Basavannewwa vs Basappa and Others

S.N. Satyanarayana, J.

Plaintiff in O.S. No. 196/92 (old No. 82/1982) on the file of the Civil Judge (Jr.Dn.), Dharwad has come up in these two appeals impugning the divergent finding rendered by the lower appellate Court in R.A. No. 61/1999, which was filed by defendant No. 4 and R.A. No. 70/1999, which was filed by defendant Nos. 2, 3(b) and 3(c) in the original suit, which are disposed of by common judgment dated 17.03.2004 in setting aside the judgment and decree passed by the trial Court in granting half share in the suit schedule properties to the plaintiff and consequently, dismissing her suit only on the ground that necessary parties are not impleaded to the said suit.

Brief facts leading to these second appeals are as under:

"Plaintiff in the original suit has filed the suit for partition and her separate half share in the suit property claiming herself to be the daughter of one Ningappa who is the eldest son of propositus Fakirappa. Fakirappa had two sons by name, Ningappa and Somalingappa. The first son Ningappa predeceased his father in the year 1959 leaving him surviving his only daughter Basavannewwa, plaintiff in the original suit and also his father Fakirappa and younger brother Somalingappa who is defendant No. 1 in the original suit. According to the plaintiff, after the death of her father Ningappa, her grand father died in the year 1973 and thereafter the paternal uncle Somalingappa has sold suit schedule landed properties i.e., Sy. Nos. 134/1 and 134/2 of Tambur village measuring 4 acres, and 4 acres 29 guntas respectively and also another landed property bearing Sy. No. 6 measuring 4 acres 1 gunta situated in Siddhanabhavi village."

Plaintiff claims 50% share in suit properties, which was available to her father. Since defendant No. 1 did not have absolute right, title and interest in suit schedule lands, he could not have sold the said properties. Accordingly, she filed a suit for partition and in the said suit she also sought for declaration that the sale deed executed by defendant No. 1 in favour of defendant Nos. 2 to 4 in respect of suit schedule properties would not bind her and for other reliefs. In the said suit, notice to defendants is duly served. Though defendant No. 1 entered appearance, even before he could file written statement, he died and his legal representatives are brought on record. One of the legal representative of deceased defendant No. 1 filed written statement conceding that, suit of the plaintiff is justified, that the averments in the plaint are true and correct and that his father was addicted to vices, he did sell the suit properties for his personal enjoyment and not for the benefit of the family. However, defendant Nos. 2 to 4 who are purchasers of three items of suit schedule properties tried to assert that the sale deed executed by defendant No. 1-Somalingappa is for the family necessity and as such they have become absolute owners of the suit properties, which is conveyed to them.

With this rival pleadings, the trial Court proceeded to frame the issues and after recording the evidence on behalf of both the parties, decreed the suit of the plaintiff for the relief of partition and granted 50% share to the plaintiff. It is seen that the said judgment and decree passed by the trial Court in O.S. No. 196/1992 by judgment and decree dated 23.03.1999 was accepted by legal representatives of defendant No. 1. However, defendant Nos. 2 to 4 who are purchasers of the suit schedule properties item Nos. 1 to 3, preferred two regular appeals before the lower appellate Court. The first one is R.A. No. 61/1999, which is filed by defendant Nos. 2 and 3, who are purchasers of Sy. Nos. 131/1 and 131/2 of Tambur village measuring 4 acres, 4 acres and 29 guntas respectively. Defendant No. 4 who is purchaser of land bearing No. 6 of Siddhanabhavi village measuring to an extent of 4 acres 1 gunta, filed an appeal in R.A. No. 70/1999 challenging the judgment and decree passed in O.S. No. 196/1992.

In the lower appellate Court, both the appeals were clubbed together, wherein, the grounds which were urged by the appellants are that the suit of the plaintiff is bad for mis-joinder inasmuch as sisters of plaintiff''s father Ningappa and defendant No. 1-Somalingappa not being arraigned as parties, the same should be set aside and also on the ground that the pleadings in the original suit is not sufficient to demonstrate the justification for filing of the suit for partition. In the said appeals, the lower appellate Court on re-appreciation of the pleadings, oral and documentary evidence available on record, proceeded to frame four points for consideration. Out of that, second point is with reference to maintainability of the suit in the absence of necessary parties was held against the plaintiff and consequently, suit of the plaintiff was dismissed. In the said proceedings, fourth point, which is with reference to necessary plea not being taken was also held against the plaintiff.

The plaintiff in the original suit having suffered divergent finding of lower appellate Court resulting in dismissal of her suit for partition has come up in these two regular second appeals. One is challenging the judgment and decree passed in R.A. No. 61/1999, which is in RSA No. 567/2004 and another appeal challenging the judgment and decree passed in R.A. No. 70/1999 by filing RSA No. 568/2004. Incidentally, it is necessary to mention that the judgment and decree passed in R.A. Nos. 61 and 70 of 1999 is common judgment.

These two appeals are admitted to consider the following substantial questions of law:

"i) Whether the I Appellate Court was justified in placing the burden on the plaintiff to prove not for legal necessity with regard to alienations passed by Somalingappa in favour of defendants 2, 3 and 4?

ii) Whether the First Appellate Court was justified in finding that the alienations were not for legal necessity?

iii) Whether the First Appellate Court was justified in finding that Fakirappa''s daughters were necessary party to the proceedings?

iv) Whether the First Appellate Court erred in not giving shares to the plaintiff-appellant in houses and lands in case Fakirappa''s daughters were necessary party and thereafter the shares should have been worked out?"

However, this Court feel, at this stage, question of going into first and second substantial question of law does not arise for the reason that third substantial question of law, which is framed is to ascertain whether the first appellate Court was justified in finding that Fakirappa''s daughters were necessary parties to the proceedings. Sofar as this substantial question of law is concerned, if the pleadings are looked into, it is seen that, in the genealogy, there is no reference to plaintiff''s father Ningappa and his brother Somalingappa having sisters, as shown in the said genealogy. Therefore, there is a clear admission of suppression of the presence of necessary parties having subsisting right in the suit schedule properties as sharers. Though there is explanation for not showing the name of three daughters in paragraph No. 3 of the plaint. In the very same paragraph No. 3 of plaint, it is stated that Fakirappa had three daughters and wife by name Sitawwa, that they have given up their right, title and interest in the suit properties in favour of both the sons of Fakirappa. However, there is nothing on record to demonstrate the same by arraigning them as formal parties to the suit proceedings. Even assuming that averment regarding daughters of Fakirappa have given up their share in the suit schedule properties in favour of their brothers Ningappa and Somalingappa, that should be under a registered document to demonstrate relinquishment of their right in favour of father of the plaintiff and her paternal uncle or in the alternative, she should have arraigned them as parties to the proceeding and elicited through them in the evidence that they have given up their right, title and interest in the suit properties in favour of plaintiff''s father and defendant No. 1. In the absence of the same, the finding of the lower appellate Court on third point for consideration appears to be just and proper. In that view of the matter, third substantial question of law is answered against the plaintiff.

Since this is a suit for partition, merely because necessary parties are not made as parties to the proceeding, the suit cannot be dismissed, as rightly held by Division Bench of this Court in the matter of Subanna Y.K. v. Kamaiah and Others reported in Kar.L.J. 1988 (2) 37. The lower appellate Court having observed the same while discussing second point for consideration should have provided an opportunity to the plaintiff to seek inclusion of the said sisters of her father and defendant No. 1 as necessary parties to the proceeding either at the stage of appeal in the lower appellate Court or seeking to refer the matter to the trial Court for the limited purpose of arraigning the sisters of plaintiff''s father and uncle Somalingappa as necessary parties and thereafter to record their evidence if any and secure the same back to the lower appellate Court for deciding it on merits. Instead it has erroneously dismissed the suit of the plaintiff on the flimsy ground that necessary parties are not made as parties to the original suit.

In that view of the matter, this Court feel that the judgment and decree passed by the lower appellate Court is required to be set aside and consequently, appeals in R.A. Nos. 61 and 70 of 1999 should be restored to file, where an opportunity is given to the plaintiff to implead her paternal aunts i.e., her father''s three sisters and grand mother as necessary parties and thereafter proceed with the matter. Reserving such liberty to the plaintiff, these two appeals are allowed and the judgment and decree passed by the lower appellate Court in R.A. Nos. 61 and 70 of 1999 are set aside and the matter is remanded back to the lower appellate Court for fresh consideration. While doing so, the lower appellate Court is directed to hear and dispose of the appeals after giving sufficient opportunity to respondent-plaintiff in the said proceeding to take necessary steps to implead daughters of propositus Fakirappa and his widow as necessary parties. The lower appellate Court is directed to dispose of the appeals within twelve months from the date of receipt of a copy of this judgment.