Madras High Court
Susila vs M. Perumal on 31 October, 2022
1 CRP.No.1648 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.10.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No.1648 of 2019
and
C.M.P. No. 10746 of 2019
1. Susila,
2. Dhanakodi,
3.Manohar,
Sankar (Died)
4.Muthulakshmi,
5.Minor Saritha,
6.Minor Revathi,
(Minors 5 & 6 are represented by
Guardian Mother Muthulakshmi
4th petitioner herein) .. Petitioners
Versus
R.K.Kumar (died)
1.M. Perumal,
2.K. Palanivel,
3.L. Bhagirath,
4.N. Jayachandran,
5.J. Vedhavalli,
5.J. Sundaravalli .. Respondents
1/1
https://www.mhc.tn.gov.in/judis
2 CRP.No.1648 of 2019
Prayer: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
17.12.2018 made in I.A. No.415 of 2018 in I.A. No.179 of 2017 in O.S.
No.32 of 2011 on the file of the Additional District Munsif Court,
Cuddalore.
For Petitioners : Mr.R. Muralidharan
For Respondents : Mr. M. Viruthagiri for R1 to R6
*****
ORDER
This Civil Revision Petition has been filed seeking to set aside the
fair and decreetal order dated 17.12.2018 made in I.A. No.415 of 2018 in
I.A. No.179 of 2017 in O.S. No.32 of 2011 on the file of the Additional
District Munsif Court, Cuddalore.
2. The petitioners herein are the defendants and the respondents
herein are the plaintiffs in the original suit.
3. The case of the petitioners is that one Mr.R.K. Kumar who was
the plaintiff, has filed the suit in O.S. No.32 of 2011 seeking for
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declaration of his title to the suit schedule property against the defendants.
The same was dismissed for default on 02.07.2016 since the said plaintiff
being called absent during the hearing date. In the mean time, the suit
property was settled in his daughter favour. His daughter sold out the suit
property to the third party. Subsequently, the said plaintiff along with
other purchasers of the suit property has filed I.A. No.179 of 2017 to
restore the same. In the mean while, as the 1st plaintiff, R.K. Kumar died,
other plaintiffs have filed I.A. No.415 of 2018 to amend the application in
I.A.No.179 of 2017 by adding the word “died' after the name of the 1st
plaintiff without impleading the legal heirs of the 1st plaintiff in the suit
since the bonafide purchasers of the suit property are already on record.
After hearing both sides, the Trial Judge allowed the application by order
dated 17.12.2018. Not satisfied with the aforesaid order, the defendants
have filed the present Civil Revision Petition to set aside the same.
4. The learned counsel for the petitioners would submit that the said
sale transactions are not bonafide and forged one. Hence, the plaintiffs who
are said to have purchased the suit property, cannot claim any right
independently unless the heirs of the deceased R.K. Kumar establish their
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right in the Court. Therefore, the legal representative of the deceased have
to be brought on record as per Order 22 Rule 3 of CPC. The legal
representatives alone can file amendment petition after they brought on
record in the application as the title of the suit property is to be finalized on
merit by the Trial Court. In support to his argument, he has relied on the
Judgment dated 25.09.2018 passed by this Court in the case of “Lagrave
Jayaseeli Vs. Trinite Modestine and Ors” reported in
MANU/TN/6747/20118. Hence, the order dated 17.12.2018 passed in I.A.
No.415 of 2018 is liable to be set aside.
5. The learned counsel for the respondents would submit that during
the pendency of the suit, the 1st plaintiff died who had executed a
settlement Deed in respect of suit property in favour of his daughter
Meena. Subsequent to execution of settlement Deed, his daughter has sold
the portion of properties, to third parties who are on record in the petition.
The plaintiffs/respondents herein have acquired interest over the suit
property by way of valid sale deed and hence there is no need to implead
the legal heir of the 1st plaintiff since the entire suit property was sold to the
respondents herein. In view of the death of the 1st plaintiff, other plaintiffs
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who are the purchaser of the suit property, have filed the Application in
I.A. No179 of 2017 to amend the application by adding the word of "died"
after the name of the 1st plaintiff. In support of his argument, the learned
counsel for the respondent relied upon the decision of this Court passed in
the case of Mariaprakasam Vs. Upakaramary & 5 others reported in
2005-2-L.W.252. Hence, as the purchaser of the property has transposed
as plaintiff in the suit, there is no necessity to implead the legal heirs of the
main plaintiff in the suit since the entire property was sold out. After
considering oral and documentary evidence, the Trial Court allowed the
same and hence no interference is required in that order.
5. Heard the learned counsel for the petitioners and the respondents
as well as perused the materials available on record.
6. On a perusal of the records, it is seen that the suit in O.S. No.32
of 2011 was originally filed by one Mr. R.K. Kumar seeking for
declaration of title over the suit property and permanent injunction against
the defendants. The same was dismissed for default on 02.07.2016 due to
absent on the side of the plaintiff on the date of hearing. During the
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pendency of the suit, the 1st plaintiff had executed a settlement Deed in
respect of suit property in favour of his daughter Meena. Subsequent to
execution of settlement Deed, his daughter has sold the portion of
properties, to third parties through Registered Sale Deed. While the main
plaintiff and the purchasers of the suit property filed I.A. No.179 of 2017
to restore the suit in O.S. No.32 of 2011 claiming over the suit property,
the main plaintiff died. Even though the purchasers are on record in the
petition in view of the devolution of interest in the suit property by way of
Sale deed, the suit filed by the main plaintiff died during the pendency of
the suit who alone sought for declaration of title in the suit property against
the defendants. The same was dismissed for default without hearing
contentions of both sides. While being so, the legal heir of the main
plaintiff ought to have been impleaded in the restoring suit to put forth
their averments with regard to suit property sold to the third parties during
the pendency of the suit. Only after impleading the legal heirs of the
deceased in the suit, the suit would be disposed of on merit after full
fledged trial or otherwise it will lead multiple suit proceedings. No
prejudice would be caused to other plaintiffs as they are said to be
bonafide purchaser of the suit property. Hence, the findings of the Trial
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Court is hereby set aside and the Trial Court is hereby directed to implead
the legal heirs of the deceased/1st plaintiff in the suit and dispose of the
case after full fledged trial as expeditiously as possible.
7. In the result, the Revision Petition stands allowed and
consequently connected miscellaneous petition is closed. No costs.
31.10.2022
Lbm
Index : Yes/No
Speaking Order : Yes/No
Copy To:
1. The Additional District Munsif Court, Cuddalore.
2. The Section Officer, V.R.Section
High Court, Madras.
T.V.THAMILSELVI, J.
https://www.mhc.tn.gov.in/judis
Lbm
C.R.P.No.1648 of 2019
and
C.M.P. No. 10746 of 2019
31.10.2022
https://www.mhc.tn.gov.in/judis
