Kaki Hanumanthu vs Kaki Kumar
2023 Latest Caselaw 314 Tel

    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

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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

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

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

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

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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

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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

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