Madras High Court
M. Subramania Mudaliar vs K. Janardhanam And Anr. on 13 October, 1998
Equivalent citations: (1999)1MLJ360
ORDER S.S. Subramani, J.
1. C.R.P.Nos. 236 to 245 of 1997 are filed under Section 115, C.P.C. They have not been admitted so far. The other revision is filed under Article 227 of the Constitution of India. In that case, I have ordered notice of motion, and when that revision was heard, it was represented that C.R.P.Nos. 236 to 245 of 1997 are also to be heard and, therefore, as per order passed by My Lord the Honourable Chief Justice, all these revision petitions were heard together.
2. Since respondents have also entered appearance in all the revisions, I am disposing of all these revisions on merits, even though there is no formal order of admission in the other civil revision petitions.
3. C.R.P.No. 1111 of 1998 is filed by plaintiffs in O.S.No. 6994 of 1972, on the file of V Assistant Judge, City Civil Court, Madras, and the other revisions are filed by the 24th defendant in that suit, who was additionally impleaded.
4. Before going to the individual revisions, a short history of the litigation is required to be summarised.
5. One Subbaraya Chetty had two wives, namely, Annapoornammal and Saradhambal. Annapoornammal had four children. They are Lalitha, Pushpa, Rajendran and Devaki. Saradhammbal had six children, They are Nageswari, Radhakrishnan, Balasubramaniam, Parameswari, Janarthanam and Chittibabu.
6. Janarthanam and Chittibabu who are the sons of Saradhambal, along with Rajendran, who is the son of Annapoornammal, filed O.S.No. 6994 of 1972. At that time, all the three plaintiffs were minors, and they were represented by Annapoornammal as their next-friend. First defendant in that suit was their own father K. Subbaraya Chetty. Their brother Radhakrishnan was made the second defendant, and Balasubramaniam Chetty was made as the 3rd defendant. Defendants 5 and 6 were respectively mortgagee and second mortgagee in respect of second item pf property mentioned in that suit. Suit filed by them was for partition claiming one half share in the joint family properties of Subbaraya Chetty. A preliminary decree was passed on 28-7-73 that each of the plaintiffs are entitled to one-sixth share and they were allowed to get partition of half share in the family items. Item 1 in that suit is Door No. 13, New West Thandavaraya Mudali Street, Purasawalkam, Madras, with which we are concerned in this revision. In the plaint, it is stated that certain mortgages have been executed by the father, i.e., first defendant in favour of defendants 5 and 6 and the same are binding on all the members of the joint family. When the preliminary decree was passed, a memo was filed by plaintiffs and defendants 1 to 4 stating that Door No. 13, Thandavaraya Mudali Street, Purasawalkam may be sold by appointing a Commissioner, and a provision was also made that on getting the sale proceeds, defendants 5 and 6 will be paid their amount due on the mortgage. An application was filed as I.A.No. 13674 of 1973 for the appointment of a Commissioner to sell the property, and as per Order dated 6.8.1973, Messrs Chandramani and Company were appointed as Auctioneers to sell that item.
7. While so, insolvency proceedings were initiated against the father, and two of the brothers of the plaintiffs in I.P.No. 85 of 1972, and, on 24.9.1973, first defendant and two of his sons, i.e., Radhakrishna Chetty and Balasubramanianan, were declared insolvents. The Official Assignee took possession of the properties. On knowing about the proposed sale by Messrs Chandramani and Company, the Official Assignee filed I.A.No. 625 of 1973 in the insolvency proceedings, seeking stay of the sale by the auctioneers and interim stay was granted, Thereafter, the next friend of the plaintiffs filed a counter affidavit, and in the suit, the Official Assignee was also impleaded as a party. Later, as per order dated 24.9.1973, the Insolvency Court directed that the sale may be held and the amount realised by the sale be deposited with the Official Assignee, through the Auctioneers, and that after the amount due under the three mortgages is determined, the amounts due under those mortgages will be paid. Pursuant td the same, sale was held, and the present 24th defendant became the auction purchaser.
8. While so, defendants 1 and 2 filed O.S.A.No. 79 of 1973 against the Order adjudicating them as insolvents. The Division Bench of this Court, as per judgment dated 28.4.1977, set aside the order of the insolvency Court and allowed the appeal. While allowing the appeal, the fact that the Official Assignee has taken possession of the property and the same was also sold was also brought to the notice of the Bench. Therefore, the Bench directed thus:
It is brought to our notice that as a result of the adjudication and as there was no stay of further proceedings pursuant thereto, the Official Assignee acted and administered the estate and bought to sale two items of properties and attempted to sell the stock-in-trade, etc., belonging to the debtors. These Steps were taken under Orders of court. All such acts of the Official Assignee and incidental matters relating to the administration of this estate as such till date shall stand ratified....
[Italics supplied] The Official Assignee sold the entire item, i.e., entire Door No. 13 of new Thandavaraya Mudali Street. After the auction sale, a suit notice was issued by next-friend to the auction purchaser on 15.3.1974 in which She has said that she has got title and possession in respect of half share in the property and the sale under the insolvency proceedings will not bind their share. She also informed the auction purchaser that the Official Assignee cannot sell the share of the plaintiffs and it is not binding on them. It was further informed that they will co-operate with the auction purchaser to workout their rights. A reply was sent by the 24th defendant on 20.3.1974 stating that the entire property is vested in him and he is the owner, and he wanted that portion of the property occupied by plaintiffs to be vacated. In view of this reply, plaintiffs 1 and 3 in O.S.No. 6994 of 1972 filed another suit in forma pauperies as C.S.No. 389 of 1976 which was renumbered as O.S.No. 2353 of 1981, City Civil Court, Madras, for a declaration and for other reliefs. Simultaneously, the auction purchaser also filed a suit O.S.No. 3261 of 1978 wherein he prayed for a declaration that defendants therein have no right td remain in occupation of the property described in 'B' schedule in that plaint, and also prayed for a decree directing the defendants therein to vacate the property described in schedule B and put the plaintiff in possession thereof. Schedule A in that suit was the entire Door No. 13, New Thandavaraya Mudali Street and B Schedule was the portion occupied by defendants in that case. Both the suits were clubbed together, and a common judgment was pronounced on 13.5.1986. The plaintiffs suit was decreed and the auction purchaser's suit was dismissed.
9. Against the common judgment, the auction purchaser filed two appeals. In preferring appeal against the decree in O.S.No. 3262 of 1978, there was a delay of more than 2000 days, and a Division Bench of this Court, as per Order dated 21.7.1973, refused to condone the delay. The appeal itself Was rejected. The other appeal against the suit O.S.No. 2353 of 1981, i.e., A.S.No. 387 of 1987, preferred by this auction purchaser was dismissed as barred by res judicata Attempt made by the auction purchaser to challenge the decree of this Court before the Honourable Supreme Court also failed.
10. Thereafter, various applications were filed by plaintiffs 1 and 3. They are: (1) I.A.No. 8863 of 1988 to transpose 2nd plaintiff as 14th defendant; (2) I.A.No. 8864 of 1988 to bring on record the legal representatives of first defendant as defendants 8 to 13; (3) I A.No. 8865 of 1988 to implead the auction purchaser of Door No. 13 and also the auction purchaser of Door No. 14 as additional defendants 24 and 25 in the suit; (4) I.A.No. 8866 of 1988 is to declare plaintiffs 1 and 3 as majors; (5) I.A.No. 8868 of 1988 is to bring on record the legal representatives of deceased third defendant as defendants 15 to 17; (6) I.A.No. 8869 of 1988 is to bring on record the legal representatives of the mortgagee, sixth defendant. All these applications were allowed. There was also one more application i.e., I.A.No. 9969 of 1988 to modify the preliminary decree. That was also allowed. The petitioner, after coming to know about such orders, filed an application to set aside the ex parte order passed in I.A.No. 9969 of 1988. The same was set aside, and the application was restored to file. In regard to other applications, they were allowed without notice to the auction purchaser, and he was also not made a party except in I.A.No. 8865 of 1988. After those applications were allowed, various applications were filed by plaintiffs 1 and 3 as I.A.Nos. 7297 to 7302 of 1996, to carry out the amendments consequential to orders passed in various I.As. The same were also allowed by the lower court. The auction purchaser, after coming to know about these I.As. filed I.A.Nos. 11897 to 11907 of 1996 for setting aside the orders in I.A.Nos. 7297 to 7302 of 1996. All these applications were dismissed. The same are challenged in various revisions filed under Section 115, C.P.C. Plaintiffs are aggrieved for the reason that in I.A.No. 9969 of 1988, which is an application to modify the preliminary decree, no order has been passed even though more than 10 years have elapsed. They want an early disposal of that LA. and for a suitable direction, they have filed C.R.P.No. 1111 of 1998 under Article 227 of the Constitution of India.
11. I will first consider the revision under Section 115, C.P.C. filed by 24th defendant, who has been additionally impleaded.
12. The main grievance of the petitioner in these revisions is, even though he may be a purchaser pending litigation of a partition suit, he is also entitled to be heard when the rights of some of the sharers have come to him. It is his case that with him on the party array, there had been adjudication regarding the validity of the auction sale and what is his share. When the plaintiffs' rights have also been declared, they cannot get it modified so as to affect his rights. At least as an assignee of defendant 1 to 3, he is entitled to be heard, since he has been substituted in their place. It is further contended that what the plaintiffs wanted was, modification of the preliminary decree due to change of circumstances. They wanted to implead additional parties as if their father had left the property intestate. On the date of his death, all his rights have already vested with the auction purchaser, and when other persons are impleaded he is entitled to oppose their claim, for which he is a necessary party. Without serving notice on him, some orders have been obtained by plaintiffs, which have prejudiced his rights over the property.
13. As against the said contention, learned senior counsel for plaintiffs submitted that in the suits filed by them, the sale has been declared as null and void and, therefore, he is not entitled to be heard. On the date of suit, the auction purchaser did not have any right and a purchaser pending litigation only what the judgment-debtor had on the date of suit. He has no separate right and, therefore, not entitled to be heard. It is further contended that the order passed in I.A.Nos. 8863, 8864, 8866, 8868 and 8869 of 1988 are not challenged, and orders passed in I.A.Nos. 7297 to 7302 of 1996 are only orders passed consequential to the Orders already passed and, therefore, the applications themselves are not maintainable. It was further argued that the suit was filed in the year 1972, and, for the last more than 25 years, the auction purchaser has been protracting the litigation and the entire income is also being appropriated by him. On proper accounting, he is liable to pay more than Rs. 12 lakhs. It is only to avoid payment of this amount, the said applications have been filed without any bona fides. Learned senior counsel for plaintiffs also submitted that it is under these circumstances, plaintiffs were compelled to come to this Court with C.R.P.NO. 1111 of 1998 for necessary direction for early disposal of the suit.
14. One of the main contentions that was raised by learned senior counsel for the petitioners in C.R.P.No. 1111 of 1998 is, that the auction sale has been declared as null and void insofar as the schedule property is concerned and the auction purchaser is, therefore, nor entitled to be heard. The said contention of the learned senior counsel is seriously opposed by the learned senior counsel for auction purchaser learned senior counsel also brought to my notice copy of the decree in O.S.No. 2353 of 1981, filed by plaintiffs. He also brought to my notice the relevant portion of the pleadings in that case and how the Division Bench also considered the question.
15. Before we go to the plaint, the suit noticed dated 15.3.1974, issued on behalf of the plaintiffs may be considered. In that notice, it is specifically stated that in the sale by Official Assignee in I.P.No. 85 of 1972, there is no covenant for title and possession, and plaintiffs have title and possession to a half share in the property and, therefore, not bound by the same. They also informed that a suit O.S.No. 6994 of 1972 has already been filed for partition, and it is also intimated that the institution of the suit itself amounts to partition and severance of status of the joint family and, therefore, the Official Assignee cannot sell their share in the property. It is also intimated to the auction purchaser in that notice that since the Official Assignee has no right to sell the share of the plaintiffs, they are willing to co-operate with him (auction purchaser) to workout their rights in the partition suit. This claim made by plaintiffs was disputed by the auction purchaser (24th defendant) in his reply notice dated 20.3.1974. He claimed title to the entire item. It was therefore the suit was filed for the following reliefs:
(a) declaration that Official Assignee is not entitled to sell the share of the plaintiffs of the share of the properties fully described in Schedule A to the plaint and in any other assets of the joint family for payment to the creditors of the 1st defendants 2 and 3 being the insolvents in I.P.No. 85 of 1972;
(b) for a declaration that the sale held on 15.11.1973 in respect of 13, Thandavaraya Mudali Street, Madras-7 by the Official Assignee in public auction is void and not binding on the plaintiffs....
(Emphasis supplied) Other reliefs are not necessary for our purpose.
16. In the common judgment dated 13.5.1986, while considering the issue No. 1 in the plaintiffs suit and Issue Nos. 1, 3 and 4 in the auction purchaser's suit, in paragraph 16 of the judgment it was held thus:
Once it was found that the auction sale is not binding on plaintiffs, and they were found to be in possession of portions of the property, the auction purchasers suit was also dismissed, holding that he is not entitled to recover the property. As I said already, two appeals were preferred. One appeal was dismissed as belated. But, in A.S.No. 387 of 1987, in para. 2, the last two sentences read thus:
...The order of adjudication passed by this Court in the insolvency proceedings had the only effect of vesting the shares of defendants 1 to 3 in the joint family properties With the Official Assignee and the latter had no right whatever to sell the shares of the plaintiffs and the other sons of the first defendant, who were hot adjudicated.
Subsequently, the appeal itself was dismissed as barred by res judicata, since the judgment in the connected case had become final.
17. From the narration of facts and on perusing the judgment do not think that the contention of learned senior counsel for plaintiffs that the entire auction sale has been found to be null and void is correct. Even the plaintiffs have no such case. Even when the suit notice was issued after the auction, they only wanted that their share of the property is not affected by the auction, and they were ready to co-operate with the auction-purchaser in settling their rights. In fact when that was denied, that became the cause of action for the suit, and plaintiffs only wanted a declaration that the auction sale is not binding on their share. That was decreed. Even though it was held that the sale is void, that is only to the extent of plaintiffs share in the property, especially when, in O.S.A.No. 79 of 1973, the Division Bench held that the steps were taken under orders of Court, and all such acts of the Official Assignee and incidental matters relating to the administration of the estate as such till that date shall stand ratified. That means, at least to the extent of the judgment-debtors; rights, who had been declared insolvent, though subsequently set aside, there was vesting of their property in the Official Assignee, who subsequently sold it in the auction. There is no escape from the said finding, and the same was also concluded by judgment.
18. The contention that the entire auction sale is declared void, cannot be accepted. It was further contended by learned senior counsel for plaintiffs that the very same auction purchaser filed a suit for recovery and the same was also dismissed. That means, the auction purchaser is not entitled to any share in the property. The said submission is also not correct. It is true that the suit was dismissed. But it cannot be held that the auction purchaser has no right. The auction purchaser claimed that he has got title for the entire property. But the plaintiffs were in possession of a portion. Once it is found that the sale is not binding on them, they are entitled to be in possession to the extent of their shares. Without metes and bounds partition, recovery cannot be allowed. The suit could only be dismissed. No adverse inference can be drawn on that decision. The consequence of the decisions is, that the plaintiffs as well as the auction purchaser have now become co-owners.
19. The further question that arises for consideration is, what will be their respective share. In the plaint, originally there were three plaintiffs, and they were found to be entitled to one half share, and the other sharers are defendants 1 to 3. Plaintiffs are each entitled to 1/6th share in the joint family property. Once the suit is filed for partition, there conies the severance of status of the family, and plaintiffs have become divided members. It is the share of the other three defendants, namely, defendants 1 to 3, which vested with the Official Assignee, and subsequently vested with the auction purchaser. In that half share, which was declared under the preliminary decree, plaintiffs, have now filed I.A.No. 8863 of 1988 to transpose the second plaintiff as the 14th defendant. He was entitled to 1/6th share in the entire property. Present plaintiffs who are plaintiffs 1 and 3 alone will not be entitled to one half share. They will be entitled to only on-third share in the entire share, and second plaintiff who is transposed as a defendant will be entitled to the remaining one-sixth share.
20. Now that, I have held that plaintiffs 1 and 3 together will be entitled to one-third share in the entire property bearing Door. No. 13, New Thandavaraya Mudali Street, the further question that arises for consideration is, how far the relief sought for in these revisions is to be granted. Naturally, the question will be whether the auction purchaser is entitled to be heard on those applications.
21. I.A.No. 8863 of 1988 is only an application to transpose second plaintiff as a defendant. In that application, I do not think the auction purchaser is entitled to any notice. He is not an affected person. I.A.No. 8865 of 1988 is an application to implead the auction purchaser himself in the suit. For that also, he cannot be aggrieved. I.A.No. 8866 of 1988 is only to declare plaintiffs 1 and 3 as majors. In that application also, he is not entitled to be heard, for, he is not affected by declaring plaintiffs as majors. Even though various applications were filed in 1988, all these applications were ordered without notice to the auction purchaser and only after applications were filed for consequential amendments, and when they were ordered on 21.6.1996, auction purchaser received notice, and he filed various applications, namely, I.A.Nos. 11897 to 11908 of 1996. Those applications were filed to implead himself in I.A.Nos. 7297 to 7302 of 1996 and also to set aside those orders. All those applications were dismissed, which necessitated the filing of the ten revisions mentioned above. In the Orders passed in those applications, the lower court has only held that the auction purchaser is not a necessary party and his rights are not affected by the impleading or by transposing second plaintiff as a defendant, or he is not affected if the plaintiffs are declared majors, nor is he affected if legal heirs of defendants 1 and 3 are impleaded. It was also found that since the 24th defendant auction purchaser came to the picture only after impleadment application was ordered and consequential amendment was granted, no notice need be given to him. The lower court was of the view that he is not entitled to be heard since his rights are not affected. Even though in most of the applications, this finding of the lower court may be correct, in regard to some of the applications, I do not think, that the finding could be sustained.
22. I.A.No. 8864 of 1988 is to bring on record the legal heirs of deceased first defendant. Defendants 8 to 13 were sought to be impleaded. The same was allowed and I.A.No. 7300 of 1996 was filed for consequential amendment. The same was allowed on 21.6,1996 and the petitioner filed I.A.Nos. 11093 and 11094 of 1994 to get himself impleaded in that I.A. to get the order set aside. Likewise, I.A.No. 8868 of 1988 is an application for bringing on record the legal heirs of third defendant as defendants 15 to 17. I.A.No. 732 of 1996 was filed for consequential amendment and the same was also ordered on 21.6.1996. I.A.Nos. 11897 and 11898 of 1996 were filed to set aside the same. Same reasoning was assigned by the court below for rejecting those applications also. According to me, atleast in regard to these two applications, petitioner is entitled to be heard since the right, title and interest of defendants 1 to 3 are now vested with the auction purchaser, and there is nothing to be inherited by the legal representatives of defendants 1 and 3. Naturally, he is the person affected when other persons are sought to be impleaded. The finding of the lower court that he is not entitled to be heard, is not correct. The argument of learned senior counsel for petitioner that the auction purchaser was only pending suit cannot be accepted in the case of defendants 1 to 3. When the right, title and interest of defendants 1 to 3 have vested with the auction purchaser, legal representatives of defendants 1 and 3 cannot contend that it is pending suit. Section 52 of the Transfer of Property Act may not have any application in such cases. Only as against the successful party, the principle is made applicable. As between the transferor and transferee and their legal representatives, the principle of Section 52 of Transfer of Property Act has no application, In those applications, the petitioner-Auction purchaser is entitled to be heard.
23. In view of this finding, the question that arises for consideration is, whether I should set aside all the orders and remand the matter to the court below. But, taking into consideration the long pendency of the suit, i.e., for the last more than 26 years, any remand will only delay the further proceedings in the suit. Plaintiffs have also filed a revision, namely C.R.P.No. 1111 of 1998 under Article 227 of the Constitution of India, for direction for early disposal of the proceedings before the Court below.
24. Taking into consideration the interest of justice and also to shorten the litigation, and since learned senior counsel for both sides submitted the entire facts, I pass the following order:
The preliminary decree, declaring one half right to three plaintiffs has to stand. Even though the second plaintiff has been transposed as a defendant, the benefit of the decree cannot be denied to him. In A.S.No. 387 of 1987, the Division Bench has unequivocally held that the order of adjudication passed by this Court in the insolvency proceedings has the effect of vesting the joint family properties with the Official Assignee and the latter had no right whatsoever to sell the shares of plaintiffs and other sons of first defendant who were not adjudicated. If so merely because of the transposition of second plaintiff as a defendant, it will not make any change in the preliminary decree. It cannot be disputed that it is only the insolvents right, title and interest in the property that has been sold by the Official Assignee. The second plaintiff has also attained the status of division on before the adjudication. So, his position is also that of plaintiffs 1 and 3. merely because he did not join in filing the subsequent suit that will not make the position different. While passing the final decree, one half share in schedule A will be allotted only to plaintiffs 1 and 3 and the second plaintiff transposed as a defendant and if the plaintiffs 1 and 3 take possession of that share, it will be for the benefit of the transposed plaintiff also. The auction purchaser will not get any right of the second plaintiff. The preliminary decree even now stands and there is no variation. Likewise, by the death of defendants 1 and 3 also, there is no change or variation in the shares since the same has already vested with the auction purchaser, He is entitled to the remaining half. The property will have to be divided into two equal halves, and either party may apply to the court below, for passing of final decree and also for the appointment of an Advocate-Commission for suggesting the mode of division. There is no necessity to proceed with any of the interim applications which are the subject-matter of these revision petitions, including I.A.No. 9969 of 1988, since I find that there is no change in the shares and there is also no necessity to pass any revised or additional preliminary decree.
The question as to whether the plaintiffs are entitled to mesne profits, and whether they are in possession of excess of their shares or whether they are entitled to get some more shares in the property, have to be decided during final decree proceedings. The Advocate-Commissioner will repeat the same. If plaintiffs 1 and 3 are recovering any mesne profits from the auction purchaser, that will also go to the benefit of the transposed plaintiff.
Either, party is at liberty to approach the court below for the passing of final decree on the basis of this order as indicated above, and within 15 days from the date of production of a copy of this order, the court below shall proceed with the matter in accordance with law. Both parties are at liberty to move the court below for any further direction that may be required while passing the final decree. The lower court is directed to proceed with the suit on the basis of the directions given in this order. Being a suit of the year 1972, I am sure that the lower court will take expeditious steps to see that the litigation comes to an end in the near future. The case will have to be posted at least once in ten days. The court below also will see that report of the Advocate-Commissioner is received without any delay.
For the reasons given above, I.A.Nos. 8864 and 8868 of 1988 filed by plaintiffs will stand dismissed. Consequently, I.A.Nos. 7297 and 7300 of 1996 filed by plaintiffs also will stand dismissed. Consequently, I.A.Nos. 11897 11898, 11903 and 11904 of 1996 filed by the auction-purchaser will stand allowed. Accordingly, C.R.P.Nos. 238, 239, 242 and 245 of 1997 are allowed. C.R.P.Nos. 240, 241, 243 and 244 of 1997 are dismissed, C.R.P.No. 1111 of 1998 is disposed of as indicated above. There will be no order as to costs in all these revisions. Connected C.M.Ps. are closed.