Gummana Ramesh Reddy, Kadapa Dist vs Gummana Kushala, Kadapa 4 Others
2024 Latest Caselaw 9927 AP

Andhra Pradesh High Court - Amravati

Gummana Ramesh Reddy, Kadapa Dist vs Gummana Kushala, Kadapa 4 Others on 6 November, 2024

Author: Ninala Jayasurya

Bench: Ninala Jayasurya

                                    1

APHC010011022017
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                 [3494]
                           (Special Original Jurisdiction)

                   WEDNESDAY, THE 6TH DAY OF OCTOBER
                   WEDNESDAY
                    TWO THOUSAND AND TWENTY FOUR

                               PRESENT

          THE HONOURABLE SRI JUSTICE NINALA JAYASURYA

          THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM

                            I.A.No.3 OF 2024
                                    IN
                        APPEAL SUIT NO: 617/2017

Between:

Sunkireddy Suguna                   ...PETITIONERS
                                       PETITIONERS / RESPONDEN
                                                     RESPONDENTS /

& Others                       DEFENDANTS(PROPOSED APPELLANTS)

                                   AND

Gummana Ramesh Reddy(died)
Gummana Kushala
Gummana Bhageerathamma                   ...RESPONDENT / APPELLANTS /
                                                        RESPONDENTS

Counsel for the Petitioners
                Petitioners:

  1. Mr.G.V.SRIRAMA
            SRIRAMA MURTY

Counsel for the Respondent No.2:

  1. Mr.VIRUPAKSHA DATTATREYA GOUDA



The Court made the following Order:

The respondents 3 to 5 in the above appeal filed the present application

seeking to transpose them as appellants 2 to 4 in the Appeal, in view of the

death of the sole appellant - Mr.Ramesh Reddy.

2. For the sake of convenience, the parties are referred to as arrayed in

the appeal.

3. The first respondent in the appeal i.e., the daughter of the sole

appellant-Ms.Gummana Kushala, filed a suit against him in O.S.No.33 of 2004

on the file of the Court of the VI Additional District Judge, Kadapa seeking

partition of Items 1 to 4 of Plaint 'A' Schedule as also Plaint 'B' Schedule

properties into two equal shares and for allotment of one such share to her.

The respondents 2 to 5 herein were added as parties / defendants 2 to 5 in

the suit vide Orders dated 12.08.2014 in I.A.No.606 of 2013. After considering

the oral and documentary evidence, the learned Trial Court allowed the suit in

part and by a Preliminary Decree dated 30.06.2016 directed partition of Item-1

of Plaint 'A' Schedule and Ac.0.21 cents in Item-2 of Plaint 'A' Schedule lying

in the hands of the appellant / 1st defendant into two equal shares by metes

and bounds and allot one such share to his daughter / plaintiff. The suit in

respect of items 3 and 4 of Plaint 'A' Schedule and the movable properties in

Plaint 'B' Schedule was dismissed. The learned Trial Court also dismissed the

suit in respect of the remaining property in Item No.2 of Plaint 'A' schedule

lying in the hands of the 2nd respondent / 2nd defendant, apart from the counter

claim made by the sole appellant / 1st defendant for damages.

Aggrieved by the said Judgment and the Preliminary Decree dated

30.06.2016, the 1st defendant i.e., the father of the plaintiff / appellant filed the

appeal.

4. The learned counsel for the petitioners herein submits that the sole

appellant, who is the brother of the petitioners herein died on 04.11.2022 and

the learned counsel for the appellant filed a Memo dated 13.12.2022 along

with the copy of the Death Certificate, though the legal representatives are

already on record. He submits that as the petitioners / respondents 3 to 5 are

interested in prosecuting the appeal, they filed the present petition to

transpose them as appellants, in view of the death of the sole appellant.

5. The learned counsel submits that the appeal would not be abated in a

Partition matter and urges for allowing the application. He also relied on the

decisions of the Hon'ble Supreme Court in Mahmud Mian(Dead) through

LRs. And Another v. Shamsuddin Mian (Dead) Through LRs. And others1,

R.Dhanasundari Alias R.Rajeswari v. A.N.Umakanth and Others 2 and

Morasa Anjaiah v. Kondragunte Venkateswarlu (died) and others 3.

6. On the other hand, the learned counsel for the 1st respondent / plaintiff

made submissions by drawing the attention of this Court to the averments

made in the counter-affidavit and the material filed along with it. He submits

that had the petitioners / respondents 3 to 5 are aggrieved by the Judgment

and Decree, they could have filed an appeal. He submits that even as per the

admitted case of the petitioners herein before the Trial Court, they are not

(2005) 11 SCC 582

(2020) 14 SCC 1

AIR 1993 A.P. 156

claiming any share in the suit schedule properties. Referring to the written

statement filed by the petitioners / defendants 3 to 5, he submits that the

parties who are not claiming any share and not expecting any decision in their

favour or suffered any decree are not entitled to file an appeal and they cannot

be transposed as appellants. He submits that the parties must have identical

interest, which is lacking in respect of the petitioners herein and as such, not

entitled for the relief sought for. He would also contend that the broad general

principle of abatement is not applicable to the present case, that the dispute is

between the daughter and her father and that she is already on record, as his

legal representative. He further submits that earlier there was a conflict of

interest between the father and daughter i.e., the sole appellant and the 1 st

respondent, but during the pendency of the appeal, the bonding between

them revived and strengthened. In this regard, he refers to the Gift sent by

the 1st respondent on the Birthday of her father and the amount of Rs.40,000/-

sent by him on 17.06.2022 to his daughter / 1st respondent, few months before

his death. While stating that the petitioners herein / respondents 3 to 5, at best

may have a right in the property of their mother (respondent No.2), the learned

counsel submits that the petitioners with a dishonest intention filed O.S.No.39

of 2023 on the file of the Court of 1st Additional District and Sessions Judge,

Kadapa in respect of the subject matter properties on the basis of a fabricated

Will dated 24.11.2017 stated to have been executed by the sole appellant in

favour of the petitioners herein and his mother / respondent No.2.

7. Drawing the attention of the Court to the averments made in the affidavit

filed in support of the present application, the learned counsel contends that

the petitioners have not stated about filing of the above said suit in the present

I.A. That apart, he submits that the averments in the affidavit to the effect that

the petitioners are not aware of the pendency of the present appeal wherein

they were arrayed as respondents 3 to 5 came to their knowledge very

recently, just before filing of the present I.A., is absolutely false, misleading

and contrary to the material on record. He submits that on the earlier occasion,

the petitioners herein filed Writ Petition No.40348 of 2022 alleging interference

of the police in civil matters and in the affidavit filed in support of the said writ

petition, there was no mention about the alleged Will dated 24.11.2017 and it

was categorically stated that they are added as respondents in A.S.No.617 of

2017 and that the same is pending. Referring to the plaint averments in

O.S.No.39 of 2023 mentioned above, the learned counsel further contends

that the petitioners herein, who filed the said suit had not stated about the

pendency of the present appeal in respect of the same properties. He also

submits that in fact, the petitioners herein filed an application seeking

injunction in the said suit and the same was dismissed. He contends that non-

disclosure of these relevant aspects would make it clear that there are no

bonafides in the present application, the petitioners are guilty of suppression /

non-disclosure of material facts and not entitled to the relief prayed for.

8. Even otherwise, the learned counsel submits that only the 1st

respondent i.e., daughter is the legal representative of the deceased appellant

and his sisters and mother are not legal representatives and contends that

when no claim is set up by the petitioners herein, the right to sue does not

survive and they failed to satisfy the tests / criteria to transpose the petitioners

as appellants. The learned counsel relying on the decisions in State of

Punjab and Ors., v. Gurdev Singh and Ors.4, Edakkavil Karimbuvalappil

Abdulkhader Haji v. Thalakkal Kunhammad & Others5, R.Dhana Sundari

@ R.Rajeswari v. A.N.Umakanth and Others 6, urges for dismissal of the

present application.

9. In reply, the learned counsel for the petitioners submits that the

petitioners have share in the subject matter properties, they have not

relinquished all the properties as is evident from the written statement and that

even by virtue of the Will executed by the sole appellant, the petitioners are

entitled to a share. He submits that as the Will was executed in the year 2017,

it was not mentioned in the written statement filed in O.S.No.33 of 2004. He

submits that even in the property of respondent No.2 / their mother, they have

a share. Reiterating his contention that in a Partition matter, the appeal would

not abate, the petitioner counsel prays for allowing the application.

10. This Court has considered the submissions made and perused the

material on record.

11. On an appreciation of the rival contentions, the point for adjudication is

whether the application seeking to transpose the petitioners as appellants

deserves to be allowed, in the facts and circumstances of the case?

AIR 1991 SC 2219

AIR 1986 Kerala 3

MANU/TN/9746/2006

12. Before answering the point for consideration, it may be appropriate to

refer to the stand taken by the petitioners / defendants 3 to 5 in O.S.No.33 of

2004 in the written statement which reads as follows:

" The A suit schedule mentioned property in item No.2, an extent of 21 cents along with constructions & item number 3, 4 are belongs to the defendant No.1 and those properties are self acquired properties of D1. The said properties are got through respective sale deeds which are filed before this Hon'ble Court by D1. Those documents are reveals that the said properties are self acquired properties and the said property are got and purchased developed with the own funds of D1. The said properties also developed by utilizing of investments of his own self earning funds and also obtaining loans from concerned financial institutions i.e., bank, LIC., and other private people.

D1 constructed and run a poultry form in the name and style as mentioned item No.1 property major share is given to the D1. With the said reason only we relinquish our rights in the said property and also we never claim in the said property at any point of time in accordance with the recitals of the partition deed of the year of 1998. The said property item No.1 is co-owner property of us and it is fallen to D1 and it is self acquired property of D1. With the above said reasons the plaintiff and other defendants i.e., D2 to D5 are not entitled to ask any share or partition in the said property.

It is further the defendants D3 to D5 are stating that A-Schedule mentioned property item No.2 an extent of Ac.0.11 cents situated in Akkayapalli S.No.52/1B is belongs to D2 the said property got through gift deed from her husband dt.10.02.1997. The said property is self acquired property of her husband."

13. Before the Trial Court, the written arguments filed on behalf of the

petitioners inter alia, reads as follows:

"3.A-Suit scheduled mentioned properties Item No.1, Item No.2(an extent of 21 cents) Item No.3, Item No.4 are the absolute self acquired properties and those are in the hands of D1, these properties are in absolute possession enjoyment of D1. In Item No.2 an extent of 10 cents along with

constructions are the absolute properties of D2. The B Scheduled mentioned properties are not at all present there are no such properties available.

4. Respective to the suit scheduled mentioned properties, the defendant No.1 filed essential documents to show that the said properties are absolute and individual self acquired properties and he is having self earning capacity, those documents are marked Exs.B1 to B43.

5. The contents of written statement may be taken into consideration to effect of this suit."

14. The learned Trial Judge after considering the matter in detail with

reference to the oral and documentary evidence while partly decreeing the suit

only in respect of Items 1 and 2 of the Plaint A Schedule Properties, recorded

categorical findings with regard to Partition of joint family property and vide

Judgment dated 30.06.2016 held that the petitioners, who are sisters of the

sole respondent herein cannot again claim a share [Para No.31].

15. It is not in dispute that despite suffering adverse findings, no appeal has

been preferred by the petitioners / defendants 3 to 5, obviously in view of the

admitted fact that they are not claiming any right in respect of the subject

matter properties as stated by them in the written statement. Be that as it may.

As noted earlier, it is the case of the petitioners that in view of the death of the

sole appellant, they are seeking to transpose themselves as appellants since

they are very much interested in questioning the validity of the Judgment and

Decree and their rights would be defeated, if they are not transposed as

appellants. It is also the contention of the learned counsel that in a case for

Partition, on the death of the party who filed the suit or appeal, the

proceedings would not be abated. So far as the said submission is concerned,

this Court is of the view that the same need not be gone into in the present

application and it would suffice to examine the issue of transposing the

petitioners as appellants. At this juncture, it may be relevant to note that the

petitioners by virtue of the so called Will dated 24.11.2017 stated to have been

executed in their favour by the sole appellant, claim a right in the subject

matter properties. Much can be said about the Will with reference to the

submissions by the learned counsel for the 1st respondent / plaintiff, but this

Court is not expected to go into all these aspects or record any findings, in

view O.S.No.39 of 2023 instituted by the petitioners claiming rights in respect

of the suit schedule properties on the basis of the alleged Will dated

24.11.2017. If at all, the petitioners herein have to establish their right / claim

before the Trial Court over the subject matter properties on the basis of the

said Will. Be that as it may.

16. In Mahmud Mian's case referred to above, the Hon'ble Supreme Court

opined to the effect that in a Partition Suit on account of death of one of the

parties, the appeal could not have abated in its entirety.

17. In Morasa Anjaiah case referred to above, a Division Bench of the

erstwhile High Court of Andhra Pradesh was examining an issue as to

whether a party to a suit or proceedings who fails to take steps to bring legal

representatives on record under Order 22 Rule 4 of C.P.C., or whose

application under the said provision has been dismissed, can have recourse to

the provisions of Order 1 Rule 10 of C.P.C., to implead the legal

representatives of the deceased party. The Division Bench while referring to

the provisions of C.P.C., i.e., Order 22 Rule 3, Rule 4, Rule 9 and Order 1

Rule 10 and formulating the principles inter alia that as application under

Order 1 Rule 10 C.P.C., can be filed in a suit / appeal to enable the Court

effectually and completely to adjudicate upon and settle all the questions

involved the suit, provided the proposed party has an independent right or

obligation dehors his position as legal representative of the deceased

defendant, at Para No.27 held as follows:

"27..... Though the cases arise out of a partition suit, the 4th defendant who died during the pendency of the suit was not the co-sharer, but the tenant of the suit land, and no steps were taken to bring on record his legal representatives under Order 22, Rule 4, C.P.C. The suit, therefore, abated against him. That abatement continues, so without having the abatement setting aside, the legal representatives cannot be impleaded under Order 1, Rule 10, C.P.C. circumventing the provisions of Order 22....."

18. In R.Dhanasundari's case, the Hon'ble Supreme Court was dealing

with an appeal carried against the decision of the High Court of Judicature at

Madras wherein the Order of the Trial Court allowing the applications filed

under Order 23 Rule 1-A and Order 1 Rule 10 of C.P.C., by the defendants for

transposing them as plaintiffs, after the existing plaintiffs sought permission to

withdraw the suit was upheld. While dismissing the appeal, the Hon'ble

Supreme Court at Para No.11 held as follows:

"11. As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against the said co-defendant in the given suit itself. The very nature of the provisions contained in Rule 1-A

ibid. leaves nothing to doubt that the powers of the Court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for exercise of powers under Rule 1-A ibid. would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order 23 and the defendant seeking transposition is having an interest in the subject-matter of the suit and thereby, a substantial question to be adjudicated against the other defendant. In such a situation, the pro forma defendant is to be allowed to continue with the same suit as plaintiff, thereby averting the likelihood of his right being defeated and also obviating the unnecessary multiplicity of proceedings."

19. It may also be apposite to refer to the relevant portion of the order of the

learned Judge of Madras High Court for better understanding of the matter:

"Para 11: Thus, a plain reading of Order 23 Rule 1-A C.P.C. shows that the defendant is entitled to seek transposition as a plaintiff, if he has a substantial question to be decided as against the other defendants.

Para 12: In Nagoor Gani alias Rajamani and Ors. v Gandhi Meenal and Ors. MANU/TN/0260/1988: (1988) 2 MLJ 171, a learned Judge of this Court considered the scope of Order 23 Rule 1-A C.P.C. and held in paragraph 12 of his judgment as follows:

This new rule has been enacted in order to enable a defendant, who has identical interest, from being denied his interest if he rested on the success of the plaintiff's suit and the plaintiff wanted to withdraw the suit. Before a defendant could invoke this provision, it must be shown that the plaintiff is seeking to withdraw or abandon his claim under Rule 1 of Order 23, C.P.C. It is a condition precedent to enable a defendant to get himself transposed. The principle that follows this rule is that there must be identity of interest between the plaintiff and such a defendant who wants to transpose as a plaintiff. It must be a suit where the defendant is entitled to succeed automatically on the success of the plaintiff in the suit. Such a defendant is usually called as a proforma defendant. To put it in other words, both the parties are projecting the same claim against the other defendants, and therefore, the success of one is the success of the other. In such cases, the law comes to the rescue of such a defendant so that the plaintiff, who is having a similar right, cannot defeat the rights of the defendant by colluding with the other contesting defendants.

Para 13: In Vasantha Ammal v. V.P. Dhanaraj and Ors. 1990 1 L.W. 209, a Division Bench of this Court considered the discretionary powers of a Court to order transposition. In paragraph 3 of its judgment, the Division Bench held as follows:

3. On the question of transposition of parties, the powers of Court, are wide enough to confer a discretion on it to transpose the necessary and proper party, if that is required for an effective and a comprehensive adjudication of the controversy in the lis. The use of the discretion will depend upon the facts and circumstances of the case. This discretion is not an unbridled one, but is circumscribed by two broad limitations. One is, where rights valuable have accrued to the other side. The other is, where there is a lack of bona fides on the part of the party seeking transposition, in that he has no plausible case to agitate, having a genuine interest in the lis. In these circumstances, the Court will fetter its hands and will not exercise its discretion. But, the question, as already noted, has to be decided depending on the facts of each case and by bare recapitulation of the principles, the court should not abdicate its discretionary power for ordering transposition, when, in fact, that application needs to be countenanced in the interests of justice and on the facts of the case.

20. Thus, from a reading of the above referred decisions, it is clear that

before seeking transposition, there must be identity of interest between the

plaintiff and a defendant, who wants to transpose as plaintiff, a substantial

question to be adjudicated against the other defendant and the discretion to

transpose a party will depend on the facts and circumstances of the case and

not automatic.

21. Examining the case of the petitioners with reference to the said

requisites and applying the tests in deciding their claim to transpose

themselves as appellants in the light of the expressions in the said decisions,

it has to be held without any hesitation that they failed to satisfy the same.

Even as per the admitted case of the petitioners before the Trial Court in

O.S.No.33 of 2004, they are not claiming any right identical to the plaintiff /

sole appellant. In such an event, adjudication of substantial question in

respect of the subject matter properties, vis-à-vis, the deceased appellant

would not arise at all. Further, the attempt on their part in seeking to transpose

them as appellants, in the considered opinion of this Court is lacking in

bonafides. The conduct of the petitioners in not stating the material facts in the

present application about the filing of O.S.No.39 of 2023 as also pendency of

the present appeal in the said suit in respect of the subject matter properties

does not inspire confidence and as rightly contended by the learned counsel

for the respondent No.1, amounts to suppression / non-disclosure of material

facts. Even in the present application also, the petitioners feigned ignorance

about the above appeal, though they themselves have referred to the

pendency of the same, in the affidavit filed in W.P.No.40348 of 2022.

Significantly, there was no whisper in the said writ petition filed in the year

2022 about the so called Will dated 24.11.2017 and it appears, the petitioners

have introduced the version of execution of Will for the reasons, best known to

them. The Court is not expected to exercise its discretion in favour of the

parties, who conceal material facts and the petitioners are not entitled for any

orders from the Court on that ground also. Therefore, the point is answered

against the petitioners.

22. In the light of factual as well as the legal position and the conclusions

recorded with reference to the same, the petitioners are not entitled to get

themselves transposed as appellants. The present application is devoid of

merits apart from lacking in bonafides. Hence, the same is dismissed with

costs of Rs.25,000/- and the same shall be paid to the respondent No.1 within

a period of four (4) weeks from today.

23. It is made clear that the observations made by this Court are only for

the purpose of the disposal of the present application and the claim of the

petitioners on the basis of the so called Will dated 24.11.2017 shall be

decided, in accordance with the Law.

__________________________ NINALA JAYASURYA, J

__________________________ SUMATHI JAGADAM, J

Date 06.11.2024 BLV

THE HON'BLE SRI JUSTICE NINALA JAYASURYA THE HON'BLE SMT.JUSTICE SUMATHI JAGADAM

I.A.No.3 OF 2024 IN APPEAL SUIT NO: 617/2017

Date: 06.11.2024

BLV