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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

(1991) 3 SCC 647

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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."

(2011) 6 SCC 462

(2018) 3 SCC 343

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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

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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

MANU/AP/3382/2013

(2011) 9 SCC 788

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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

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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.

(2006) 13 SCC 737

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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

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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

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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

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