IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4-1-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE T.RAJA OSA No.430 of 2009 1.S.Subbulakshmi 2.K.S.Ramprasad 3.K.S.Rampriya .. Appellants/Applicants in CA 1949/2008 vs 1.The Official Liquidator High Court, Madras. As the Liquidator of RPS Benefit Fund Ltd., (In Liquidation) 2.K.S.Sriram .. Respondents/Respondents in CA 1949/2008 Original side appeal preferred under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of Letters Patent against the fair and decreetal order of this Court made in C.A.No.1949 of 2008 dated 3.7.2008. CA 1949/2008 prayer filed, praying this Honble Court to premit the Applicants to get themselves impleaded as respondent in the CA 775 of 2007 in CP Nos.233 to 238/99. For Appellants : Mr.R.Thiagarajan For Respondents : Mr.A.P.Babu Legal Assistant for R1 Mr.D.Saravanan for M/s.Pass Associates for R2 JUDGMENT (Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) This matter comes under the caption "adjourned admission". 2.This intracourt appeal has arisen from the order of the learned Single Judge of this Court dismissing an application for impleadment. 3.The Court heard the learned Counsel for the appellants and https://hcservices.ecourts.gov.in/hcservices/ also the learned Counsel for the second respondent. 4.What was all contended before the learned Single Judge and also before this Court by the appellants' side is that the property in question which is brought for sale and in respect of which stay was sought for by the appellants along with an application for impleadment, belonged to the HUF in which the second respondent was also a member; that there was a declaration made in the year 1995 that it belonged to the HUF, and the same was also confirmed; that as regards the returns filed for the assessment years 1987-88 to 1991-92, the first appellant has stated that for the assessment in 1991, the Income Tax Department also requested the HUF to produce the source of income for the purchase of the property in question; that in the declaration, it was stated that the source of purchase of the property was from out of the joint family property and the contribution by the members; that the appellants also advertised on 22.6.2008, that the property of the HUF had been wrongly mortgaged by the second respondent for the business needs, and the same is also brought for sale by the first respondent; that such a mortgage was without authorisation and consent, and thus there arose a necessity for instituting a suit for partition with regard to the particular property by metes and bounds; and that since the Court was not informed that the premises in question was a HUF property and the sale has been ordered by the Court, the above application has been filed. 5.It is further added by the appellants' side that a suit has been laid for partition of the said property by the appellants herein; and that under the circumstances, it is a fit case where they have got to be impleaded as parties. 6.The learned Single Judge giving sufficient opportunity to both sides and considering the submissions made, took the view that the property in question cannot be considered to be HUF property, and there arose no need for impleadment and hence dismissed the application. 7.The learned Counsel for the appellants reiterated the very same contentions put forth before the learned Single Judge namely that the property belonged to HUF, and the declaration has been given from 1989 onwards to the Income Tax Department that it belonged to HUF, and the mortgage created was an unauthorised one; that had the same been brought to the notice of the Court, sale could not have been ordered, and under the circumstances, it is a fit case where they have got to be impleaded as parties to be heard. 8.The learned Counsel for the second respondent informed the Court that he has no objection for allowing the appeal. 9.After hearing the contentions put forth by the learned Counsel for the appellants and also looking into the materials available, this Court is of the considered opinion that the appeal does not carry any merit whatsoever and does not even warrant for an admission. The only contention put forth by the learned Counsel for https://hcservices.ecourts.gov.in/hcservices/ the appellants is that the property which is ordered to be sold, belonged to HUF. What was pointed out by the learned Counsel for the appellants is only the declaration which was given in the year 1989 to the Income Tax Department that it belonged to HUF. As could be seen from the available materials, the second respondent who has got no objection for allowing the appeal now, has borrowed the loan under the registered mortgage deed for a sum of Rs.1,90,000/-, and he has also borrowed a sum of Rs.11,60,000/- by creating equitable mortgage aggregating to Rs.13,50,000/-. The recovery proceedings were taken before the Court in C.A.No.775 of 2005. By an order dated 24.11.2005, the Court held that the second respondent has created the mortgage. Under the circumstances, it would be quite clear that the property which was purchased by the second respondent in his individual capacity, was mortgaged by him by way of a registered mortgage deed and also by creating equitable mortgage, and thus he has dealt with the property. Now what are all available for the appellants is only the declaration given before the Income Tax Department. It was only self-serving document. That apart, even the second respondent all along the proceedings has not even taken the stand that it belonged to HUF, and thus it would be quite clear that the appellants have now taken such a stand. 10.It is also pertinent to point out that originally there was an order for making interim payment of Rs.5 lakhs and originally, a sum of Rs.1 lakh was paid, and Rs.4 lakhs was paid after a lapse of time by the second respondent. It remains to be stated that the appellants and the second respondent are living under one roof belonging to the same family, and hence the appellants cannot plead no knowledge also. The contention put forth by the learned Counsel for the appellants is that a partition suit has been filed in the year 2008, and it is also pending. Now it is pertinent to point out that when the matter was pending in the hands of the learned Single Judge, it was represented that a suit was likely to be filed. Under the circumstances, it is abundantly clear that the suit for partition should have been filed only in order to circumvent the proceedings. In the absence of any material to indicate that the property belonged to HUF, this Court is unable to agree with the contentions put forth by the appellants' side. Accordingly, this appeal does not carry any merit whatsoever, and hence the same is dismissed confirming the order of the learned Single Judge. The parties shall bear their own costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Official Liquidator High Court, Madras. As the Liquidator of RPS Benefit Fund Ltd., (In Liquidation) Copy to The Sub Asst. Registrar, Original Side,High Court,Madras-104. +1cc to Mr.R.Thiagarajan, Advocate Sr 720 JP(CO) km/18.1. OSA No.430 of 2009 https://hcservices.ecourts.gov.in/hcservices/