Sri H Ramaiah vs Smt. Jayamma and Others

A.S. Bopanna

The appellant herein is the second defendant in O.S. No. 4400/2006. The suit in question was filed by the plaintiffs seeking for partition and separate possession of the suit schedule properties. The Court below after considering the rival contentions has decreed the suit holding that the plaintiffs are entitled to 1/24th share in the suit schedule properties. The second defendant is therefore before this Court in this appeal. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.

The plaintiffs in the suit claiming to be the daughters of late Puttamma have filed the suit claiming for the share to which Puttamma would have been entitled to in the suit schedule properties. The case in that regard is that the properties in question were purchased by late Bylamma i.e., the mother of Puttamma and defendants No. 1 and 2 under a sale deed dated 06.05.1968. Reference to the sale deed is in respect of the Item No. 2 property. Item No. 1 property is also claimed to be the joint properties of late Puttamma and defendants No. 1 and 2. The mother of the plaintiffs i.e., late Puttamma is said to have expired in the year 2004 and therefore, claiming share in the properties, the instant suit has been fried.

The defendants on being served with the suit summons had appeared. The first defendant did not seriously contest the suit, but the second defendant by his written statement disputed the claim put forth by the plaintiffs. It is the contention of the second defendant that Item No. 1 schedule property is not available for partition while in respect of Item No. 2 property though the same was purchased by late Bylamma, the said Puttamma and defendants No. 1 and 2 were entitled to the said properties, the instant suit is not maintainable. The children of Bylamma viz., defendants No. 1 and 2 and late Puttamma have entered into a settlement and in the year 1982 itself they have partitioned the property whereunder though it was agreed that the defendants No. 1 and 2 would take half share each in Item No. 2 property, each of them were required to transfer five guntas of land each in the name of late Puttamma. It is therefore contended that in such circumstance, late Puttamma having agreed to the same, the plaintiffs cannot claim any right in respect of other properties. Reference is also made to the earlier suit which has been filed by the son of the first defendant viz., Sri M Mahesh claiming share in the properties in O.S. No. 6559/2004 and the suit filed by the second defendant in O.S. No. 1196/2001 against the first, defendant Thus, the defendants had contended that when there was already a partition in respect of the property, the instant suit is not maintainable. Though no specific contention with regard to non-joinder of parties was taken in the written statement, it is pressed for consideration in this appeal. In that regard, it is contended that apart from the plaintiffs herein, late Puttamma had other three sons also but, they have not been made parties to the instant suit while claiming partition and therefore, the suit is bad for non-joinder of necessary parties. It is also contended that in respect of the properties to which shares had been assigned, certain alienations have been made and the purchasers have not been impleaded as parties though such purchases being much earlier to filing of the suit.

The Court below on taking note of the contentions raised seven issues for its consideration and has thereafter decreed the suit. The first plaintiff examined herself as P.W.1 and the documents at Exhs. P1 to P17 were relied upon. The second defendant was examined as D.W1 and the documents at Exhs. D1 to D10 were relied upon.

Heard Sri G. Papireddy, learned counsel for the second defendant and Sri A.S. Mahesh, learned counsel for the plaintiffs and perused the appeal papers.

Having noticed the rival contentions, the fact that defendants No. 1 and 2 are the brothers of late Puttamma i.e., mother of plaintiffs is not in dispute. The fact that Item No. 2 was purchased by late By lamma i.e., their mother is also not in dispute. In such circumstance, the question for consideration would be as to whether the defence put forth by way of prior partition could be accepted. In the instant case, apart from the evidence which had been tendered and the earlier suits which were filed; insofar as the plaintiffs are concerned, no such earlier litigation has been there. However, what cannot be lost sight is that though the first plaintiff is the daughter of late Puttamma, she is also the wife of first defendant Sri Muniyappa. This aspect of the matter would have some bearing inasmuch as the earlier suit which had been filed by the second defendant was against the first defendant in O.S. No. 1196/2001. In the said suit, the partition had not been seriously disputed by the first defendant herein but his wife is now claiming the share after her son had filed earlier and failed.

Be that as it may, the question also would be as to whether the partition as understood by defendants No. 1 and 2 would also bind late Puttamma. In order to contend with regard to that aspect of the matter, the defendants had relied upon the notice said to have been issued on instructions of late Puttamma and the same is marked as Ex. D1. Though the plaintiffs seriously disputed that such notice had been issued, at the outset, it is seen that there is some indication of the instructions having been given by affixing the LTM. However, the same requires to be proved by the defendants if they are to succeed on that aspect of the matter. However, in the present facts, what requires to be noticed is that though the plaintiffs claim share to the property of late Puttamma and though there were three other sons, they have not been impleaded as parties. This becomes more relevant in a circumstance where there was certain transaction with regard to the property and there appears to be understanding as contended by the second defendant with regard to the share of the properties and therefore, the sons had not claimed. Hence, their say would be relevant.

If in fact, late Puttamma was really entitled to a share apart from what has been agreed between them in the year 1982 as claimed by the second defendant, probably, the presence of the sons of late Puttamma would have made a difference to the suit keeping in view the contentions they could have urged in the instant suit since in such family arrangements there was likelihood that they also would have been taken into confidence. Therefore, in the facts of the present case, their impleadment was necessary for the purpose of consideration.

That apart, keeping in view the contention which has been put forth by the second defendant that the parties had apportioned the properties and had thereafter dealt with the same, the documents which have been produced as Exhs.D9 and D10 would indicate that they are dated 16.10.1989 and 23.02.2001 which is prior to the date of filing of the instant suit. Therefore, in such circumstance, when portions of the suit schedule properties have been sold by the first defendant himself who is the husband of the first plaintiff and third parties have acquired certain rights much prior to the seeking of partition and more particularly in a circumstance where prior partition is pleaded, the plaintiffs should have sought to avoid the said documents by impleading the parties to the said documents. Therefore, this is also an aspect which requires to be considered in the presence of the purchasers of the property who have purchased the property on the representation that there was partition among the persons who were entitled to the property and such representation is made in the document which has been produced therein.

Hence, keeping these aspects in view, I am of the opinion that the institution of the suit without the necessary parties would be bad for non-joinder of necessary parties. The law is well settled that the suit cannot be dismissed only on that ground that the same being only a curable defect which could be rectified, an opportunity should be granted to the plaintiffs to implead all the necessary parties to the suit and thereafter put forth the contention. In that regard, all the parties including the defendants who were on record would have the benefit of putting forth all their contentions in defence of the suit and proving the same in accordance with law.

Therefore, in order to enable this, the impugned judgment and decree dated 17.02.2011 is set aside. The suit in O.S No. 4400/2006 is remanded to the Court below to be restored to file and provide opportunity to the plaintiffs to implead all the necessary parties and thereafter consider the same in accordance with law.

Considering the fact that the suit was pending for quite sometime, the plaintiffs and the second defendant who were represented herein shall appear before the Court below without further suit summons being issued on 30.10.2012 as the first date of appearance. Thereafter, the Court below shall issue summons to the parties to be impleaded and consider the suit in accordance with law and dispose of the suit as expeditiously as possible, but not later than eight months from the date of service on all the impleaded respondents. All the observations made herein are only for the purpose of disposal of this appeal and the same shall not bind the Court, below while arriving at a fresh decision in the matter.

In terms of the above, the appeal is allowed in part. Parties to bear their own costs.