Mst. Jani and others vs Hassan Sofi and others

S. Murtaza Fazl Ali, C. J.

This civil second appeal is directed against the judgment of the learned District Judge Anantnag dated June 5, 1970. upholding the order dated

April 15, 1964. of the Munsiff Kulgam dismissing the suit of the plaintiff-appellant on the ground that it had abated in toto because of his failure to

bring on record the legal representatives of the first defendant viz Amma Nanwai within the time prescribed by Article 177 of the Limitation Act.

It appears that a suit for possession by partition of land comprised in Khasra No- 1475 situate in Kulgam was brought by the appellant in the

court of Munsiff. Kulgam, against respondents 3 to 7 and Amma, the father and husband respectively of respondents 1 and 2 herein. During the

pendency of the suit Amma defendant died and an application for bringing his legal representatives on record was made by the appellant on March

22, 1966. It, however, transpired that the application was made more than a year after the death of Amma. Accordingly the learned trial Court

dismissed the application. It further held that Amma being a necessary party to the suit and steps for substituting his legal representatives not having

been taken in time, the suit abated in its entirety. On appeal the learned District Judge, upheld the order passed by the Munsiff. It is against this

order that the present appeal has been filed. We have heard the learned counsel for the parties at considerable length.

In a suit for partition of a joint holding every co-sharer has a joint and indivisible interest in every inch of it and each one of the co-sharers is a

necessary party to the suit. In the absence of any of the co-sharers and in case of his death of his legal representatives, it is not possible to

determine effectively the rights and interests of the remaining co-sharers who are before the court and grant necessary relief to the plaintiff.

In the present case. Amma co-sharer having died and his legal representatives not having been brought on the record within the time allowed by

law the suit ceased to be properly constituted and could not proceed to a final adjudication. In The State of Punjab Vs. Nathu Ram, . their

Lordships of the Supreme Court while interpreting the provisions of Order 22 Rule 4 of the Code of Civil Procedure, observed as follows:-

The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can

be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh

with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be

said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to

determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the

courts coming to a decision which would be in conflict with the decision between the appellant the deceased respondent and therefore which

would lead to the courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject

matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief

against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds be

ineffective, that is to say, it could not be successfully executed.

In Chruaman Mahto v. Bhatu Mahto, AIR 1935 Pat 241. Fazal Mohamad Khan v. Ali Mohammad Khan AIR 1935 Oudh 36. and Ramnath

Kisanlal v. Ramgopal Bhaulal. AIR 1951 Nag 434, it was held that in a partition suit every one of the co-sharers is a necessary party and if in such

a suit any one of them i. e. the co-sharers dies and his legal representatives are not brought on the record in time, no decree can be passed for

partition because the representation becomes incomplete. It has been further held in these decisions that in such a case the suit abates as a whole.

Learned counsel for the appellant has cited before us some decisions including that of a Full Bench of the Allahabad High Court, reported in

Faqira and Another Vs. Hardewa and Others . We have gone through these decisions with care and find that they are clearly distinguishable and

are not at all applicable to a case of the present nature. None of these decisions relates to a suit for partition where the interests of Co-sharers are

joint. As in the instant suit, the rights and interest of the co-sharers were joint and undivided and the right to seek relief did not survive against the

surviving defendants alone, the suit abated as a whole and not qua Amma defendant only. The order passed by the courts below are, therefore,

perfectly justified.

For the foregoing reasons, we do not find any merit in this appeal, which is dismissed but without any order as to costs.