Maintainability of fdp proceedings
Gourang M Haldipur
(Querist) 04 September 2016
This query is : Resolved
A sole plaintiff filed FDP against 15 of his family members (defendants) seeking to partition his share in the undivided family dwelling house. During the pendency of the FDP, the sole plaintiff and 9 out of the 15 defendants, without the permission of the trial court, sold their undivided shares to a stranger. The sale of the undivided shares was also not brought to the notice of the trial court by the sole plaintiff & 9 defendants. The remaining 6 defendants were not aware of the sale transactions.The stranger,who has admitted in his affidavit in support of his I.A.for impleadment that he is aware that the property is the subject matter of the FDP, after sitting quiet for 3 years, thereafter applied to the trial court seeking to be impleaded as plaintiff no:2, which was rejected on the ground that it is barred by Section 52 of T.P.Act. On appeal,the high court,in its wisdom permitted the stranger to be impleaded as defendant no:16 and NOT as plaintiff. Accordingly, the stranger is impleaded as defendant no:16 in the FDP. The FDP is still pending and shares of the coparceners is yet to be decided and the shares of the coparceners is yet to be divided by metes and bounds.In the light of the above, the following questions arise:-
1) Whether the FDP is maintainable in view of the fact that the sole plaintiff and 9 defendants have sold their undivided shares in the undivided family dwelling house to a stranger.?
2) If the FDP is not maintainable, can the remaining coparceners file an I.A. on maintainability before the trial court.?
2) Whether the stranger-defendant no:16 can enforce his rights in the present FDP to get the undivided shares that he has purchased from the sole plaintiff and 9 defendants demarcated against the remaining 6 defendants who have not sold their undivided shares in the family dwelling house.?
3) What is the remedy available to the remaining 6 defendants to save the undivided dwelling house from the stranger.?
Sir-Request you to kindly send me your valuable guidance and opinion on the above points. thank you very much.
cherukuri prasad
(Expert) 04 September 2016
The suit is maintainable notwithstanding share sold by the coparceners. Any transactions during lis pendens will not have any legal value or may be vitiated if not proper. That is the law
Raj Kumar Makkad
(Expert) 06 September 2016
1. The suit is still maintainable as the vendees can replace the vendors in this case.
2. Yes.
3. Their right shall get preserved as they are already in the possession of the specific portion of the joint property. There are various judgments in their support.
Rajendra K Goyal
(Expert) 06 September 2016
Agree wih the expert raj kumar makkad.
Gourang M Haldipur
(Querist) 08 September 2016
When the defendants(who have not sold their shares) assailed the order of the high court before the supreme court, the supreme court advised the counsel for the defendants that the FDP is not maintainable because the sole plaintiff and 9 defendants have sold their undivided to a stranger and this stranger cannot enforce his rights in the undivided dwelling house against those defendants(coparceners) in the FDP who have not sold their shares and also gave an opinion that the stranger has to get his rights enforced only in a separate suit for general partition and not in the present FDP and that an I.A. on maintainability must be filed before the trial court in the pending FDP.How good is this suggestion.?
Ms.Usha Kapoor
(Expert) 11 September 2016
The Supreme Court is right in its advise.
Gourang M Haldipur
(Querist) 12 September 2016
The said FDP was filed by the sole plaintiff through his power of attorney holder(who is not a member of the family but a stranger). Since the Plaintiff has already sold his undivided share, whether the power of attorney granted by him to the stranger continue or does it cease to have legal effect with effect from the date of sale.?
Raj Kumar Makkad
(Expert) 16 September 2016
When the sole plaintiff has sold his share in the undivided property then his power of attorney qua that property ceases to exist legally.
Rajendra K Goyal
(Expert) 28 September 2016
Full language of POA need to be referred, discuss with your lawyer.
Raj Kumar Makkad
(Expert) 28 September 2016
A layman querist should not be expected to be a lawman.
