Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.12.2013 CORAM THE HON'BLE MR JUSTICE K.KALYANASUNDARAM C.R.P.(NPD).Nos.1601 & 1602 of 2010 and M.P.No.1 of 2010 Saravanavelu .Petitioner in both the revisions versus Pazhaniyandi(died).1.Nagamuthu 2.Shanmughanadam 3.Vedharathinam 4.Chandra 5.Kasthuri 6.Kannai 7.Padmavathi 8.Kadirvel 9.K.S.S.Moorthy 10.K.Thiruselvam 11.K.Bharath 12.Amudha Paneerselvam 13.Subhashini ..Respondents in C.R.P.No.1601 of 2010 1.Dhandapani 2.Anandhavel 3.Poosalingam 4.Sivaguru 5.Shanmughanandam 6.Vedharathinam 7.Chandra 8.Kasthuri 9.Kannagi 10.Padmavathi 11.Kadirvel 12.K.S.S.Moorthy 13.K.Thiruselvam 14.K.Bharath 15.Amudha Paneerselvam 16.Subhashini ..Respondents in C.R.P.No.1602 of 2010 Civil revision petitions preferred under Section 115 of CPC against the order dated 29.1.2010 passed by the I Additional Subordinate Judge, Cuddalore, in I.A.Nos.248 and 249 of 2008 in O.S.No.17 of 1991.
For Petitioner : Ms.R.Gururaj in both For Respondents : Ms.Mythili Suresh for R1 Mr.T.Sezhian for R4 in CRP160110 Mr.T.S.Baskaran for R1 to R4 in C.R.P.No.1602 of 2010 COMMON ORDER
These civil revision petitions are directed against the order dated 29.1.2010 passed by the I Additional Subordinate Judge, Cuddalore, in I.A.Nos.248 and 249 of 2008 in O.S.No.17 of 1991.
2.The petitioner is the second plaintiff in O.S.No.17 of 1991.
He along with one Mr.Palaniandi(now deceased).had filed the suit against one Kulandaivelu and seven others for partition and separate possession of the suit properties.
One Mangan was the owner of the suit properties.
He had three sons, namely, (i)Rathinam, (ii)Muthukumarasami and (iii) Sengeni.
The fiRs.son-Rathinam had three wives, namely, (1)Amirthammal, (2)Jagadambal and (3)Kannammal.
Muthukumarasami - the second son of Mangan had only one son Venugopal and the third son-Sengeni had left the house long back and he could not be traced.
So, he is deemed to have been died, as per the presumption under the Inaian Evidence Act.
The sons of Jagadambal and Kannammal, namely, Palaniandi and Saravanavelu, respectively, had filed the suit against the grand children of fiRs.wife-Amirthammal, born through her fiRs.son-Subburayan.
3.In the suit, preliminary decree was passed, on 18.3.1993.
Subsequently, the plaintiff had filed application in I.A.No.757 of 1998, for passing the final decree.
In the final decree proceedings, an Advocate Commissioner was appointed and he also filed his report on 7.8.2008.
When the final decree proceedings were pending, one Mr.Nagamuthu, son of the said Venugopal, filed a petition in I.A.No.248 of 2008, to implead him as defendant in the suit.
The grand children of the fiRs.wife Amirthammal, born through her second son-Thangavelu, filed a petition in I.A.No.249 of 2008, with similar prayer of impleading them as defendants in the suit.
The petitioner had filed his counter and contested the petitions.
The learned I Additional Sub Judge, Cuddalore, allowed the applications.
Aggrieved by the order, the present revisions have been filed.
4.Heard Mr.R.Gururaj the learned counsel for the petitioner and Mr.T.Sezhian learned counsel for R4 in C.R.P.No.1601 of 2010 and Mr.T.S.Baskaran for R1 to R4 in C.R.P.No.1602 of 2010.
5.The learned counsel for the petitioner submitted that the proposed parties are neither necessary parties nor proper parties to the suit proceedings.
The suit was filed on the basis of the judgment and decree passed in O.S.No.900 of 1965, in which it has been decided that only Jagadambal, Kannammal and Subburayan have right in the suit properties.
So, the judgment is binding on the parties, and the proposed parties cannot be impleaded in the present suit.
The learned counsel further submitted that the original owner, namely, Mangan, had executed a settlement deed dated 27.6.1925 in favour of his fiRs.son Rathinam, in which, it is clearly stated that after the death of his three sons, namely, Rathinam, Muthukumarasami and Sengeni, the male heirs born through them at that time are entitled for equal shares in the suit properties.
So, it is contended by the learned counsel for the petitioner that when the settlement deed was challenged in O.S.No.900 of 1965 by the said Jagadambal and Kannammal, the other legal heiRs.namely, Thangavelu, Muthukumarasami and his son Venugopal, were not alive and therefore, their legal heirs/proposed parties, born subsequently, cannot claim any right in the suit properties.
6.The learned counsel further contended that in the suit, already preliminary decree was passed, determining the shares of the parties and therefore, the present applications cannot be allowed and if they are allowed, de-novo trial has to be conducted in the suit.
If the proposed parties are aggrieved by the preliminary decree, they can very well challenge the decree in an appeal or they can file a separate suit for partition.
The learned counsel has relied on the judgments of the Honourable Apex Court reported in (i)AIR1955SC481Sahu Madho Das and Others v.
Mukand Ram and another, (ii) (1995) 3 SCC147Anil Kuma Singh v.
Shivnath Mishra, (iii) (1995).SCC326 U.P.Awas Evam Vikas Parishad v.
Gyan Devi (dead) by Lrs.and Others (iv) 1958 SC394Sm.Saila Bala Dassi v.
Sm.Nirmala Sundari Dassi and another, (v) (2000).SCC699State of U.P.v.
Ram Swarup Saroj (vi) 1995 Supp (1) SCC454Calcutta Port Trust and another v.
Deba Prosad Bag.
7.Per contra, the learned counsel for the respondents submitted that in settlement deed executed by Mangan dated 27.6.1925, in favour of his son Rathinam, it is clearly stated that after the demise of his three sons, all the male heirs born through their sons are entitled for equal shares in the suit properties.
So, as per the settlement deed, the proposed parties are entitled for share in the suit properties.
The learned counsel also contended that even as per the pleadings in the present suit in O.S.No.17 of 1991, the plaintiffs have categorically stated that after the demise of the settlee-Rathinam, all the male heirs born through the three sons of Mangan are entitled for equal shares in the suit properties.
The learned counsel further submitted that the suit properties in O.S.No.900 of 1965 are separate properties of the said Rathinam and the suit arose on the basis of the settlement deed executed by the said Rathinam, dated 6.2.1955, in respect of his self-acquired properties.
Therefore, the judgment rendered in O.S.No.900 of 1965 will not bind the proposed parties and moreover, they were not parties in the suit proceedings.
8.The learned counsel further submitted that in a suit for partition, a co-sharer can be impleaded at any stage of the proceedings.
When the proposed parties have categorically stated that they are entitled shares in the suit properties, as per the settlement deed, dated 27.6.1925, they have to be impleaded in the suit and only during trial, it can be decided whether they are entitled for share or not.
At the stage of impleading, their rights cannot be decided.
The learned counsel has relied on the judgments of this Court reported in (i)(1970).MLJ243Swayamprakasam Alias....v.R.Vijayarangam, (ii)1998(2) CTC403Sabasthi Nadar v.
Savurimuthu Nadar and another, and the judgment of the Karnataka High Court reported in (iii)AIR1999Kant 21 Smt.Aswathamma v.
H.M.Vijayaraghava for the proposition that necessary parties can be impladed at any stage and the suit is not closed till the final decree is passed.
9.It is seen from the records that the petitioner and respondents are claiming rights over the suit properties only on the basis of the settlement deed executed by the original owner Mr.Mangan dated 27.6.1925.
In the averments in O.S.No.17 of 1991, the plaintiffs have categorically admitted that after the demise of the three sons of settlor-Mangan, the male heirs are entitled for equal share in the suit properties.
It is further averred in the plaint that the suit filed in O.S.No.900 of 1965 relates to the separate and self-acquired properties of the said Rathinam, on the basis of the settlement deed executed by him, dated 6.2.1955.
10.In the judgment relied on by the learned counsel for the petitioner reported in (1995) 3 SCC147Anil Kuma Singh v.
Shivnath Mishra, the Honouable Apex Court has held that in a suit for specific performance of contract, a third party to the contract cannot be impleaded, since he is neither a necessary nor a proper party.
But the recent judgment of the Honourable Apex Court reported in 2013 (5) SCC397Thomson Press(Inia) Limited v.
Nanak Builders and Investors Private Limited and OtheRs.it has been held that a pendente lite is entitled to be added as a party-defendant to the suit.
The judgment is not applicable to the facts of this case.
11.In (1995).SCC326 U.P.Awas Evam Vikas Parishad v.
Gyan Devi (dead) by LRs.and Others the Honourable Apex Court has held that a necessary party is one without whom no order can be made effectively and a proper party is a one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding.
12.In AIR1958SC394Sm.Saila Bala Dassi v.
Sm.Nirmala Sundari Dassi and another, the Honourable Apex Court has held as follows:: ".Even if a suit is pending when the transfer in favour of the appellant was made, that would not affect the result when no application had been made by her to be brought on record in the original court during the pendency of the suit.
The application made to the appellate Court cannot be sustained under O.22, R.10, when the transfer in favour of the appellant was made prior to the filing of that appeal and not during pendency.
An appeal is a proceeding for the purpose of S.146 and further the expression 'claiming under' is wide enough to include cases of devolution and assignment mentioned in O.22, R.10.
Whoever is entitled to be but has not been brought on record under O.22, R.10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or other passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code.
13.All the above judgments, relied on by the learned counsel for the petitioner, are not applicable to the facts and circumstances of the case on hand.
14.In the judgment of this Court reported in (1970).MLJ243Swayamprakasam Alias....v.R.Vijayarangam, one Swayamprakasam filed the suit for partition and a preliminary decree was passed on 15.12.1942.
When the final decree proceedings were pending, one Vijayarangam filed I.A.No.404 of 1967 to implead him as 25th defendant in the suit, on the ground that he is entitled to 1/3rd share in the suit properties.
The trial Court allowed the petition.
Aggrieved by the order, the plaintiff in the suit filed a revision.
Under such circumstances, this Court has held as follows: ".7.If the respondent Vijayarangam is the legitimate son of the petitioner's father Raju Padayachi, he is a necessary party who ought to have been added in the suit for partition.
It is true that even if the lower Court had jurisdiction to implead a third party, it should exercise its discretion under Order 1, Rule 10, Civil Procedure Code, judicially.
On the materials before me, it could not be said that the lower Court erred in impleading the respondent as a party to the partition suit at the stage of the final decree proceedings.
It is clear from what I have already stated that the status of the respondent Vijayarangam as the legitimate son of Raju Padayachi is a matter to be decided in the suit.
15.In the judgment reported in 1998(2) CTC403Sabasthi Nadar v.
Savurimuthu Nadar and another, this Court, while considering the second appeal, found that necessary parties were not impleaded in the suit and remanded the case for re-trial, the relevant portion of which would run thus: ".14.The position which emerge as a result of the above analysis, in the context of the present case is that the plaintiff having deliberately suppressed the existence of certain other sharers and not having impleaded them as party and the Genealogy having been proved to be in correct, the suit deserves to be dismissed.
Even at present no steps were taken by the plaintiff to implead all the necessary parties who have been left out and the court cannot take any initiative on its own under Order 1 Rule 10(2) of the Code of Civil Procedure in the absence of proper particulars relating to all parties who are left out.
But instead of dismissing the suit in its entirety, in the interest of justice, indulgence may be shown to the plaintiff by remanding the suit to the trial Court, giving opportunity to the plaintiffs to implead all the members of the family who are necessary parties to proceed further in accordance with law by giving opportunity to all parties to adduce further evidence if any to the court and to decide their claims on the merits afresh.
16.The same view has been taken by the Karnataka High Court in Smt.Aswathamma v.
H.M.Vijayaraghava - AIR1999Kant 21.
Paragraph 23 of the judgment would run thus: ".23.Thus it appears to me that the stage in the suit is not closed till the final decree is passed.
The preliminary decree no doubt determines the share, but with the preliminary decree the shares have been determined without hearing this person whose presence was necessary and whose impleadment was necessary, no finality could be attached to the decree, in the sense that it was binding on the person, namely, the applicant who was not impleaded in the suit, before the passing of the decree.
So it is always open to the applicant to agitate that question and say the decree is not binding and partition is null and void, to get rid of all that resulting in harassment to parties by multiplicity of legal proceedings, in my view the trial Court when it opined the applicant (respondent) should be impleaded and that he should be heard before any final decree is passed, it did not commit any error, because for it records no final decision in his favour as regard his right and claim on merits, if the applicant was adopted son or not or any will was executed in his favour.
All these questions have to be settled, before final decree could be passed.
But if on trial, it is found that respondent (applicant) is the adopted son of defendant 1 (original) and will was executed by fiRs.defendant in favour of the applicant, then question may arise to be determined whether plaintiff and other defendants were entitled to any share in the property in suit or not, if so to what extent.
When the Court keeping in view these circumstances, points to be determined finally, has held that for final determination of all the questions involved, applicant is a necessary and proper party and to avoid multiplicity of proceedings impleadment is necessary and that it should exercise its discretionary jurisdiction to make impleadment, directing the parties to be added, to avoid multiplicity of legal proceeding, the order and decision is one within its jurisdiction and in my opinion it is not open to interference in revision under Section 115 of the Code.".
17.In view of the judgments of this Court, the proposed parties are necessary parties to the suit.
The learned I Additional Sub Judge, Cuddalore, has rightly allowed the applications, impleading them as parties to the suit.
I do not find any infirmity or irregularity in the order passed in I.A.Nos.248 and 249 of 2008.
18.In the result, the civil revision petitions are dismissed.
No costs.
Consequently, connected miscellaneous petition is dismissed.
Ms.20.12.2013 Index:Yes/No Internet:Yes/No To The I Additional Subordinate Judge, Cuddalore.
K.KALYANASUNDARAM,J.
Ms.C.R.P.NPD.Nos.1601 & 1602 of 2010 20.12.2013