Vikraman vs Purushothaman and George Sajeev

Thomas P. Joseph, J.—Defendant in O.S. No. 252 of 2010 of the court of learned Additional Munsiff, Cherthala challenges Ext.P7, order impleading the second Respondent as additional second Plaintiff in the suit. That is a suit filed by first Respondent/Plaintiff concerning 19 cents in survey No. 211/2B. First Respondent claimed in Ext.P1, plaint that 38 cents including the suit property was acquired by the mother of Petitioner and first Respondent, Ratnabahi as per partition deed No. 163 of 1965, parents of Petitioner and first Respondent executed a Will dated 26.12.1995 as per which the said 38 cents was divided into two equal halfs of 19 cents and bequeathed to Petitioner and first Respondent. After death of the parents the Will took effect. According to the first Respondent it was mistakenly stated in the Will that the property is comprised in survey No. 239/2 and 238/1 and lying within the boundaries of the said survey numbers. He contended that the correct description of the 38 cents was omitted to be mentioned in the Will. He claimed that he entered into an agreement for sale of the suit property with the second Respondent. According to the first Respondent the wrong description of property in the Will is being taken undue advantage by the Petitioner. Hence the suit for prohibitory injunction against Petitioner disposing of the said property. Petitioner resisted the suit and filed Ext.P2, written statement admitting the Will but contending that the property was not mutated since the mother of Petitioner 2 and first Respondent had sold the property in survey No. 211/2B to one Ammini who is not made a party to the suit. He contended that the property sold to Ammini is covered by the Will in question.

During the pendency of suit second Respondent filed Ext.P4, application to implead him as additional Plaintiff contending that he got assignment of the suit property (19 cents) as per document No. 1302 of 2010 dated 24.05.2010. Second Respondent claimed that assignment deed itself stated that he must enjoy the property subject to the decree that may be passed in O.S. No. 252 of 2010. That application was resisted by Petitioner by Ext.P5, objection but, allowed by learned Additional Munsiff as per Ext.P7, order.

Learned Counsel for Petitioner contends that there was No. scope for the second Respondent coming into the picture since neither he, nor the first Respondent (his assignor) has got title over the suit property since it has already been transferred by original owner in favour of Ammini. According to the learned Counsel, in the circumstances, first Respondent did not get title over the suit property and so he was not competent to transfer it in favour of second Respondent. Viewed in that line impleadment of second Respondent is quite unnecessary, it is argued.

The question whether the first Respondent and consequently the 3 application filed by second Respondent for impleadment. That question has to be decided, if it arises from the pleadings and is relevant for decision at the time of trial. Prima facie, second Respondent is a transferee pendente lite of the suit property. In that situation, presence of second Respondent is necessary or atleast proper for adjudication of the dispute involved.

Viewed in that line I do not find reason to interfere with Ext.P7, order.

Original Petition is dismissed.