Pavayee Ammal vs K. Sakthivel, M. Sengottaiyan, Ramakrishnan and Divya

G. Rajasuria, J.—Inveighing the order dated 30.9.2008 passed in I.A.338 of 2008 in O.S. No. 153 of 2003 by the Subordinate Judge,

Kallakurichi, this civil revision petition is focussed.

The quintessence and epitome of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition

would run thus:

The first respondent/plaintiff filed the suit O.S. No. 153 of 2003 before the Subordinate Judge, Kallakurichi, for specific performance of the

agreement to sell as against respondents 2, 3 and 4 herein. During the pendency of the suit, the revision petitioner herein filed the I.A. No. 338 of

2008 under Order 1 Rule 10 of C.P.C. for getting herself impleaded as one of the defendants on the ground that she is a co-sharer relating to the

suit property. The lower Court, after hearing both sides, dismissed the I.A. Being disconcerted and aggrieved by the said order, this civil revision

petition is focussed on various grounds.

Despite printing the names of both sides, no one appeared.

A bare poring over and perusal of the relevant records, including the order of the lower Court, would highlight and spotlight the contention of the

revision petitioner, who is a third party to the suit, that in the suit property, which is the ancestral property, she is entitled to a share, as her father

died intestate. Whereupon the first respondent/plaintiff filed his counter to the effect that the revision petitioner, even though happened to be his

sister, is not entitled to any share for the reason that there was partition, which took place between himself and the other co-sharers relating to

several properties other than the second item of the suit property, which was purchased by D1, as per a separate sale deed. The Court, after

hearing both sides, dismissed the I.A. on merits.

At this juncture I would like to point out that the lower Court could have refrained from delving deep into the right of the revision petitioner

concerning the suit property. The only point which actually fell for consideration before the lower Court was to see as to whether the revision

petitioner is having any locus standi to get herself impleaded as one of the defendants. In a suit for specific performance, it has become a trite

proposition of law that a person claiming himself to be a co-sharer is not a necessary party. Even the decision relied on by the lower Court

reported in 2005 (4) L.W. 25 would clarify the position that in a suit for specific performance, third parties to the agreement are not necessary

parties. As such, on that sole ground, the I.A. could have been dismissed. However, the lower Court went to the extent of giving a finding that

there was partition earlier among the male members, including their deceased father and that item 2 of the suit property was excluded on the

ground that it was the exclusive property of D1 etc. In my opinion, such findings are beyond the scope of the said I.A. Hence, I would like to set

aside such findings leaving the revision petitioner to take appropriate steps, if she has been advised to do so in separate proceedings.

Now the only point to be decided is as to whether the revision petitioner is a necessary party to the suit.

My discussion supra would unambiguously and as plain as day would display and demonstrate that in the suit for specific performance between

the two parties, when the petitioner is not a party to the contract concerned, she is not a necessary party to the suit. On that ground alone, the

dismissal of the I.A. by the lower Court is correct and rest of the findings of the lower Court are set aside. As such, the revision petition is allowed

partly, confirming the dismissal of the I.A. No costs. Consequently, connected miscellaneous petition is dismissed. No costs.