Balamani and Murugesan vs S. Balasundaram

G. Rajasuria, J.—This second appeal is focussed by the plaintiffs, animadverting upon the judgement and decree dated 05.07.2006 passed

by the Principal District Judge, Erode, in A.S. No. 92 of 2005, reversing the judgement and decree dated 18.11.2005 passed by the Subordinate

Judge, Bhavani, in O.S. No. 9 of 2003. For the sake of convenience, the parties are referred to hereunder according to their litigative status before

the trial Court.

A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would

run thus:

The appellants/plaintiffs filed the suit O.S. No. 9 of 2003 as against the defendant, seeking the following relief:

To pass a preliminary decree to dividing the suit property into 2 equal share and allot one half to the plaintiffs with reference to good and bad soil

by metes and bounds and put the plaintiffs in separate possession over the same.

(extracted as such)

The defendant entered appearance and filed the written statement resisting the suit.

The trial Court framed the relevant issues. During trial, the second plaintiff examined himself as P.W.1 along with one Eswaran as P.W.2 and

Exs.A1 and A4 were marked. The defendant examined himself as D.W.1 and Ex.B1 to B.14 were marked.

Ultimately, the trial Court decreed the suit, as against it, the defendant preferred the appeal A.S. No. 92 of 2005, which was allowed by the first

appellate Court, by setting aside the judgement and decree of the trial Court and dismissing the original suit.

Being disconcerted and aggrieved by the said judgement and decree of the first appellate Court, the plaintiffs filed this second appeal on various

grounds and also suggesting some substantial questions of law.

After hearing for some time the arguments on both sides, this Court felt that on the consent of both sides, this matter could be disposed of finally

by framing the following substantial questions of law:

Whether the suit was not maintainable as per order 9 Rule 9 of CPC, in view of previous suit filed by the plaintiff having been dismissed for

default?

Whether the suit is bad for non-joinder of admitted co-sharers even as per plaintiff in the suit?

Whether ignoring the oral and the documentary evidence, the First Appellate Court decided that the suit property is not an ancestral property

and that the settlement deed, Ex.B4 executed was valid?

Whether the suit was bad for non framing of an issue relating to ouster?

A bare poring over and perusal of the typed set of papers, including the judgements of both the Courts below and also consideration of the

arguments of both sides, would display and demonstrate that the appellants in the Second Appeal, namely, Balamani and Murugesan, so to say,

the mother and son filed the suit for partition and for allotment of half share, representing the share of the deceased Shanmugam, who happened to

be the husband of the first plaintiff and father of the second plaintiff. The said Shanmugam and the defendant are the sons of Subramania Chettiar;

after the death of Subramania Chettiar, the properties devolved upon his two sons and hence the suit for half share of deceased Shanmugam.

Remonstrating and refuting the plaint averments, the defendant filed the written statement, the gist and kernel, the pith and marrow of it would be

that the suit was bad for non-joinder of necessary parties, as said Late Subramania Chettiar had two wives and through his first wife, he had two

sons and through his second wife alone the said Shanmugam and the defendant were born and they have a sister also; however the suit property is

not the ancestral property at the hands of Subramania Chettiar, but it was his self acquired property, whereupon he executed the settlement deed,

Ex.B4 dated 27.11.1967 in favour of the defendant; the defendant also alternatively acquired prescriptive title over the suit property by ouster by

virtue of his long enjoyment; the earlier suit filed by the plaintiff was dismissed for default and as such Order 9 Rule 9 of CPC also could be

pressed into service as against the maintainability of the present suit.

The learned Counsel for the plaintiffs would submit that the First Appellate Court without adverting to the correct proposition of law simply

applied Order 9 Rule 9 of CPC and held as though the present original suit is barred; without any specific issue relating to ouster, the First

Appellate Court upheld the plea of ouster as put forth by the defendant; ignoring the documentary and the oral evidence, the First Appellate Court

held that the suit property is not the ancestral property and correspondingly held that the settlement deed also was valid. Accordingly, he prayed

for setting aside the judgment and decree of the First Appellate Court. However, he would plead that in the event of this Court finding that the

original suit is bad for non-joinder of necessary parties, the matter might be remitted back to the trial Court for impleading the necessary parties

and proceed with the matter. In support of his contention, he also cited the decision of this Court reported in Sabasthi Nadar Vs. Savurimuthu

Nadar and another, .

Whereas, the learned Counsel for the defendant would submit that the First Appellate court correctly appreciating the law allowed the appeal

and dismissed the original suit and no interference is required. He would also reiterate the pleas as found set out in the written statement of the

defendant and also point out that even though the trial Court did not frame any issue relating to ouster, the First Appellate Court formulated a point

relating to ouster and from the available evidence decided that there was ouster, in addition to deciding correctly that the suit property could never

be construed as the ancestral property at the hands of Subramania Chettiar. The First Appellate Court by the wrong application of Order 9 Rule 9

of CPC held that the present original suit was barred.

The learned Counsel for the defendant in all fairness cited the decision of the Hon''ble Himachala Pradesh High Court reported in AIR 2003

HP 32 [Asha Sharma and Ors. v. Amar Nath and Ors.] and submitted that so far partition suits are concerned, the cause of action is held to be a

continuing one.

The learned Counsel for the plaintiffs cited the following decision:

(i) AIR 2003 HP 32 [Asha Sharma and Ors. v. Amar Nath and Ors.]

As such, both the decisions would highlight and spotlight the fact that in a partition suit, the cause of action is a continuing one and hence Order 9

Rule 9 of CPC cannot be pressed into service. I would also like to agree with the said proposition, in view of the fact that the valuable right of a

co-sharer should not be deprived because for one reason or other, the earlier suit might not have been able to be prosecuted further to its logical

end.

The learned Counsel for the defendant also cited the decision of the Hon''ble Apex Court reported in State of U.P. and Another Vs. Jagdish

Saran Agrawal and Others, . However, the said decision is on a different point.

As such, I am of the considered view that the First Appellate Court was wrong in applying Order 9 Rule 9 of CPC in this partition suit.

Accordingly, the substantial question of law No. 1 is decided in favour of the appellants as against the defendant.

Indubitably and incontrovertibly, unassailably and unambiguously, the said Subramania Chettiar had his first wife and through her he gave birth

to two sons, but they are not parties to the present original suit and that the said Shanmugam, the propositus of the plaintiff and the defendant were

born through his second wife. Subramania Chettiar through his second wife, had also given birth to one daughter, namely, Rajeswari. However, the

trial Court even though gave a finding about the existence of other co-sharers, nonetheless, it simply decreed the suit protecting their shares also. In

my opinion the trial Court should have given direction to the plaintiff to implead the necessary co-sharers, as the suit happened to be a partition

suit.

At this juncture, I would like to highlight that Civil Courts in partition suits are expected to be more cautious and considerate and not illiberal,

as the litigation is between close relatives, wherein the plaintiff is the defendant and vice-versa.

The learned Counsel for the defendant himself cited the decision of the Hon''ble Apex Court reported in Kanakarathanammal Vs. V.S.

Loganatha Mudaliar and Another, . An excerpt from it would run thus:

We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage. We have

already noticed that the plea of non-joinder had been expressly taken by Respondents 1 and 2 in the trial court and a clear and specific issue had

been framed in respect of this contention. While the suit was being tried, the appellant might have applied to the trial court to add her brothers, but

no such application was made. Even after the suit was dismissed by the trial court on this ground it does not appear that the appellant moved the

High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to

consider the said point. The fact that the High Court came to the contrary conclusion on the question of title does not matter, because if the

appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact,

no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not

think it would be possible for us to entertain the said application. In the result, the application for amendment is rejected.

It is unfortunate that the appellant''s claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the

merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said

property devolves by succession u/s 12 of the Act. That, in fact, is the conclusion which the trial Court had reached and yet no action was taken

by the appellant to bring the necessary parties on the record. It is true that under Order 1 Rule 9 of the CPC no suit shall be defeated by reason of

the mis-joinder or non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary

parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1 Rule 10, Sub-rule 2 direct the necessary

parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties'' plea of limitation.

Once it is held that the appellant''s two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed

by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief

against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceedings

with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the

mistake. In AIR 1931 229 (Privy Council) the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the

plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors

were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy

Council. In support of this plea, reliance was placed on the provisions of Order l Rule 9 of the Code. In rejecting the said prayer, Sir George

Lowndes who spoke for the Board observed that ""they are unable to hold that the said Rule has any application to an appeal before the Board in a

case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample

opportunity of remedying it in India.

A bare perusal of it would evince and project that necessary parties could be added at any stage of the proceedings. The Hon''ble Apex Court

contemplated in the cited judgment that even at the appellate stage before the High Court, impleadment of necessary parties is possible. It is

axiomatic that now the Second Appeal is before this High Court.

The learned Counsel for the plaintiffs appropriately and appositely cited the decision of this Court reported in Sabasthi Nadar Vs. Savurimuthu

Nadar and another, . An excerpt from it would run thus:

The learned Counsel for the respondent would further contend that at any rate, in a suit petition, impleading of parties can be done at any stage

before passing of the final decree. The following are the decisions which were relied upon by the learned Counsel in support of his point: (1)

Swayamprakasam alias Chidambaranathan Vs. R. Vijayarangam, , (2) R.A. Narasinga Rao v. Chunduru Sarada AIR 1976 A.P. 996, (3)

Neelakantha Pillai Ramachandran Nair Vs. Ayyappan Pillai Kumara Pillai, .

I am unable to agree that these decisions could be pressed into service to contend that the findings as well as the decree granted by the courts

below have to be sustained and that the unimpleaded parties can be ordered to be impleaded, so that they can take part in the final decree

proceedings. It has to be borne in mind that in the very decision of the Kerala High Court relied upon by the learned Counsel reported in

Neelakantha Pillai Ramachandran Nair Vs. Ayyappan Pillai Kumara Pillai, it is specifically emphasised that the impleadment of parties after the

passing of the preliminary decree is possible only on the basis that none of the questions already settled by the preliminary decree would have to be

reopened by the court as a consequence of such impleadment and that the impleadment could be only on the condition that further proceedings will

be only on the basis of the preliminary decree already passed. This decision would only make it obvious that it will be an injustice to the

unimpleaded parties, if the court does not dismiss the suit for non-joinder of parties. This is what was emphasized in the A. Ramachandra Pillai v.

Valliamal 100 LW 486, cited earlier. If co-sharer who is entitled to raise his pleas on the merits of the suit is to be deprived of his defence for no

fault of himself and if the plaintiff could be put on premium for not having impleaded a necessary party, it would spell clear injustice, and it would

only lead to multiplicity of proceedings.

On the other hand the decision of the learned Single Judge of this court reported in Swayamprakasam alias Chidambaranathan Vs. R.

Vijayarangam, is more practical as it holds that Order 1 Rule 10(2) of the CPC gives power to the Court to implead parties at any stage of the

proceedings in a partition suit. The proceedings do not come to an end till the passing of the final decree and therefore at the stage of final decree

proceedings also, parties can be impleaded. Similarly the judgment of the Division Bench of the High Court of Andhra Pradesh reported in

Ramader Appala Narasingha Rao v. Chundrur Sarada AIR 1976 A.P. 226, it is also to the effect that a party who was impleaded only after

passing of the final decree, can seek for setting aside the preliminary decree to do substantial justice between the parties having regard to the

circumstances of the case.

The position which emerge as a result of the above analysis, in the context of the present case is that the plaintiff having deliberately suppressed

the existence of certain other sharers and not having impleaded them as party and the Genealogy having been proved to be in correct, the suit

deserves to be dismissed. Even at present no steps were taken by the plaintiff to implead all the necessary parties who have been left out and the

court cannot take any initiative on its own under Order 1 Rule 10(2) of the CPC in the absence of proper particulars relating to all parties who are

left out. But instead of dismissing the suit in its entirety, in the interest of justice, indulgence may be shown to the plaintiff by remanding the suit to

the Trial court, giving opportunity to the plaintiffs to implead all the members of the family who are necessary parties to proceed further in

accordance with law by giving opportunity to all parties to adduce further evidence if any to the court and to decide their claims on the merits

afresh.

The said decision emerged in a partition suit and this Court felt that the matter should be remitted back to the trial Court for impleadment. As such,

the above excerpts from the cited decision as well as the entire perusal of the decision would highlight and spotlight the fact that a partition suit

should not be dismissed by the High Court, simply because of non-joinder of necessary parties and that opportunity should be given to the parties

concerned to implead the necessary parties.

However, the learned Counsel for the defendant placing reliance on a Division Bench decision of this Court reported in 100 LW 486 [A.

Ramachandra Pillai v. Valliammal (died)] would develop his argument that consequent upon non-impleadment of necessary parties, this Court

dismissed the claim of the plaintiff. An excerpt from the said decision would run thus:

The Supreme Court further observed:

It is true that under Order I, Rule 9 of the CPC no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, but there can

be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal.

Even in such cases, the Court can under Order 1 Rule 10, Sub-rule (2) direct the necessary parties to be joined, but all this can and should be

done at the stage of trial and that too without prejudice to the said parties'' plea of limitation. Once it is held that the appellant''s two brothers are

co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit

for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents.

This decision is thus an authority for the position that in a suit for partition, all the sharers are necessary parties and also for the position that the suit

is liable to be dismissed for non-joinder of any one of the parties. In (T. Panchapakesan and Ors. v. Peria Thambi Naicker and Ors.) also, a

Division Bench of this Court has taken a similar view by judgment dated 18.07.1972. We are accordingly of the view that the finding of the learned

Subordinate Judge on issue No. 10 holding that the suit is not bad for non-joinder of Nagarathinam''s heirs is unsound and liable to be set aside.

Accordingly, we hold that the suit is liable to be dismissed for non-joinder of the heirs of Nagarathinam.

Since we have not gone into the merits of the other issues but dismissed the suit as not maintainable, it is but proper that we set aside all the

findings on merits and leave all the issues and contentions at large for any future decision. Accordingly the appeal is allowed and the judgment and

decree of the Court below are set aside. The appellants will be entitled to their costs in the Appeal.

(emphasis supplied)

A bare perusal of the said judgment of the Division Bench of this Court would not indicate that a case of this nature should not be remitted

back to the trial Court. The underlined portion of the above excerpt would clearly demonstrate and evince that the Division Bench of this Court

had foreseen the possibility of instituting fresh proceedings and they never held that matter of this nature should not be remitted back to the trial

Court. They also contemplated that once the suit is found to be bad for non-joinder of necessary parties, the findings rendered therein should not

be allowed to subsist. Hence, I am of the considered opinion that instead of dismissing the claim of the plaintiffs in this appeal on the ground of

non-joinder of necessary parties, the matter could be remitted back to the trial Court and that would obviate fresh filing of a suit for partition.

It is a common or garden principle of law that multiplicity of proceedings should be avoided. Hence in these circumstances, the other two

substantial question of law Nos. 3 and 4 relating to ancestral nature of the suit property and the validity of Ex.B4, including the plea of ouster,

cannot be decided at this stage, as it would amount to approbating and reprobating. The Division Bench of this Court as observed supra held that

once a suit is bad for non-joinder of necessary parties, the question of deciding on merits the other issues would not arise.

Further more, without any issue relating to ouster, the trial Court rendered its judgment ordering partition providing share for those who were

not parties. As such, adding fuel to the fire, the First Appellate Court without remitting the matter back to the trial Court as contemplated under law

or alternis visbis framing issue by itself relating to ouster as contemplated under CPC., simply formulated a point for determination and from the

available evidence, it decided that there was ouster. Such a finding is fundamentally wrong. Without any issue relating to ouster, the parties might

not have had the opportunity of focussing their attention in adducing evidence. The purpose of framing issues under Order 14 of CPC is only to

enable the parties to focus their attention in adducing evidence on a particular point.

It is a trite proposition of law that ouster is a serious plea, much more serious than a plea of prescription, and I am at a loss to understand as to

how the Appellate Court was justified in simply ignoring this fact and deciding for itself that there was ouster of the plaintiffs from the suit property

at the instance of the defendant.

Incidentally, without finally deciding the relevant material points which, as observed by me supra, cannot be done in the Second Appeal, I

would like to point out that the First Appellate Court miserably failed to appreciate the genealogy involved in this case. The Courts below were

expected to concentrate on the recitals in Ex.B11, dated 10.11.1924 and accordingly, arrive at a decision in conjunction with other evidence

available in form of Ex.B12 dated 24.09.1952 the partition deed which emerged between Subramania Chettiar and others. In fact, the First

Appellate Court did not take into consideration the fact that the purchasers under Ex.B11 were close relatives and as per Ex.B12 those close

relatives got partitioned the property and in such a case, the core question arises as to whether the property was the ancestral property or not and

there were also some references to moveable properties. As such, on deep analysis of those recitals coupled with oral evidence to be recorded

and after hearing the parties interested in the suit, a decision should be taken by the trial Court.

In view of my observation supra, this Court, at this stage cannot render its verdict on the substantial question of law Nos. 3 and 4.

In the result, the judgment and decrees of both the Courts below are set aside and the matter is remitted back to the trial Court for fresh

disposal as per law within a period of six months from the date of receipt of a copy of this order. The parties shall appear before the trial court on

15.06.2009. On or before the end of June itself, the plaintiffs shall file application for impleading the necessary parties and if there is any default on

the part of the plaintiffs in filing such application, the trial court is at liberty to dismiss the suit once and for all.

I would like to make it clear that the trial Court is expected to decide the lis afresh, after giving due opportunity of adducing evidence to all the

persons concerned, untrammelled and uninfluenced by any of the observations made by this Court in disposing of this Second Appeal.

Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.