In a partition suit, a defendant cannot compel the inclusion of property belonging to a third party or implead said third party as a defendant via counter claim if the property is not part of the original subject matter of the suit and the plaintiff has not asserted a right over it.

ORDER

1.This application has been filed by the applicant to implead the proposed party as 6^th defendant as necessary party to the suit.

2. The brief facts of the applicant are as follows:-

(i) The applicant is the 1^st defendant in the main suit and the plaintiff has filed the suit for partition as against the applicant and others. The main suit itself is not maintainable and the suit is barred by limitation. In fact, the suit properties are self acquired properties of the applicant’s late husband Munisamy Sundararaj and there are no ancestral properties as alleged by the plaintiff in the hands of the husband of the applicant / 1^st defendant. The husband of the applicant died on 01.04.1992 and her husband executed a Will in her favour bequeathing all the properties, both movable and immovable properties and the said fact was known to the 1^st respondent / plaintiff. The fixed deposit amount, GPF, gratuity, Gold Bonds and Lombard Bank as mentioned in the Schedule I of the will dated 04.12.1980 executed by her husband were all utilised by her for the educational and marriage expenses of her children, viz., 1^st respondent / plaintiff herein. The property at No.48, Vinobaji Street, Choolaimedu, Chennai was purchased in the name of the proposed 6^th defendant, Mr.Sathish, through sale deed dated 10.12.1995 and major contribution of Rs.3,50,000/- out of the entire sale consideration of Rs.5,50,000/- was made from the assets of Mr.Sundarraaj and the said fact was completely suppressed by the 1^st respondent / plaintiff.

(ii) The husband of the applicant on 26.10.1980 had written a letter to Midland Bank to transfer the payable funds in favour of the applicant, in case of his death, subsequently her husband executed a Will dated 04.12.1980, declaring the amount held with midland bank in her favour. Subsequently, on 17.12.1991 her husband sent another letter to Midland bank to transfer 10,000 pounds to Glassgow towards his medical expenses and the said sum was transferred to one Dr.N.V.Doraiswamy at Glasgow, after the demise of her husband, balance amount held with Dr.N.V.Doraiswamy was transferred to the 1^st respondent / plaintiff through demand draft dated 06.04.1995 and on 17.04.1995, the said cheque was deposited in joint account held by the 1^st respondent / plaintiff and her husband, Sathish, who is the proposed 6^th defendant.

(iii) Subsequently, the said amount was transferred to the vendor of the suit schedule property and the sale deed was executed on 10.05.1995, therefore, the said property was purchased from the estates of Munisamy Sundararaj, which was bequeathed in favour of the applicant / 1^st defendant and thereby she is entitled for proportionate share in the said property. The applicant / 1^st defendant also filed counter claim by claiming share in the said property purchased by the proposed party and therefore, it is necessary to implead the husband of the plaintiff, namely, Satish, as necessary party to the suit and without impleading him, the counter claim cannot be adjudicated. Therefore, the proposed defendant is proper and necessary party to the suit and the present property also to be included as plaint ‘D’ schedule property.

3. The brief facts of the case of the 1^st respondent / plaintiff are as follows:-

(i) The 1^st respondent / plaintiff filed counter by denying averments in the petition and according to the 1^st respondent, this application is not maintainable and the proposed party is neither proper nor necessary party to the suit. The suit is for partition between the applicant and the legal heirs of her deceased father, Munisamy Sundararaj. The applicant hers