Sadashivappa Vs. Shivayogappa - Court Judgment

Excerpt:
- constitution of india articles 226 & 227; [anand byrareddy, j] bangalore-mysore infrastructure corridor project (bmic project) petitioners frame-work agreement with government of karnataka - inordinate delay on the part of the respondents with regard to shifting or diverting certain utilities which are clashing with the right of way of the link road and the peripheral road failure to perform its obligation by respondents (bwssb etc.,) writ petition held, having regard to the pronouncements of high court as well as the supreme court insofar as the present project is concerned, it would be inconsistent if this petition were to be rejected on the ground that it would fall in the realm of private contract law or that there is an alternate remedy of the petitioners insofar as any breach of obligation on the part of respondents is concerned or on the ground that the petitioners are in a position to carry out alternate measures in relocating the road to avoid the transmission lines- further, the respondents are bound to its obligation as originally conceived as between the petitioners and the respondents. hence, in the interest of justice and the interest of public at large, having regard to the significance of the peripheral road and the link road in the management of the chaotic traffic under which the city is reeling, and to alleviate the suffering of the millions who look forward to this arterial link which would ease the enormous volume of traffic which at present ploughs through the city to reach tumkur road from hosur road or vice versa is a desideratum to be met at the earliest. the respondents alone are responsible for preventing this vital need of the city from being provided. - that decision therefore holds good on the special facts of that case and is distinguishable. 6. one needs to clearly construe the correct position in law which unequivocallyindicates that once a coparcener separates from the joint family that he ceases to be part of the h. where the alienated member anticipates the legal bar in his way and seeks to overcome it by taking up the contention that the registered partition deed is non est in law because it is vitiated through some legal infirmities such as fraud, which has been pleaded in this instance. learned advocate therefore submitted that the correct procedure would have been for the learned trial judge to have permitted the petitioner to be impleaded subject to his being able to satisfy the court on the aforesaid preliminary issue and that if he failed to do so, that the court could have proceeded to partition the property dehors the petitioner. the registered partition deed unequivocally destroys that status and it is therefore condition precedent for the petitioner if according to him, that document is vitiated, to overcome that bar and to only then contend that he must be made a party to the partition proceedings. under these circumstances, the position that emerges is that the learned trial judge was perfectly justified in holding that the petitioner is not a necessary party to the present suit and in having excluded him therefrom.order1. a subtle point of some consequence has agitated by the petitioner's learned advocate in this case. briefly summarised, he points out that the petitioner who is the eldest member of the joint family was given a share in the year 1992 and a document to that effect was executed and registered. he states that very shortly thereafter, the remaining members filed the present suit asking for partition and it appears that since the division was virtually between the family members that they decided to file compromise terms and dispose of the matter so that their shares would have been carved out at this stage. the petitioner who is the eldest brother filed an application to the effect that he is a member of the joint family by virtue of the fact that he is one of the brothers, thal he is consequently a necessary party to the proceeding and that therefore, he must be impleaded. the application under o. 1, r. 10. c. p.c. went a little further in so far as the petitioner contended that the so-called document of partition was obtained through fraud and that therefore, it was not binding on him. his contention is that in the absence of that document, the whole of the property would have to be divided according to law between all the coparceners including the petitioner.2. the application being i. a. iii was resisted by the remaining members of the family who contended that the petitioner has not only opted for severance from the joint family but that the registered document is evidence of his having taken his share and that he is also living separately. it was pointed out that both on facts and in !aw therefore, the petitioner has ceased to be a member of the joint family, that his status as coparcener has come to an end and that therefore, he is not a necessary party to the present proceeding. it was also contended that in this background, the petitioner has no right to apply for being impleaded. the learned trial judge after hearing the parties upheld the contention that the petitioner has separated from the joint family and that therefore, he is not entitled to participate in the litigation which was only for purposes of dividing the remaining joint family assets and consequently dismissed i. a. iii. the present petition is directed against that order.3. petitioner's learned advocate submitted that a distinction will have to be drawn in this case between a simple situation where a coparcener who has alienated himself from the h. u. f. and thereafter desires to once again participate in the process of partition and a situation wherein immediately after the said severance which the alienated member contends was obtained under circumstances that do not pass the test of fairness and consequently, that the court would have to examine this contention in the course of the partition proceedings. secondly, he has raised an age old argument that if the petitioner is required to independently agitate the allegation of fraud, that he may be frustrated in his effort because the present proceeding will be disposed of on the basis of the compromise terms, the decree will be given effect to and thereafter, that it may be impossible to once again achieve a complete and fair division. this second submission proceeds on the assumption and the confidence of the petitioner that he will be able to establish the allegation of fraud. the fact is that the partition in question came to be registered and that document has certain evidentiary value and certain presumptions also flow from that document.4. the petitioner's learned advocate in this case has placed reliance on an earlier decision of this court reported in air 1971 mysore 208 in the case of bhujanga hegde v. sakarama hegde where the short question that arose was as to whether a separated member of a joint family who applied for being impleaded in a partition proceeding between the remaining members was a necessary party or not. in that case, the court proceeded on the basic proposition that all the coparceners of a joint family must be impleaded in such a proceeding notwithstanding the fact that there was some contention regarding separation by virtue of the execution of an earlier document. learned advocate submits that it would be dangerous to uphold the validity of the earlier documents straight away and deprive the petitioner the opportunity of participating in the present proceedings particularly in the background where he has challenged the validity of the registered partition deed. there is a basic distinction between the facts of the present case and the facts in the decision referred to by me earlier and to my mind, these are aspectsof law which the court did not go into on that occasion. that decision therefore holds good on the special facts of that case and is distinguishable.5. the basic proposition that has come from the respondents' side proceeds on the footing that if a coparcener through aregistered partition deed severs him self from the h.u.f., that he ceases to be a coparcener oh and from the date on which such severance has taken place and that this situation gets doubly re-enforced if it can be shown that the partition had not only been registered but that it has been given effect to. the submission proceeds on the footing that the member concerned has exercised his option and once having done so, that he is precluded from claiming the status-quo ante. the respondents' learned advocate contends that it is not a question of any concession being made but the fact remains that his clients desire to have the matter disposed of through an inter se settlement and that the whole effort of the present petitioner is to enter the litigation, prevent a settlement and in the process try and ask for a larger share than what he had originally taken away. the. submission proceeds on the footing that there is a finality to the process of severance which is irreversible.6. one needs to clearly construe the correct position in law which unequivocallyindicates that once a coparcener separates from the joint family that he ceases to be part of the h. u. f. particularly in a case where the partition has been given effect to such as the present one where it is demonstrated that a physical division of the property has taken place and more importantly, that the concerned member has gone to reside separately. it is virtually the end of the matter in so far as the joint family may continue vis-a-vis the rest of the members and rest of the parties but the members who are separated cease to be part of that h. u. f. and consequently, cease to have any right to demand any partition in respect of the remaining property. this being the position in law, if the remaining members were to approach a court for partition of the residuary corpus, the alienated member hasno right to insist on being made a party to that proceeding. the real difficulty arises in a situation of the present type. where the alienated member anticipates the legal bar in his way and seeks to overcome it by taking up the contention that the registered partition deed is non est in law because it is vitiated through some legal infirmities such as fraud, which has been pleaded in this instance. petitioner's learned advocate has submitted that having regard to the last aspect of the matter, that the court will have to proceed on the footing that the separated member namely the present petitioner has a right to participate in the partition proceedings provided he satisfies the court that the partition deed is not legally enforceable against him. learned advocate therefore submitted that the correct procedure would have been for the learned trial judge to have permitted the petitioner to be impleaded subject to his being able to satisfy the court on the aforesaid preliminary issue and that if he failed to do so, that the court could have proceeded to partition the property dehors the petitioner.7. i am unable to accept this contention because the petitioner is claiming to be impeded as of right. before that right can be exercised, it is for him to demonstrate his status namely that of a coparcener. the registered partition deed unequivocally destroys that status and it is therefore condition precedent for the petitioner if according to him, that document is vitiated, to overcome that bar and to only then contend that he must be made a party to the partition proceedings. the court needs to take cognizance of the legal effect of a registered partition deed which as of now is in existence and binds the petitioner as much as it binds the remaining members of the h. u. f. under these circumstances, the position that emerges is that the learned trial judge was perfectly justified in holding that the petitioner is not a necessary party to the present suit and in having excluded him therefrom.8. the only very small procedural difficulty that is peculiar on the facts of the present case is that the time lag between the partition and the filing of the present suit is extremelyshort. petitioner's learned advocate vehemently submitted that the modus operandi was to give his client some property, take his signature on the partition deed and thereafter, for the remaining family members to divide the rest of the assets among themselves to the prejudice of the petitioner. whether there is some substance in this allegation or not, one does not know because prima facie, the petitioner is an adult aged 50 years and it would therefore be a little difficult to accept that he could be taken for a ride so easily. if however there is substance in the petitioner's allegation of fraud and if the petitioner is in a position to do so, it is only on his satisfying the court with regard to this aspect of the matter that the partition deed can be set aside. unless that is done, the petitioner's status as a coparcener will not be restored and it is only in that capacity that he will be entitled to demand that he should be heard when the properties are being partitioned. the only problem that arises is as to what happens in the mean while because the record indicates that the remaining family members desire to have the suit straight away disposed of. while the petitioner cannot be denied his independent rights if he so desires to exercise them, it is necessary to balance the rights of the two parties for which purpose, i propose to give the petitioner the option to challenge through an independent proceeding if he so desires, the validity of the partition deed, that was executed by him in the year 1992. if the petitioner institutes such a proceeding, the court shall in that event examine the validity of the contentions that are raised and having regard to the fact that if the petitioner were to succeed in that proceeding, that the properties taken away by him would revert to the h. u. f. corpus and that this would make a substantial difference to the overall partition, the rule of practicality would require that the learned trial judge take up both the proceedings and hear them together. if the petitioner exercises the option, it will be up to him in ensure that all formalities are completed without any time delay whatsoever since the filing of another proceeding by him can hardly justify the holding of the disposal of the present suit. irrespective of the date offiling of the new proceeding, the trial court shall club that matter along with the present proceeding and dispose of both of them together.9. in the light of the aforesaid position in law, the order passed by the trial court is confirmed. the petitioner is given the option to independently exercise his rights if he so desires within an outer limit of eight weeks from today in which case, the trial court shall follow the subsequent directions of this court. with these observations, the c. r. p. to stand disposed of. no order as to costs.10. revision dismissed.

Judgment:
ORDER

1. A subtle point of some consequence has agitated by the petitioner's learned Advocate in this case. Briefly summarised, he points out that the petitioner who is the eldest member of the joint family was given a share in the year 1992 and a document to that effect was executed and registered. He states that very shortly thereafter, the remaining members filed the present suit asking for partition and it appears that since the division was virtually between the family members that they decided to file compromise terms and dispose of the matter so that their shares would have been carved out at this stage. The petitioner who is the eldest brother filed an application to the effect that he is a member of the joint family by virtue of the fact that he is one of the brothers, thal he is consequently a necessary party to the proceeding and that therefore, he must be impleaded. The application under O. 1, R. 10. C. P.C. went a little further in so far as the petitioner contended that the so-called document of partition was obtained through fraud and that therefore, it was not binding on him. His contention is that in the absence of that document, the whole of the property would have to be divided according to law between all the coparceners including the petitioner.

2. The application being I. A. III was resisted by the remaining members of the family who contended that the petitioner has not only opted for severance from the joint family but that the registered document is evidence of his having taken his share and that he is also living separately. It was pointed out that both on facts and in !aw therefore, the petitioner has ceased to be a member of the joint family, that his status as coparcener has come to an end and that therefore, he is not a necessary party to the present proceeding. It was also contended that in this background, the petitioner has no right to apply for being impleaded. The learned trial Judge after hearing the parties upheld the contention that the petitioner has separated from the joint family and that therefore, he is not entitled to participate in the litigation which was only for purposes of dividing the remaining joint family assets and consequently dismissed I. A. III. The present petition is directed against that order.

3. Petitioner's learned Advocate submitted that a distinction will have to be drawn in this case between a simple situation where a coparcener who has alienated himself from the H. U. F. and thereafter desires to once again participate in the process of partition and a situation wherein immediately after the said severance which the alienated member contends was obtained under circumstances that do not pass the test of fairness and consequently, that the Court would have to examine this contention in the course of the partition proceedings. Secondly, he has raised an age old argument that if the petitioner is required to independently agitate the allegation of fraud, that he may be frustrated in his effort because the present proceeding will be disposed of on the basis of the compromise terms, the decree will be given effect to and thereafter, that it may be impossible to once again achieve a complete and fair division. This second submission proceeds on the assumption and the confidence of the petitioner that he will be able to establish the allegation of fraud. The fact is that the partition in question came to be registered and that document has certain evidentiary value and certain presumptions also flow from that document.

4. The petitioner's learned Advocate in this case has placed reliance on an earlier decision of this Court reported in AIR 1971 Mysore 208 in the case of Bhujanga Hegde v. Sakarama Hegde where the short question that arose was as to whether a separated member of a joint family who applied for being impleaded in a partition proceeding between the remaining members was a necessary party or not. In that case, the Court proceeded on the basic proposition that all the coparceners of a joint family must be impleaded in such a proceeding notwithstanding the fact that there was some contention regarding separation by virtue of the execution of an earlier document. Learned Advocate submits that it would be dangerous to uphold the validity of the earlier documents straight away and deprive the petitioner the opportunity of participating in the present proceedings particularly in the background where he has challenged the validity of the registered partition deed. There is a basic distinction between the facts of the present case and the facts in the decision referred to by me earlier and to my mind, these are aspectsof law which the Court did not go into on that occasion. That decision therefore holds good on the special facts of that case and is distinguishable.

5. The basic proposition that has come from the respondents' side proceeds on the footing that if a coparcener through aregistered partition deed severs him self from the H.U.F., that he ceases to be a coparcener oh and from the date On which such severance has taken place and that this situation gets doubly re-enforced if it can be shown that the partition had not only been registered but that it has been given effect to. The submission proceeds on the footing that the member concerned has exercised his option and once having done so, that he is precluded from claiming the status-quo ante. The respondents' learned Advocate contends that it is not a question of any concession being made but the fact remains that his clients desire to have the matter disposed of through an inter se settlement and that the whole effort of the present petitioner is to enter the litigation, prevent a settlement and in the process try and ask for a larger share than what he had originally taken away. The. submission proceeds on the footing that there is a finality to the process of severance which is irreversible.

6. One needs to clearly construe the correct position in law which unequivocallyindicates that once a coparcener separates from the joint family that he ceases to be part of the H. U. F. particularly in a case where the partition has been given effect to such as the present one where it is demonstrated that a physical division of the property has taken place and more importantly, that the concerned member has gone to reside separately. It is virtually the end of the matter in so far as the joint family may continue vis-a-vis the rest of the members and rest of the parties but the members who are separated cease to be part of that H. U. F. and consequently, cease to have any right to demand any partition in respect of the remaining property. This being the position in law, if the remaining members were to approach a Court for partition of the residuary corpus, the alienated member hasno right to insist on being made a party to that proceeding. The real difficulty arises in a situation of the present type. where the alienated member anticipates the legal bar in his way and seeks to overcome it by taking up the contention that the registered partition deed is non est in law because it is vitiated through some legal infirmities such as fraud, which has been pleaded in this instance. Petitioner's learned Advocate has submitted that having regard to the last aspect of the matter, that the Court will have to proceed on the footing that the separated member namely the present petitioner has a right to participate in the partition proceedings provided he satisfies the Court that the partition deed is not legally enforceable against him. Learned Advocate therefore submitted that the correct procedure would have been for the learned trial Judge to have permitted the petitioner to be impleaded subject to his being able to satisfy the Court on the aforesaid preliminary issue and that if he failed to do so, that the Court could have proceeded to partition the property dehors the petitioner.

7. I am unable to accept this contention because the petitioner is claiming to be impeded as of right. Before that right can be exercised, it is for him to demonstrate his status namely that of a coparcener. The registered partition deed unequivocally destroys that status and it is therefore condition precedent for the petitioner if according to him, that document is vitiated, to overcome that bar and to only then contend that he must be made a party to the partition proceedings. The Court needs to take cognizance of the legal effect of a registered partition deed which as of now is in existence and binds the petitioner as much as it binds the remaining members of the H. U. F. Under these circumstances, the position that emerges is that the learned trial Judge was perfectly justified in holding that the petitioner is not a necessary party to the present suit and in having excluded him therefrom.

8. The only very small procedural difficulty that is peculiar on the facts of the present case is that the time lag between the partition and the filing of the present suit is extremelyshort. Petitioner's learned Advocate vehemently submitted that the modus operandi was to give his client some property, take his signature on the partition deed and thereafter, for the remaining family members to divide the rest of the assets among themselves to the prejudice of the petitioner. Whether there is some substance in this allegation or not, one does not know because prima facie, the petitioner is an adult aged 50 years and it would therefore be a little difficult to accept that he could be taken for a ride so easily. If however there is substance in the petitioner's allegation of fraud and if the petitioner is in a position to do so, it is only on his satisfying the Court with regard to this aspect of the matter that the partition deed can be set aside. Unless that is done, the petitioner's status as a coparcener will not be restored and it is only in that capacity that he will be entitled to demand that he should be heard when the properties are being partitioned. The only problem that arises is as to what happens in the mean while because the record indicates that the remaining family members desire to have the suit straight away disposed of. While the petitioner cannot be denied his independent rights if he so desires to exercise them, it is necessary to balance the rights of the two parties for which purpose, I propose to give the petitioner the option to challenge through an independent proceeding if he so desires, the validity of the partition deed, that was executed by him in the year 1992. If the petitioner institutes such a proceeding, the Court shall in that event examine the validity of the contentions that are raised and having regard to the fact that if the petitioner were to succeed in that proceeding, that the properties taken away by him would revert to the H. U. F. corpus and that this would make a substantial difference to the overall partition, the rule of practicality would require that the learned trial Judge take up both the proceedings and hear them together. If the petitioner exercises the option, it will be up to him in ensure that all formalities are completed without any time delay whatsoever since the filing of another proceeding by him can hardly justify the holding of the disposal of the present suit. Irrespective of the date offiling of the new proceeding, the trial Court shall club that matter along with the present proceeding and dispose of both of them together.

9. In the light of the aforesaid position in law, the order passed by the trial Court is confirmed. The petitioner is given the option to independently exercise his rights if he so desires within an outer limit of eight weeks from today in which case, the trial Court shall follow the subsequent directions of this Court. With these observations, the C. R. P. to stand disposed of. No order as to costs.

10. Revision dismissed.