TMI Blog1965 (4) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agreement of sale. The petitioner's case was that the agreement of sale was entered into by Sundararama Iyer aforesaid making the express representation, both oral and under the express terms of the agreement of sale, that the property agreed to be conveyed is his own self-acquired property. As the plaintiffs in the partition suit are claiming the property as joint family property and as the petitioner apprehends collusion between the plaintiffs and the first defendant he sought to be impleaded as a party to prevent any collusion and also to bring to the notice of the Sub-Court his rights under the agreement of sale, so that in equity the property agreed to be sold, may if possible be allotted to the share of the first defendant. The plaintiffs alone filed an objection statement, opposing the application; the first defendant did not file any objection statement denying the allegations made by the petitioner concerning the written agreement of sale. The learned Subordinate Judge dismissed the application taking the view that the agreement of sale did not clothe the petitioner with any legal or equitable right and that the remedy of the petitioner is only to file a suit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n me. As observed by Jackson, J., in Chidambaram Chettiar v. Subramania Chettiar AIR1927Mad834 . A Court has large discretion under this Order, and I should deprecate any attempt to diminish that discretion by substituting special pronouncements in special cases for the actual language of the rule. 4. Mr. Gopalaswamy Iyengar, learned Counsel for the respondent, contended that the petitioner is not a necessary party nor a proper party whose presence before the Court is necessary in order to enable the Court effectually and completely to-adjudicate upon and settle all the questions involved in the suit. According to learned Counsel the plaintiff's the dominus litis and He cannot be compelled to litigate not only against the defendant of his choice as against whom he has prayed for certain reliefs but also against the petitioner, and that the expression, all the questions involved in the suit can mean only the questions or disputes as between the parties to the litigation and will not include a question or dispute between one or more of the parties and a third party. He further urged that the alleged agreement of sale in favour of the petitioner does not create any interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis that it would be incorrect to say that when a co-sharer purports to alienate a specific item of joint family property, he is dealing with the property to which he had no title at that time, but that he certainly had title, the interests of an undivided co-sharer. The learned Judge also observed that the mortgagee's right is not a mere personal right or a personal equity, but that the right to proceed against the substituted security is a charge within the meaning of Section 100 of the Transfer of Property Act, even though it may not amount to a mortgage because of the fact that it is only by operation of law the mortgage right gets transferred over the substituted security. 6. Mr. Gopalaswamy Iyengar does not dispute the position that in a suit for partition alienees of joint family properties may be made parties at the instance of parties other than the plaintiff as their presence may be necessary to enable the Court to effectually and completely dispose of the subject-matter in a suit, namely, a just and equitable partition of the family properties. Reference may be made to the decision in Moonrumugankondan Asari v. Chockalingam Asari (1930)59MLJ524 . 7. At th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a person who has got a mere charge by operation of law to proceed against the substituted property could undoubtedly be impleaded as a party, at any rate, when he seeks to come on record. The crux of the question in the instant case is why this principle should not apply to a person who has got an agreement of sale in his favour just because such an agreement is merely executor and does not create an interest in Immovable property. 9. Mr. Gopalaswamy Iyengar, relying upon the decision of V.V. Srinivasa Ayyangar, J., in Sri Mahant Prayaga Doss v. Board of Commissioners for Hindu Religious Endowments, Madras I.L.R.(1926) Mad. 34, contended for the narrow view that the questions involved in the suit under Order 1, Rule 10, Civil Procedure Code can only be questions as between the parties to the litigation and not questions between any of the parties to the suit and third party even though touching the property which is the subject-matter of the suit. But this Court has consistently adopted a wider interpretation of the scope of Order 1, Rule 10 and in the state of the authorities his contention cannot be accepted. 10. In Vydianada v. Sitarama I.L.R.(1881) Mad. 52, a Bench deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to the appellant personally, and, in Original Suit No. 60 of 1880, as a debt due to the coparceners, and he will lose in this suit the benefit of the part payment, it is alleged, he has made, while in the other suit he may establish he is entitled to it. Reading the whole of the Rules under Order 16 of the Judicature Act together, it seems clear that Rule 13 should be interpreted in the larger sense. Although Ex parte Smith In re collie (1876) L.R. 2 Ch. D. 51 and Bower v. Hartley (1876) L.R. 1 Q.B.D. 652 were decided on Rules 17, and 18, they indicate the principle, we believe, the framers of the rules had in view, namely, that a material question common to the parties and to third parties should be tried once for all. (italics mine). The principle of this decision was followed and applied by Venkatasubba Rao, J., in Secretary of State v. Murugesa AIR1929Mad443 . In that case the plaintiff was elected a member of the District Board of Chingleput. But the Government withheld the notification of the plaintiff's election in the Gazette. The plaintiff, therefore, filed a suit against the District Board for a declaration that he was a duly elected member and the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the learned Judge observed as follows at page 284: The underlying principle regarding the addition of parties is that there must be finality to litigation and to secure that purpose it would be incumbent upon the Court to add a party whose presence would be necessary to put an end to all the controversy in the litigation finally. This is the view taken by a Division Bench of this Court in Seethai Achi v. Meyappa Chetti (1934)66MLJ517 in this very case where Sundaram Chetty, J., relying on Vydianada v. Sitarama (1881) I.L.R. 5 Mad. 52 observed: But if there is a question common to the parties on record and a stranger, as regards the subject-matter of the suit or any portion thereof, it should be tried once for all by allowing the stranger to be made a party. This is also the view taken by Venkatasubba Rao, in Secretary of State v. Murugesa AIR1929Mad443 . This in my view would be the correct interpretation of the rule. 14. In Vanjiappa Goundan v. Annamalai Chettiar AIR1940Mad69 ., Patanjali Sastri, J., has following Secretary of State v. Murugesa AIR1929Mad443 , held that questions involved in the suit referred to in Order I, Rule 10 meant not only the questions involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view is the sounder one, was left open as the Supreme Court took the view that, even on the narrow view of the rule the third party was rightly impleaded as a party to the suit. In that case the plaintiff had filed a suit claiming that she was the legally wedded wife of the defendant and she was entitled to receive from the defendant a sum of rupees two thousand as kharch-e-pandan. The defendant admitted the claim. A third party filed an application for impleading herself and her son on the ground that she was also the legally wedded wife of the defendant, and that she was interested in denying the marriage of the plaintiff with the defendant. Sinha and Kapur, JJ. (Imam J., dissenting) held that the third party was rightly impleaded. The judgment of the Supreme Court contains a reference to some of the leading decisions in England which had been rendered under the corresponding provision of the rules of the England Supreme Court Order 16, Rule 11 containing identical language. The Supreme Court has referred to, with approval, the view taken in the English decisions that in order that a party may be added as a defendant in the suit he should have a legal interest in the subject-mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session or control of the bars through the Bank the French Company would fail to obtain an Order from the Court, in its favour by reason of the doctrine of immunity applicable to foreign sovereign States and, therefore, the applicants, the Governments of United States of America and France would be entitled to retain possession and control over the bars and thus be able to dispose of them. It was held that whether or not the applicants had a proprietary right in the subject-matter of the action sufficient to entitle them to be joined as defendants the: true test lay not so much on an analysis of what were the constituents of the rights but rather in what would be the result on the subject-matter of the action if their rights could be established. It was also held that the applicants had a direct interest in the subject-matter of the action which was similar to a proprietary right and was of such a nature as would entitle them to be joined as defendants as in their absence their claim could not be eventually put forward. After referring to the decision in Moser v. Marsden L.R. (1892) 1 Ch. 487, in which it was held that the fact that a person's interest would be commercially aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly bearing on the point, but, on the analysis which I have made of the nature of the applicant's interest in the matter, I have come to the conclusion that I ought not to say that I have no jurisdiction to entertain the application on the short ground which counsel for the plaintiffs put forward, viz., that the applicants could not show a proprietary right, and, therefore, did not come within the second of the three classes of cases to which I have referred, but that I am dealing with a right of such a nature as, on an application by applicants in the position of the present applicants, should result in an order that they be joined as defendants provided it can be shown that in their absence the claim to the right will not effectually be put forward. 18. This view was followed in Amon v. Raphael Tuck Sons. Ltd. (1956) 1 All E.R. 273. In that case the plaintiff filed an action against the defendants for damages and injunction on the ground that the plaintiff was the first inventor of a new design of adhesive dispenser in the shape of a pen, that the plaintiff disclosed to the defendant the details of the invention in the course of negotiations with the defendant for marketi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties and not in any new issue raised by an intervener. The criticism that at once suggests itself of this construction is that it is impossibly narrow. If the adjudication is limited to something that lies between the plaintiff and the defendant, what parties can be necessary to it except the plaintiff and the defendant? The Court is for this purpose concerned only with action in person am and in such actions either the necessary defendant is sued or the action fails. If all the parties who ought to have been joined under the first limb of the rule are joined, who are the necessary parties contemplated by the second limb? 19. Devlin, J., further observed as follows at page 289-290: Counsel for the plaintiff next submits that the intervener's interests cannot be affected, any way because if the plaintiff is wrong, there will be no injunction; and if he is right, the, injunction can be granted only on the basis that the duty of confidence was owed to the plaintiff and not to the intervener. This argument, in my opinion, misconceives the point. Whenever a plaintiff seeks to restrain a defendant from dealing with his property and an intervener claims that the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in the action, it is proper that in the exercise of my discretion I should make. 20. The principle of this decision may well be applied to the instant case. The allotment made in the partition suit would be binding upon the third party applicant, and yet he is totally denied the opportunity of placing his point of view to have' the property agreed to be sold to him allotted to the share of the alienating coparcener if possible and without prejudice to the rights of the other co-sharers. It is needless to observe that if there is no collusion or fraud the partition would be binding upon the third party, and his interests would therefore be bound and affected by the final decree in the partition suit. It should be noted that this aspect is independent of any question of fraud or collusion vitiating the allotment in the partition suit. The applicant has a real direct tangible interest in the subject-matter of the suit and undoubtedly his presence is necessary to enable the Court to effectually and completely adjudicate upon the points in controversy. 21. There is also one other important aspect that should be borne in mind. The plaintiffs claimed the property as joint f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places the other members in a disadvantageous position as the alienor still remains a member of the joint family while conveying his share as also to the fact that it gives the right to an alienee of a small item of family property to disrupt the family by filing a suit for general partition, I do not think Courts ought to put a person whose claim rests on a purely executory contract in the position of a person who by reason of an executed conveyance and the payment of consideration has acquired rights which on equitable grounds Courts consider it desirable to work out in a suit for partition.in support of his contention that entirely different considerations would apply to a mere executory contract of sale. This observations have no relevance on the question of the applicability of Order I, Rule 10 where the only question is whether the applicant has got a direct interest in the subject-matter in dispute which would be affected by the result of the litigation. The interest that is necessary to make a person a party is legal interest including equitable interest, that is an interest which the law would recognise and uphold. Surely it cannot be contended that law would refuse to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also against the purchaser from the seller irrespective of the question whether the said purchaser had or had not notice of a charge, in view of the fact it is a statutory charge under Section 55(6)(b) independent of any question of notice. The same view was taken by a Bench of the Bombay High Court in Jibhaoo Harising v. Ajabsingh Fakira I.L.R. (1953) Bom. 253. In that case the entire price had been paid to the vendor in pursuance of a sale which however was found to be invalid. The purchaser applied under the Bombay Agricultural Debtors' Relief Act for his claim being upheld as a mortgage with regard to the purchase price paid by him and it was held that under Section 55(6)(b) the purchaser was entitled to a charge over the property agreed to be sold the moment the purchase price was paid by him vide also Mulla Transfer of Property Act, 4th edition, page 319. The principle of these decisions clearly applied to the instant case. This statutory charge differs from a contractual charge and is based upon principles of justice, equity and good conscience. In addition there is a right of substituted security which the Hindu Law recognises in the case of a mortgage created by a copa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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