Telangana High Court
Jyotika Sabrina Mahendragir Shroff , ... vs Raja Mahendragir Dhanajgir on 31 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL REVISON PETITION No.7 of 2019
and
CIVIL MISCELLANEOUS APPEAL No.61 of 2019
COMMON JUDGMENT:
1. The present Civil Revision Petition and Civil Miscellaneous Appeal are directed against orders passed in interim applications in a same suit, as such they are being dealt with by way of this common judgment.
2. The Civil Revision Petition is directed against order dated 17.12.2018 in I.A.No.2055 of 2017 in O.S.No.76 of 1970 and the Civil Miscellaneous Appeal is directed against order dated 17.12.2018 in I.A.No.2056 of 2017 in O.S.No.76 of 1970. The said O.S.No.76 of 1970 is on the file of the II Additional Chief Judge, City Civil Court, Hyderabad (hereinafter referred to as 'Court below'). I.A.No.2055 of 2017 was filed under Order I Rule 10 of the Civil Procedure Code, 1908 (for short 'CPC') seeking impleadment of the petitioners therein in the main suit and I.A.No.2056 of 2017 was filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC seeking to grant injunction. The Court below has dismissed I.A.No.2055 of 2017 and consequently, 2 MGP,J CRP_7_2019 & CMA_61_2019 dismissed I.A.No.2056 of 2017 aggrieved by the same, the present Civil Revision Petition and Civil Miscellaneous Appeal are preferred by the petitioner No.2 in both the I.As.
3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in the Civil Revision Petition and impugned implead application.
4. It is the case of the revision petitioner/appellant/petitioner No.2/proposed defendants that petitioners are daughters of respondent No.1/plaintiff. Respondent No.1 filed suit in O.S.No.76 of 1970 for declaration that he is entitled to 1/3rd share in the joint family properties and for partition of schedule I and II into three equal shares and to allot one share to him. During the pendency of the suit, a memorandum of compromise was entered in between all the parties to the suit and in terms of said compromise a preliminary decree dated 24.04.1986 was passed by the Court below. The details of the list of properties annexed to the preliminary decree were agreed to be divided between the parties. As per clause 3 of the Memorandum of Compromise (for short 'MOC'), there shall be no physical division of the properties 3 MGP,J CRP_7_2019 & CMA_61_2019 during the life time of respondent No.2 herein, as the parties agreed to postpone it till discharge of all liabilities. As per clause 8 of MOC, two daughters, petitioners/proposed defendants herein shall be entitled to equal shares from out of the share allotted to their father i.e., respondent No.1 herein. As on the date of entering into the MOC and as on the date of the preliminary decree of partition dated 24.04.1986 only the male members were recognized as coparceners in the joint Hindu Undivided Family. Subsequently, after death of respondent No.2, the preliminary decree dated 24.04.1986 was amended to reflect the revised shares of respondent No.3 herein. While so, on 05.05.1988, respondent No.3 also expired and a family agreement of memorandum was entered between the parties on 05.05.1999. Further, in respect of Dhanraj Mahal building on 15.08.1999 a supplementary memorandum of family agreement was entered in between parties for division of vacant flats in Dhanraj Mahal and as a result of said agreement, seven flats came to the share of respondent No.1 herein.
5. It is the further case of the petitioners/proposed defendants that on 25.08.1999, a memorandum of confirmation and family 4 MGP,J CRP_7_2019 & CMA_61_2019 agreement was entered in between respondent No.1 and the petitioners/proposed defendants and it was declared and confirmed between the parties as to how the said seven flats falling to the share of respondent No.1 under preliminary partition decree read with supplementary memorandum dated 15.08.1999 were to be dealt with. As per said memorandum of confirmation dated 25.08.1999, out of seven flats in Dhanraj Mahal, four flats i.e., flat Nos.27/27A, 29, 31 and 33 in Block E shall continue to exclusively belong to respondent No.1 during his life time and remaining flats i.e., flat Nos.28, 30 and 32 in Block E were allotted/divided in favour of petitioners/proposed defendants equally. Later, on 22.05.2002, another memorandum of confirmation was entered in between the petitioners and respondent No.1 whereby, respondent No.1 clarified as to how the four flats in Dhanraj Mahal reserved for his use are to be devolved after his life time. After his death, the ownership of flat No.27/27A shall be transferred to his granddaughter Anazia Branganza i.e., daughter of petitioner No.1 and ownership of remaining three flats Nos.29, 31 and 33 shall be transferred to petitioners in equal shares absolutely. Further, ownership of flat 5 MGP,J CRP_7_2019 & CMA_61_2019 No.28 shall be exclusively for petitioner No.1 and flat No.30 shall be exclusively for petitioner No.2 and ownership of flat No.32 shall vest in with both the petitioners equally.
6. It is further case of petitioners/proposed defendants that in the year 2012, since petitioner No.1 was going through an acrimonious divorce, respondent No.1 advised her to revoke the understanding arrived at in the memorandum of confirmation as regards the flat agreed to be transferred to daughter of petitioner No.1 and petitioner No.1 was given to understand that this was done with a view to stop her former husband from acquiring any interest in property through their daughter. It was always the intention of respondent No.2 that all family properties were to be distributed amongst all family members. With respect to share of respondent No.1 in joint family properties, it is provided in the MOC that he was to hold a life interest with respect to such share and post his death, the properties were to be divided equally among his daughters i.e., petitioners herein. Furthermore, Section 6 of Hindu Succession Act, 1956, provides share to the daughters in coparcenary properties with effect from 09.09.2005. Hence, the petitioners as coparceners entitled to 8.33% share each 6 MGP,J CRP_7_2019 & CMA_61_2019 in the said 25% of share in the joint family properties and the life interest of respondent No.1 was reduced to 8.33%. The actual physical partition was not affected in metes and bounds during the life time of respondent No.2 and the final division of the properties are yet to take place.
7. It is further the case of petitioners/proposed defendants that respondent No.1 was hospitalized and brain scan reveal that he has multiple mini-strokes over a period of years. In or about 23.09.2017, petitioners learnt that a short while earlier respondent No.1 has made an application for grant of injunction order against some of the defendants in respect of Gyan Bagh Palace and there were several applications filed in Court with regard to certain disputes between parties and the petitioners were not provided with any information as to the said disputes. The petitioners were under bona fide belief that there was no progress in the suit for past several years and that their interest is protected and formal applications would be made to implead them as parties at the time of final partition. The disputes between parties to suit have created an apprehension in the minds of the petitioners. In the said circumstances, as the preliminary decree 7 MGP,J CRP_7_2019 & CMA_61_2019 can be modified at any time before passing final decree, the petitioners have filed the I.A.No.2055 of 2017 seeking to implead them as defendants in the suit. Consequently, I.A.No.2056 of 2017 is filed to grant injunction.
8. Respondent No.1/plaintiff filed his counter denying the averments of I.A.No.2055 of 2017 and contending that as per clause 8 of MOC, there was no transfer of property, but it was only a bequest, which can be in operation after death. The petitioners have ceased to be Hindus before Section 6 of the Hindu Succession Act, 1956, was amended in view of conversion and marriage. Further, respondent No.1 revoked the memorandum of confirmation of marriage agreement dated 25.08.1999 and 22.08.2002 and also special power of attorney given to petitioner No.2 by deed of revocation dated 21.11.2017. Respondent No.1 has adopted one Miss Yashoda and Master Arun, who are known to the petitioners and he was adoptive father of them by confirmation of adoption of registered deed and they are also entitled to share being coparceners with effect of the Hindu Succession Amendment Act, 2005. Respondent No.1 can revoke clause 8 of Memorandum of Compromise and the mother of the 8 MGP,J CRP_7_2019 & CMA_61_2019 petitioners have no authority to represent petitioners and the petitioners have no manner of right or interest in any of the properties. Hence, prayed to dismiss the implead petition.
9. Respondent No.6 filed counter and the same was adopted by respondent No.5. They stated that there has never been any denial with regard to 25% share of respondent No.1 in the properties by any party to the present suit. The disputes between petitioners, who are children of respondent No.1 and the adopted children of respondent No.1 cannot be triable issues in the present suit. It is their case that the interest of the petitioners is sufficiently protected by clause 8 of the MOC, which is admitted by the petitioners themselves, in pursuance of its confirmation and family agreement dated 25.08.1999 and alleged memorandum of confirmation dated 22.08.2002 executed in between respondent No.1 and petitioners. The petitioners instead of filing the present implead petition ought to have initiated separate proceedings against their father and alleged adopted children. Hence, there is no requirement of modification of preliminary decree dated 02.04.1993 and impleadment petition by petitioners after 12 years 9 MGP,J CRP_7_2019 & CMA_61_2019 is as a result of some discord between themselves and respondent No.1. Hence, prayed to dismiss the implead petition.
10. The petitioners/proposed defendants filed rejoinders to the counters filed by respondent No.1 and respondent No.6. They contended that they have rights in 25% share in the properties and estate of respondent No.2 and the same has to be protected. The memorandum of confirmation and family settlement acknowledges favourable rights in favour of the petitioners during the life time of respondent No.1. Further, as per Section 6 of the Hindu Succession Act, 1956, the petitioners have acquired statutory rights in relation to 25% share during the life time of respondent No.1. The preliminary decree can also be modified at any stage before the final decree of partition is passed. The petitioners have not claimed any share or rights of other respondents including respondent No.6 and adoption by respondent No.1 is invalid by virtue of Section 11 of the Hindu Adoption Maintenance Act, in view of living daughters i.e., the petitioners. It is their contention that both the petitioners are born in an undivided family and continue to practice and profess Hinduism and they are entitled for benefits of Section 6 of the 10 MGP,J CRP_7_2019 & CMA_61_2019 Hindu Succession Act, 1956 as coparceners having coparcenary rights in the joint family properties of respondent No.2. Hence, prayed to allow the implead application.
11. On the basis of the above pleadings, the Court below framed the following point for consideration:
"Whether the petitioners are proper and necessary parties to the suit O.S.No.76 of 1970?"
12. After considering the pleadings and contentions of both sides, the Court below came to the conclusion that the petitioners are not proper and necessary parties to the suit and dismissed the implead application and consequently, the injunction application was also dismissed. Aggrieved by the said dismissal, the present Civil Revision Petition and Civil Miscellaneous Appeal are filed by petitioner No.2 before the Court below.
13. Heard both sides.
14. Learned counsel for the revision petitioner/petitioner No.2 contended that a suit for partition does not attain finality unless the partition of the property is divided by metes and bounds through a final decree, as such the revision petitioner/petitioner 11 MGP,J CRP_7_2019 & CMA_61_2019 being family member is entitled to be impleaded as one of the defendants in the suit. It is also contended that the Court is empowered and duty bound to take note of additional facts and implead the revision petitioner as defendant in the suit, even though, preliminary decree is passed, before passing final decree proceedings. It is further contended that the respondent No.1/plaintiff having life interest in the property cannot alienate the property and is only entitled to peaceful enjoyment of the share received by him from the suit scheduled property and to protect her share the revision petitioner is entitled to be impleaded in the suit. It is lastly contended by the learned counsel for the revision petitioner that the revision petitioner cannot be disentitled from claiming inheritance in ancestral properties on the ground of conversion of her religion, as she and respondent No.13 are daughters belonging to joint Hindu Undivided Family provided with equal rights as sons even before 2005 amendment to the Hindu Succession Act, 1956. Hence, prayed to allow the Civil Revision Petition impleading the revision petitioner as defendant to the impugned suit and consequently, allow the Civil Miscellaneous Appeal and grant injunction as prayed for. 12
MGP,J CRP_7_2019 & CMA_61_2019
15. Per contra, the learned counsel appearing for respondent Nos.1, 4 6 and 12 herein, who are all sailing together contended that the Court below after considering all the aspects has rightly dismissed the impugned impleadment application and interference of this Court is unwarranted. It is contended by them that the revision petitioner is not necessary and proper party to the suit, as such prayed to dismiss the present revision and consequently, dismiss the Civil Miscellaneous Appeal also.
16. Now the point for determination is as follows:
"Whether the Court below erred in dismissing the impugned applications filed by the revision petitioner seeking impleadment and injunction?"
Point:
17. This Court has perused the entire pleadings and material placed on record by both the sides. Admittedly, revision petitioner/petitioner No.2 and respondent No.13/petitioner No.1, who are proposed defendants to the suit are daughters of respondent No.1/plaintiff. It is also not disputed that respondent No.1/plaintiff filed suit vide O.S.No.76 of 1970 against other respondent Nos.2 to 12 herein/defendants seeking partition of the 13 MGP,J CRP_7_2019 & CMA_61_2019 suit scheduled properties. The said suit was preliminarily decreed on 24.04.1986 based on the Memorandum of Compromise entered between parties. Subsequently, respondent No.2 herein died in the year 1988 and the preliminary decree was amended in the year 1993, in view of death of respondent No.3 herein. Further, there is no dispute with regard to execution of family agreement and supplementary memorandum of family agreements in respect of Dhanraj Mahal and flats. It is also not in dispute that the suit scheduled properties are not physically partitioned as per the amended preliminary decree of 1993 and the same are being looked after by a managing committee.
18. Learned counsel for the revision petitioner/petitioner No.2 contended that a suit for partition does not attain finality unless the partition of the property is divided by metes and bounds through a final decree, as such the revision petitioner being family member is entitled to be impleaded in the suit as defendant. In support of this contention, he relied upon the following decisions of the Apex Court:
1. S. Sai Reddy vs. S. Narayana Reddy. 1 1 (1991) 3 SCC 647 14 MGP,J CRP_7_2019 & CMA_61_2019
2. Prema vs. Nanje Gowda. 2
3. Danamma vs. Amar. 3
19. It is settled principle of law that preliminary decree can be amended any number of times before passing the final decree of partition, in case of any alterations in the rights of the parties due to occurrence of any event. It is pertinent to state that in the present case, the preliminary decree dated 24.04.1986 was passed in O.S.No.76 of 1970 based on the memorandum of compromise entered by the parties to the suit. Subsequently, the same was amended in the year 1993 due to death of one of the parties. The revision petitioner and respondent No.13 were majors at the time of both preliminary decree as well as the amended preliminary decree and it is not their case that they were not aware of the suit proceedings. The memorandum of compromise based on which the preliminary decree was passed contains clause 8 relating to the revision petitioner herein, which reads as under:
"After the life time of Raja Mahendragir his two daughters Miss. Radhika Mahendragir Dhanrajgir and Miss. Jyothika Mahendragir Dharajgir shall be entitled to equal shares from out of the share allotted to their father Raja Maehndragir."2
(2011) 6 SCC 462 3 (2018) 3 SCC 343 15 MGP,J CRP_7_2019 & CMA_61_2019
20. A reading of the clause 8 makes it clear that the revision petitioner and respondent No.13 herein are entitled for equal shares from the share allotted to respondent No.1 herein/plaintiff. This means that the share of the revision petitioner is protected under the preliminary decree. Furthermore, the revision petitioner was party to the memorandum of confirmations and family arrangements dated 25.08.1999 and 22.08.2002, in respect of the suit scheduled properties. However, the revision petitioner did not chose to challenge the preliminary decree dated 24.04.1986 or amendment of preliminary decree in the year 1993. In fact, the revision petitioner has admitted in her pleadings that though, she was aware of the suit proceedings, she did not choose to get impleaded in the suit thinking that she and respondent No.13 herein would be impleaded at the time of final decree proceedings as formal parties. The revision petitioner has come with the impugned applications due to the disputes which arose between the respondent No.1 herein/plaintiff and revision petitioner. Hence, without any proper basis and based on mere apprehensions, she has come up with the impugned applications 16 MGP,J CRP_7_2019 & CMA_61_2019 at this stage. Even otherwise, Clause 8 of the memorandum of compromise, which is the basis of the preliminary decree, clearly protects the rights of the revision petitioner. Considering all these aspects, the Court below held that the revision petitioner as well as respondent No.13 are not proper and necessary parties to O.S.No.76 of 1970 and they cannot be impleaded in the said suit for partition.
21. Learned counsel for the revision petitioner/petitioner No.2 contended that the Court is empowered and duty bound to take note of additional facts and implead the revision petitioner as defendant in the suit, even though, preliminary decree is passed, before passing final decree proceedings. In support of the said contention, he relied upon the following decisions:
1. Syed Mujtaba vs. Mazhauddin Khan. 4
2. G. Koteshwaramma vs. Chakiri Yannadi. 5
22. There is no doubt that the Court is empowered and duty bound to consider subsequent facts and implead parties to a particular suit, after passing of a preliminary decree and before 4 MANU/AP/3382/2013 5 (2011) 9 SCC 788 17 MGP,J CRP_7_2019 & CMA_61_2019 passing of a final decree. However, in the present case in hand, there are no additional facts and change of events from the date of passing of amended preliminary decree in 1993 and the revision petitioner and respondent No.13 approached the Court below merely on apprehension of not getting their shares from the share allotted to their father i.e., respondent No.1 herein/plaintiff in the amended preliminary decree/preliminary decree. It is pertinent to state that the rights of the revision petitioner are clearly protected under Clause 8 of the memorandum of compromise, which is basis for preliminary decree, in spite of said clause, if the revision petitioner is aggrieved by anything, then her remedy lies elsewhere, but not in the present suit. This aspect was rightly considered by the Court below.
23. Learned counsel for the revision petitioner/petitioner No.2 contended that the respondent No.1/plaintiff having life interest in the property cannot alienate the property and is only entitled to peaceful enjoyment of the share received by him from the suit scheduled property and to protect her share the revision petitioner is entitled to be impleaded in the suit. In support of the said 18 MGP,J CRP_7_2019 & CMA_61_2019 contention, he relied upon the decision in the case of Bay Berry Apartments vs. Shobha. 6
24. Admittedly, the revision petitioner has not placed any evidence on record to show that respondent No.1/plaintiff is trying to alienate the share which was allotted to him on the basis of the preliminary decree/amended preliminary decree. The revision petitioner and respondent No.13 themselves clearly admitted in their pleadings that the disputes between the parties led to an apprehension, in their minds and they filed the present implead application. It is pertinent to state that though there are disputes between the parties to the suit and family members, the rights of the revision petitioner are clearly protected under Clause 8 of the memorandum of compromise and the revision petitioner and respondent No.13 herein are equally entitled for the share in the share which is allotted to respondent No.1 herein/plaintiff. Hence, respondent No.1 herein/plaintiff is not at all entitled to alienate his share as per the said clause. However, the remedy of the revision petitioner to protect her rights does not fall in the present suit.
6 (2006) 13 SCC 737 19 MGP,J CRP_7_2019 & CMA_61_2019
25. It is lastly contended by the learned counsel for the revision petitioner that the revision petitioner cannot be disentitled from claiming inheritance in ancestral properties on the ground of conversion of her religion, as she and respondent No.13 are daughters belonging to joint Hindu Undivided Family provided with equal rights as sons even before 2005 amendment to the Hindu Succession Act, 1956.
26. It is pertinent to state that the preliminary decree of 1986 was based on memorandum of compromise and the same was followed by amended preliminary decree of 1993. The Court below after going into the detailed merits of the case held that the revision petitioner does not fall under the Hindu Succession Act, 1956 and the same is not applicable to the facts of the case. Admittedly, the revision petitioner has not disputed the preliminary decree and amended preliminary decree which were passed based on the memorandum of compromise. The said memorandum of compromise ceases the right of the revision petitioner and respondent No.13 claiming share from the ancestral property and clause 8 of the said memorandum of compromise 20 MGP,J CRP_7_2019 & CMA_61_2019 clearly gives the revision petitioner and respondent No.13 equal share from the share allotted to their father. The revision petitioner has not challenged the said preliminary decree/amended preliminary decree, in order to claim her right over the ancestral properties. However, it is the case of the revision petitioner that she intends to get impleaded to protect her share, which she is deriving from her father i.e., respondent No.1/plaintiff, which was derived by him from the preliminary decree/amended preliminary decree, which was passed based on the memorandum of compromise. In the said circumstances, the question of disentitlement of the share of the revision petitioner due to the conversion of religion does not arise. Though, the rights of the revision petitioner are protected under Clause 8 of the memorandum of compromise, the partition affected between the parties as ended in amended preliminary decree of 1993, debars the presence of the revision petitioner as proper and necessary part to the suit. Furthermore, the preliminary decree was passed based on the compromise entered in between the parties and not on merits. Hence, the contention of the learned 21 MGP,J CRP_7_2019 & CMA_61_2019 counsel for the revision petitioner is unmerited and the same is liable to be rejected.
27. Even otherwise, the Apex Court in the case of M/s. Puri Investments v. M/s. Young Friends And Company & others 7, observed as under:
"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."
28. In view of the above facts and circumstances and considering the principle laid down in the above said decision, this Court is of the considered opinion that the Court below has exercised its discretionary power in passing the impugned order and moreover, the revision petitioner failed to establish that the impugned order passed by the Court below suffers from irregularity or infirmity. In such circumstances, this Court cannot interfere with the findings of the trial Court by exercising the power under Article 227 of the Constitution of India. Therefore, the Civil Revision Petition is liable to be dismissed. 7 Civil Appeal No. 1609 OF 2022 (arising out of SLP (C) No. 6516/2019) decided on 23.02.2022 22 MGP,J CRP_7_2019 & CMA_61_2019
29. Furthermore, it is pertinent to state that the revision petitioner along with the impugned application for impleadment filed another impugned application seeking injunction, which is a consequential relief. As, the impugned application seeking impleadment was dismissed, the Court below consequently dismissed the impunged injunction application also. In the same lines, as the Civil Revision Petition is liable to be dismissed, the Civil Miscellaneous Appeal, which was filed challenging dismissal of the consequential injunction is also liable to be dismissed.
30. In the result, the Civil Revision Petition and the Civil Miscellaneous Appeal are dismissed confirming the orders dated 17.12.2018 in I.A.No.2055 and 2056 of 2017 in O.S.No.76 of 1970 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 31.01.2024 GVR