Kerala High Court
Thankamma vs Pushpamma @ Pushpa on 16 August, 2010
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9102 of 2009(O)
1. THANKAMMA, W/O.SEBASTIAN,
... Petitioner
Vs
1. PUSHPAMMA @ PUSHPA,
... Respondent
2. GEORGE, S/O.THOMAS,
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent :SRI.BABY THOMAS
The Hon'ble MR. Justice K.T.SANKARAN
Dated :16/08/2010
O R D E R
K.T.SANKARAN, J.
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W.P.(C). NO. 9102 OF 2009
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Dated this the 16th day of August, 2010
JUDGMENT
The question involved in this Writ Petition is whether a defendant who is one of the legal representatives of the deceased plaintiff can be transposed as the additional plaintiff when there is dispute inter se the defendants.
2. The suit was filed by the father of defendants 1 and 2 claiming partition of his one-third share in the plaint schedule property, having an extent of three acres of land. Defendants 3 and 4 are the sons-in-law of the plaintiff. The third defendant is the husband of the second defendant. The fourth defendant is the husband of the first defendant.
3. The plaintiff contended that the possessory mortgage rights in respect of the plaint schedule property belonged to his wife and on her death, the property devolved on the plaintiff and his two children, namely, defendants 1 and 2. The original mortgage was in 1100 ME. W.P.(C) NO.9102 OF 2009 :: 2 ::
The contention of the plaintiff was that the right to redeem the mortgage was barred by limitation and, therefore, the mortgagee had the right to the property. The first defendant contended that while the property was outstanding in the possession of her mother, the mortgagor had executed a gift deed in the year 1966 in favour of the first defendant (writ petitioner). Defendants 1 and 4 contended in their written statement that neither the plaintiff nor defendants 2 and 3 got possession of the property at any point of time. Therefore, the main question to be decided in the suit was whether the gift deed executed by the mortgagor in favour of the first defendant would affect the right of the plaintiff to get a share in the property covered by the gift deed.
4. Defendants 2 and 3 supported the plaintiff. However, they raised a contention that on the eastern side of the plaint schedule property, one acre of land was given possession to them by their mother. They contended that excluding that one acre of land, the rest of the properties are partible and that the plaintiff and defendants 1 and 2 are entitled to one-third share each.
Alternatively, the second defendant contended that if the Court finds W.P.(C) NO.9102 OF 2009 :: 3 ::
that the entire plaint schedule property is partible, he is entitled to one-third share thereof. He also paid court fee for separation of his one-third share in the entire extent of the plaint schedule property.
5. It would appear that defendants 1 and 2 had filed separate suits in respect of the claims put forward by them in respect of the property. The argument notes submitted by the respondents would indicate that those suits were dismissed and appeals therefrom were also dismissed. It is also stated that in those suits it was held that the mortgage right belonged to Mariakutty, the mother of defendants 1 and 2.
6. When the plaintiff died, the second defendant filed an application before the trial court to transpose her as additional plaintiff. In the application for transposition, the second defendant contended that the plaintiff had executed a Will in her favour bequeathing the rights of the plaintiff in the property. It is also stated that thus the second defendant is entitled to two-third share in the properties. It is further stated in the affidavit accompanying the application that she wants to get herself transposed after conceding W.P.(C) NO.9102 OF 2009 :: 4 ::
the averments in the plaint. Defendants 1 and 4 filed another application for amendment of the written statement claiming the one- third share of the plaintiff as well on the basis of the Will allegedly executed by him in favour of the second defendant. Defendants 1 and 4 opposed the applications for transposition and amendment of written statement. They contended that the Will allegedly executed by the plaintiff is not genuine. The second defendant did not acquire any rights as per the Will. The Will was fraudulently created by the second defendant and it has no legal validity. They contended that the request for transposition cannot be allowed in the light of the contentions put forward in the written statement of defendants 1 and 4.
7. The court below, by the orders impugned in this Writ Petition, allowed the application for transposition relying on the decision in Janadas v. Vedanayagam (2004 (3) KLT 425). The court below also allowed the application for amendment of the written statement and that order is also challenged in the Writ Petition.
8. The application for transposition was made under Rule 1-A W.P.(C) NO.9102 OF 2009 :: 5 ::
of Order XXIII, Rule 10 of Order I and Section 151 of the Code of Civil Procedure. Evidently, Rule 1-A of Order XXIII of the Code of Civil Procedure would not apply to the facts of the present case. Rule 1-A of Order XXIII of the Code of Civil Procedure reads as follows:
"1-A. When transposition of defendants as plaintiffs may be permitted:- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
9. The suit is not withdrawn or abandoned under Rule 1 of Order XXIII. Therefore, Rule 1-A will not apply. Rule 10(2) of Order I provides that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, W.P.(C) NO.9102 OF 2009 :: 6 ::
whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The Court has power under Rule 10 of Order I of the Code of Civil Procedure to add a party as an additional plaintiff or as an additional defendant, if the Court feels that in order to effectually and completely adjudicate upon and settle all the questions involved in the suit, such a course is required. Rule 1-A of Order XXIII of the Code of Civil Procedure speaks of transposition and, in the matter of transposition, it contemplates an application under Rule 10 of Order I by a party to get himself transposed as plaintiff. In considering such an application, the aspect to be considered by the court is whether the applicant, who seeks himself to be transposed as plaintiff, has a substantial question to be decided as against any of the other defendants. Though Rule 1-A applies when a suit is withdrawn or abandoned by the plaintiff and such a situation as such is not available in the case on hand, the provisions thereof are quite relevant in interpreting the scope of Rule
10 of Order I. In the matter of transposition and addition of a party as a plaintiff, the principle on which Rule 1-A of Order XXIII is W.P.(C) NO.9102 OF 2009 :: 7 ::
founded is also relevant. The relevant aspect to be considered by the Court is whether by such transposition, the person who gets himself transposed has a substantial question to be decided as against the remaining parties. If the party who seeks himself to be transposed as a plaintiff not only claims the right which the plaintiff has claimed, but has set up independent rights as against the plaintiff and the remaining defendants, the Court would consider the question whether the defendant who seeks himself transposed could be allowed to continue to prosecute the suit as a plaintiff without abandoning his claim against the plaintiff. If such contentions already raised by the defendant, who gets himself transposed as the plaintiff, remain as such, it may not be proper for the Court to allow him to continue to raise such contentions and at the same time prosecute the suit as an additional plaintiff, as against the remaining defendants, after stepping into the shoes of the plaintiff. A straight jacket formula cannot be evolved in the matter of transposition in such circumstances. Each case has to be decided depending on the facts of the case. In the present case, the second defendant sought herself to be transposed as the plaintiff. She had raised a vague contention in the written statement that one acre of land was given to W.P.(C) NO.9102 OF 2009 :: 8 ::
her by the mother and the remaining extent of two acres alone is partible. However, it is now made clear in the affidavit that the first defendant concedes all the contentions put forward by the plaintiff. It is submitted by the respondents (defendants 2 and 3) and also stated by them in the argument notes that the independent rights claimed by the second defendant were found against her in another suit and that decision has become final.
10. In Janadas v. Vedanayagam (2004 (3) KLT 425), it was held that the Court has inherent power to transpose one of the plaintiffs as a defendant, apart from Rule 10 of Order 1 of the Code of Civil Procedure.
11. In R.S.Maddanappa v. Chandramma and another (AIR 1965 SC 1812), the question which arose for consideration was whether the appellate court could grant a decree for partition of the half share of the first defendant. The plaintiff claimed a half share and conceded the half share of the first defendant. The trial court decreed the claim of the plaintiff but held that the first defendant was estopped from claiming possession of her half share. The first W.P.(C) NO.9102 OF 2009 :: 9 ::
defendant appealed. The other defendants also filed appeal in which the plaintiff filed Memorandum of Cross Objections. While disposing of all these matters, the appellate court allowed the appeal by the first defendant and granted the share claimed by her. Answering the contention of the appellants, the Supreme Court held:
"15. Now regarding the second point, this objection is purely technical. The plaintiff sued for partition of the suit properties upon the ground that they were inherited jointly by her and by the first defendant and claimed possession of her share from the other defendants who were wrongfully in possession of the properties. She also alleged that the first defendant did not co-operate in the matter and so she had to institute the suit. The first defendant admitted the plaintiff's title to half share in the properties and claimed a decree also in her own favour to the extent of the remaining half share in the properties. She could also have prayed for her transposition as a co-plaintiff and under O.I, R.10(2) C.P.C. the Court could have transposed her as a co- plaintiff. The power under this provision is exercisable by the Court even suo motu. As pointed out by the Privy Council in Bhupendra v. Rajeswar, 58 Ind App 228: (AIR 1931 PC 162) the power ought to be exercised by a court for doing complete justice between W.P.(C) NO.9102 OF 2009 :: 10 ::
the parties. Here both the plaintiff and the first defendant claim under the same title and though defendants 2 to 8 had urged special defences against the first defendant, they have been fully considered and adjudicated upon by the High Court while allowing her appeal. Since the trial court upheld the special defences urged by defendants 3 to 8 and negatived the claim of the first defendant, it may have thought it unnecessary to order her transposition as plaintiff. But the High Court could, while upholding her claim, well have done so. Apparently it either over-looked the technical defect or felt that under O.XLI R.33 it had ample power to decree her claim."
12. In C.C.Abraham v. Antony Mathew and others (2007 (1) KLT 2009, it was held that transposition of a defendant as plaintiff is permitted under Rule 1A of Order XXIII CPC only if the suit is withdrawn or abandoned by the plaintiff. In that case, the Court was considering the question whether the suit was abandoned or withdrawn. On the finding that the ingredients of Rule 1A were not satisfied, it was held that transposition could not be made.
13. The second defendant having abandoned all her W.P.(C) NO.9102 OF 2009 :: 11 ::
independent claims and accepted the contentions of the plaintiff and also set up a Will under the plaintiff, the contentions now raised by the second defendant are not in conflict with any of the contentions already raised by the plaintiff. Therefore I do not think that the court below committed any error in allowing transposition. The death of the plaintiff pending suit would have otherwise resulted in driving the parties to another litigation. If the second defendant files another suit claiming 2/3 right in the property in question, the first defendant is not entitled to contend that the suit is not maintainable. Multiplicity of suits can be avoided if the second defendant is allowed to be transposed of as the plaintiff. If the second defendant is allowed to transpose herself as an additional plaintiff, taking note of the abandonment of the independent right claimed by her, there is no occasion for the Court to consider the interse disputes between the defendants, which was available before the prayer for transposition was made. At present, the disputes to be resolved are: (1) The questions which were available before the death of the plaintiff as between the plaintiff and defendants 1 and 4; (2) The question whether the Will set up by the second defendant is genuine; and (3) W.P.(C) NO.9102 OF 2009 :: 12 ::
Any other question which is relevant but which is not in conflict with the contentions put forward by the plaintiff.
I do not think any interference is called for in the order allowing transposition. I do not also find any illegality or jurisdictional error in the order allowing the application for amendment of the written statement. The Writ Petition is accordingly dismissed.
(K.T.SANKARAN) Judge ahz/