Kum Anusha and Others vs Smt. Rudramma

N. Kumar, J.—This is plaintiffs appeal against the judgment and decree of the trial Court which has dismissed the suit of the plaintiffs for partition and separate possession on the ground that the suit is bad for non-joinder of necessary parties.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The case of the plaintiff is that plaintiff No. 1 is the minor daughter of 2nd plaintiff and late P.M. Gurumurthy. One Kanthaiah is the propositus. He has a son by name P.K. Marulasiddaiah. His wife is Rudramma. They had 5 daughters by name Girijamnia, Kalavethi, Charuiramma, Nagarathnamma and Usha and a son by name Gurumurthy. Sri P.K. Manilasiddaiah had got ancestral property at Pattanagere Village, Kadur Taluk and purchased several other properties and registered the same in the name of his wife i.e., 1st defendant Rudramma. Marulasiddaiah was working as a Village Secretary. After retirement, he died. Plaintiff are the legal heirs of P.M. Gurumurthy. During the life time of P.K. Marulasiddaiah, the marriage of all the daughters took place except the last daughter Usha and the son Gurumurthy. Both of them were married on the same date. To meet the expenses of the said marriage, he had sold the properties at Pattanagere Village in Kadur Taluk to settle all the accounts. During the year 1999, there was a settlement among the members of the family regarding gold jewels and other monetary benefits. Accordingly, the properties of his mother came to the share of Gurumurthy. All the daughters were married and they were staying in their respective husband''s house. After the death of P.M. Gurumurthy on 30.9.2000, all the properties which were in as possession came to the exclusive possession of the defendant. She was looking after the schedule properties after the death of Gurumurthy. The defendant has created charge and encumbrances over the suit schedule property at the instigation of her relatives thereby causing loss to the schedule property. Therefore, the plaintiffs wanted their share of the schedule property by partition and giving to their possession. Therefore, they filed a suit for partition and separate possession against the defendant.

The defendant after service of summons entered appearance, filed a detailed written statement and contested the claim, She contended all the properties in the possession of the defendant are her self-acquired properties; She admitted that P.K. Marulasiddaiah had some ancestral properties at Pattanagere Village. He had not acquired any properties as alleged the plaint. All the properties which are in her possession are her self acquired properties, Gurumurthy her only son and she has 5 daughters. There was no partition in the year 1999 as alleged. The plaintiffs cannot claim any share in the suit schedule properties as it is her self-acquired properties. The defendant filed a suit before the Civil Judge (Jr. Dn.). Kadur in respect of the LIC amount as she was the nominee in the insurance policy obtained by Gurumurthy and the said suit is still pending. Her 5 daughters are the necessary parties to the suit and the suit is bad for non-joinder of necessary parties. Plaintiffs have received all the financial emoluments payable by the Government due to the death of Gurumurthy and have not given any amount to the defendant. She is also entitled to a share in the said amount. Plaintiff No. 2 along with her brothers After the death of Gurumurthy came to the house and took away all the valuable gold and silver ornaments and other movables and they are in possession of the plaintiffs. In fact, plaintiff No. 2 also got a job on compassionate grounds and is serving as SDC at Hassan and getting salary Plaintiffs have no right in the schedule property; No as use of action to the suit and therefore, she sought for dismissal of the suit.

On the aforesaid pleadings, the trial Court has framed the following issues which are as under:

Whether the plaintiffs prove that the suit properties are undivided family properties of themselves and defendant?

Whether the defendant proves that the suit properties are absolutely belonged to her?

Whether the plaintiffs prove that during the life time of P.M. Gurumurthy in the year 1999, all the Accounts and properties were settled?

Whether the defendant proves that her married daughters are also necessary parties to the suit?

Whether the plaintiff proves that defendant received the Insurance claim amount of late Gurumurthy and they have got right of share in the said amounts?

Whether the plaintiffs are entitled for the relief of partition as prayed for in the suit?

Whether the plaintiffs are entitled for mesne profits?

What decree or order?

On behalf of the plaintiffs, 2nd plaintiff Pushpa was examined as PW1. They also produced 13 documents which are marked as Exs. P.1 to P. 13. On behalf of the defendant, P.M. Usha, the daughter of Rudramma was examined and she also examined a witness DW2 and produced 7 documents which were marked as Ex. D.1 to Ex.D.7.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have proved that the suit properties are the undivided family properties of themselves and defendant whereas the defendant has failed to prove that the properties which are in her possession are her self acquisition. The plaintiffs have failed to prove that during the life time of P.M. Gurumurthy in the year 1999 all the accounts and properties were settled. Use defendant has established that her married daughters are necessary parties to the suit. The plaintiffs have failed to establish that defendant received the insurance claim amount of late Gurumurthy and they have got a right of share in the said amount. In view of the findings recorded by the trial Court, the daughters of P.K. Marulasiddaiah were necessary parties to the suit It held in their absence no partition could be effected of joint family properties. Accordingly, it dismissed the suit of the plaintiffs on that ground, Aggrieved by the said judgment and decree the plaintiffs are before this Court.

Along with the appeal, plaints did not choose to file an application impleading the daughters. It is three years after the filing of the appeal and admission, they opened their eyes, they realised that the daughters of Marulaaiddappa were necessary parties to the suit for partition mid therefore, they have filed an application for impleading. Now, notices are ordered and some of them are represented and some are yet to be represented. In this context, foamed counsel appearing for the appellants assailing the judgment and decree contended when the suit is dismissed on the ground of non-joinder of necessary parties, as appellants have filed an application for impleadment, all these daughters are necessary parties. The proper course would be to allow the application and hear the matter or remand the matter to the trial Court for fresh disposal in accordance with law.

We do not see any substance in the said contention. The persons who can be made parties in an appeal are the persons who are parties in the trial Court. After institution of the suit if any of the parties requires an interest in the subject, matter of the suit from the parties to the litigation, those persons could be impleaded as parties both in the suit as well as in the appeal as the Judgment rendered may affect any of the parties. Similar any person who is aggrieved by the judgment and decree though not a party to the proceedings, could be impleaded in appeal with the permission of the Court. Apart from this category of persons, no one else could be impleaded in appeal. In the instant case, suit for partition and separate possession is dismissed on the ground of non-joinder of necessary parties. In the plaint, genealogical tree of the family is given which is not in dispute. The plaint averment makes it clear the schedule properties belong to Marulasiddaiah. Plaintiffs claim title to the propertied as the legal heir of the son of Marulasiddaiah. The defendant contends she is the absolute owner of the properties which were in his possession but she admits that her husband did have some ancestral properties. In respect of the ancestral properties, a notional partition has to be effected on the date of death of Marulasiddaiah and in the share to be allotted to him, his daughters would get equal right with that of his son. In that view of the matter, 5 daughters of Marulasiddaiah were necessary parties to the suit for partition. In their absence, no decree for partition could be passed. If the plaintiffs deliberately chose not to make them parties and realising the mistake only after the suit is dismissed, they cannot be permitted to come on record as the trial Court committed no error in dismissing the suit for non-joinder of necessary parties, Under these circumstances, the proper course would be to dismiss this appeal, reserve the liberty to the appellant to file the proper suit impleading all the daughters as parties to the suit and thereafter get their shares worked out. That would meet the ends of justice, In that view of the matter, we pass the following:

ORDER

(1) Appeal is dismissed.

(2) Liberty is reserved to the appellants to file a comprehensive suit including all the properties of the family and making all the daughters of late Marulasiddappa as parties to the suit and then seek their legitimate share in the said suit for partition.

(3) The findings recorded by the trial Court in respect of the nature of the properties will in no way bind the daughters who are not parties to the suit

(4) The Court before whom if, a suit is filed by the plaintiffs for partition and separate possession, depending upon the contention to be taken by the dependants, has to adjudicate the rights of the parties on the pleadings and evidence to be adduced in the said proceedings.