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Gourang M Haldipur   26 November 2017

Mainability of fdp

Dear Sir, In a F.D.P proceeding in respect of our family dwelling house, which is pending as on date ,there is a sole plaintiff (my uncle) represented by his power of attorney (a stranger to the family) and 13 defendants and I am one of the defendants The said FDP is filed by my uncle (a resident of U.S.A.since last 45 years). During the pendency, the sole plaintiff and 9 out of the 13 defendants sold their undivided shares in the dwelling house to the power of attorney of the plaintiff. Neither the plaintiff nor the 9 defendants who had appeared before the honble court nor the stranger purchaser - the power of attorney of the plaintiff took the permission of the trial court to sell/buy the undivided shares. Moreover no oral offer much less a written offer was made to me by them offering their undivided shares in the suit house. Thereafter, the plaintiff, the 9 defendants and the stranger purchaser sat quiet and did not inform the trial court of the sale. After 3 years, the stranger purchaser moved an application before the trial court seeking permission to be impleaded as plaintiff no:2. On the same day, those defendants who had sold their undivided shares filed their memos stating that they had sold their undivided shares to the applicant 3 years ago and that they had no objection to bring him on record as plaintiff no:2. Based on the objections filed by me, the trial court dismissed the said i.a. Aggrieved, the applicant moved the High Court, The said court, in its wisdom allowed the W.P. and permitted the stranger purchaser to be impleaded as a defendant no:14 and not as plaintiff. Aggrieved, I moved the Honble Supreme Court. The Honble Supreme Court was of the considered opinion that as the stranger purchaser was impleaded as defendant no:14, the FDP is not maintainable and asked me to move an i.a. before the trial court & get it dismissed on the ground of maintainability. I had mentioned this case in LCI Forum and got replies from Honble Advocates that it is the correct view As advised, I filed an I.A. before the trial under section 151 CPC. seeking dismissal of the FDP. Very surprisingly, the impleaded defendant has not filed any objections to my I.A. The selling defendants are silent on the i.a. filed by me but very surprisingly the sole plaintiff has filed objections to my i.a.thereby supporting the case of the impleaded defendant no:14. The trial court has asked the defendant no:14's advocate as to how the FDP could be proceeded with in the absence of the plaintiff, to which the said advocate has orally submittted that once my application on maintainability is dismissed, he will file an application seeking to transpose the defendant no:14 as plaintiff. My humble questions are (1) whether the plaintiff who has already sold his undivided share and therefore has no right, title and interest in the dwelling house can file objections to my application and thereby plead for defendant no:14 supporting the cause of the defendant no:14. (2) Whether impleaded defendant no:14, who is a total stranger to the family could be transposed as a plaintiff. I am given to understand that the transposition facility is only permitted for the members of the family and not outsiders. Thank you.


Learning

 4 Replies

KISHAN DUTT KALASKAR (Advocate)     26 November 2017

Please be brief in your question.

1 Like

Gourang M Haldipur   26 November 2017

Respected Sir- I accept your suggestion. But since it is a hotly contested case, I thought it fit to explain the facts of the case in full.

KISHAN DUTT KALASKAR (Advocate)     26 November 2017

Yes, it is a challanging case. Mind boggling for experts.

Yes, the plaintiff lost his interest in the property the moment he sold his undivided share.  

Defendent no.14 may be transposed as plaintiff since he stepped into to the shoes of one of the sharer as purchased undivided share.

He may considered a pro forma/nominal plaintiff, since without plaintiff FDP proceeding cannot be proceeded.

You must concentrate on final disposal of  FDP proceedings.

You ought have objected for selling undevided share to a strager caliming right of pre-emption. It appears even now you can file suit for pre-emption or an IA seeking to execute your right of pre-emption.

Then  FDP PROCEEDINGS MAY TAKE A NEW TURNING.

1 Like

Gourang M Haldipur   27 November 2017

Dear Sir-Thank you very much for your valuable suggestions. I would have definitely objected for selling the undivided shares to a stranger, if the plaintiff and some of the defendants had applied to the court seeking its permission to sell their undivided shares and I would have definitely objected and exercised my right of preemption. But the sale deeds took place in a secret manner behind my back and also WITHOUT the permission the court. 

Sir- As a defendant, can I apply to the court under section 4 of The Partition Act and buy the undivided shares of the stranger purchaser-defendant no:14. Or is it necessary for me to be transposed as a plaintiff and then apply u/s 4 of The Partition Act to but out the stranger purchaser-defendant no:14. Request you to kindly clarify on this point. If this is not possible, I will have to file a suit for preemption;


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