Basava Poornima Choudary vs Dr.T.Gowthami Chowdary
2022 Latest Caselaw 9904 AP

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

           CIVIL REVISION PETITION No.1747 of 2022

   Between:

   Basava Poornima Choudary, D/o Dr.Ravi
   Chowdary, W/o Sridhar Babu, aged 41 years,
   Occ:    Doctor,    R/o    Sivaram    Towers,
   Prajasakthinagar, Vijayawada and another.
                                                     ... Petitioners.
               Versus

   Dr.T.Gowthami         Chowdary,       W/o
   Dr.T.Rajeswara Rao, aged 61 years, Occ:
   Doctor, R/o ABC Scan Center, Dronkal Road,
   Suryaraopet, Vijayawada and another.

                                                    ... Respondents.

Counsel for the petitioner         : Sri Ramachandra Rao Gurram
Counsel for respondents            : ---

                               ORDER

Petitioner, third parties to the suit, filed the above

revision challenging the order dated 27.08.2022 in

I.A.No.1206 of 2016 in O.S.No.221 of 2011 on the file of XII

Additional District Judge, Vijayawada.

2. 2nd Respondent herein, being the plaintiff filed the suit

O.S.No.221 of 2011 against the 1st respondent herein, being

defendant for recovery of amount.

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3. Plaintiff pleaded in the plaint that plaintiff and

defendant are brother and sister. Their father Dr.Venkaiah

Chowdary died on 26.10.2006. During his lifetime, he

executed a registered Will dated 05.05.2006 and thereafter

executed codicil dated 01.08.2006. As per the registered Will,

movable and immovable properties including cash and shares

are bequeathed to plaintiff as well as his children. Defendant

in the suit, daughter of Dr.Venkaiah Chowdary and sister of

plaintiff was appointed as executrix of said Will, in view of

loans issued by Dr.Venkaiah Chowdary mostly to defendant

and her family members. The plaintiff and his children are

entitled to the movables, cash and shares as per the Will.

b) Defendant, during the lifetime of her father

Dr.Venkaiah Chowdary, borrowed Rs.10,00,000/- for the

purpose of procuring a seat for her son in Alluri Sitaramaraju

Educational Society, Nagarjuna Nagar, Hyderabad and the

said amount was paid by way of two demand drafts. The

defendant undertook to repay the amount. The transactions

were reflected in income tax returns of Dr.Venkaiah

Chowdary. After death of Dr.Venkaiah Chowdary, plaintiff,

after getting bank statement, came to know about the fraud

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committed by defendant. Plaintiff requested the defendant to

clear the outstanding amount in accordance with statement.

A memorandum of understanding (MOU) dated 24.11.2008

signed and executed by plaintiff, his children, defendant and

other sister, wherein it was agreed that if some more assets

other than mentioned in Will dated 05.05.2006 executed by

Dr.Venkaiah Chowdary are identified in future, the same will

go to the benefit of plaintiff and his children, but defendant

and her other sister will have no claim against the same.

Similarly, any claims made by the third party against

Dr.Venkaiah Chowdary either personally or against his

estate, the same shall be borne by the plaintiff and his

children and the defendant and her sister by name Sandhya

Kanakamedala have no liability to discharge the same.

Despite repeated demands, defendant failed to repay the

same and hence, filed the above suit.

4. Defendant filed written statement and contended

interalia that Rs.10,00,000/- was drawn by the defendant

from her personal account and the same was utilized for

procuring the medical seat to the son of defendant. All the

earnings of Dr.Venkaiah Chowdary were deposited with the

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banks at Hyderabad and hence, there is no need to draw the

same at Vijayawada. After death of Dr.Venkaiah Chowdary,

disputes arose among the family members and at the

instance of elders, MOU was executed on 24.11.2008. In the

said MOU, it was mentioned that no amounts were due from

the defendant to the plaintiff and his children as per the bank

statement of Dr.Venkaiah Chowdary. It was further recited

that all the parties of MOU shall not dispute over any matter

referred to in the Will executed by Dr.Venkaiah Chowdary. It

was also further mentioned that if any disputes arose among

signatories, it shall be referred to the arbitrator. The codicil

pleaded by plaintiff is fabricated document created for the

purpose of filing suit. Dr.Venkaiah Chowdary kept the Will in

a sealed cover and kept the same in locker in the house. The

sealed covered was opened in the presence of family

members, plaintiff, his wife, children, defendant, her

husband and Dr.Sandhya Chowdary and Dr.Ravi

Kanakamedala and Y.Radha Krishna and it was read over by

an advocate and close relative by name T.Jagadish. No

codicil was found in the said cover except the registered Will.

The bank lockers were opened in the presence of Y.Radha

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Krishna, maternal uncle of plaintiff and defendant and no

codicils were found in the bank lockers. Even in the MOU

executed on 24.11.2008, there was no mention about codicils

and eventually prayed the Court to dismiss the suit.

5. Pending the suit, third parties i.e. daughter and son of

plaintiff filed I.A.No.1206 of 2016 to implead themselves as

plaintiffs 2 and 3 in the suit.

6. In the affidavit filed in support of the petition, it was

contended interalia that after death of grandfather, the

deponent i.e. proposed 2nd plaintiff obtained bank statement

from Andhra Bank and observed the fraud played by

defendant on her father; that defendant has to pay

Rs.10,00,000/- and the plaintiff filed suit for recovery of

Rs.19,06,624/- along with interest; that to protect their right

and share to be recovered from the defendant, filed the

petition seeking to implead them as plaintiffs 2 and 3 and

also consequential amendment.

7. Respondent filed counter and opposed the application.

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8. Trial Court by order dated 27.08.2022 dismissed the

application. Aggrieved by the same, the present revision is

filed.

9. Heard Sri Ramachandra Rao Gurram, learned counsel

for petitioners. In spite of service of notice, there is no

representation on behalf of respondents.

10. Learned counsel for petitioners would submit that by

virtue of registered Will dated 05.05.2016 Dr.Venkaiah

Chowdary, movable and immovable properties were

bequeathed to plaintiff in the suit and his children and the

Clause No.7 of the Will filed along with revision, would

manifest that executrix desired to divide the movable and

immovable properties into four equal shares to be given to his

son and son's three children in equal shares. He would also

submit that the codicil dated 01.08.2006 would reflect the

amount due by defendant and in view of recitals in Will and

codicil, proposed parties are proper and necessary parties to

the suit, however, the Court below without considering all

these aspects dismissed the application and thus, prayed to

set aside the order.

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11. Now, the point for consideration is:

Whether the proposed parties are proper and necessary parties to the suit filed by father of proposed parties for recovery of amount?

12. A "necessary party" is a person who ought to have been

joined as a party and in whose absence no effective decree

could be passed at all by the court. If a "necessary party" is

not impleaded, the suit itself is liable to be dismissed. A

"proper party" is a party who, though not a necessary party,

is a person whose presence would enable the court to

completely, effectively and adequately adjudicate upon all

matters in dispute in the suit, though he need not be a

person in favour of or against whom the decree is to be made.

13. A perusal of the plaint filed by father of implead parties

would indicate about execution of Will dated 05.05.2006 and

codicil dated 01.08.2006 executed by Dr.Venkaiah Chowdary.

There is no averment in the plaint that suit was filed on

behalf of other beneficiaries mentioned in the Will dated

05.05.2006. In Paragraph-6 of the plaint, it was stated thus:

"It is submitted that after the death of Dr.Venkaiah Chowdary, the defendant has failed to fufill the last wishes of the plaintiff's father by not handing over the

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movables and cash and shares and also documents to the plaintiff and his children. Since the plaintiff and his children are entitled as a matter of right as per the last wishes of Dr.Venkaiah Chowdary the amounts which have been collected by the defendant from the borrowers and also payable by the defendant herself."

14. The other averments in the plaint would disclose that

defendant is bound to pay the loan amount of Rs.10,00,000/-

due and payable to the plaintiff and his children.

Dr.Venkaiah Chowdary died on 26.10.2006. Suit was filed

initially on the file of II Additional District Judge, Vijayawada

on 23.10.2009 as can be seen from the copy of plaint failed

along with revision. Later, the suit was transferred to XII

Additional District Judge, Vijayawada and renumbered as

O.S.No.221 of 2011.

15. In the plaint, as stated supra, plaintiff pleaded that

plaintiff and his children are entitled to the amount by virtue

of registered Will dated 05.05.2006. However, for the reasons

best known, the children of plaintiff were not shown as

plaintiffs to the suit. The amount shown in the plaint is

Rs.19,06,624/-, principal being Rs.10,00,000/-. In the cause

of action Paragraph, it was mentioned that cause of action for

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the suit arose on 26.10.2006 they day on which the plaintiff's

father died and immediately the Will has came into operation

after the death of Dr.Venkaiah Chowdary and subsequently,

when the plaintiff demanded to pay the amount which is

subject matter of suit and the defendants are evading to

make the payment in spite of execution of memorandum of

understanding dated 24.11.2008 and the amount lent by

plaintiff's father to defendant at Vijayawada through his bank

account and the amount due and payable by defendant to the

plaintiff after his father's death at Vijayawada, which is

within the jurisdiction of that Court.

16. A reading of the plaint would indicate that plaintiff filed

the suit for recovery of total amount due from the defendant

being one of beneficiaries under the Will. The suit was not

filed on behalf of his children. It is not the case of proposed

parties that plaintiff filed the suit for recovery of his share

amount leaving the others share. Learned counsel for

petitioner would submit that Section 21 (1) of the Limitation

Act deals with effect of substituting or adding new plaintiff or

defendant and if it is in good faith, the Court may direct that

the suit as regards such plaintiff or defendant shall be

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deemed to have been instituted on any earlier date. Thus, he

would submit that if the proposed parties are permitted to

come on record, the suit was deemed to be instituted when

the plaintiff originally filed the suit in the year 2009 itself.

Thus, he would submit that finding of the Court below that

suit is barred by limitation falls to ground.

17. Section 21 of the Limitation At, 1963 reads thus:

Section 21 - Effect of substituting or adding new plaintiff or defendant

(1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

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18. This Court is not persuaded with the plea raised by

petitioner's counsel. As discussed supra, a perusal of the

entire plaint would indicate that sole plaintiff filed the suit for

recovery of amount on the strength of Will dated 05.05.2006

executed by his father. In the plaint, it was averred that

plaintiff and his children are beneficiaries and are entitled to

recover the amount from the defendant. The application was

not even filed by plaintiff to implead his children as plaintiffs

2 and 3. The application was filed by his children and there

is allegation in the affidavit that their father is acting

detrimental to their interest and hence, they are also

necessary parties to the suit.

19. If the proposed parties, as per the registered Will dated

05.05.2006, are claiming their shares, they were supposed to

file the suit as was filed by the sole plaintiff in 2009 itself.

This application filed on 13.10.2006. In the considered

opinion of this Court, the claim of the proposed parties, is

clearly barred by limitation. Even going by the MOU dated

24.11.2008 between the parties, the application has to be

filed within three years i.e. by 2011, however, the application

is filed in the year 2016. Hence, this Court is of the view that

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the same is barred by limitation. One of the beneficiaries

filed the suit for recovery of amount and the entire amount is

shown in the plaint. Thus, non impleadment of proposed

parties does not affect their rights, if any. The other

beneficiaries can work out their remedies after judgment in

the suit. The judgment relied on by the learned counsel for

petitioner in V.Narayana Reddy Vs. Ani Narayanan and

Ors.1 relates to the suit for injunction and the principle laid

down in the said judgment does not apply to the facts of this

case.

20. A perusal of the affidavit, filed by the proposed parties,

does not indicate that their inclusion in the suit is due to

inadvertence. It is not the case of plaintiff, who instituted the

suit that by mistakenly his children were not shown as

plaintiffs along with him. When the application was filed by

the children seeking to implead them as plaintiffs, he kept

silent without filing counter. In view of the same, this Court

is of the considered opinion that order of the Court below

does not suffer from any illegality warranting interference of

this Court under Article 227 of the Constitution of India.

AIR 2009 AP 124

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21. Accordingly, the Civil Revision Petition is dismissed at

admission stage. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

29th December, 2022

PVD