Maintainability of fdp
Gourang M Haldipur
(Querist) 19 May 2019
This query is : Resolved
My uncle living in USA had filed an FDP against 13 members of the family through his power of attorney who happens to be a stranger to our family. The property involved in the FDP is a dwelling house belonging to the joint family. About 6 months after filing of the FDP, my uncle and 8 other members of the famlily surreptitiously sold their undivided shares to the POA of my uncle without the knowledge of 4 other contesting defendants and without court permission in the year 2011. The stranger purchaser waited for 3 years from 2011 to 2014 and filed an application in 2014 to implead himself as plaintiff no:2. His prayer was rejected. He moved the High Court and the High Court permitted him to be impleaded as defendant no:14 and not as plaintiff no:2. I moved the Supreme Court against this order. At the time of grant of leave, Justice Pinaki Chandra Ghosh was of the considered opinion that as the sole plaintiff and 9 defendants have sold their shares, the FDP is not maintainable. His Lordship advised my counsel that instead of keeping the matter pending in the SC, it would be advisable to file an application in the trial court and get the FDP dismissed as not maintainable.His Lordship was also of the opinion that the only recourse available to the stranger purchaser is to file a suit for general partition and possession. Based on the opinion of Justice Ghosh, the SLP was withdrawn. An interim application was moved before the trial court seeking the dismissal of the FDP as being not maintainable on several grounds including the grounds mentioned by Justice Ghosh. The trial court dismissed my application on the ground that since the FDP is only to partition the shares as per preliminary decree, the FDP is maintainable not withstanding the fact that the 14th defendant.is a stranger. My advocate had given 3 decisions of the High Courts and 1 of the SC in support of my application. These decisions do not even find a mention in the order. Kindly advise how to proceed in the matter.
Dr J C Vashista
(Expert) 19 May 2019
You have already engaged an able, competent and intelligent lawyer it would be advisable to follow his/her advise.
However, you may seek opinion from a local prudent lawyer for appreciation of facts/ orders on judicial file(s), guidance and proceeding.
