The petitioner is challenging the Order dated 11.09.2007 made in I.A.No.41 of 2006 in O.S.No.38 of 2006 on the file of the III Additional District Judge, Puducherry.
2. The plaintiff in O.S.No.38 of 2006 on the file of the III Additional District Court at Puducherry is the revision petitioner before this Court. She is aggrieved by the order of the trial court dated 11.09.2007 made in I.A.No.41 of 2006 filed by her under Order I Rule 10(2) C.P.C. to implead the proposed parties/respondents 3 to 5 herein as defendants 3 to 5 in O.S.No.38 of 2006 and respondents 3 to 5 in I.A.No.39 of 2006. The trial court by order dated 11.09.2007 dismissed I.A.No.41 of 2006 and aggrieved by the same, the plaintiff has filed the above Civil Revision petition under
Article 227 of the Constitution of India.
3. The brief facts which are necessary for the purpose of disposing of the above Civil Revision petition are as follows:
The plaintiff filed O.S.No.38 of 2006 for recovering a sum of Rs.18.25 lakhs from the defendants 1 and 2/respondents 1 and 2 herein with subsequent interest at 30% per annum on the principal amount of Rs.10 lakhs from the date of the plaint till the date of realisation. According to the plaintiff, on 12.11.2001, the defendants 1 and 2 borrowed a sum of Rs.10 lakhs from her for the purpose of their business and they jointly executed a promissory note for the said sum of Rs.10 lakhs in favour of the plaintiff. The defendants 1 and 2 have also agreed to pay interest at the rate of 30% per annum on the said principal sum of Rs.10 lakhs. As the defendants failed to pay any amount towards the said loan, the plaintiff issued a notice dated 03.03.2004 to the defendants and inspite of the same, the defendants have not come forward to repay the borrowed amount. Hence, she filed O.S.No.38 of 2006 for the aforesaid reliefs (originally filed as O.S.No.387 of 2004 on the file of the Sub Court, Puducherry and later on transferred to the Chief Judge, Puducherry and re-numbered as O.S.No.36 of 2006.
4. The suit was defended by the first defendant by filing a Written Statement wherein it was denied that he borrowed a sum of Rs.10 lakhs from the plaintiff on 12.11.2001. According to the first defendant, since the consideration amount has been paid to him, he is not liable to pay the alleged sum of Rs.10 lakhs. Hence, he prayed for the dismissal of the suit.
5. Pending O.S.No.387 of 2004, the plaintiff filed I.A.No.1343 of 2004 for Attachment before Judgment of the properties of the first defendant. In the counter filed in I.A.NO.1343 of 2004, the first defendant stated that he is not owning any of the properties mentioned in the petition schedule and therefore, he sought for the dismissal of I.A.No.1343 of 2004.
6. Subsequently, the plaintiff came to know that the first defendant executed a Settlement deed dated 05.06.2003 in favour of his wife and children and therefore, she filed I.A.No.41 of 2006 under Order I Rule 10(2) C.P.C. to implead his wife and children as defendants 3 to 5 in the suit and respondents 3 to 5 in I.A.No.1343 of 2004.
7. In the affidavit filed in support of I.A.No.41 of 2006, the plaintiff stated that the proposed parties are the universal donees and they are liable to pay the debt of the donors. This was resisted by both the defendants as well as the proposed parties. The trial court has dismissed the I.A.No.41 of 2006 by order dated 11.09.2007.
8. Heard the learned counsel for the revision petitioner, the learned counsel for the respondents 1 and 2 and the learned counsel for the respondents 3 to 5. I have also gone through the entire documents available on record.
9. The learned counsel for the petitioner while taking exception to the reasons given by the trial court for rejecting I.A.No.41 of 2006, relied on the following decisions to submit that the proposed parties are proper and necessary parties for both the suit and interim application.
1. A.I.R. 1978 AP 173 (Linga Reddi Srinivasulu Reddy (died) and others Vs D.Muniratnam Reddi and others)
2. 1989(2) M.L.J. 94 (V.R.Arunachalam Chettiyar vs Vayinagaram and others)
3. A.I.R. 1999 MAD 74 (Shanmugam and others Vs Syndicate Bank and others)
4. 2005 (3) M.L.J. 306 (Kandasamy and others vs M.Palanisamy and others)
10. Per contra, the learned counsel for the respondents 1 and 2 and the learned counsel for the respondents 3 to 5 while supporting the order of the trial court submitted that none of the proposed parties are proper and necessary parties to decide the suit which is a simple one for recover of money and the same could be decided without the presence of the proposed parties.
11. I have considered the rival submissions carefully with regard to facts and citations.
12. It is not in dispute that the suit was filed in O.S.No.387 of 2004 before the Sub Court, Puducherry and an application was also filed in I.A.No.1343 of 2004 for Attachment Before Judgment against the first respondent/ defendant. It is also now an admitted fact that the first respondent settled his properties in favour of his wife and children who are the proposed parties on 5.6.2003. The contention of the plaintiff is that being a universal donee, she can proceed against the properties of the proposed parties in the event of obtaining a decree against the defendants and therefore, the proposed parties are to be impleaded both in the suit and the interim application. This was opposed by both the defendants and the proposed parties by contending that the plaintiff could not proceed against the proposed parties if the plaintiff succeeds in the suit and the proposed parties are not liable to pay the debt of the first defendant.
13. In A.I.R. 1978 A.P. 173 (cited supra), the Andhra Pradesh High Court held that a universal donee being a legal representative of the donor takes the estate of the donor subject to his liabilities and a money decree obtained by a creditor against a universal donee can be executed against the parties in the hands of the universal donee even though the donee was not impleaded as a party to the suit and the donor is still alive on the date of the execution. The relevant portion reads as under:
"8. Section 2(11), C.P.C. defines "legal representative" so as to mean "a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
9. This definition makes it clear that even intermeddlers are the lgal representatives of the deceased. The view expressed by the learned Singe Judge of the Madras High Court is based upon the wide amplitude of the definition of "legal representatives" given in S.2(11) of the C.P.C. The decision of the Travancore and Cochin High Court is based only upon the principle of devolution.
10. It has aso been argued by Mr.Venugopal Reddy that S.2(11) of the C.P.C. should be read with S.50 therof. According to him, if they are so rad, it means that the decree can be executed against the "legal representative" within the meaning of S.2(11) C.P.C. even though he was not a party to the suit only in cases where the judgment-debtor is dead and the decree-holder seeks to proceed against his legal representatives. In my opinion S.2(11) C.P.C. read with S.50 C.P.C. does not make any difference in the application of the principle laid down by the learned Single Judge of the Madras High Court because S.50 is not exhaustive of the circumstances in which decree can be executed against a legal representative. On perusing the reasoning given in the two decisions to which I have referred, I am in agreement with the view expressed by the learned Single Judge of Madras High Court. Therefore, the properties of the second defendant in the hands of the plaintiff could be proceeded against by the first defendant even though the plaintiff was not a party to the suit."
14. In 1989(2) M.L.J. 94 (cited supra), this Court while considering the Order I Rule 10, observed as under:
"8. The provisions in Order 1, Rule 10, C.P.C. enable the Court to implead any persons as a party to the suit 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. This power is provided under the Code in order to avoid multiplicity of proceedings at a later stage. The object of the said provisions is to have effective and final adjudication of all the disputes over the suit properties. In construing the scope of this provisions this Court has held in Paramasivam V. Ahilakshmi, (1952)1 M.L.J.473: A.I.R. 1953 Mad 618 that the power of the Court available under order 1, Rule 10, C.P.C. is very wide and it cannot be construed on narrow terms. The sme view has been expressed in Razia Begum V. Anwar Begum, A.I.R. 1958 S.C.886 and Provat Chandra V. Rabindranath, A.I.R.1960 Cal.291. It is unnecessary to go into the case law in detail on this aspect since the language of the said rule is itself very clear. The Court is not deciding the question whether the third defendant is entitled to claim any right as trusteeship. Once certain claims are advanced against the suit trust and the trust properties, it is just and necessary that the party, who advance such a claim, is added as a party so that there can be an effective adjudication of the dispute between the parties concerned. There is one other aspect which has to be noted in this case, namely that the proposed party has not chosen to appear in Court and contest the application. So far he has not raised any objection for impleading him as party to the suit. On a consideration of these aspects, I am of the view that the order passed by the trial Court impleading the proposed party/defendant in the suit is perfectly valid and a interference is called for. Hence, this revision petition is dismissed. However, I make it clear that the proposed party is not added as a legal representative of the deceased third defendant but only as a party claiming certain rights in the suit properties and on the basis of the memo filed by the defendants 1 and 2 as stated above. It is open to the parties to raise all objections that are available to them in the course of the trial of the suit. In such circumstances of the case, I make no order as to costs."
15. In the above decision, it was held that Order I Rule 10 C.P.C. enables the Court to implead any person as a party to the suit whose presence may be necessary in order to adjudicate the matter effectively and this power is provided in order to avoid multiplicity of proceedings at a later stage.
16. In A.I.R. 1999 MAD 74 (cited surpa), this Court held that the universal donees being the legal representatives of the deceased are liable to discharge the liability of the deceased's property. To come to this conclusion, the learned Judge relied on a previous decision of this Court reported in A.I.R. 1964 MAD 78 (Dayanandan Vs Venugopal). The relevant portion reads as under:
"5. As stated above, it is admitted that the first item of the 'B' schedule property has been settled in favour of the petitioners. The second item is a road formed to reach the first item of the suit properties. So, that road is already there and the same is utilised to reach the first item of the suit properties. So, that road has been given to the petitioners. In the absence of any evidence of any plea by the petitioners that some other persons also are having right to use the same, it has to be taken that the second item of the suit properties also has been given to the petitioners. So, from the said settlement deed it has to be construed that the entire suit properties have been given to the petitioners. Even under the release deed dated 20.01.1982, the right in the superstructure was also given. The above said facts will clearly establish that the petitioners are the universal donees as contemplated under Section 128 of the said Act. While dealing with similar issue, Veeraswami, J. As he then was, in the decision in Dayanandan V. Venugopal, AIR 1964 Madras 78 has held as follows (at pp 79 and 80 o AIR):-
"With great respect to the Judges who decided AIR 1952 Trav Co. 23, I am unable to concur with the view they have expressed. They seem to think that devolution of interest is necessarily a test of one being a legal representative. I can find no warrantr for such a view. In S.2(11) of the C.P.C. the statutory definition of "legal representative" goes so far as to say that even an intermeddler with the estate of a deceased cannot be regarded as his legal representative. It is not necessary that, in order for that person to be his legal representative, there must be a devolution of interest in his favour from the deceased. If devolution is the criterion, many persons who are undoubtedly legal representatives, will not be so, as for example, executors, trustees and the like. Apart from a universal donee being a legal representative, it is particularly important to note that universal donees only take the estate of the deceased subject to the liabilities of the deceased. In fact S.128 of the Transfer of Property Act fastens a personal liability upon the universal donee for all debts due by the donor at the time of the gift though that liability is confined to the extent of the properties comprised in the gift. This aspect, if I may say so, with respect, again,does not appear to have been kept in view in AIR 1952 Trav. Co. 23. The liability of the Universal donee to pay the decree debt of the donor arises not only by reason of the donee accepting the gift and of being the legal representative of the deceased but also by the very same terms under which he becomes a universal donee. Though it was conceded by counsel in Andhra Bank ltd. V. Srinivasan, AIR 1962 SC 232, that a Universal donee would be a legal representative, the Supreme Court was inclined to take the view that even a person who intermeddleed with only a part of the estate of a deceased would be his legal representative. The case of a universal donee is a fortiori on a better footing.
Sec.50(2) of the C.P.C. enables a decree holder to execute his decree against the legal representatives of the judgment-debtor, the liability, of course, in execution being confined to the extent of the deceased's property in the hands of the legal representative. That precisely is also the position under sEc.128 of the Transfer of Property Act. On a careful consideration of the question, I am unable to see why there should be insistence on another suit against the legal representative to establish the debt of the donor. There appears to be no conceivable reason or principle which compels such a course. Both on the ground that the universal donees are the legal representatives of the donor and on the ground of their pesonal liability to qualified extent under the terms of S.128 of the Transfer of Property Act, I hold that no separate suit is necessary to reach the properties of the donor in execution of the decree against him but that the decree-holder can levy execution straightway against his legal representatives to the extent of the donor's properties in their hands".
From the abovesaid decision it is clear that the petitioners are the legal representatives of the fourth defendant and they are liable to discharge the liability to the extent of the deceased's property in question and no separate suit need be filed. In view of the above finding, I am not going into the other question, viz. Whether the suit is sustainable under Order 34, Rule 1 C.P.C. without impleading the petitioners."
17. In 2005(3) M.L.J. 306 (cited supra), this Court while considering the object of Order I Rule 10(2) C.P.C., held that it is to prevent multiplicity of proceedings. The relevant portion reads as follows:
"12. The object of Rule 10(2), C.P.C. is not to prevent multiplicity of proceedings. The necessary consideration before the Court, while determining the question of impleadment of a party to the proceedings is whether the party is necessary or proper party. A necessary party is one without whom no order can be made effectively. A proper party is one whose presence is necessary for a complete and final decision of the question involved in the proceeding."
18. In the light of the above decisions and considering the facts and circumstances of the present case, I am of the considered view that the trial court has wrongly dismissed I.A.No.41 of 2006 filed by the plaintiff under Order I Rule 10(2) C.P.C.
19. Admittedly, I.A.No.1343 of 2004 has been filed by the plaintiff for Attachment Before Judgment. The properties mentioned in the petition are not the properties of the first defendant and because of the settlement made by him in favour of his wife and children who are the proposed parties, they are the properties of the proposed parties. Since the proposed parties part, take the character of the universal donees, as per the judgment of this Court reported in A.I.R. 1999 MAD 74 (cited supra) and A.I.R. 1978 A.P. 173 (cited supra), the plaintiff could proceed against the properties of the proposed parties in the event of her success in the suit. In fact, in both the above judgments, the learned Judges relied on a previous decision of this Court reported in A.I.R. 1964 MAD 78 (cited supra).
20. If that is the position of law, then, the plaintiff is very much entitled to implead the proposed parties in I.A.No.1343 of 2004 filed by her for Attachment Before Judgment and for that matter, they are also proper parties in O.S.No.387 of 2004 if not necessary parties. Hence, I am of the considered view that the trial court ought to have allowed the application filed by the plaintiff and on the contrary, the trial court in the interim application stage itself rendered a finding that it cannot be said that the first defendant had wantonly settled his properties in favour of his wife and children and as the first defendant is very well alive, the plaintiff could not proceed against the proposed parties. This finding by the trial court at this stage is unwarranted and therefore, I have no hesitation in setting aside the order dated 11.09.2007 made in I.A.No.41 of 2006.
21. In the result, the Civil Revision petition is allowed. No cost. The order passed by the trial court in I.A.No.41 of 2006 is set aside. The respondents 3 to 5 herein who are the proposed parties are to be impleaded as defendants 3 to 5 in the suit and the respondents 3 to 5 in I.A.No.1343 of 2004.
22. It is also seen that I.A.No.1343 of 2004 after transfer from the Sub Court, Puducherry to the District Court was re-numbered as I.A.No.39 of 2006. Hence, the respondents 3 to 5 are impleaded in the re-numbered I.A., i.e., I.A.No.39 of 2006.
23. Considering the fact that the Attachment Before Judgment application was filed in the year 2004, I direct the trial court to dispose of the same on merits and in accordance with law without getting influenced by the order passed by me now in the above Civil Revision petition. The observations made by me in this order are only for the purpose of disposing of the above Civil Revision petition.
vaan To The IV Assistant Judge, City Civl Court, Chennai