HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
CRP.NO.1808 of 2022
JUDGMENT :
Being aggrieved by the order in I.A.No.173 of 2021 in O.S.No.1116 of 2016 on the file of Addl. Senior Civil Judge, Ibrahimpatnam, by which the petition filed by the petitioners herein, under Order I Rule 10 C.P.C. was dismissed, the petitioners have filed the present Civil Revision Petition under Article 227 of Constitution of India.
2. The petitioners are no other than sons of defendant No.1, who is shown as respondent No.2 in the present revision and they have filed the above stated I.A.No.173 of 2021 with a prayer to implead them as defendants No.7 and 8 in O.S.No.1116 of 2016. In the affidavit filed in support of the petition, the petitioner No.1 has submitted that plaintiff and defendants No.1 to 3, who are shown as respondents No.1 to 4 herein and in the above Interlocutory Application are brothers and sons of one Kaki Sailu @ Sahebulu. One Kaki Lachanna is grand-father of respondents No.1 to 4 and father of said Sailu. The said Kaki Lachanna and his brothers are joint owners of agricultural land to an extent of 2 SSRN,J CRP No.1808 of 2022 Ac.21-05 gts. The said Sailu died when the plaintiff was 3 months old. After the death of Sailu, the property owned by him to an extent of Ac.03-20 gts was mutated in the name of his wife by name Kaki Yadamma i.e., mother of plaintiff and defendants No.1 to 3. Therefore, the said Yadamma has no exclusive right on the above said Ac.03-20 gts, she cannot alienate or transfer the property. But she has executed three gift deeds in respect of Ac.0-35 gts each in favour of defendants No.1 to 3. The petitioners have further claimed that defendants No.1 to 3 having colluded with each other, obtained the gift deeds from their mother and they have already sold the property. However, the petitioners have claimed that they are in joint possession of the suit property. A Function Hall was constructed in the Northern side of the schedule property with the joint family nucleus, therefore, the said function hall is also liable for partition. But during October, 2021, some third party came to the suit property stating that they are purchasing Ac.0-35 gts from suit property, thereby, the petitioners came to know about the gift deeds executed by Yadamma.
3. The respondent No.1 i.e., plaintiff in the main suit has filed the suit seeking partition of the suit schedule property and for 3 SSRN,J CRP No.1808 of 2022 allotment of his 1/4th share. According to the plaint averments, it was specifically pleaded by the respondent No.1 that even though Yadamma has no right to alienate the property and though he has got right by virtue of succession, the said Yadamma executed three gift deeds in favour of defendants No.1 to 3 and he sought for his share in the property.
4. The petition filed by the petitioners No.1 and 2 herein under Order I Rule 10 C.P.C. was opposed by the respondent/plaintiff herein and other defendants i.e., defendants No.4, 5 and 6. The respondent/plaintiff has filed counter affidavit stating that the petition has been filed by mis-representing the actual facts and by suppression of the real facts. But they could not make out a case for adding them as parties to the suit. The plaintiff has stated that the father of the petitioners already got an extent of Ac.0-35 gts of land by way of gift deed dated 16-06- 2009 and he has already sold the said property under a registered sale deed dated 05-11-2011 in favour of defendant No.4. If the petitioners have got any grievance, they have to proceed against their father or defendant No.4. The plaintiff has claimed that defendants No.1 to 3 has obtained the gift deed from their mother. Therefore, there was partition of property between defendants 4 SSRN,J CRP No.1808 of 2022 No.1 to 3 but his share was retained with the mother. The plaintiff further stated that he being the plaintiff of the suit cannot be compelled to add any party to the suit against his wishes and against his claim.
5. Defendant No.4 filed a separate counter stating that he has purchased the share of defendant No.1 under a registered sale deed dated 05-11-2011. Defendant No.4 also stated that defendants No.1 to 3 got separate share from the ancestral property and disposed their properties.
6. Heard.
7. Now the point for consideration is :
Whether the petitioners are proper and necessary parties to the suit vide O.S.No.1116 of 2016, if so, whether the order of the trial Court dismissing their request to implead the petitioners as defendants No.7 and 8 is liable to be set aside?
8. As could be seen from the averments made in the plaint, the respondent No.1 who is plaintiff in the suit has claimed that his father got an extent of Ac.03-20 gts from the grand- father, thereby, it is ancestral property over which plaintiff and defendants No.1 to 3 have got equal share. After the death of their father, the name of their mother being elder member of the family had been entered in the revenue records but she has no absolute right or title to alienate, sell or gift any property in the 5 SSRN,J CRP No.1808 of 2022 said Ac.03-20 gts. He has also claimed that he has got equal right with defendants No.1 to 3, who are no other than his own brothers. But the defendants No.1 to 3 got executed three separate gift deeds by their mother for an extent of Ac.0-35 gts each and defendants No.1 and 3 seems to have disposed the said land under separate documents. Having claimed right on the property on the ground that it is ancestral property, the plaintiff sought for partition and for allotment of his 1/4th share in Ac.03-20 gts.
9. As per the plaint averments itself, it is clear that the plaintiff was claiming right to an extent of 1/4th share in the total land admeasuring Ac.03-20 gts. The plaintiff has shown two different extents i.e., an extent of Ac.02-25 gts and extent of Ac.0-35 gts with separate boundaries in the plaint schedule. It was his specific case that his brothers have already sold the land which they got under the registered gift deeds. Therefore, the plaintiff is supposed to prove that the entire Ac.03-20 gts is ancestral property, his mother has no right to execute any gift deed, he is entitled to 1/4th share in the total extent.
10. Whereas, the petitioners who are no other than sons of defendant No.1 have claimed that they being grand-children of 6 SSRN,J CRP No.1808 of 2022 Sailu have got right in the ancestral property, therefore, they wanted to be impleaded in the suit. In the affidavit filed by the petitioner No.1, it is claimed that their grand-mother has no right to execute any gift in respect of the suit property, thereby, gift deeds executed by Yadamma in favour of defendants No.1 to 3 and consequential sale deeds executed by defendants No.1 and 3 are void. As could be seen from the averments made in the affidavit of the petitioner No.1, they have claimed that there is a function hall in a portion of the suit land and these petitioners have claimed that the said function hall was constructed by all the four sons of Yadamma with joint family nucleus and all the four sons have got right in the function hall but defendant No.2 alone is enjoying the income of the function hall. Whereas, the plaintiff in the plaint has categorically stated that defendant No.2 has constructed function hall in the land that was gifted to him.
11. The plaintiff has claimed that he has got right over the property, but he was not allowed to enter the suit schedule property, thereby, sought for partition.
12. Therefore, the claim of petitioners seems to be different from the claim of plaintiff. The petitioners herein are sons of defendant No.1, who said to have obtained 1/4th share of 7 SSRN,J CRP No.1808 of 2022 alleged ancestral property by way of a gift deed, and who has already disposed Ac.0-35 gts in favour of defendant No.4. Defendant No.1 is still alive. According to Section 8 of Hindu Succession Act, the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause I of the schedule. Natural sons, natural daughters are Clause I heirs, but grand son so long as his father is alive is not been included. Therefore, when the defendant No.1 is alive, the petitioners cannot claim any right in the alleged ancestral property. Moreover, as per their claim itself, it is clear that defendant No.1 got his share and disposed it in favour of defendant No.4. If they have got any grievance, it should be against their father. They will have a right in the property that could be allotted to the father. But they cannot get more than the share to which their father is legally entitled to get. Therefore, the petitioners cannot claim that they are proper parties to the suit filed by the plaintiff for allotment of his Ac.0-35 gts in the ancestral property. If the petitioners are allowed to be impleaded, the nature of the suit will be changed. It is not the case of petitioners herein that they have got right on the alleged share of plaintiff to an extent of Ac.0-35 gts, which is separately shown in 8 SSRN,J CRP No.1808 of 2022 the plaint schedule. It seems the petitioners wanted to claim right on the entire property including the function hall on the ground that the same was constructed with the joint family property which is not the case of plaintiff in the plaint. It is true, a party can be impleaded to a suit or proceeding to avoid multiplicity of the proceedings and for effective disposal of the suit. But in this case, if the petitioners are permitted to be added as defendants, it will change the nature of the suit and it will lay a claim against the property that was already disposed by defendants No.1 and 3 to the 3rd parties. Therefore, the trial Court rightly dismissed the application filed by the petitioners under Order I Rule 10 C.P.C., thereby, this Court by exercising jurisdiction under Article 227 of Constitution of India cannot interfere with the said order. Consequently, the C.R.P. is liable to be dismissed.
13. In the result, the C.R.P. is dismissed.
Consequently, Miscellaneous applications if any, are closed. No costs.
__________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 25.01.2023 PLV