Telangana High Court

Bheemagowni Mallesh vs Committee Gfil on 13 June, 2024

              THE HON'BLE SMT JUSTICE K. SUJANA


            CIVIL REVISION PETITION NO.2571 OF 2022

ORDER :

This revision petition is filed by the revision

petitioner/Defendant No.1 against the order dated 01.08.2022

passed in I.A.No.3 of 2022 in O.S.No.136 of 2016 by the Principal

District Judge at Bhongir.

2. I.A.No.3 of 2022 was filed by the respondent No.1 herein

under Order I Rule 10 r/w.Section 151 of the Code of Civil

Procedure (for short 'CPC') to implead the Committee appointed by

the Hon'ble Supreme Court as defendant being necessary party to

be heard. The plea of the petitioner in I.A.No.3 of 2022 is that the

plaintiff has filed the suit to mis-lead the Court by concealing the

material facts for her personal gain, her brothers and sisters who

are proforma defendant Nos.1 to 5 and the correct facts are that

the company Golden Forest India Limited (for brevity 'GFIL') and

its subsidiary companies were bonafide purchasers of the land

under reference and there are certain restraint orders passed by

the Hon'ble Supreme Court regarding jurisdiction of other Courts

including the Court below with regard to the property matters of

these companies. The plaintiff has mischievously obtained

preliminary decree on 25.06.2018 by playing fraud on the Court

and with an intention to cheat the applicant and other investors of

the GFIL and its subsidiary companies, that the judgment was

passed without hearing the Committee who is proper party with

respect to defendant Nos.6 and 7 who were proceeded against ex

parte along with other defendants. The further contention of the

petitioner therein is that GFIL under Collective Investment Scheme

of SEBI collected huge funds from poor investors all over the

country and thereafter started defaulting returns. Therefore, SEBI

passed a restraint order on 09.01.1998 and thereafter filed

W.P.No.344 of 1998 before the High Court of Bombay which was

later transferred to the Hon'ble Supreme Court and the Hon'ble

Supreme Court appointed the petitioner-Committee therein vide

order dated 19.08.2004 passed in T.C. (C) No.2 of 2004 between

Securities & Exchange Board of India Vs Golden Forests

(India) Limited mandating to take into its custody all the assets of

GFIL and its subsidiary/associate companies, realize them and to

file a report of realized funds to the Hon'ble Supreme Court to

enable the Court to pass appropriate orders with regard to

disbursement of funds to the investors. Since the GFIL and its

other group companies closed their business in December 2000,

the Hon'ble Supreme Court appointed the Committee on

19.08.2004, therefore, the Company is a necessary party to be

heard in the matters relating to Golden Forest Group Companies.

3. The further contention of the petitioner therein is that the

Hon'ble Supreme Court on 17.08.2004 in T.C. (C) No.2 of 2004,

directed all the Sub-ordinate Courts not to entertain any claim

pertaining to the Company Golden Forest India Limited, the

relevant portion is reproduced as under :

"By order dated 12th September, 2003 we directed that no other Court except this Court shall entertain any winding up proceedings relating to the Respondent-Company. We now direct that no other Court or Forum or Tribunal will entertain any claim or application by depositors/investors for return of monies or payment of interest as these aspects will be dealt with by this Court after realization of all the assets. If any such claim is filed by any party before any Court or Tribunal the same shall stand stayed. We clarify that criminal cases are not covered by this Order and can proceed."

4. It is also contended that the Hon'ble Supreme Court vide, its

order dated 15.10.2008 passed in T.C (C) No.2 of 2004, specifically

authorized this Committee to take over all the properties

mentioned in the Assets Evaluation Report prepared by Dr.

Namawati in 1998 at the instance of Golden Forests India Limited.

The Hon'ble Supreme Court also directed that if there is any valid

claim of any third party on any of the properties the same shall be

considered by this Committee and appropriate order would be

passed subject to confirmation by the Hon'ble Supreme Court of

India. The relevant portion of the order is reproduced as under :

"In order to facilitate the disbursement due to the investors, the money has to be collected by selling these properties. The Committee is authorized to take possession of all the properties owned by the respondents. If there are any valid claims in respect of any of these properties by third parties, the Committee may consider the same and pass appropriate orders, subject to confirmation by this Court."

5. Hence, the present case is fully covered under the said

orders. As such, petitioner is a necessary party to the suit.

According to the petitioner after the death of Sri B. Rajaiah on

23.05.1982, his legal heirs approached the Court of Principal

Junior Civil Judge, Bhongir to declare them as legal heirs of

B. Rajaiah i.e., after 26 years and the suit in O.S.No.136 of 2016 is

filed in the year 2016, after 34 years of the death of B.Rajaiah.

The actual fact is that two sons of Rajaiah i.e., B.Mallesh and

B.Santosh sold the lands to Sri S.R.Reddy in the year 1989, who

in turn sold the same to Golden Forest India Limited and Golden

Tourist Resort and Developers Limited between the years 1994

and 1997 and a suit for partition was filed after 22 years of sales.

There is no justification for filing the suit after so many years but

only with a malafide intention. Therefore, prayed the Court below

to implead it as a party to the suit.

6. The respondent in the said I.A., who is the plaintiff in

O.S.No.136 of 2016 filed counter denying the averments of petition

and her contention is that the petitioner therein is a third party

and has no locus standii to question the legality of filing the

partition suit. The fundamental right provided by the Indian

Constitution under the Daughters Right to co-parcenery property,

the plaintiff filed the partition suit before V-Additional District

Judge at Bhongir and after completion of full fledged trial, the

Court granted preliminary decree in O.S.No.136 of 2016 on

25.06.2018 and appointed an Advocate Commissioner for partition

of the properties, that the Advocate Commissioner partitioned the

properties and submitted his report before the Court below. The

case is at the fag end of only taking decision on commissioner

report and to divide the property by metes and bounds by passing

a final decree. As such, the proposed party is neither a necessary

party nor proper party and prayed the Court to dismiss the said

I.A.

7. After hearing both sides, the Court below allowed I.A.No.3 of

2022. Against the said order, the present revision is filed by the

revision petitioner/defendant No.1 in O.S.No.136 of 2016, stating

that the Court below allowed I.A.No.3 of 2022 in O.S.No.136 of

2016, that objections to the preliminary decree can be raised in an

appeal under Section 97 of CPC, where the party aggrieved by the

final decree has to file the appeal. The basic concept of co-

parcenary is based upon common ownership by co-parceners. The

Court below has not followed the procedure, where the partition

suit is only between the family members, the persons who are

entitled to share are only necessary parties to the suit for

partition. Though the Committee had no interest in the suit

property, and not the legal heir of Rajaiah, claiming share in the

suit property, the same could not have been entertained, as they

are not class-I legal heirs of late Rajaiah. As such, prayed this

Court to set aside the order of the Court below by allowing this

revision.

8. Heard Sri A. Ushi Reddy, learned Counsel for the petitioner

and Sri Avinash Desai, learned Senior Counsel, representing Sri

M.Pranav, learned Counsel for the respondent No.1 on record.

9. Learned Counsel for the petitioner would submit that the

suit for partition is filed in the year 2016 by the plaintiff being the

legal heir of late B.Rajaiah as she is class-I legal heir. Plaintiff

filed suit against her brothers and the said suit is decreed and the

same was carried to the Hon'ble Supreme Court. The Hon'ble

Supreme Court appointed a Committee. The parties appeared

before the Committee and on 19.10.2021, the matter was fixed for

hearing on 01.11.2021. On 01.11.2021 the arguments were heard

partly and posted to 10.11.2021. On 10.11.2021, arguments were

heard partly and adjourned sine die, to await the outcome of the

proceedings pending before V Additional District Judge at Bhongir,

Yadadri in O.S.No.136 of 2016. He further submitted that as the

Committee has knowledge of these proceedings and without any

right coming in the way of partition suit, can challenge the

preliminary decree by way of appeal, in spite of impleading in the

final decree proceedings. As such, prayed the Court to set aside

the impugned order.

10. On the other hand, the learned Senior Counsel appearing for

the respondent No.1 would submit that the Committee was

appointed by the Hon'ble Supreme Court and all the claims of the

third parties are also to be heard by the Committee and the

plaintiff without any right filed the suit for partition, that the two

sons of B.Rajaiah i.e., B.Mallesh and B.Santosh sold the property

to Sri S.R.Reddy in the year 1989 itself. Suppressing the same,

the plaintiff filed the suit and the properties which are purchased

by the GFIL are under the control of Committee and any third

party claim has to be submitted before the Committee only. As

such, there is no illegality in the order of the Court below in

impleading the respondent No.1 as party to the suit in O.S.No.136

of 2017 and hence, prayed this Court to dismiss the present

Revision petition.

11. Having regard to the submissions made by the respective

counsel and the material on record, it is seen that the suit is filed

by the plaintiff against the defendants for partition and separate

possession of the plaint schedule properties. The plaintiff is the

sister of defendants and they are claiming partition of the

properties of their father late B.Rajaiah, wherein the GFIL is also

made as a defendant, but they were set ex parte. Though the

revision petitioner states that the Committee is a third party to the

suit, the Hon'ble Supreme Court categorically stated that any third

party claims have to be reported before the Committee only. The

further contention of revision petitioner is that the Committee

cannot be impleaded at the time of final decree proceedings. The

Hon'ble Supreme Court in Ganduri Koteshwaramma and

another Vs Chakiri Yanadi 1 held as follows :

"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.

21. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed,

(2011) 9 SCC 788

cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. The view of the High Court is against law and the decisions of this Court in Phoolchand [AIR 1967 SC 1470] and S. Sai Reddy [(1991) 3 SCC 647]".

12. In view of the observations made in the above judgment, it is

clear that there is no legal embargo against impleadment of any

new parties after preliminary decree in a suit for partition, as the

suit for partition stands disposed only after passing of final decree,

as there can be any number of preliminary decrees. Therefore,

there is no force in the contention of revision petitioner that after

passing of preliminary decree parties cannot be impleaded in the

final decree proceedings. The revision petitioner averred about the

co-parcenary rights and the rights of daughter in partition suit. It

is pertinent to mention that the respondent herein is the

Committee appointed by the Hon'ble Supreme Court with regard to

GFIL properties. Admittedly, GFIL was made as defendant and