VASANTHA AMMAL Vs. V P DHANARAJ

JUDGEMENT

(1.) THE second defendant in O.S. No. 294 of 1984 on the file of the Principal Subordinate Judge, Madurai, is the appellant in this Letters Patent Appeal. THE first respondent herein is the first defendant; the second respondent herein is the plaintiff and respondents 3 to 5 herein are defendants 3 to 5 in the suit. We propose to refer to the parties as per their nomenclature in the suit. THE plaintiff laid the suit for a declaration of title and for delivery of possession. THE case of the plaintiff is that the suit property was the self-acquired property of his father and after the demise of his father, he and his sisters, defendants 3 to 5 are entitled to the same as his legal heirs; and the first defendant, though a natural brother of the plaintiff, was given away in adoption and he his no right over the suit property. THE first defendant resisted the suit contending that the suit property was purchased by his adoptive father in the name of his natural father benami for the adoptive father and the first defendant and his adoptive father lived in the suit property until the demise of the adoptive father, and thereafter the first defendant continued to live in the suit property. THE second defendant contested the suit saying that she purchased a portion of the suit property from the first defendant and she is a bona fide purchaser for value without notice of dispute over title and her possession is lawful. THE first Court tried the suit and decided the issues arising therein and as a result of the decision, decreed the suit of the plaintiff. THE first defendant, aggrieved over the decision, has preferred Appeal No. 347 of 1989 to this Court and the said appeal is pending. THE first defendant has been permitted to prefer Appeal No. 347 of 1989 as an indigent person. THE first defendant also obtained stay and that stay has been confined only to the first defendant. THEreafter, the second defendant took out C.M.P. No. 9490 of 1989 for transposing her as the second appellant in the appeal to prosecute the same along with the first defendant, who has already preferred the appeal. This petition was considered by the learned single Judge and he dismissed the same. This letters patent Appeal is directed against the order of the learned single Judge. This Letters Patent Appeal is admitted. In view of the limited scope of the controversy in the Letters Patent Appeal, we decided to dispose of the same today itself. Mr K. Vaitheeswaran appears for the plaintiff, who alone contested the application before the learned single Judge. THE first defendant, though represented by counsel, did not put forth any contest before the learned single Judge. Defendants 3 to 5 did not even care to appear before the learned single Judge. We deem it fit, in the said circumstances, to dispense with service of notice on defendants 1 and 3 to 5 in this Letters Patent Appeal. We heard full submissions on behalf of the second defendant and the plaintiff through their respective counsel.

(2.) MR. E. Padmanabhan, learned counsel for second defendant/appellant, would submit that when the facts of the case are taken note of, the grounds which weighed with the learned single Judge for dismissing the Petition of the second defendant for transposition may not be in order and the facts of the case do warrant a transposition, as asked for by the second defendant being ordered. As against this, MR. K. Vaithees-waran, learned counsel appearing for the plaintiff, would submit that the first defendant has preferred the appeal as an indigent person and that position cannot be taken advantage of by the second defendant by com ing on record as a co-appellant along with the first defendant; by the second defendant coming on record as a co-appellant along with the first defendant, the second defendant may take advantage of the stay granted; the second defendant had full knowledge of the preferring of the appeal by the first defendant at all stages and she remained indolent and she cannot be allowed to have transposition as a co-appellant along with the first defendant in the appeal already preferred by the latter, especially when her right to prefer an independent appeal stood barred; and the second defendant has got an independent right to agitate and she cannot annex her agitation along with the agitation of the first defendant, who is the appellant on record.

(3.) ON the question that the first defendant has preferrsd the appeal as an indigent person and that cannot be taken advantage of by the second defendant, who, according to the plaintifl, cannot claim to be an indigent person, we appreciate the objection put forth by Mr K. Vaitheeswaran, learned counsel for the plaintiff. However Mr. E. Padmanabhan, learned counsel for the second defendant, says that his client is prepared to pay the requisite Court-fees on the appeal. This answers the grievance of the plaintiff with regard to the propriety of the second defendant getting herself annexed as a co-appellant in the appeal, preferred by the first defendant as an indigent person without any adjudication over that aspect with reference to the second defendant.