A. Ramachandra Pillai v. Valliammal (Died)

V. Ramaswami, J.:—Defendants 1 to 5 are the appellants. The suit was filed by the first respondent Valliammal and her daughter the second respondent for partition and separate possession of 7/18th share of the plaint schedule properties.

2. One Arumugam Pillai died on 16-9-1956 leaving the first plaintiff, his widow, a son the first defendant and seven daughters. The second plaintiff and defendants 6, 7, 8 and 9 are five of the daughters. Another daughter by name Vairam, though survived Arumugam Pillai, died sometime in 1965 leaving the tenth defendant as her only heir. The other daughter of Arumugham Pillai was one Nagarathinam. The case of the plaintiffs was that the suit properties were the self acquired properties of Arumugham Pillai, that on the death of Arumugham Pillai, the widow, son and the seven daughters each inherited 1/9th share and that Nagarathinam died issueless and her share was inherited by the first plaintiff, the mother. The plaintiffs also contended that on the death of Vairam, the tenth defendant and the first plaintiff became entitled to one half share in the share of Vairam and that came to 1/18 of the total. Thus the first plaintiff would claim to be entitled to 5/18 share in the total and the second plaintiff to a 2/16 share.

3. The first defendant in his written statement contended that the plaint A schedule properties are the ancestral properties, that they were not the separate properties of Arumugham Pillai and that, therefore, he will be entitled to one half share as an undivided co-parcener and the plaintiffs will be entitled to only a share in the half share left by the father Arumugham Pillai. He further contended that the plaint B schedule properties were purchased by the fifth defendant, the wife of the first defendant, that they were neither the joint family, properties nor the separate properties of Arumugham Pillai and that the fifth defendant alone is entitled to the entirety of those properties. The fifth defendant also filed a written statement separately claiming the B schedule properties as her own. The first defendant and the fifth defendant also denied the existence of the C schedule jewels. The first defendant further contended that Nagarathinam, his sister, died leaving two daughters and that the suit is bad for nonjoinder of the daughters of Nagarathinam.

4. The trial Court framed as many as 13 issues of which the 10th issue related to the question, “whether Nagarathinam left any issue and whether the suit is bad for nonjoinder of the said issue?”. The trial Court held that of the A schedule properties the nanja and punja lands forming Part I of that Schedule are the self-acquired properties of Arumugham Pillai. However, it held that Part II of A Schedule, house and site, is the separate property of the first defendant and the B schedule properties also belonged to the fifth defendant absolutely and not liable for partition. The trial Court also accepted the contention of the defendants that the C schedule jewels did not exist. On the contention whether the suit is bad for non-joinder of the daughters of Nagarathinam, though the trial Court found that Nagarathinam left two daughters, the suit is not liable to be dismissed for non-joinder of those daughters. According to the lower Court, “At best, Nagarathinam will be entitled to 1/9th share and 1/9th share can be allotted to her heirs, if they seek to implead them as parties even at the time of final decree”, and in that view, it was held that the suit is not liable to be dismissed. Defendants 1 to 5, as stated above, have preferred this appeal.

5. The learned counsel for the appellants at the outset contended that the finding of the Court below that the suit is not liable to be dismissed for non-joinder of parties is incorrect and on that issue itself, the entire suit should have been dismissed. In this connection, he relied on the decision of the Supreme Court in Kanakarathanammal v. Loganatha . A.I.R 1965 S.C 271., and another judgment of this Court in (T. Panchapakesan and others v. Peria Thambi Naicker and others)3.

6. It may be seen from the judgment of the Court below that it was not the case of anybody that Nagarathinam was not entitled to a share in the properties of Arumugham Pillai. Though the first plaintiff denied that Nagarathinam had any children, later she admitted that she had two daughteres that they were married and settled in life and they are alive. Therefore, Nagarathinam's daughters would undoubtedly be entitled to a share in the separate properties or the share of Arumugham Pillai in the joint family properties. Without impleading them as parties to the suit no decree for general partition could be granted by the Court below. What would have been their defence in the suit if they had been impleaded is problematical. They may not care to implead themselves as parties in the final decree proceedings as they would not be bound by any decree for partition granted in their absence. If a partition is effected without impleading them, even leaving that 1/9th share, it would be possible for them to question the entire partition. No partition also could be effected even with the consent of the other sharers as the presence of the heirs of Nagarathnam or consent is necessary for the allotment of a particular property to a particular sharer. In the circumstances, there could be no doubt that Nagarathinam's daughters are necessary parties to the suit.

7. Though O.1, R.9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of mis-joinder 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 parties actually before it, there is a proviso which says that nothing in that rule will apply to non-joinder of neeessary parties. In a suit for general partition, there could be no doubt that all the sharers are necessary parties as mentioned above. Apart from this, the main part of R.9 is only an enabling provision and the Court shall deal with each case with reference to the particular facts in that case. It is in that context, the decision of the Supreme Court in Kanakarathnammal v. Loganatha, is relevant. In that case, also, the plaintiff filed a suit for declaration and possession on the ground that the properties belonged to her mother and on her death she, as the sole heir, was entitled to the entirety of the properties. The suit was filed against two defendants who claimed that the father of the plaintiff had executed a will under which the first defendant had been appointed as executor and that as such executor he obtained probate of the said will, got possession of the properties and handed over possession to the second defendant therein as directed in the will. Thus the defendants set up a title in respect of the suit properties in the appellant's father. Alternatively they also added that if the properties belonged to the plaintiff's mother, she would not be entitled to claim exclusive title to the same, because by succession, the suit properties would devolve upon the appellant and her two brothers and the appellant's failure to join her brothers made the suit incompetent for nonjoinder of necessary parties. The trial Court held that the mother was the owner of the properties. However, it held that the suit is bad for non-joinder of necessary parties and on that ground the suit was dismissed. On appeal however, the High Court held that the properties belonged to the father. The appeal was dismissed on this ground and therefore there was no necessity to go into the question whether the suit was maintainable or not. On a further appeal, the Supreme Court accepted the contention of the plaintiff that the properties belonged to the mother. However, the Supreme Court held that since she was one of the three heirs of her mother and since she had not impleaded her two brothers to her suit, the suit was liable to be dismissed. The Supreme Court further observed:

“It is true that under Order I, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1. Rule 10, sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are co heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents.”

This decision is thus an authority for the position that in a suit for partition, all the sharers are necessary parties and also for the position that the suit is liable to be dismissed for nonjoinder of any one of the parties. In (T. Panchapakesan and others v. Peria Thambi Naicker and others) also, a Division Bench of this Court has taken a similar view by judgment dated 18-7-1972. 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 that the suit is liable to be dismissed for non-joinder of the heirs of Nagarathinam.

8. Since we have not gone into the merits of the other issues but dismissed the suit as not maintainable, it is but proper that we set aside all the findings on merits and leave all the issues and contentions at large for any future decision. Accordingly the appeal is allowed and the judgment and decree of the Court below are set aside. The appellants will be entitled to their costs in the Appeal.

9. The plaintiffs have filed a memorandum of cross-objections in respect of that portion of the decree which is against them. There is a delay of 269 days in paying the court fees on the memorandum of cross-objections and in fact the memorandum of cross-objections itself has been filed out of time. Now that we have dismissed the suit itself as not maintainable, no further orders are necessary in this memorandum of cross-objections and the petition filed in C.M.P No. 2610 of 1982 to condone the delay in paying the deficit court-fees on the memorandum of cross-objections. Since we have not admitted the memorandum of cross-objections and it is only in the S.R stage, the plaintiffs will be entitled to a refund of the Court fee paid on the memorandum of cross-objections.

RR/VCS.