1. This revision petition is against the order of the learned Subordinate Judge, Madurai, dismissing the application which the petitioner herein filed for impleading himself as a supplemental defendant in a partition suit, O. S. 51 of 1963. Respondents 1 and 2 here are plaintiffs in the said suit while the third respondent M. K. Subramania Iyer, is the first defendant against whom partition was claimed. The petitioner's case in support of his application was that the first defendant M.K. Subramania Iyer, had enteded into a written agreement of sale dated 6-9-1962 with the petitioner, agreeing to convey a house in Madurai town (one of the items involved in the suit for partition) for a sum of Rs. 29,000 and in pursuance of the agreement a sum of Rupees 9,000 had been paid by the petitioner to Sundararama Aiyer aforesaid who had agreed to convey the property and execute the registered deed of sale within three months from the date of the agreement of sale. The petitioner's case was that the agreement of sale was entered into by Sundararama Aiyar 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 plaintiff 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 for specific performance, and that the same should be done in an independent suit and no relief could be granted to him in the partition suit. Hence the present revision petition by the petitioner.
(2) I have no doubt that the order of the learned Subordinate Judge is clearly wrong and cannot be sustained. I am of the view that this is a case in which the petitioner ought to have been impleaded as a supplemental defendant by the court exercising its powers under O. 1, Rule 10(2) CPC. Before I proceed further it is necessary to set out the relevant provisions, Order 1 Rule 10(2) C. P. C.:-- "Order 1, Rule 10(2): The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or 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 be added".
It is not claimed that the petitioner is a person who ought to have been joined as a necessary party to the suit, and the only question is whether he could be impleaded as a party whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle the questions involved in the suit.
(3) Learned counsel on both sides relied upon some of the decisions which have considered the ambit of the power of the court in impleading a person as a proper party to the suit and explained the proper meaning of the words "all the questions involved in the suit". The decisions illustrate a variety of instances when intervention by way of impleading of parties has been allowed and when refused and from those decisions it is neither feasible nor advisable to lay down any exhaustive statement of the principles governing the discretionary power of the court within the "straight jacket of an inflexible formula". One thing is, however, quite clear that the language employed in the rule confers upon the court a very wide jurisdiction, and I am not disposed to a curtailment of the powers more than what is expressly decided by judicial decisions binding upon me. As observed by Jackson J. in Chidambaram Chettiar v. Subramaniam Chettiar 53 Mad LJ 269 = (AIR 1927 Mad 834) "Court should deprecate any attempt to diminish that discretion by substituting special pronouncements in special cases for the actual language of the rule".
(4) Mr. Gopalaswami Aiyangar, 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 is the dominus litus 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 in immoveable property and that the petitioner's remedy is only to enforce his rights in a suit of his own for specific performance against the first defendant and work out his rights according to Hindu law, either as against the very property if it is allotted to the alienating coparcener or as against any other property which may be allotted to him. He objects that the records should not be loaded with parties in whose favour no interests in immoveable property have been created either by way of sale or mortgage, and that the petitioner cannot be impleaded so as to complicate the suit by simultaneous investigation of totally unconnected disputes and issues. Finally he urged that the fact that the petitioner may be or is also interested in establishing that the property is the self-acquired property of his vendor the first defendant is not a sufficient ground to entitle the petitioner to be impleaded as a party and that the rule which applies to a purchaser in whose favour a sale deed has been executed and registered cannot apply to a person who has only got mere agreement of sale in his favour. Learned counsel drew my attention to several cases of this court which have dealt with and discussed the precise nature of the right which accrues to a person who enters into any dealing with a coparcerner of a joint family properties. It is unnecessary to refer to those decisions as the principles are well established and it is sufficient to refer to the statement of the law in Mullah's Hindu law 12th Edn. Page 393 Section 261 sub-sections (3) to (8) and Mayne's Hindu law 11th Edn. page 487 Section 392 and Section 393.
(5) Reference however must be made even at the outset to the Full Bench judgment in Issakku v. Seetharamaraju. 1947-2 Mad LJ 166 = (AIR 1948 Mad 1) (FB) in which it was held that where one of several co-sharers purports to mortgages a specific item of property to which all of them are jointly entitled the mortgagee would be entitled to proceed against the properties that may be allotted to the mortgagor in a partition amongst the co-sharers at which the item mortgaged however is allotted to some other co-sharer but some other item is allotted to the mortgagor Rajamannar J. as he then was delivering the judgment of the Full Bench laid pointed emphasis that is 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 S. 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. Gopalaswami Aiyangar 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 reference may be made to the decision in Moonrumugam Kondan Asari v. Chockalinga Asari, AIR 1930 Mad 913(2).
(7) At this stage, reference may also be made to the decision of the Privy Council in Jadunath v. Parameswar, AIR 1940 PC 11 in which the Privy Council has observed, adverting to the practice in Bengal that a mortgagee of an undivided share, though not a necessary party in a suit for partition, could be allowed to attend and be heard at the stage of the actual division and allotment of properties by metes and bounds on the ground that he is a person interested in that result, and that he would be prejudiced if his mortgagor did not receive a proper allotment either the same property if possible or some other equivalent. It may be noted that in that case the mortgagee did not apply to be impleaded in the partition suit in the earlier stages and certain legal complications had arisen, as the mortgagee, during the suit for partition had himself filed a suit on the mortgage, obtained a decree and mortgaged properties were sold in execution. Further, there were also prior orders and court proceedings delimiting the rights were to safeguarded. There can be no doubt about it that simple mortgagees of specific items of family properties though not necessary parties are proper parties to the suit for partition. Vide Mullah's Hindu Law 12th Edn. page 510 as to who are necessary and proper parties in a suit for partition.
(8) Sadu v. Ram Govind, (1892) ILR 16 Bom 608 a Bench of the Bombay High Court had observed that in a suit for partition all persons interested in the property to be divided must be brought before the court and that a purchaser or a mortgagee from a coparcener is a proper and even a necessary party to a suit for partition. The right of an alienee from an individual coparcener, whether a purchaser or a mortgagee is no doubt a mere equity to have the property alienated allotted to the share of the alienating coparcener; even so if a partition had taken place without impleading the alienee the partition would be binding upon the alienees only so long as it is not vitiated by fraud or collusion. Law also recognises a right in such an alienee even a mortgagee to successfully challenge the partition (to which he has not been made a party) on the ground of fraud or collusion. The position therefore is that a mortgagee or 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 the seeks to come to 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 executory and does not create an interest in immoveable property.
(9) Mr. Gopalaswami Aiyangar relying upon the decision of V.V. Srinivasa Aiyangar J. in Prayag Doss v. Board of Commissioners for Hindu Religious Endowments, Madras, ILR 50 Mad 34 = (AIR 1926 Mad 836) contended for the narrow view that "the questions involved in the suit" under Order 1, Rule 10 C.P.C. can only be questions as between the parties to the litigation and not questions between any of the parties to the suit and a 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 Vydianadayyan v. Sitarama, (1882) ILR 5 Mad 52 a Bench decision of Turner C. J. and Muttuswami Aiyar J. the question arose under S. 32 of Act 10 of 1877, corresponding to Order I Rule 10 C. P. C. of 1908. In that case in a suit by the plaintiff to endorse a bond executed in his favour, the executant contended that the plaintiff and his uncle were members of a joint family that the bond was taken in the name of the plaintiff on behalf of the joint family, and that he had made a part payment to the plaintiff's uncle. The uncle supported the case of the defendant sought to be impleaded as a party. The plaintiff's objections thereto were overruled and the uncle was impleaded as the second defendant. Dealing with the scope of the rule the matter was put thus: "The decision of the objection to the Order of the court below turns on the meaning of the words in S. 32 C. P. C. 'whose presence before the court may be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.' Is it meant by these words that a person not originally impleaded is to be made a party only if the questions raised in the suit cannot otherwise be completely and effectually determined between the parties to the suit? Is it meant completely and effectually determined so that they shall not be again raised in that or in any other suit between the parties to the suit or any of them and third parties? To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely, 'between the parties to the suit' and there can be few, if any questions which cannot be determined between the parties to the suit one way or the other, and of which the determination, if they be material, will, as between the parties to the suit, not be final. On the other hand, the interpretation warranted by the terms would enable the court to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to litigation respecting them. No better instance of the wisdom of such a rule could be afforded than is presented by the suit before the court. If the respondent is not made a party and the appellant succeeds, the first defendant is liable to be called upon to pay the debt twice over, namely in this suit, as a debt due to the appellant personally and in original suit 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 O. XVI of the Judicature Act together, it seems clear that Rule 13 should be interpreted in the larger sense. Although Ex parte. Smith (1876) 2 Ch. D 51 and Bower v. Hartley. (1876) 1 QBD 656 were decided on Rules 17, 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."
(11) The principle of this decision was followed and applied by Venkatasubba Rao J. in Secretary of State v. Murugesa, AIR 1929 Mad 443. 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 Government applied for being joined as a defendant in the suit. Even though both the plaintiff and the defendant opposed the application the Government was impleaded as a party as the subject matter in dispute concerned the power of the Government to suspend the execution of the resolution of the Taluk Board. The learned Judge expressly dissented from the narrow view of Srinivasa Iyengar J. in ILR 50 Mad 34 = (AIR 1926 Mad 836) on the ground that it was not only opposed to the plain language of the section but also to the Bench decision of this court in (1882) ILR 5 Mad 52.
(12) In Sivarama Pillai v. Ganesarathanam Pillai, AIR 1935 Mad 353 the same wider interpretation was adopted, applying the principle of the decision in (1882) ILR 5 Mad 52 and Pichayya v. Pattamma, AIR 1929 Mad 268. In that case a purchaser had filed a suit for possession against his vendor and a tenant. A third party applied to be made a party to the suit alleging that the vendor had no right to sell the whole property and that he the third party was entitled to a half share. The third party had also filed a suit against the purchaser, the vendor and the tenant claiming a half share in the property. It was held that the proper course was to join the third party as a party to the suit for possession in order that the court might properly work out the rights as between the parties to the suit and the third party and thus avoid possible conflict of decisions.
(13) In Anjaneya Sastri v. Kothandapani, AIR 1936 Mad 449 a Bench decisions of this court Varadachariar J. delivering the judgment on behalf of the Bench had emphasised that the rules relating to the joinder of parties are based on the principles of avoiding multiplicity of suits not merely to avoid waste of time and money but also prevent possible conflict of decisions and that to justify the impleading of a party it is not necessary that he should be interested in all the reliefs or all the questions arising between the plaintiff and the other defendants.
(14) In Meyyappa Chettiar v. Seethachi Achi, 1937-2 Mad LJ 279 = (AIR 1937 Mad 200) Venkataramana Rao J. has applied the wide interpretation of the rule adopted in the decision of Turner C. J. and Muttuswami Aiyar J. After quoting the observations of Turner C. J. therein the learned Judges observed as follows at page 284 (of Mad LJ) = (at p. 207 of AIR):
"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. Mayyappa Chetti, ILR 57 Mad 892 = (AIR 1934 Mad 337). In this very case where Sundaram Chetti J. relying on (1882) ILR 5 Mad 52 observed, '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 J. in AIR 1929 Mad 443. This in my view would be the correct interpretation of the rule".
(15) In Vanjiappa v. Annamalai, AIR 1940 Mad 69 Patanjali Sastri J. has, following AIR 1929 Mad 443 held that
"Questions involved in the suit" referred to in Order I Rule 10 means not only the questions involved in the suit as originally framed between the parties to the suit but also any dispute between the parties to the suit and a third party, and that the object of the provision is that where several disputes arise out of one subject-matter all the parties interested in such disputes should be brought before the court and all questions in contest between them should be completely settled in the action."
The principle of the decision in (1882) ILR 5 Mad 52 and the decision of Venkatasubba Rao J. referred to earlier were followed by Kunhiraman J. in Mangacharyulu v. Balarama Krishmacharyulu, AIR 1940 Mad 225. In that case a third party claimed certain rights jointly with one of the plaintiffs and denied the title of the other plaintiffs and therefore applied for being impleaded as a party to the suit. The plaintiffs resisted the application on the ground that if such a third party is impleaded it would necessitate a triangular fight about title and would have the effect of converting and completely altering the character of the suit from one in ejectment into a suit based upon title. The trial court overruled the objections and impleaded the third party. This view was affirmed by the High Court on the reasoning that 'questions involved in the suit' should receive a wider interpretation so as to embrace questions between the parties to the suit and even third parties in proper cases.
(16) In Paramasivam v. Adilakshmi Ammal, , this Court has again taken the view that the language in the section should be interpreted in a liberal and wide manner that persons should be made parties to a suit if such a course would enure a final and complete adjudication of the points involved and avoid multiplicity of proceedings.
(17) Reference must now be made to the decision of the Supreme Court in Razia Begum v. Anwar Begum. in which the scope of O. I Rule 10 C. P. C. came up for consideration. In the judgment of the Supreme Court there is reference to the narrow view taken by Srinivasa Iyengar J. in ILR 50 Mad 34 = (AIR 1926 Mad 836) and the wider view taken by this court in (1882) ILR 5 Mad 52 and AIR 1929 Mad 443. But the question as to which 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 Rs. 2000 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 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 Supreme Court Order XVI 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 matter of the litigation and that that legal interest is not an interest as distinct from an equitable interest but an interest which the law recognises and that that person who would be only merely indirectly or commercially affected in the result of the litigation cannot be impleaded as party as a person having a direct interest in the subject matter in dispute. The Supreme Court observed as follows at page 891: "There cannot be the least doubt that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit he should have a direct interest in the subject matter of the litigation whether it raised questions relating to moveable or immoveable property".
At this stage I may refer to two recent decisions in England. The first is Dollfus Mieget Compagnie S. A. v. Bank of England, 1950-2 All ER 605 in which the precise nature of the interest of the party sought to be impleaded in the property in dispute was pointed out so as to justify his being impleaded as a party under O. XVI Rule 11 R. S. C. corresponding to O. 1 Rule 10. In that case 64 identifiable god bars belonging to a French company were looted by the Germans during the War on their occupation of France and were later seized by the allied armies. The custody of the gold bars was acquired by a tripartite commission, consisting of the representatives of the Governments of U K U S A and France for the purpose of eventually distributing, in accordance with the provisions of the Treaty the gold and treasure looted by the Germans. The gold bars were conveyed to England and deposited by the commission with the Bank of England. The French company instituted an action against the Bank claiming delivery of the gold bars. The Bank applied for an order to set aside the writ on the ground that the two foreign Governments. U. S. A. and France had declined to submit to the jurisdiction of the English courts. The claim of the company was upheld and leave was given to the Bank to appeal to the House of Lords. At that stage the two Governments. U. S. A. and France applied to be added as defendants to the action.
It is significant to note that in that application the applicants did not assert a title to the bars but they urged that if they should establish that they had possession of 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 U. S. A. 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, 1892-1 Ch. 487 in which it was held that the fact that a person's interest would be commercially affected by a judgment would be insufficient to make the person a party and that that person should be directly interested in the subject matter in dispute. Wynn Parry J. observed as follows at pages 611-612: "On the other side of the line in Vavassur v. Krupp. (1878) 9 Ch. D 351 to which I have already referred which established that a proprietary right of the proposed defendant in the subject matter of the action is sufficient. The question here is; on which side of the line does this case fall? For the purposes of this application the applicants do not assert a title to the property in question, and therefore it cannot be asserted that they have a proprietary right as that phrase is used in (1878) 9 Ch. D. 351. What they assert is that if they can establish that they have possession or control of the property in question through the defendant bank, then, by virtue of the doctrine of immunity which applied to foreign sovereign States two results might well follow; (i) in plaintiffs must fail to obtain any order from this court in their favour and (ii) the applicants will retain the possession and control over the remaining bars of gold and will be able to dispose of them. In other words although the applicants do not assert title to the bars of gold the result of a successful intervention by them would be that as between the plaintiffs and themselves they would for all practical purposes be the owners. It seems to me that the true test lies not so much in an analysis of what are the constituents of the applicants' rights but rather in what would be the result on the subject matter of the action if those rights could be established. That is the approach which I have made. Viewing the matter in this way, it is impossible, in my judgment, to say that the applicants have only an indirect interest of the nature which fell to be considered in 1892-1 Ch 487. They appear to me to have something more namely, a right, which although it may arise indirectly viz. by the invocation of the doctrine of immunity and through the defendant bank as bailee nevertheless results in a direct interest in the subject matter of this action and is a right nearly akin to the proprietary right which was under consideration in (1878) 9 Ch D 351. There is no authority directly bearing on the point but, on the analysis which I have made of the nature of the applicants' 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 and Sons Ltd., 1956-1 All ER 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 marketing the pen and that the defendant had wrongfully made use of the information by manufacturing an adhesive dispenser of the same design as invented by the plaintiff. The defendant while resisting the claim applied under Order XVI Rule 11 R. S. C. to join as defendant a third party, urging amongst other things that the third party was the first inventor of the adhesive dispenser. It was held that the presence of the third party was necessary to enable the court to adjudicate completely the subject matter in dispute as the enjoyment of the legal right of the third party would be curtailed by the relief asked for by the plaintiff in the action. Delvin. J. explained the scope of the rule in these terms at page 279: "It is not I think disputed that 'the cause or matter' is the action as it stands between the existing parties. If it were otherwise, then anybody who showed a cause of action against either a plaintiff or defendant could of course say that the question involved in his cause of action could not be settled unless he was made a party Counsel for the defendant does not contend for so wide a construction as that; but he submits that, if the intervener has a cause of action against the plaintiff relating to the subject matter of the existing action the court has power to join the intervener so as to give effect to the primary object of the order, which is to avoid multiplicity of actions. In the present case he submits that the subject matter of the dispute between the existing parties is the "ownership". If I may so put it of an invention: the plaintiff claims that he is the owner of it and the intervener alleges that he is, and both disputes ought to be determined at the same time. This construction stresses the amplitude of the closing words of the passage which I have just cited from Order 16 Rule 11 'all the questions involved in the cause or matter.' The alternative construction treats the opening words as dominant. 'All the questions involved' is a phrase that, unless it is cut down would be impossibly wide. It is cut down, the plaintiff submits by the opening words of the passage which I have cited. The intervener must be a party whose presence is necessary to enable all questions in the action to be adjudicated on and settled, but the question must be one which has to be adjudicated on in the issue between the existing 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 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."
Delvin J. further observed as follows at pages 289-290:
"Counsel for the plaintiff next submits that the intervener's interest cannot be affected anyway 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 is his the plaintiff can say 'If I am wrong I shall not get an injunction and the intervener's right will not be affected: if I am right the intervener has no rights to be affected anyway'. The point is that the intervener is entitled anyway'. The point is that the intervener is entitled to be heard on the issue whether the plaintiff is right or wrong so that he may be bound by the order made.
The final submission of counsel for the plaintiff is more far-reaching than the others. He submits that the action and the internever's claim are concerned with rights in contract and not rights of property and therefore the case does not come within the term "proprietary right" as set out in the note in Annual Practice, 1955 at page 232. I am not of course required to construe the phrase as if it were contained in a statute. If I were I should see no reason why rights under a contract should not be called proprietary rights just as much as rights to physical property. The phrase, however is not used definitely. The three categories formulated in the note are not exhaustive. Indeed, I do not think that they should be treated as having been formulated independently. There is one common principle running through them all and for my part. I should prefer to apply a test based on that principle rather than to enquire whether the case to be determined falls into one or other of the three classes. There is not, for example any real distinction between the cases which related to specific performance and those which related to proprietary rights. As Wynn Parry J said in 1950-2 All ER 605 at p. 611.
It seems to me that the true test lies not so much in any analysis of what are the constituents of the appellant's rights, but rather in what would be the result on the subject matter of the action if those rights could be established.
I respectfully agree with that, I think that the test is May the Order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights?
It may be true as counsel for the plaintiff submits, that the authorities so far have been dealing with rights to physical property but in my judgment the principle applies equally to contractual rights. I think that in the case the test is satisfied that I have jurisdiction to make the Order and that is one which having regard to the question involved in the action it is proper that in the exercise of my discretion I should make".
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.
(19) There is also one other important aspect that should be borne in mind. The plaintiffs claimed the property as joint family property and any decision rendered therein would not affect the rights of the petitioner the third party applicant. He can always file the suit for specific performance and recover possession of the property from his vendor as well as the plaintiffs even if the properties are allotted to the plaintiff provided the petitioner establishes that the properties are the self-acquired separate properties of the first defendant. The question of the character of the property will have to be decided in two litigations, in both of which the plaintiff will be a party. It is obvious that such a course would result in unnecessary multiplicity of proceedings and would also be exposed to the mischief or risk of conflicting decision on the identical matter in dispute when common sense and convenience demand that there should be a single conclusive final decision. Further the record shows that the first defendant vendor is indifferent, whether due to fraud or collusion as alleged in the application or for no apparent reason. In such a situation it is obvious that this question of the character of the property whether joint family property or the separate property of the first defendant, should not be decided in the absence of a person whose interests are vitally affected by the adjudication. It will be a sheer waste of time and might result in futile useless proceedings if later on as observed earlier the applicant establishes that the properties agreed to be sold to him are not joint family properties. I do not see any reason why such a restricted interpretation of Order 1 Rule 10 C. P. C. should be adopted as contended for by the learned counsel for the respondent which may result in such absurd anomalous consequence.
Mr. R. Gopalaswami Aiyangar relied upon the following observations in the Full Bench decision of this court in Baluswami Aiyar v. Lakshmana Aiyar, ILR 44 Mad 605 at page 625 = (AIR 1921 Mad 172 at p. 181 (FB)).
"The view that the alienee from a coparcener becomes a tenant-in-common with the other co-parceners has not been accepted in the decisions I have referred to and it is now settled that the alienee of a share has only an equity to work out his rights by partition. Having regard to the fact that the alienation of a share by a co-parcener without the consent of the others is opposed to the spirit of the joint family system and that it places the other members in a dis-advantageous 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. These observations have no relevance on the question of the applicability of Order 1 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 recognise and uphold rights which would accrue under an executory agreement of sale.
(20) In this connection reference may be made to the Bench decision of this court in Mrs. Saradambal Ammal v. Kandasami Goundar. 1947-2 Mad LJ 374 = (AIR 1947 Mad 23) which had to construe the words "any interest" occurring in Order XXII Rule 10 C. P. C. In that case the question arose whether a person who has obtained an assignment of a right to obtain specific performance would be said to have acquired any interest within the meaning of Order XXII Rule 10, C. P. C. so as to be impleaded as a party. It was held that the words "any interest" includes any transferable right to sue. The contention that "any interest" referred to an interest in tangible interest was not accepted.
(21) In a recent decision of the Andhra Pradesh High Court in Venkata Narasimjaraju v. Yellamanda, this decision was followed while applying Order 1 Rule 10 C. P. C. at the instance of a person who had obtained an agreement of sale and has obtained also possession of the property.
(22) The matter can also be looked at from one other aspect. Under S. 55(6)(b) of the Transfer of Property Act, the buyer is entitled to a charge on the property as against the seller and all persons claiming under him to the extent of the seller's interest in the property for the amount of any purchase money properly paid by the buyer provided the purchase has not improperly declined to accept delivery. In this case, even if it should be held that the property was joint family property and the agreement of sale would not bind the interest of the plaintiffs the applicant would undoubtedly be entitled to a charge for the sum of Rs. 9000 the first defendant either in the property agreed to be sold or in any other property that may be allotted to the first defendant at the family partition.
(23) The law on this matter is well settled and it is sufficient to refer to two recent decisions of the Bombay High Court. In Abdul Hamid Khan v. Mohamed Ali Himayum. it was held that the charge under S. 55(6)(b) of the Transfer of Property Act for the pre-paid purchase money comes into existence the moment the buyer pays part of the purchase money towards the sale transaction and that the same is available not only against the seller but also against the purchaser from the seller irrespective of the question whether the said purchaser had or had not noticed a charge, in view of the fact that it is a statutory charge under S. 55(6)(b) independent of any question of notice. The same view was taken by a Bench of the Bombay High Court in Jibhaoo v. Ajab Sing. . 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 mortgagee with regard to the purchase price paid by him and it was held that under S. 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 Mullah, Transfer of Property Act 4th Edn. 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 recognised in the case of a mortgage created by a co-parcener of the family.
(24) From the foregoing it will be clear that from any point of view the third party will be undoubtedly entitled to a charge for the sum of Rs. 9000 at the worst either against the property agreed to be sold or some other property. In my opinion that constitutes sufficient ground and interest to entitle him to be impleaded as a party.
(25) Finally I am unable to agree with the contention of learned counsel for the respondent that tss.he applicant is converting the suit for partition into a suit for specific performance and that too without the payment of any court fee. This contention proceeds upon a misapprehension of the real position. The applicant will not get any relief by way of specific performance in this suit and this he can obtain only in a separate suit of his own. He is impleaded only for the limited purpose (a) establishing that the property is the separate property of his vendor the first defendant: or alternatively (b) for suggesting to the court that without prejudice to the interests of the plaintiffs the property agreed to be sold may be allotted to the share of the first defendant, so that in a separate suit of his own he can either obtain specific performance or enforce a charge under S. 55(6)(b) against the property in the hands of the first defendant after a final allotment in the partition suit.
(26) For all these reasons. I set aside the order of the trial court and direct that the petitioner be impleaded as a supplemental defendant.
(27) No costs.
(28) The Subordinate Judge is directed to expedite the disposal of the suit without unnecessary delay and if the parties desire to file additional pleadings consequent upon the impleading of the petitioner as a party defendant, the same should be done within the minimum time. Records to be despatched without delay.
(29) Revision allowed.