S. Vimala vs Yashoda

B. Manohar, J.—The Petitioners being aggrieved by the order dated 12-07-2012 passed on I.A. No. 2 in FDP No. 38/2009 on the file of the I Additional City Civil and Sessions Judge, Bangalore City has filed this writ petition.

In the writ petition, the petitioners have contended that they are the daughters of G. Srinivasa and Jayamma. The first respondent, Smt. Yashoda who is the daughter-in-law of Srinivasa and Jayamma had filed O.S. No. 1178/2006 seeking for partition and separate possession of her 1/3rd share in the suit schedule properties. In the suit, Smt. Yashoda had contended that her husband late Dhanraj was the son of G. Sirnivasa and Jayamma. After the death of her husband, she was living separately and no share was given in the family properties. In view of that, she filed a suit seeking for partition, impleading her mother-in-law and brother-in-law Sri. Jayakumar as defendants No. 1 and 2. Though the defendants were served with notice, they had not filed any written statement nor defended their case. In view of that, the Trial Court decreed the suit and declared that the plaintiffs are entitled for 1/3rd share in the suit schedule properties. Thereafter, the plaintiff filed FDP No. 38/2009 for drawing up of a decree. The court issued notices. Thereafter the petitioners came to know about filing of the suit and also about FDP No. 38/2009 initiated by Smt. Yashoda.

It is further contended in the writ petition that they are the married daughters of G. Srinivasa and Jayamma and they are also entitled for their share in the joint family properties of Srinivasa and they were not made parties to the suit. Further, during the lifetime of Srinivasa, he had executed a Gift Deed dated 21-3-2006 gifting the schedule property No. 1 in favour of the first petitioner and Schedule Property No. 2 was purchased by the husband of 2nd petitioner as per the sale deed dated 25-09-1996. Though the respondent/plaintiff was aware of the said fact, the daughters were not made parties to the suit and without impleading the necessary parties, the decree has been obtained. In view of that, an application I.A. No. 2 has been filed under Order I Rule 10 read with Section 151 of CPC in the FDP seeking permission to come on record as defendants to the proceedings. The Trial Court by its order dated 12th July 2012 dismissed the said application on the ground that they were not parties to the preliminary decree. Hence they cannot be impleaded. Being aggrieved by the said order, the present writ petition has been filed.

Sri. H.S. Prashanth, learned counsel appearing for the petitioners contended that the order passed by the Trial Court rejecting I.A. No. 2 filed under Order I Rule 10 of CPC is contrary to law. The petitioners are the daughters of G. Srinivasa and Jayamma and they are necessary parties to decide the dispute between the parties. Though the plaintiff was aware of the said fact, intentionally she has not impleaded the petitioners as parties to the suit and also Final Decree Proceedings. If any order is passed in the FDP, it would adversely affect the interest of the petitioners. This aspect of the matter was totally overlooked by the Trial Court. If the petitioners were impleaded in the suit of FDP, they would have brought to the notice of the Court regarding execution of the Gift Deed and also alienation of property in favour of the husband of the second petitioner. Hence, sought for setting aside the order passed by the Trial Court on I.A. No. 2 and to allow I.A. No. 2 permitting them to come on record as defendants.

On the other hand, learned counsel appearing for the first respondent argued in support of the order passed by the Trial Court and contended that the petitioners are not parties to the original suit as well as the FDP. Hence, they are not necessary parties and the Trial Court had rightly rejected the application and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and also the judgment and decree passed by the Trial Court.

The records clearly disclose that the petitioners are the daughters of G. Srinivasa and Jayamma. Smt. Yashoda, the wife of S. Dhanraj who is one of the sons of G. Srinivasa and Jayamma filed a suit seeking for partition and separate possession of the suit schedule properties. However, the petitioners were not made parties though they had interest over the properties. The first and second defendants have also not contested the suit by filing written statement and leading evidence. Accordingly, the Trial Court decreed the suit declaring that the plaintiff is entitled for 1/3rd share and remaining 2/3rd share will be allotted to defendants 1 and 2. Thereafter, the Final Decree Proceedings were initiated. In that proceedings also, the petitioners were not made parties. The petitioners came to know about the filing of the suit and also FDP only after receipt of the notice by the Trial Court to hand over possession of the properties. Thereafter, after getting necessary documents, an application was filed by the petitioners to implead them as parties so that they can defend the final decree proceedings. However, the said application was rejected. I find that the order passed by the Trial Court is contrary to law and the petitioners are the interested persons and also they are proper and necessary parties to the proceedings. Without impleading the proper and necessary parties, the suit was filed and had obtained ex-parte judgment and decree. Thereafter FDP was also initiated. It is not the case of the first respondent that she is not aware of the petitioners being the daughters of the deceased Srinivasa and Jayamma. If the ex-parte judgment and decree had been obtained without impleading the necessary parties, that will adversely affect the interest of the petitioners. In view of that, immediately after coming to know of filing of the FDP, the petitioners had filed I.A. No. 2 to implead them as parties. The order passed by the Trial Court runs contrary to the intendment of the Code of Civil Procedure and leads to multiplicity of proceedings. Hence, the order passed by the Trial Court is required to be set aside.

Accordingly, the writ petition is allowed. The order passed by the Trial Court is set aside. Accordingly, the order made on I.A. No. 2 in FDP No. 38/2009 is set aside. The petitioners are proper and necessary parties to the FDP.

Parties to bear their own costs.