Rengasamy vs Palaniammal

Sanjay Kishan Kaul, C.J.—Late Vaiyapuri Naicker died intestate in the year 1959 and was survived by his widow, her son and two daughters. It appears that the daughters and widow executed release deeds in favour of the son, in terms whereof he became the absolute owner of the properties of Late Vaiyapuri Naicker and even dealt with those properties, creating third party interest.

One of the sisters, respondent No. 1 herein, filed a suit for partition being O.S.No. 766 of 1981, on the file of the Court of Principal Subordinate Judge, Coimbatore, seeking partition of the estate of Late Vaiyapuri Naicker alleging that the release deed was obtained under a misrepresentation as if it was to be for obtaining high tension electric connection. In the suit, the persons, in whose favour the son/the appellant had transferred interest, were impleaded as defendants 4 to 23. The written statements were, however, filed only by defendants 6 and 13, apart from the first defendant in the suit (appellant herein), which was adopted by the second defendant. The suit, after contest, was, however, dismissed on 19.9.1984.

Against the judgment and decree aforesaid, an appeal was preferred being A.S.No. 753 of 1984 by the original plaintiff, wherein the trial Court''s judgment was reversed and a preliminary decree for partition was passed. Now, it was the turn of the appellant to be aggrieved, who preferred the present Letters Patent Appeal (LPA).

In the course of pendency of LPA, an endeavour was made to settle the dispute; but, that compromise was arrived at only between the legal heirs of Late Vaiyapuri Naicker. The widow had passed away in the meantime. This compromise was accepted on 17.3.2004, and a compromise decree was passed in the LPA. In this proceeding, the two sisters being the original plaintiff and the second defendant, filed affidavits accepting the release deeds.

This settlement was, however, sought to be reopened by filing review applications being Review Application Nos. 145 of 2007 and 172 of 2011 by the purchasers and their prayer was acceded to vide order dated 1.2.2013. It appears that the main grievance of these purchasers was that as per the settlement, the lands sold by the appellant before us, were sought to be given in partition to two sisters, which in turn, affected the purchasers of the property from the appellant. The LPA, thus, stood restored to its original number.

Now, an endorsement has been made pursuant to a letter circulated by the appellant seeking to withdraw the appeal unconditionally. Simultaneously C.M.P.No. 474 of 2014 has been filed by the purchasers seeking to be transposed in place of the appellant (being respondents 4, 5, 6, 8, 10, 12, 14, 15, 19, 20, 21 and 22 before us).

The question, which thus arises for consideration, is as to whether to permit the appeal to be withdrawn unconditionally or to allow the petition for transposition, whereby the purchasers of the property would now prosecute the appeal.

Learned Senior Counsel for petitioners/respondents seeking transposition, contends that the interests of these respondents was being looked after by the appellant so long as the appellant was prosecuting the appeal. Thus, it was not really required for them to file an appeal against the order of the first appellate Court, which had set aside the original decree and granted the relief of preliminary decree of partition. In this behalf, he has referred to Rule 4 of Order XLI of the Code of Civil Procedure, 1908, (hereinafter referred to as the "said Code") to contend that one of the several plaintiffs or defendants may obtain reversal of the whole decree where it proceeds on the ground common to all. He further submits that this provision should be read along with Rule 33 of Order XLI of the said Code, which empowers the appellate Court to pass any decree and make any order, which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and that power can be exercised by the appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.

On the other hand, learned Counsel for appellant submits that the appellant is not seeking a conditional withdrawal, but only a withdrawal simpliciter. He further submits that the respondents seeking transposition are purchasers from the appellant and are not legal heirs to the estate where the principle of each party being a plaintiff or a defendant, would apply in a suit for partition.

We are of the view that in the facts of the present case, it is not appropriate to exercise the jurisdiction under Rule 33 of Order XLI of the said Code and the parties seeking transposition cannot be permitted to be so transposed and prosecute the appeal instead of the appellant.

What weighs with us for coming to this conclusion are a number of facts. Most of the respondents, who now seek transposition, have never filed their written statements except two. They are purchasers of the property from the appellant. They had not filed any appeal against the decree of the first appellate Court. From a reading of the order of the first appellate Court impugned before us, it appears that really, no arguments were advanced on their behalf and the only fact taken note of by the first appellate Court is the plea of being bonafide purchasers. A transposition may be permitted under Rule 1A of Order XXIII of the said Code having due regard to the question whether an applicant has a substantial question to be decided as against any of the other defendants. The lis in the original suit pertains to the execution of the release deed. The applicants before us were not even in the picture at that time, but subsequently purchased the property after the release deed, though prior to the institution of the suit based on the title derived by the appellant in pursuance of the release deed being executed. There is to that extent, thus, no lis between the parties seeking transposition and the original owners as they are not in a position to throw any light on the issue of genuineness of the release deed. Their plea that they are bonafide purchasers in any eventuality, is not prejudiced by the fact whether a preliminary decree is passed subsequently or not and it would be open to them to contend prior to the passing of the final decree for partition. Interestingly, if we peruse the issues framed in the suit, no issue has been framed on the question whether they were bonafide purchasers or not.

We are, thus, of the view that the request of these respondents for transposition cannot be accepted and C.M.P.No. 474 of 2014 is dismissed.

There are three other petitions being C.M.P.Nos. 555 and 556 of 2013 and 507 of 2014, which have been filed by the subsequent purchasers, who claimed to have purchased portions of the property from the appellant after the suit was dismissed, but prior to the first appeal decree. In view of what we have recorded aforesaid and the unconditional withdrawal of the appeal by the appellant, the question of impleadment of parties in the present LPA would not arise and thus, these civil miscellaneous petitions are also dismissed.

As a result of our finding aforesaid, the letters patent appeal at request of the appellant, is dismissed as withdrawn unconditionally, leaving the parties to bear their own costs.