Swaminatha Odayar vs T.S. Gopalaswami Odayar and Others

Venkatasubba Rao, J.—An objection which ought to have been taken in limine has been raised at the closing stage of a long argument to the

effect that the appeal is incompetent on account of certain parties not having been added as respondents. We do not at present propose to sot out

the history of this long-drawn litigation, for it is sufficient to state just a few facts in order to deal with the contention raised. This was a partition suit

commenced nearly two decades ago and the members of the family to which the action relates owned considerable properties when it started, but

they have since been reduced, with the exception of defendant 6, to such straits that some are represented by the assignees in insolvency and the

others by the trustees under a composition deed. The only solvent member now of the family is defendant 6 and he is the appellant before us.

There are several memoranda of objections in the nature of cross-appeals which have been filed. The principal contesting respondent is defendant

3 represented by the receiver in insolvency and the preliminary objection referred to above has been raised by his counsel, Mr. Venkatarama

Sastri. In the action originally the family was divided into three branches, the first consisting of the plaintiff, the second of defendants 1 and 2 and

the third of defendants 3 to 8. The preliminary decree of the trial Court passed in 1924 separately allotted to defendant 6 of the third branch a

distinct share, the integrity of this branch not having been otherwise disturbed. We must observe that defendants 3, 4, 5, 7 and 8 form two sub-

families: (1) defendant 3 and his sons defendants 5 and 7, and (2) defendant 4 and his son defendant 8. An appeal from the preliminary decree was

filed here and during its pendency defendant 3 was adjudicated insolvent in 1925 and defendant 4 in 1927. With only one aspect of the appellate

decree passed by the High Court we are now concerned, namely that it effected a further sub-division of shares as between defendants 3 and 4.

The ultimate position as settled by the High Court''s decree so far as the shares were concerned was this:

(1) Plaintiff ... ... 1/5th share.

(2) Defendants 1 and 2 ... 4/15th share.

(3) Defendant 6 ... ... 4/15th share.

(4) Defendant 3 and his sons,

defendants 5 and 7 ... 2/15th share.

(5) Defendant 4 and his son

defendant 8 ... 2/15th share.

The case went back to the trial Court which in due course passed a final decree which defendant 6 as the appellant now attacks. The

preliminary decree which was confirmed by the High Court has held defendants 3 to 8 jointly accountable to the other branches of the family in

respect of certain matters, that is to say the question as between defendants 3 to 8 on the one hand and the plaintiff and defendants 1 and 3 on the

other, is concluded by the judgment already pronounced by the High Court; but the point yet remained to be decided, namely as among

themselves (i. e. defendants 3 to 8) how much of this common burden was each of the sub-groups to bear?--in other words, how much was to be

born by third defendant''s sub-group consisting of himself and his sons defendants 5 and 7, how much by defendant 4''s sub-group consisting of

himself and his son defendant 8 and how much by defendant 6? The learned Subordinate Judge, after dealing under various heads with sums of

money amounting to several lakhs, passed a final decree containing in the result inter alia the following directions: (i) Defendant 6 shall pay Rs.

2,177-9-0 to the plaintiff''s branch, Rs. 10,515-7-6 to defendants 1 and 2 and Rs. 18,385-1-6 to defendant 4''s branch. (ii) Defendant 3''s branch

shall pay defendant 4''s branch Rs. 10,932-2-3.

Defendant 6 complains that the Subordinate Judge has wrongly apportioned the liability, his contention being that had the learned Judge given

effect to correct legal principles, a large amount would have been found payable to him by defendant 3''s branch. The preliminary objection arises

thus: While defendants 3 and 4 (through the Official Receiver of West Tanjore and the Official Assignee of Madras respectively) have been

impleaded as respondents to the present appeal, their sons have not been and it is argued that their non-joinder is fatal to the appeal. Mr.

Radhakrishnayya, the appellant''s learned counsel, in answer contends that the sons of defendants 3 and 4, though | proper parties and might have

been joined las a matter of convenience, are not necessary parties. This argument, in our opinion, is well-founded. The lower Court throughout

refers to the entities known as defendant 3''s branch and defendant 4''s branch; nowhere does it in its long judgment refer to their sons as

possessing any individual or distinct interest. Indeed, they have been so treated as if their individuality has become merged in that of their fathers

and their separate existence has not been recognized or even noticed. This is not suprising as the judgment of the High Court did not direct an inter

se division notwithstanding that their fathers had been adjudicated insolvents. What is more, when the various points bearing on the question of the

apportionment were being considered in the lower Court, all the parties concerned assumed without hesitation that the Official Receiver in each

case represented adequately and properly the interest of the sub-family as a whole; not a single point seems to have been put forward as affecting

the interests of the sons as distinct from those of their fathers. In fact, if the sub-group gained, each member of it gained also; if it lost, it was equally

patent that every member likewise lost. This being so, the learned Subordinate Judge in the decretal portion of his judgment directs defendant 3''s

branch to pay and defendant 4''s branch to receive. Though therefore in the lower Court the sons were formally on the record, they had no

separate entity and the decree passed does not recognize their existence. They are in our view therefore proper but not necessary parties to this

appeal. The appellant''s counsel, however, as a matter of expediency and convenience, now applies that they should be added as respondents. So

much time and money has already been wasted; and every step should be taken, if possible, to prevent the remnant of this estate from being

wrecked. ""We therefore comply with his request and direct the sons or their representatives to be joined. Granting however that the parties sought

to be added are not merely proper but necessary parties, the effect of whose non-inclusion is fatal to the appeal, the question arises whether the

defect can be cured under Order 41, Rule 20, Civil P.C., which runs thus:

Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred,

but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be

fixed by the Court and direct that such person be made a respondent.

Mr. Venkatarama Sastri broadly argues, relying upon the decision of the Judicial Committee in AIR 1927 252 (Privy Council) that no person

against whom the right of appeal has become barred can ever be added as a respondent under this provision. We are unable to agree that this is

the effect of the decision cited above. It must be remembered that their Lordships'' judgment delivered by Sir John Wallis confirmed the judgment

of the Rangoon High Court in Chookalingam Chetty v. Singaram Chetty AIR 1925 Rang 108 and that the Judges of the Rangoon Court in their

judgment followed the Madras decision in Subramaniams Chetty v. Veerabhadran Chetty (1908) 31 Mad 442, to which Sir John Wallis was

himself a party. The point is fully and clearly dealt with in the Madras case and to under stand the Privy Council decision, we must turn to the

exposition of the law contained in the judgment of the Madras High Court. Now let us turn to the facts in AIR 1927 252 (Privy Council) to

appreciate the real import of that decision. There were two suits, but for the present purpose it is sufficient to advert to one of them. The plaintiff

there challenged the transfer made by the insolvent to defendant 1 and by defendant 1 to defendant 2, Singaram Chetty, the defendant in

possession. The District Judge dismissed the suit, holding that the sales were perfectly valid and not benami as alleged. The plaintiff filed an appeal

to the High Court at Rangoon, but did not implead defendant 1 as a respondent. The constitution of the appeal was impeached on the ground that

defendant 1, a necessary party, had not been impleaded. An application was then made under Order 41, Rule 20, but the learned Judges rejected

it, holding that defendant 1, who was sought to be newly added was not ''a person interested in the result of the appeal'' within the meaning of the

decision in Subramaniams Chetty v. Veerabhadran Chetty (1908) 31 Mad 442 which they were prepared to follow. In the last mentioned case the

learned Judges (Sir Arnold White, C.J. and Wallis, J,) explain that the section was inserted

to protect parties to the suit who had not been made respondents in the appeal from being prejudiced by modifications made behind their backs in

the decree under appeal.

Then turning to the words ''interested in the result of the appeal'', the learned Judges observe that they imply that the party whom it is sought to

bring on record must be shown to be interested in the result of the appeal before he is brought on for, '' once he is brought on, he may be said to

acquire an interest as a result of being brought on"". Now, applying that tost, it is perfectly clear that in the Rangoon case defendant 1, whom it was

sought to bring on the record newly, was not a person ''interested in the result of the appeal''. Supposing the appeal had gone on, and as a result

the sale in favour of defendant 2, Singaram Chetty, had been set aside by the Appellate Court, how could it be said that the absent defendant 1

was ''interested in the result of the appeal''? The decision of the High Court could not in the slightest degree affect the trial Court''s finding (which

had become res judicata) that as between the plaintiff and defendant 1 the sale was perfectly valid. In that case therefore, defendant 1 had no

possible interest in the result of the appeal; it mattered little to him whether it succeeded or failed. It is unnecessary to refer at any length to the facts

of Subramaniams Chetty v. Veerabhadran Chetty (1908) 31 Mad 442, but it will be seen that there, as in the Rangoon case, the parties newly

sought to be added were not interested in the result of the appeal; in other words to them it was a matter of perfect indifference whether the appeal

was allowed or rejected.

The test in each case therefore is, as put in the Madras case, would the parties not impleaded be prejudiced ''by modifications made behind their

backs in the decree under appeal''? Let that test be applied here. Supposing the appellate decree modifies the trial Court''s decree by imposing a

larger burden upon defendant 3, what happens? The sons are not directly affected by the appellate decree, they not being parties to it. That is

undoubtedly so, but yet the result of any diminution of their father''s assets will ipso facto be to diminish the extent of their own assets; in other

words, in the language of Subramaniams Chetty v. Veerabhadran Chetty (1908) 31 Mad 442 they will be ""prejudiced by modifications made

behind their backs in the decree under appeal"". Ma Than May v. Mohamed Eusoof AIR 1932 Rang 16, upon which defendant 3''s counsel relies,

does not, if properly understood, help him. There, defendant 2 who was sought to be impleaded does not answer the description of a person

''interested in the result of the appeal''. He had obtained a certain right under the trial Court''s decree and that right, whatever might happen to the

appeal, could not have been affected by its result. Thus the actual decision in Ma Than May v. Mohamed Eusoof AIR 1932 Rang 16 does not

conflict with the view we have taken. Granting therefore that the parties sought to be added are necessary, as distinguished from proper parties, we

have no doubt whatever that Order 41, Rule 20, applies. A little reflection will show that Mr. Venkatrama Sastri''s contention cannot be correct,

for, as already observed, according to him no person against whom the right of appeal has become barred can ever be added as a respondent

under this provision. If this argument be sound, Order 41, Rule 20 can never be brought into play; it must for all practical purposes remain a dead

letter. It is difficult to conceive a case where the right of appeal does not become barred as against a party not impleaded by the time the appeal

comes on for hearing: for, under the Rule be it noted, the action to be taken is at the hearing of the appeal.

Lastly, it remains to observe that the power given to the Court is discretionary under the Rule in question. The point then is, in view of all the

circumstances of the case, is the discretion to be exercised in favour of the appellant or not? In the first place, it is significant that although

defendant 5 had died about two years-previous to the judgment under appeal, no-one thought it necessary to bring his representatives on the

record in the lower Court. So much for defendant 5. Now turning to defendant 7, it is not a little strange that even in the decree passed by the

lower Court in 1932 he was described as ""minor male child not named"". That was the way in which he was originally described in the plaint filed in

1919; he still remained in 1932 a ''minor not named''. That shows what little importance was attached to his presence on the record. Secondly, the

same advocate, curiously enough, represented in the lower Court the appellant and defendant 7 although their interests directly conflicted. Now

turning to defendant 8 (defendant 4''s son), it is inexplicable how he came to be represented by the same advocate as represented respondent 27

(?). A glance at the decree will show how their interests conflicted. Our object in referring to these facts is to point out that in the lower Court no

one thought that the sons possessed any interest whatsoever which required a separate representation. Thirdly, as already observed under the

lower Court''s judgment, the sons had no separate entity, which fact might well have misled the appellant. Strong grounds exist therefore in our

opinion to induce us to exercise our discretion in favour of the appellant.

The question then is, what is the proper order to make? Defendant 5, as already observed, had died during the pendency of the suit in the lower

Court. In this case, from the previous judgment of the High Court there was an appeal filed to the Privy Council by defendant 9 with whom we are

not concerned at this stage. In that appeal defendant 5''s sons (two in number) were brought on the record as his legal representatives. It has been

held in Brij Indar Singh v. Kanshi Ram AIR 1917 PC 156 that the substitution of a new party for one stage of a suit is effective for all future stages

of that suit: we may therefore regard defendant 5''s sons as having been constructive parties to the suit in the lower Court. We learn that one of

these two sons has since died. We therefore direct the surviving son of defendant 5, defendant 7 and defendant 8 to be added as respondents.

Notice will be issued to them immediately and the further hearing of the appeal is adjourned to 30th March 1937.