purchaser from the mortgagor of the properties filed an
application to come on record, so that she might protect her interest since according to her, her transferor had entered into a collusive arrangement
with the mortgagee to defeat her rights. The first respondent in the application was the mortgagee and the second respondent was
mortgagor/vendor. Her application was dismissed as not maintainable. The Supreme Court held that there were several questions which arose for
determination in which the appellant as purchaser of the property was vitally interested and therefore, ordered that she should be brought on
record. The Supreme Court also held that ""The right to file an appeal must be held to carry with it the right to continue an appeal which had been
filed by the person under whom the applicant claims and the petition of the appellant to be brought on record as an appellant in an Appeal must be
held to be maintainable under S.146. AIR 1921 Mad 599 (FB) & Koypathodi Moidin Kutty (died) and Others Vs. A.K. Doraiswami Aiyar,
approved."" As a Purchaser pendente lite, a person will be bound by the proceedings taken by the party in whose favour the decree, and justice
requires that she should be given an opportunity to protect her rights.
In R. Gurubasavidh v Rumale Karibasappa & others (A.I.R. 1955 Mysore 6) which was a partition suit, the High Court held that when there
has been an enlargement or diminution of the shares or rights of the parties by reason of succession or subsequent purchases or by assignments of
interest by whatever cause, the Court, before passing its final decree can and ought to look into the matter and grant a final decree in accordance
with such subsequent devolutions.
In Mrs. Saradambal Ammal Vs. E.R. Kandasamy Goundar and Others, the suit was one for specific performance and this Court had occasion
to consider the word ""any interest"" in Order 22.Rule 10, of the Code. The second plaintiff in the said suit executed a sale of the property to one
K"". He applied to the court to be impleaded as third plaintiff and the same was allowed, against which the first plaintiff filed the Civil
Miscellaneous Appeal which was decided by the Court in the case reported above. Their Lordships held that ""the words ""any interest"" in Order
22, Rule 10 of the Code includes any transferable"" right to sue"" and the contention that the words"" assignment, creation or devolution of any
interest"" in the rule refer to an interest in tangible property cannot be accepted and that K was properly impleaded.
The decisions reported in Bhabhootmal v Moolchand (A.I.R.(30) 1943 Nagpur 266) and Andalammal v. Alamelu Ammal (A.I.R. 1962
Madras 378 = 75 L.W. 89) deal with whether a right to reconveyance of land can be assigned and whether the agreement for sale is a contract
and whether the benefit there under can be assigned.
In the decision reported in C. Subbarayudu v. E. Brahmanandan (A.I.R. 1970 Andhra Pradesh 211), the learned judges of the Andhra
Pradesh High Court dealt with the scope of Sec.146 C.P.C. and Order 22 Rule 10. A Settlement was effected pending the suit. It was open to the
settlee to come on record under Order 22, Rule 10, C.P.C with a leave to the Court at any time till the Final Decree in the partition Suit was
passed. He did not do so. But he was allowed to be brought on record on his application u/s 146.
It is seen from the above decisions that both u/s 146 and under Order 22, Rule 10, persons can be brought on record to enable them to carry
on the proceedings or to move applications. Now, the fifth respondent claims to have entered into agreement with the petitioners. Even assuming
that the petitioners had acquired some interest in the property pending the suit and they were entitled to continue the proceedings which the fifth
respondent could have done in the instant case what they are urging is not right to continue the application which had been filed by the person viz.
the fifth respondent under whom, the petitioners claimed. Sec. 146 , as seen from the decision reported in Smt. Sailabala Dassi v. Smt. Nirmala
Sundari Dassi & another (A.I.R. 1958 Supreme Court 394) is to facilitate the exercise of rights by persons under whom the rights have come to
be vested by devolution or assignment. The scope of the words "" Claiming under "" Sec. 146 is no doubt wide enough to include cases of
devolution and assignment mentioned in Order 22, Rule 10, also. What is the right of the fifth respondent which the petitioners can claim to have
got by claiming under him. As far as these records show the learned Judge who passed the Preliminary Decree merely said that in the Final Decree
Proceedings, he can ask for equity and for allotment of the items to the defendants 1 to 5. He is only an agreement holder who claim to be in
possession. The petitioners cannot have any right greater than what the fifth respondent had. If the preliminary decree only granted him the passive
right to participate in the final decree proceeding and claim equity then the petitioners cannot claim the active right of seeking a division by metes
and bounds. This seems to be theme of Mr. P. Seshadri''s grievance. The question is moot.
Neither the fifth respondent nor the petitioners have attempted to have sale deeds registered in their favour by payment of stamp duty nor have
they filed suits for specific performance seeking the relief. While to some extent, the fifth respondent can claim that his right has been recognised
after trial in O.S. 4486 of 1983, no evidence has been placed before the Court below to establish the nature of the right that has passed on to the
petitioners. The learned V Assistant City Civil Judge whose order is impugned herein, has stated as follows:
Can the petitioners file these applications u/s 146 C.P.C. The decision reported in Conugunta Subbarayudi Vs. Eluri Brahmanadan and
Others, is to the point. "" Two conditions are to be fulfilled before a proceeding be taken or an application u/s 146 C.P.C. It is firstly essential that
the CPC does not provide otherwise in any of its provisions. Then again, the person who seeks to make an application must lie claiming under one
who could make such application. If these two requirements are satisfied the third party can apply for being brought on record in order that the
appeal be continued against him. As declared by the Supreme Court in Saila Bala Dassi v. Ntrmala Sundari Dassi 1958 SCJ 747 at p. 746 (A.I.R.
1958 SC 394 at P. 397), Section 146 being a beneficent provision should be construed liberally so as to advance the cause of justice and not in a
restricted or technical sense."" The key words are brought on record"". For any application to be made or proceedings taken by or against the
stranger to the suit he should be brought on record. That is implicit. For example Section 27 of Tamil Nadu Buildings (Lease and Rent Centrol)
Act, 1960 is as follows: ""Proceedings by or against legal representatives:
(1) Any application made, appeal preferred, or proceeding taken, under this Act by or against any person, may in the event of this death,
continued by or against his legal representative.
(2) Where any application, appeal or other proceeding could have been made preferred or taken, under this Act by or against any person, such
application, appeal or other proceeding may, in the event of his death, be made, preferred or taken by or against his legal representatives. The legal
representative of the deceased who was a party to any proceeding under this Act, are first impleaded or seek to implead themselves u/s 27 to
enable the continuation of litigation. The Petitioners herein want to make an application without bringing themselves to record.
The case reported in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, where Supreme Court has declared that the right to File an
appeal carried with it the right to continue an appeal; holds that the petition of the appellant to be brought on record is maintainable u/s 146 and the
other decisions cited before me by learned counsel for the petitioners also deal with the right of the third parties to be brought on record.
The C.P.C. provides for addition of parties in various circumstances, e.g. Sec. 146 C.P.C. Order 1, Rule 10, Order 22, Rules 10 to 12,
Order 41, Rule 20, etc. These provisions have been made to join as parties those persons in whose absence the suit cannot be completely
adjudicated upon. They are rules of procedure to be applied by the Court in the exercise of its discretion.
The petitioners could have done so. They did not. Now they invoke the Court''s power under Order 26, Rule 13, C.P.C. and u/s 146 C.P.C. and
the inherent power for a relief which they have not demonstrated in accordance with law, that they are entitled to. On what basis could the Court
below have exercised its power or its discretion? There was nothing to show the nature of the right of the petitioners nor were they parties to the
suit.
The Court below in my opinion, has rightly dismissed the application. In the result, both the C.R.Ps. fail and the same are dismissed. In the
circumstances, no costs. Consequently, the connected C.M.Ps. are closed.