TRINITE MODESTINE Vs. JAYASEELI LAGRAVE

JUDGEMENT

(1.) THIS is a petition filed by a third party to implead him as the second appellant in the above second appeal.

(2.) THE material averments made in the affidavit filed in support of this petition are as follows: THE petitioner was employed in French Army in France and the first respondent herein is the younger sister of his mother. His only close relative at Pondicherry was the first respondent. He wanted to buy some agricultural property at Pondicherry to provide for his occupation and income after his retirement. With this view, he paid a sum of Rs. 9,000 to the first respondent in the year 1963 and requested her to purchase some property for him. Accordingly, the first respondent entered into an agreement to purchase the suit property advancing a sum of Rs.4,000. Again in 1968, he paid another sum of Rs.30,000 to her towards the sale consideration for the purchase of the suit property. As he could not stay in Pondicherry after the expiry of his leave, he requested her to purchase the property in her name benami for his benefit. Accordingly, she purchased the suit property benami for his benefit by paying the money which he had entrusted to her. He retired from the French Army and returned to Pondicherry, in the year 1973. THEre were certain disputes between the respondents 2 to 5 herein and the first respondent regarding the title to the suit property. THE respondents 2 to 5 challenged the right of the respondents 6 to 7 herein to sell the suit property to the first respondent. THEy filed a suit in O.S.N0. 28 of 1970 on the file of the Additional Subordinate Judge, Pondicherry against the first respondent and respondents 6 and 7 praying for a declaration that the sale deed executed by the respondents 6 and 7 in favour of the first respondent in respect of the suit property is void and for recovery of possession. THE suit was decreed in part and as against the decree, the first respondent preferred the appeal in A.S.No. 109 of 1976 on the file of the II Additional District Judge, Pondicherry. THE appeal was allowed in part and aggrieved against the same, the first respondent herein has preferred the above second appeal which is pending. Subsequently, certain misunderstandings arose between the petitioner and the first respondent over the title and enjoyment of the suit property. THErefore, he filed O.S.No. 355 of 1985 on the file of the Principal Subordinate Judge at Pondicherry which is now transferred to the file of the II Additional District Munsif, Pondicherry and numbered as O.S.N0. 1324 of 1986, against the first respondent for a declaration of his title and for delivery of possession. In view of this position, he apprehends that the first respondent will not prosecute the appeal effectively in order to wreak vengeance against him. According to him, the result in the second appeal would affect his interest and the first respondent is colluding with the other respondents to put him to loss. Hence this petition for impleading has been filed.

(3.) MR.G. Masilamani, learned counsel appearing for the petitioner contends that the petitioner came to know about the suit out of which the present second appeal arose, only recently and, therefore, he has filed a separate suit for declaration and the same is pending. Even though the petitioner has impleaded, the respondents as parties to the suit filed by him the result of the above second appeal would affect his interest materially since any decision rendered by this Court in the second appeal would be construed as a bar to his claim, since the first respondent, being the ostensible owner of the property he would be deemed to be a person representing the petitioner. In that view of the matter, his claim is likely to be defeated in case the first respondent allows the second appeal to be dismissed or some decision is invited in collusion with the other respondents. MR.R. Gopalakrishnan, learned counsel appearing for the first respondent submitted that the petitioner cannot come on record as an appellant, since there is conflict of interest between the present appellant and the petitioner herein. Further, the claim of the petitioner regarding the benami nature of the sale in favour of the first respondent cannot be decided in these proceedings.