R. Marghabandhu, Advocate for Respondents No. 1; No appearance for Respondents No. 2; Dismissed vide Order dated 10.12.2009: Respondents No. 3

S.A ALLOWED WITH COSTS — M.Ps CLOSED

Prayer: Second Appeal filed under Section 100 of C.P.C against the Judgment and Decree dated 26.2.2007 in A.S No. 77 of 2006 on the file of the Principal District Judge, Vellore, confirming the Judgment and Decree dated 28.2.2006 in O.S No. 270 of 1998 on the file of the Additional District Munsif, Vellore.

JUDGMENT

1. The following are the brief averments contained in the Plaint in O.S No. 270 of 1998:

1(a). One Muruga Mandiri and his wife Ammakannamal @ Ammal had two sons by names Munusamy Mandiri and Macha Mandiri and two daughters, Chokkammal and Rajeswari. Muruga Mandiri his wife and two sons died, two daughters 3rd & 4th Defendant are still alive. Muruga Mandiri was the absolute owner of the Suit property. During his life time, prior to 1982, he effected division of ‘A’ Schedule properties into two shares and allotted each share to his sons. On the date of death of Muruga Mandiri he had no properties on his own. Hence, his wife and daughters (Defendants 3 & 4) did not inherit any right in the ‘A’ Schedule properties.

1(b). In the partition, ‘B’ Schedule properties and other properties were all allotted to the share of Munusamy Mandiri and he also sold a portion of ‘B’ Schedule property to the Plaintiff under a registered Sale Deed dated 6.12.1982 for a consideration of Rs. 2,000/- and since then the Plaintiff has been in possession and enjoyment of the Schedule property in her own right and title and interest by paying Kist and enjoying the properties by cultivation and she perfected title to ‘A’ Schedule property by adverse possession also. After selling the Schedule property the said Munusamy Mandri colluding himself with his divided share to Macha Mandri his mother Ammakannu @ Ayyammal and his sisters Defendants 3 & 4, fraudulently sold the entire ‘A’ schedule property to the Defendants 1 & 2 under a registered Sale Deed dated 9.1.1989 The ‘A’ Schedule property includes ‘B’ schedule property. Munusamy Mandiri having sold the ‘B’ Schedule property namely his separate property under a registered Sale Deed to the Plaintiff, he has no right to convey any right title or interest over the ‘B’ Schedule property in favour of Defendants 1 & 2. Hence, the Plaintiff issued Notice dated 21.4.1998 for which the Defendants 3 & 4 sent reply containing false allegation that there was no partition during the life time of Muruga Mandiri and the entire ‘A’ Schedule property continuous to be joint family property. The Plaintiff reiterate her case of partition prior to 1982 during the life time of Muruga Mandiri she claims absolute right over the Schedule property. Therefore, the Plaintiff filed this Suit for declaring title to the ‘B’ Schedule property in her favour and for granting permanent injunction or in alternative divide the ‘A’ Schedule property into 15 shares or divide 5t shares and allot 1 share to Munusamy Mandiri and to confirm the ‘B’ Schedule property in favour of the Plaintiff.

2. In the Written Statement filed by the 2nd Defendant which was adopted by the 1st Defendant, it is averred as follows:

2(a). This Defendant admits only the realtionship as set out in Para 1 of the Plaint, that Muruga Mandiri was the absolute owner of ‘A’ Schedule properties. It is false to state that even during the lifetime of Muruga Mandiri he effected division of ‘A’ Schedule properties into 2 shares and allotted one such share to Munusamy Mandiri, that it is also false to state that the said Muruga Mandiri did not posses any property for himself, on the date of his death, that the Defendants are not aware of the alleged purchase made by the Plaintiff by a registered Sale Deed dated 6.12.82, that in any event, event it were to be true, the alleged Sale Deed was neither acted upon nor did the Plaintiff ever get into possession of the same under the alleged Sale Deed as there was no division and allotment of the entire extent of Ac. 1.45 in Survey No. 269 at any point of time.

2(b). In fact, the Defendants had purchased the entire extent of Ac. 1.45 in Survey No. 269 alongwith other items of properties for a sum of Rs. 54,700/- on 9.1.1989 under a registered Sale Deed from all the Legal Heirs of late Muruga Mandiri, who purchased the same vide Sale Deed dated 4.11.1949 All the Revenue records stand in either name only and the entire boundaries of the land purchased by this Defendant were already fenced with barbed wire and granite posts. In any event, the Plaintiff is estopped from claiming any right as alleged in the Plaint by the Principles of Estoppel by acquiescence. The Plaintiff has no right to interfere with the lawful possession and enjoyment of the Defendants 1 & 2, who are the lawful owners as they have purchased the properties as bona fide purchasers for value and without motives. This Suit is barred by limitation and hence, it is to be dismissed.

3. After analysing the pleadings, evidence and exhibits the learned Additional District Munsif, Vellore, pre-decreed the Suit in respect of ‘A’ Schedule property by dividing into 5 equal shares and alloting one such share to the Plaintiff and in enquiry for allotment of ‘B’ Schedule property in favour of the Plaintiff based upon the value of Suit ‘A’ Schedule property on the whole and dismissed the Suit in respect of other relief for declaration and injunction. The same has been confirmed by the learned Principal District Judge, Vellore. Aggrieved against the same the Defendants 1 & 2 have preferred this Second Appeal.

4. The following substantial questions of law have arisen for consideration in this Second Appeal:

1. Whether in law the Suit as framed and the relief as sought for in the Plaint is sustainable in law by taking totally inconsistent and mutually destructive pleas and also for want of material particulars with regard to cause of action for the Suit?

2. Whether in law the Suit is not barred by limitation and assuming that the Plaintiff has any manner of right over the Suit properties whether in law the same has not got extinguished when the purchase by the Plaintiff under Ex. A-1-Sale Deed is on 6.12.1982 whereas the Suit has been filed only in the year 1998?

3. Whether in law under Order 1, Rule 9, C.P.C and the Proviso thereto the Plaintiff's Suit is hit by non-joinder of the necessary parties on want of impleading all the legal heirs of late Muruga Mandiri?

4. Have not the Courts below committed an error in law in upholding the plea in equity that ‘B’ Schedule properties be allotted to the share of the Plaintiff without even ascertaining the value and location of the properties on a proper division of the properties?

5. Having regard to the facts and circumstances of the present case more particularly in view of the vital admission of Plaintiff as PW 1 whether the Appellants, who are the bona fide purchasers from the ostensible owners on whose names the Revenue records stand, are not entitled to the benefit extended under Section 41 of the Transfer of Property Act?

5. The Suit ‘A’ Schedule property originally belonged to Muruga Mandiri. He had two sons by name Munusamy Mandiri and Macha Mandiri. His daughters are 3rd & 4th Defendants. His wife is Ammakannamal. ‘A’ Schedule property includes ‘B’ Schedule property. It is pleaded in the Plaint that Muruga Mandiri during his life time effected a partition in ‘A’ Schedule property by dividing two shares to be available to each son. It was anterior to 1982. He did not retain any property for his own and the daughters and wife were excluded from the partition. It is also stated therein that Munusamy Mandiri was allotted ‘B’ Schedule property. He sold the same to the Plaintiff under Ex. A-1 on 6.12.1982 Thereafter he also sold entire ‘A’ Schedule property to 1st & 2nd Defendants on 9.1.1989 under Exs. B-2 & B-8 colluding his mother and sisters.

6. The Trial Court has taken up the issue of partition reportedly effected by Muruga Mandiri. The oral testimony of PW 2 was appreciated for this purpose. The evidence goes thus:

6(a). The translated version of the above evidence is as follows:

“I know that partition was effected for the children of Muruga Mandiri. I do not know the year in which the said partition was made. I do not know the details in which Survey Number the property of the family of Muruga Mandiri was located and how much property the aforesaid family owned. Both the daughters of Muruga Mandiri were in outstations. I do not know directly that Yasodha Ammal purchased from Munusamy Mandiri.”

7. Both the Courts below have not stated about the year of partition of which the properties were allotted to the sons. Both the Courts have found that the defence is not reliable, it would not prove the partition and hence, they have come to the conclusion that the properties are Joint Family Properties.

8. PW 3 is Attestor to Ex. A-1. Prior to Ex. A-1-Munusamy Mandiri mortgaged ‘A’ Schedule property to the Plaintiff which would also show that the properties remained as undivided.

9. The Defendants 1 & 2 purchased the Suit ‘A’ Schedule property in two parts under Exs. B-2 & B-8 on the same day i.e, on 9.1.1989 They purchased the property from the Legal Heirs of Muruga Mandiri i.e, his wife, sons Munusamy Mandiri, Macha Mandiri and his daughters, Defendants 3 & 4.

10. The Trial Courts have recorded their finding that the Plaintiff has merely purchased ‘B’ Schedule property under Ex. A-1. Both the Courts have taken the issue of limitation elaborately and found that the Suit is not barred by limitation.

Non-joinder of parties:

11. 1st & 2nd Defendants argued before both Courts that the Suit is bad for non-joinder of necessary parties. Both the Courts have concurrently held that the Suit is not bad for non-joinder of necessary parties. The Trial Court has stated that since the purchasers from all the legal heirs of Muruga Mandiri have sold their properties to the 1st & 2nd Defendants, they have to be treated to represent the legal heirs of Muruga Mandiri. That finding was confirmed by the Appellate Court. All the Legal Heirs of Muruga Mandiri have not been impleaded in the Suit. It is no doubt true that a specific plea as to the point has been raised in the Written Statement. But it is a legal plea. Order 1, Rule 9 of C.P.C reads thus:

“Order 1, Rule 9:

9. Misjoinder and non-joinder.— No Suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every Suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this Rule shall apply to non-joinder of a necessary party.”

If the parties are proper parties, they need not be impleaded. But if the parties, who are necessary to the adjudication of the issue between the parties are not included, then the Suit has to fail in entirety. In Ramachandra Pillai v. Valliammal (died), 1987 (100) LW 486, a Division Bench of this Court has held that failure to implead all the sharers in a Partition Suit will result in Suit being dismissed for non-joinder. The Proviso to the above said provision mandates the impleading of necessary parties to the Suit and in default the Suit shall fail. The operative portion of the above citation is as follows:

“Though Order 1, Rule 9, of the Code of Civil Procedure provides that no Suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every Suit deal with the matter in controversy so fa as regards the rights and interest of parties actually before it, there is a Proviso which says that nothing in that Rule will apply to non-joinder of necessary parties. In a Suit for general partition, there could be no doubt that all the shares are necessary parties as mentioned above. Apart from this, the main part of Rule 9, is only an enabling provision and the Court shall deal with each case with reference to the particular facts in that case.”

“The decision in Kanakarathnammal v. Loganatha, 1965 SC 271, is authorised for the position that in a Suit for Partition, all the shares are necessary parties and also for the position that the Suit is liable to be dismissed for non-joinder of any one of the parties in T. Panchapakesan v. Peria Thambi Naicker, 85 LW 84 (D.B). also, a Division Bench of this Court has taken a similar view. We are accordingly of the view that the finding of the learned Subordinate Judge on issue No. 10 holding that the Suit is not bad for non-joinder of Nagarathinam's heirs is unsound and liable to be set aside. Accordingly, we hold the Suit is liable to be dismissed for non-joinder of the heirs of Nagarathinam.”

12. As far as the facts of this case are concerned, it is of course true that Muruga Mandiri would represent all Legal Heirs, but the Plaintiff does not challenge the Sale Deeds-Exs. B-2 & B-8. As per her contention, the Sale Deeds obtained by Defendants 1 & 2 are latter point of time when the Deed of sale in favour of Plaintiff came to existence. She also pleads that the Legal Heirs of Muruga Mandiri have no right to transfer the property in favour of 1st & 2nd Defendants and on the date of sale it was in her favour and they did not have any right. Hence, the competency of Legal Heirs of Muruga Mandiri is questioned. In view of this Court, they should be impleaded in the Suit for Partition since all the parties are necessary parties to the Suit for Partition. They cannot said to be mere proper parties. They are very much necessary for determining the issue between the parties. In their absence no proper and final adjudication could be made as to the rights of the parties. In case if the Plaintiff admits Exs. B-2 & B-8, then there can be a finding that they are not necessary parties. Further, the Courts below could not believe the alleged partition effected by Muruga Mandiri. In view of the above observation, in the light of the provision under Order 1, Rule 9, C.P.C, and the decision in 100 LW 486, it is held that the Suit is bad for non-joinder of necessary parties and the Suit has to fail in entirety.

13. In view of the non-joinder of necessary parties, the Suit has to be dismissed. Hence, the Judgments and Decrees of both the Courts below are liable to be set aside and accordingly they are set aside. The substantial questions of law are answered in favour of Defendants 1 & 2. The Suit in O.S No. 270 of 1998 on the file of the Additional District Munisf Court, Vellore is dismissed.

14. In fine, Second Appeal is allowed with costs. Consequently, connected M.Ps are closed.