Balamani v. S.Balasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20.04.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.329 of 2009andM.P.No.1 of 20091. Balamani2. Murugesan... Appellants/Plaintiffvs.S.Balasundaram ... Respondent/DefendantThis second appeal is filed against the judgement and decreedated 05.07.2006 made in A.S.No.92 of 2005 on the file of thePrincipal District Court, Erode reversing the judgment and decreedated 18.11.2005 made in O.S.No.9 of 2003 on the file of the SubCourt, Bhavani.For Appellants : Mr.N.ManokaranFor Respondent : Mr.P.ValliappanJUDGMENTThis second appeal is focussed by the plaintiffs, animadvertingupon the judgement and decree dated 05.07.2006 passed by thePrincipal District Judge, Erode, in A.S.No.92 of 2005, reversing thejudgement and decree dated 18.11.2005 passed by the SubordinateJudge, Bhavani, in O.S.No.9 of 2003. For the sake of convenience, theparties are referred to hereunder according to their litigativestatus before the trial Court. 2. A summation and summarisation of the relevant facts, which areabsolutely necessary and germane for the disposal of this secondappeal, would run thus:The appellants/plaintiffs filed the suit O.S.No.9 of 2003 asagainst the defendant, seeking the following relief:"To pass a preliminary decree to dividing the suitproperty into 2 equal share and allot one half to theplaintiffs with reference to good and bad soil by metes andbounds and put the plaintiffs in separate possession overthe same." (extracted as such) https://hcservices.ecourts.gov.in/hcservices/ The defendant entered appearance and filed the written statementresisting the suit.3. The trial Court framed the relevant issues. During trial, thesecond plaintiff examined himself as P.W.1 along with one Eswaran asP.W.2 and Exs.A1 and A4 were marked. The defendant examined himselfas D.W.1 and Ex.B1 to B.14 were marked. 4. Ultimately, the trial Court decreed the suit, as against it,the defendant preferred the appeal A.S.No.92 of 2005, which wasallowed by the first appellate Court, by setting aside the judgementand decree of the trial Court and dismissing the original suit. 5. Being disconcerted and aggrieved by the said judgement anddecree of the first appellate Court, the plaintiffs filed thissecond appeal on various grounds and also suggesting some substantialquestions of law. 6. After hearing for some time the arguments on both sides, thisCourt felt that on the consent of both sides, this matter could bedisposed of finally by framing the following substantial questions oflaw:"1. Whether the suit was not maintainable as per order9 Rule 9 of CPC, in view of previous suit filed by theplaintiff having been dismissed for default?2. Whether the suit is bad for non-joinder of admittedco-sharers even as per plaintiff in the suit?3. Whether ignoring the oral and the documentaryevidence, the First Appellate Court decided that the suitproperty is not an ancestral property and that thesettlement deed, Ex.B4 executed was valid?4. Whether the suit was bad for non framing of an issuerelating to ouster?"7. A bare poring over and perusal of the typed set of papers,including the judgements of both the Courts below and alsoconsideration of the arguments of both sides, would display anddemonstrate that the appellants in the Second Appeal, namely,Balamani and Murugesan, so to say, the mother and son filed the suitfor partition and for allotment of half share, representing the shareof the deceased Shanmugam, who happened to be the husband of thefirst plaintiff and father of the second plaintiff. The saidShanmugam and the defendant are the sons of Subramania Chettiar;after the death of Subramania Chettiar, the properties devolved uponhis two sons and hence the suit for half share of deceased Shanmugam.8. Remonstrating and refuting the plaint averments, the defendant https://hcservices.ecourts.gov.in/hcservices/ filed the written statement, the gist and kernel, the pith and marrowof it would be that the suit was bad for non-joinder of necessaryparties, as said Late Subramania Chettiar had two wives and throughhis first wife, he had two sons and through his second wife alone thesaid Shanmugam and the defendant were born and they have a sisteralso; however the suit property is not the ancestral property at thehands of Subramania Chettiar, but it was his self acquired property,whereupon he executed the settlement deed, Ex.B4 dated 27.11.1967 infavour of the defendant; the defendant also alternatively acquiredprescriptive title over the suit property by ouster by virtue of hislong enjoyment; the earlier suit filed by the plaintiff was dismissedfor default and as such Order 9 Rule 9 of CPC also could be pressedinto service as against the maintainability of the present suit.9. The learned counsel for the plaintiffs would submit that theFirst Appellate Court without adverting to the correct proposition oflaw simply applied Order 9 Rule 9 of CPC and held as though thepresent original suit is barred; without any specific issue relatingto ouster, the First Appellate Court upheld the plea of ouster as putforth by the defendant; ignoring the documentary and the oralevidence, the First Appellate Court held that the suit property isnot the ancestral property and correspondingly held that thesettlement deed also was valid. Accordingly, he prayed for settingaside the judgment and decree of the First Appellate Court. However,he would plead that in the event of this Court finding that theoriginal suit is bad for non-joinder of necessary parties, the mattermight be remitted back to the trial Court for impleading thenecessary parties and proceed with the matter. In support of hiscontention, he also cited the decision of this Court reported in 1998(II) CTC 403 [Sabasthi Nadar v. Savurimuthu Nadar and another].10. Whereas, the learned counsel for the defendant would submitthat the First Appellate court correctly appreciating the law allowedthe appeal and dismissed the original suit and no interference isrequired. He would also reiterate the pleas as found set out in thewritten statement of the defendant and also point out that eventhough the trial Court did not frame any issue relating to ouster,the First Appellate Court formulated a point relating to ouster andfrom the available evidence decided that there was ouster, inaddition to deciding correctly that the suit property could never beconstrued as the ancestral property at the hands of SubramaniaChettiar. The First Appellate Court by the wrong application ofOrder 9 Rule 9 of CPC held that the present original suit was barred.11. The learned counsel for the defendant in all fairness citedthe decision of the Hon'ble Himachala Pradesh High Court reported inAIR 2003 Himachal Pradesh 32 [Asha Sharma and others v. Amar Nath andothers] and submitted that so far partition suits are concerned, thecause of action is held to be a continuing one. https://hcservices.ecourts.gov.in/hcservices/

12. The learned counsel for the plaintiffs cited the followingdecision:(i) AIR 2003 Himachal Pradesh 32 [Asha Sharma and others v. AmarNath and others]As such, both the decisions would highlight and spotlight the factthat in a partition suit, the cause of action is a continuing one andhence Order 9 Rule 9 of CPC cannot be pressed into service. I wouldalso like to agree with the said proposition, in view of the factthat the valuable right of a co-sharer should not be deprived becausefor one reason or other, the earlier suit might not have been able tobe prosecuted further to its logical end.13. The learned counsel for the defendant also cited the decisionof the Hon'ble Apex Court reported in 2009(1) SCC 689 [State of UttarPradesh and another vs. Jagdish Sharan Agrawal and others]. However,the said decision is on a different point.14. As such, I am of the considered view that the First AppellateCourt was wrong in applying Order 9 Rule 9 of CPC in this partitionsuit. Accordingly, the substantial question of law No.1 is decidedin favour of the appellants as against the defendant.15. Indubitably and incontrovertibly, unassailably andunambiguously, the said Subramania Chettiar had his first wife andthrough her he gave birth to two sons, but they are not parties tothe present original suit and that the said Shanmugam, the propositusof the plaintiff and the defendant were born through his second wife.Subramania Chettiar through his second wife, had also given birth toone daughter, namely, Rajeswari. However, the trial Court eventhough gave a finding about the existence of other co-sharers,nonetheless, it simply decreed the suit protecting their shares also.In my opinion the trial Court should have given direction to theplaintiff to implead the necessary co-sharers, as the suit happenedto be a partition suit.16. At this juncture, I would like to highlight that Civil Courtsin partition suits are expected to be more cautious and considerateand not illiberal, as the litigation is between close relatives,wherein the plaintiff is the defendant and vice-versa.17. The learned counsel for the defendant himself cited thedecision of the Hon'ble Apex Court reported in AIR 1965 SC 271[Kanakarathanammal v. V.S.Loganatha Mudaliar and another]. Anexcerpt from it would run thus:"14. We do not think there is any justification forallowing the appellant to amend her plaint by adding herbrothers at this late stage. We have already noticed thatthe plea of non-joinder had been expressly taken by https://hcservices.ecourts.gov.in/hcservices/ Respondents 1 and 2 in the trial court and a clear andspecific issue had been framed in respect of thiscontention. While the suit was being tried, the appellantmight have applied to the trial court to add her brothers,but no such application was made. Even after the suit wasdismissed by the trial court on this ground it does notappear that the appellant moved the High Court and prayedthat she should be allowed to join her brothers even at theappellate stage, and so, the High Court had no occasion toconsider the said point. The fact that the High Court cameto the contrary conclusion on the question of title doesnot matter, because if the appellant wanted to cure theinfirmity in her plaint, she should have presented anapplication in that behalf at the hearing of the appealitself. In fact, no such application was made even to thisCourt until the appeal was allowed to stand over after itwas heard. Under the circumstances, we do not think itwould be possible for us to entertain the said application.In the result, the application for amendment is rejected.15. It is unfortunate that the appellant’s claim hasto be rejected on the ground that she failed to implead hertwo brothers to her suit, though on the merits we havefound that the property claimed by her in her present suitbelonged to her mother and she is one of the three heirs onwhom the said property devolves by succession under Section12 of the Act. That, in fact, is the conclusion which thetrial Court had reached and yet no action was taken by theappellant to bring the necessary parties on the record. Itis true that under Order 1 Rule 9 of the Code of CivilProcedure no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, but there can be nodoubt that if the parties who are not joined are not onlyproper but also necessary parties to it, the infirmity inthe suit is bound to be fatal. Even in such cases, theCourt can under Order 1 Rule 10, sub-rule 2 direct thenecessary parties to be joined, but all this can and shouldbe done at the stage of trial and that too withoutprejudice to the said parties’ plea of limitation. Once itis held that the appellant’s two brothers are co-heirs withher in respect of the properties left intestate by theirmother, the present suit filed by the appellant partakes ofthe character of a suit for partition and in such a suitclearly the appellant alone would not be entitled to claimany relief against the respondents. The estate can berepresented only when all the three heirs are before theCourt. If the appellant persisted in proceedings with thesuit on the basis that she was exclusively entitled to thesuit property, she took the risk and it is now too late toallow her to rectify the mistake. In Naba Kumar Hazra v. https://hcservices.ecourts.gov.in/hcservices/ Radheshyam Mahish AIR 1931 PC 229 the Privy Council had todeal with a similar situation. In the suit from which thatappeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite thepleas taken by the defendants that the co-mortgagors werenecessary parties and in the end, it was urged on hisbehalf that the said co-mortgagors should be allowed to beimpleaded before the Privy Council. In support of thisplea, reliance was placed on the provisions of Order l rule9 of the Code. In rejecting the said prayer, Sir GeorgeLowndes who spoke for the Board observed that “they areunable to hold that the said Rule has any application to anappeal before the Board in a case where the defect has beenbrought to the notice of the party concerned from the veryoutset of the proceedings and he has had ample opportunityof remedying it in India.”18. A bare perusal of it would evince and project that necessaryparties could be added at any stage of the proceedings. The Hon'bleApex Court contemplated in the cited judgment that even at theappellate stage before the High Court, impleadment of necessaryparties is possible. It is axiomatic that now the Second Appeal isbefore this High Court.19. The learned counsel for the plaintiffs appropriately andappositely cited the decision of this Court reported in1998 (II) CTC 403 [cited supra]. An excerpt from it would run thus:"11. The learned counsel for the respondent wouldfurther contend that at any rate, in a suit petition,impleading of parties can be done at any stage beforepassing of the final decree. The following are thedecisions which were relied upon by the learned counsel insupport of his point: (1) SwayamprakasamChidambaranathan v. R.vijayarangam, 1970 (1) MLJ 243, (2)R.A.Narasinga Rao v. Chunduru Sarada, A.I.R. 1976 A.P.996,(3) N.P.R.Nair v. A.Pillai Kumar Pillai, A.I.R. 1978Ker.152.12. I am unable to agree that these decisions could bepressed into service to contend that the findings as wellas the decree granted by the courts below have to besustained and that the unimpleaded parties can be orderedto be impleaded, so that they can take part in the finaldecree proceedings. It has to be borne in mind that in thevery decision of the Kerala High Court relied upon by thelearned counsel reported in, N.R.Nair v. A.Pillai, A.I.R.1978 Ker.152 it is specifically emphasised that theimpleadment of parties after the passing of the preliminarydecree is possible only on the basis that none of the https://hcservices.ecourts.gov.in/hcservices/ questions already settled by the preliminary decree wouldhave to be reopened by the court as a consequence of suchimpleadment and that the impleadment could be only on thecondition that further proceedings will be only on thebasis of the preliminary decree already passed. Thisdecision would only make it obvious that it will be aninjustice to the unimpleaded parties, if the court does notdismiss the suit for non-joinder of parties. This is whatwas emphasized in the, A.Ramachandra Pillai v. Valliamal,100 LW 486, cited earlier. If co-sharer who is entitled toraise his pleas on the merits of the suit is to be deprivedof his defence for no fault of himself and if the plaintiffcould be put on premium for not having impleaded anecessary party, it would spell clear injustice, and itwould only lead to multiplicity of proceedings.13. On the other hand the decision of the learnedSingle Judge of this court reported in SwayamprakasamChidambaranathan v. R.Vijayarangam, 1970 (1) MLJ 243 ismore practical as it holds that Order 1 Rule 10(2) of theCivil Procedure code gives power to the Court to impleadparties at any stage of the proceedings in a partitionsuit. The proceedings do not come to an end till thepassing of the final decree and therefore at the stage offinal decree proceedings also, parties can be impleaded.Similarly the judgment of the Division Bench of the HighCourt of Andhra Pradesh reported in Ramader AppalaNarasingha Rao v. Chundrur Sarada, A.I.R.1976 A.P.226, itis also to the effect that a party who was impleaded onlyafter passing of the final decree, can seek for settingaside the preliminary decree to do substantial justicebetween the parties having regard to the circumstances ofthe case.14. The position which emerge as a result of the aboveanalysis, in the context of the present case is that theplaintiff having deliberately suppressed the existence ofcertain other sharers and not having impleaded them asparty and the Genealogy having been proved to be incorrect, the suit deserves to be dismissed. Even atpresent no steps were taken by the plaintiff to implead allthe necessary parties who have been left out and the courtcannot take any initiative on its own under Order 1 Rule 10(2) of the Code of Civil Procedure in the absence of properparticulars relating to all parties who are left out. Butinstead of dismissing the suit in its entirety, in theinterest of justice, indulgence may be shown to theplaintiff by remanding the suit to the Trial court, givingopportunity to the plaintiffs to implead all the members ofthe family who are necessary parties to proceed further in https://hcservices.ecourts.gov.in/hcservices/ accordance with law by giving opportunity to all parties toadduce further evidence if any to the court and to decidetheir claims on the merits afresh."The said decision emerged in a partition suit and this Court feltthat the matter should be remitted back to the trial Court forimpleadment. As such, the above excerpts from the cited decision aswell as the entire perusal of the decision would highlight andspotlight the fact that a partition suit should not be dismissed bythe High Court, simply because of non-joinder of necessary partiesand that opportunity should be given to the parties concerned toimplead the necessary parties.20. However, the learned counsel for the defendant placingreliance on a Division Bench decision of this Court reported in 100LW 486 [A.Ramachandra Pillai vs. Valliammal (died)] would develop hisargument that consequent upon non-impleadment of necessary parties,this Court dismissed the claim of the plaintiff. An excerpt from thesaid decision would run thus:"The Supreme Court further observed:"It is true that under Order I, Rule 9 of the Codeof Civil Procedure no suit shall be defeated by reasonof the mis-joinder or non-joinder of the parties, butthere can be no doubt that if the parties who are notjoined are not only proper but also necessary partiesto it, the infirmity in the suit is bound to be fatal.Even in such cases, the Court can under Order 1 Rule10, sub-rule (2) direct the necessary parties to bejoined, but all this can and should be done at thestage of trial and that too without prejudice to thesaid parties' plea of limitation. Once it is heldthat the appellant's two brothers are co-heirs withher in respect of the properties left intestate bytheir mother, the present suit filed by the appellantpartakes of the character of a suit for partition andin such a suit clearly the appellant alone would notbe entitled to claim any relief against therespondents."This decision is thus an authority for the positionthat in a suit for partition, all the sharers are necessaryparties and also for the position that the suit is liableto be dismissed for non-joinder of any one of the parties.In (T.Panchapakesan and others v. Peria Thambi Naicker andothers) also, a Division Bench of this Court has taken asimilar view by judgment dated 18.07.1972. We areaccordingly of the view that the finding of the learnedSubordinate Judge on issue No.10 holding that the suit isnot bad for non-joinder of Nagarathinam's heirs is unsound https://hcservices.ecourts.gov.in/hcservices/ and liable to be set aside. Accordingly, we hold that thesuit is liable to be dismissed for non-joinder of the heirsof Nagarathinam.8. Since we have not gone into the merits of the otherissues but dismissed the suit as not maintainable, it isbut proper that we set aside all the findings on merits andleave all the issues and contentions at large for anyfuture decision. Accordingly the appeal is allowed and thejudgment and decree of the Court below are set aside. Theappellants will be entitled to their costs in the Appeal."(emphasis supplied)21. A bare perusal of the said judgment of the Division Bench ofthis Court would not indicate that a case of this nature should notbe remitted back to the trial Court. The underlined portion of theabove excerpt would clearly demonstrate and evince that the DivisionBench of this Court had foreseen the possibility of instituting freshproceedings and they never held that matter of this nature should notbe remitted back to the trial Court. They also contemplated thatonce the suit is found to be bad for non-joinder of necessaryparties, the findings rendered therein should not be allowed tosubsist. Hence, I am of the considered opinion that instead ofdismissing the claim of the plaintiffs in this appeal on the groundof non-joinder of necessary parties, the matter could be remittedback to the trial Court and that would obviate fresh filing of a suitfor partition.22. It is a common or garden principle of law that multiplicityof proceedings should be avoided. Hence in these circumstances, theother two substantial question of law Nos.3 and 4 relating toancestral nature of the suit property and the validity of Ex.B4,including the plea of ouster, cannot be decided at this stage, as itwould amount to approbating and reprobating. The Division Bench ofthis Court as observed supra held that once a suit is bad for non-joinder of necessary parties, the question of deciding on merits theother issues would not arise.23. Further more, without any issue relating to ouster, the trialCourt rendered its judgment ordering partition providing share forthose who were not parties. As such, adding fuel to the fire, theFirst Appellate Court without remitting the matter back to thetrial Court as contemplated under law or alternis visbisframing issue by itself relating to ouster as contemplated underCPC., simply formulated a point for determination and from theavailable evidence, it decided that there was ouster. Such a findingis fundamentally wrong. Without any issue relating to ouster, theparties might not have had the opportunity of focussing theirattention in adducing evidence. The purpose of framing issues under https://hcservices.ecourts.gov.in/hcservices/ Order 14 of CPC is only to enable the parties to focus theirattention in adducing evidence on a particular point.24. It is a trite proposition of law that ouster is a seriousplea, much more serious than a plea of prescription, and I am at aloss to understand as to how the Appellate Court was justified insimply ignoring this fact and deciding for itself that there wasouster of the plaintiffs from the suit property at the instance ofthe defendant.25. Incidentally, without finally deciding the relevant materialpoints which, as observed by me supra, cannot be done in the SecondAppeal, I would like to point out that the First Appellate Courtmiserably failed to appreciate the genealogy involved in this case.The Courts below were expected to concentrate on the recitals inEx.B11, dated 10.11.1924 and accordingly, arrive at a decision inconjunction with other evidence available in form of Ex.B12 dated24.09.1952 the partition deed which emerged between SubramaniaChettiar and others. In fact, the First Appellate Court did not takeinto consideration the fact that the purchasers under Ex.B11 wereclose relatives and as per Ex.B12 those close relatives gotpartitioned the property and in such a case, the core question arisesas to whether the property was the ancestral property or not andthere were also some references to moveable properties. As such, ondeep analysis of those recitals coupled with oral evidence to berecorded and after hearing the parties interested in the suit, adecision should be taken by the trial Court.26. In view of my observation supra, this Court, at this stagecannot render its verdict on the substantial question of law Nos.3and 4.27. In the result, the judgment and decrees of both the Courtsbelow are set aside and the matter is remitted back to the trialCourt for fresh disposal as per law within a period of six monthsfrom the date of receipt of a copy of this order. The parties shallappear before the trial court on 15.06.2009. On or before the end ofJune itself, the plaintiffs shall file application for impleadingthe necessary parties and if there is any default on the part of theplaintiffs in filing such application, the trial court is at libertyto dismiss the suit once and for all.28. I would like to make it clear that the trial Court isexpected to decide the lis afresh, after giving due opportunity ofadducing evidence to all the persons concerned, untrammelled anduninfluenced by any of the observations made by this Court indisposing of this Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, this Second Appeal is disposed of. No costs.Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrargms To1. The Principal District Court, Erode.2. Sub Court, Bhavani.1 CC To Mr.P.Valliappan, Advocate, SR NO.160381 CC To Mr.N.Manokaran, Advocate, SR NO.1606 S.A.No.329 of 2009ksk(co)pmk.24.4.2009.