Sabasthi Nadar Vs. Savurimuthu Nadar and Another - Court Judgment

Excerpt:
civil - non joinder - order 1 rules 9 and 10 (2) of code of civil procedure, 1908 - non joinder of necessary parties in suit for partition - partition cannot be ordered till impleadment of such party - court empowered to implead such party any time prior to final decree of suit. - - 9 of 1985. 2. both the suits were tried as well as heard in appeal together and disposed of by a common judgment and hence the above two appeals. in the evidence it has been clearly brought forth from durairaj himself (pw1) that he has a sister by name silonmani. it is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved. assuming that the contention of the learned counsel for the respondent is to be accepted, then there should be a very strong and unimpeachable material to show that a particular sharer had relinquished her interest and such relinquishment is not challenged by anyone. pillai kumar pillai, air1978ker152 .12. i am unable to agree that these decisions could be pressed into service to contend that the findings as well as the decree granted by the courts below have to be sustained and that the unimpleaded parties can be ordered to be impleaded, so that they can take part in the final decree proceedings.order1. s.a.no. 1836 of 1985 is directed against the dismissal of o.s.no.379 of 1980, a suit for declaration by one sabasthi nadar. confirmed in appeal in a.s.no.8 of 1985. the second appeal no.1837 of 1985 is directed against a decree in o.s.no.392 of 1980, a suit for partition by one maria arokiam and confirmed in appeal in a.s.no. 9 of 1985.2. both the suits were tried as well as heard in appeal together and disposed of by a common judgment and hence the above two appeals.3. it is not necessary to traverse the mutual pleadings, rival contentions and the findings rendered by the courts below or the sustainability of the said findings, inasmuch as the suit for partition cannot be maintained in view of the non impleading of atleast one of the family members having equal right along with the other sharers. the defendants (appellants herein) in the partition suit have positively pleaded in the written statement that the genealogy attached to the plaint as pleaded by the plaintiff was not correct. the trial court had also framed an issue as to whether the genealogy attached to the plaint was true and whether the non impleading of any party would render the suit liable for dismissal. the appellate court has also discussed the said point in its judgment.4. in the plaint it is pleaded that the suit properties originally belonged to one santhiyagu nadar and after him, his properties devolved on savariyayee, mariasusai and sandiyammal. while dealing with the heirs of savariyayee, the positive case of the plaintiff is that one duraraj was her only son and heir. in the evidence it has been clearly brought forth from durairaj himself (pw1) that he has a sister by name silonmani. the following is the finding of fact as recorded by the trial court.the appellate court has also considered this issue and has concluded that not only durairaj had a sister (silonmani), but mariasusai also had one more daughter by name savariammal.5. but inspite of the said findings, both the courts below have recordeda finding that the genealogy as given by the plaintiff was correct. the saidfinding to say the least, is illegal and erroneous.6. the learned counsel for the appellants referred, to a decision of the supreme court reported in state of bihar v. sri radha krishna singh and others, 1993 l.w 93. the following extract will aptly apply for the present case.it is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved.7. another judgment of a division bench of this court relied upon bythe learned counsel for the appellants is equally applicable to the facts ofpresent case. in a ramachandra pillai v. valliammal, 1987 (100) l.w 486, the division bench has dealt with a similar case of disclosure that one of theparties had two daughters who would undoubtly be entitled to a share, butwere not impleaded as parties. the division bench held that the suit forpartition was liable to be dismissed in view of the non impleading of the saidtwo daughters. on the issue as to the applicability of order 1, rule 9 of codeof civil procedure, holding that no suit shall be dismissed for non-joinder, thedivision bench held that it was only an enabling provision to be applied by thecourts in appropriate cases.8. another judgment of this court of a learned single judge reported inp. haridoss v. n. subbayya pillai and 3 others, : (1998)iimlj343 held thatin a suit for declaration and injunction, all the co-sharers have to be impleadedas necessary parties.9. per contra, the learned counsel for the respondent referred to thefollowing three judgments.(1) addepalli venkata lakshmi v. ayinampudi narshimha rao and others, : air1994ap72 ; (2) ramsurat devi v. satraji kuer, air 1975 pat. 168; (3) v. cherien v. ouseph korathu, : air1962ker36 all these three cases were relied upon to contend that the objection of the non-impleading must be taken at the trial court itself and not at the appellate stage. as pointed out earlier, the genealogy was very much disputed and the said issue had also been considered by both the courts below. as such, it is not known as to how these decisions can have any relevance to the present case. the essence of the objections as regards genealogy is only that the suit is being one for partition, all the co- sharers have not been impleaded as parties and that in this case, the said requirement has not been complied with.10. the learned counsel for the respondents would also contend that even in a suit for partition, if it was shown that sharers had no subsisting interest in the property and not entitled to any share in the property, need notbe impleaded. for this proposition he relied on the judgments reported in lakshmamma v. someswar rao and another, air 1953 hyd. 170 and smt. monomoyee barhani v. smt. upeswari barmani and others, air 1994 gau. 18. i am unable to agree with the argument thus raised. firstly, in the present case, the very existence of the other sharers were suppressed in the genealogy filed by the plaintiff and it was also positively contended that durairaj was the only heir of savariyayee. therefore, there was no pleading by the plaintiff much less any evidence to show that silonmani, the other sister had any subsisting interest in the suit property or not. the genealogy is also silent about savariammal who has been disclosed as a daughter of mariasusai. there was no occasion to raise any such pleading that they were not entitled to any share in view of the total non-mentioning of the said individuals in the genealogy. secondly, it is not desirable to keep out a sharer on the basis of a mere pleading by one of the rival parties contending in the absence of a particular sharer that he has no interest in the property. assuming that the contention of the learned counsel for the respondent is to be accepted, then there should be a very strong and unimpeachable material to show that a particular sharer had relinquished her interest and such relinquishment is not challenged by anyone.11. the learned counsel for the respondent would further contend that at any rate, in a suit for petition, impleading of parties can be done at any stage before passing of the final decree. the following are the decisions which were relied upon by the learned counsel in support of his point: (1) swayamprakasam chidambaranathan v. r. vijayarangam, : (1970)1mlj243 . narasinga rao v. chunduru sarada, a.i.r. 1976 a.p. 996, (3) n.p.r. nair v. a. pillai kumar pillai, : air1978ker152 .12. i am unable to agree that these decisions could be pressed into service to contend that the findings as well as the decree granted by the courts below have to be sustained and that the unimpleaded parties can be ordered to be impleaded, so that they can take part in the final decree proceedings. it has to be borne in mind that in the very decision of the kerala high court relied upon by the learned counsel reported in, n.p.r. nair v. a. pillai, : air1978ker152 it is specifically emphasised that the impleadment of parties after the passing of the preliminary decree is possible only on the basis that none of the questions already settled by the preliminary decree would have to be reopened by the court as a consequence of such impleadment and that the impleadment could be only on the condition that further proceedings will be only on the basis of the preliminary decree already passed. this decision would only make it obvious that it will be an injustice to the unimpleaded parties, if the court does not dismiss the suit for non-joinder of parties. this is what was emphasized in the, a. ramachandra pillai v. valliamal, 100 lw 486, cited earlier. if co-sharer who is entitled to raise his pleas on the merits of the suit is to be deprived of his defence for no fault of himself and if the plaintiff could be put on premium for not having impleaded a necessary party, it would spell clear injustice, and it would only lead to multiplicity of proceedings.13. on the other hand the decision of the learned single judge of this court reported in swayamprakasam chidambaranathan v. r. vijayarangam, : (1970)1mlj243 is more practical as it holds that order 1 rule 10 (2) of the civil procedure code gives power to the court to implead parties at any stage of the proceedings in a partition suit. the proceedings do not come to an end till the passing of the final decree and therefore at the stage of final decree proceedings also, parties can be impleaded. similarly the judgment of the division bench of the high court of andhra pradesh reported in ramader appala narasingha rao v. chundrur sarada, a.i.r. 1976 a.p 226, it is also to the effect that a party who was impleaded only after passing of the final decree, can seek for setting aside the preliminary decree and the court in appropriate cases can set aside the preliminary decree to do substantial justice between the parties having regard to the circumstances of the case.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.15. as far as s.a. no.1837 which arises out of suit for declaration is concerned, it is entirely dependent on the outcome of the suit for partition and hence the said suit has also to be remanded for joint trial along with the partition suit.16. with the result, both the second appeals are allowed and remanded to the trial court giving liberty to the plaintiffs in o.s. no.392 of 1980 to implead all the necessary parties and to proceed further in accordance with law. the suit being an old one, the trial court is directed to give priority to the suits and disposed of the same within three months from the date of receipt of the copy of this judgment along with the records connected with the appeals. no costs.

Judgment:
ORDER

1. S.A.NO. 1836 of 1985 is directed against the dismissal of O.S.No.379 of 1980, a suit for declaration by one Sabasthi Nadar. confirmed in appeal in A.S.No.8 of 1985. The second appeal No.1837 of 1985 is directed against a decree in O.S.No.392 of 1980, a suit for partition by one Maria Arokiam and confirmed in appeal in A.S.No. 9 of 1985.

2. Both the suits were tried as well as heard in appeal together and disposed of by a common judgment and hence the above two appeals.

3. It is not necessary to traverse the mutual pleadings, rival contentions and the findings rendered by the courts below or the sustainability of the said findings, inasmuch as the suit for partition cannot be maintained in view of the non impleading of atleast one of the family members having equal right along with the other sharers. The defendants (appellants herein) in the partition suit have positively pleaded in the written statement that the Genealogy attached to the plaint as pleaded by the plaintiff was not correct. The trial court had also framed an issue as to whether the Genealogy attached to the plaint was true and whether the non impleading of any party would render the suit liable for dismissal. The appellate court has also discussed the said point in its judgment.

4. In the plaint it is pleaded that the suit properties originally belonged to one Santhiyagu Nadar and after him, his properties devolved on Savariyayee, Mariasusai and Sandiyammal. While dealing with the heirs of Savariyayee, the positive case of the plaintiff is that one Duraraj was her only son and heir. In the evidence it has been clearly brought forth from Durairaj himself (PW1) that he has a sister by name Silonmani. The following is the finding of fact as recorded by the trial court.

The appellate court has also considered this issue and has concluded that not only Durairaj had a sister (Silonmani), but Mariasusai also had one more daughter by name Savariammal.

5. But inspite of the said findings, both the courts below have recordeda finding that the Genealogy as given by the plaintiff was correct. The saidfinding to say the least, is illegal and erroneous.

6. The learned counsel for the appellants referred, to a decision of the Supreme Court reported in State of Bihar v. Sri Radha Krishna Singh and others, 1993 L.W 93. The following extract will aptly apply for the present case.

It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved.

7. Another judgment of a Division Bench of this Court relied upon bythe learned counsel for the appellants is equally applicable to the facts ofpresent case. In a Ramachandra Pillai v. Valliammal, 1987 (100) L.W 486, the Division Bench has dealt with a similar case of disclosure that one of theparties had two daughters who would undoubtly be entitled to a share, butwere not impleaded as parties. The Division Bench held that the suit forpartition was liable to be dismissed in view of the non impleading of the saidtwo daughters. On the issue as to the applicability of Order 1, Rule 9 of Codeof Civil Procedure, holding that no suit shall be dismissed for non-joinder, thedivision bench held that it was only an enabling provision to be applied by thecourts in appropriate cases.

8. Another judgment of this Court of a learned single judge reported inP. Haridoss v. N. Subbayya Pillai and 3 others, : (1998)IIMLJ343 held thatin a suit for declaration and injunction, all the co-sharers have to be impleadedas necessary parties.

9. Per contra, the learned counsel for the respondent referred to thefollowing three judgments.

(1) Addepalli Venkata Lakshmi v. Ayinampudi Narshimha Rao and others, : AIR1994AP72 ; (2) Ramsurat Devi v. Satraji Kuer, AIR 1975 Pat. 168; (3) V. Cherien v. Ouseph Korathu, : AIR1962Ker36

All these three cases were relied upon to contend that the objection of the non-impleading must be taken at the trial court itself and not at the appellate stage. As pointed out earlier, the Genealogy was very much disputed and the said issue had also been considered by both the courts below. As such, it is not known as to how these decisions can have any relevance to the present case. The essence of the objections as regards Genealogy is only that the suit is being one for partition, all the co- sharers have not been impleaded as parties and that in this case, the said requirement has not been complied with.

10. The learned counsel for the respondents would also contend that even in a suit for partition, if it was shown that sharers had no subsisting interest in the property and not entitled to any share in the property, need notbe impleaded. For this proposition he relied on the judgments reported in Lakshmamma v. Someswar Rao and another, AIR 1953 Hyd. 170 and Smt. Monomoyee Barhani v. Smt. Upeswari Barmani and others, AIR 1994 Gau. 18. I am unable to agree with the argument thus raised. Firstly, in the present case, the very existence of the other sharers were suppressed in the Genealogy filed by the plaintiff and it was also positively contended that Durairaj was the only heir of Savariyayee. Therefore, there was no pleading by the plaintiff much less any evidence to show that Silonmani, the other sister had any subsisting interest in the suit property or not. The Genealogy is also silent about Savariammal who has been disclosed as a daughter of Mariasusai. There was no occasion to raise any such pleading that they were not entitled to any share in view of the total non-mentioning of the said individuals in the Genealogy. Secondly, it is not desirable to keep out a sharer on the basis of a mere pleading by one of the rival parties contending in the absence of a particular sharer that he has no interest in the property. Assuming that the contention of the learned counsel for the respondent is to be accepted, then there should be a very strong and unimpeachable material to show that a particular sharer had relinquished her interest and such relinquishment is not challenged by anyone.

11. The learned counsel for the respondent would further contend that at any rate, in a suit for petition, impleading of parties can be done at any stage before passing of the final decree. The following are the decisions which were relied upon by the learned counsel in support of his point: (1) Swayamprakasam Chidambaranathan v. R. Vijayarangam, : (1970)1MLJ243 . Narasinga Rao v. Chunduru Sarada, A.I.R. 1976 A.P. 996, (3) N.P.R. Nair v. A. Pillai Kumar Pillai, : AIR1978Ker152 .

12. I am unable to agree that these decisions could be pressed into service to contend that the findings as well as the decree granted by the courts below have to be sustained and that the unimpleaded parties can be ordered to be impleaded, so that they can take part in the final decree proceedings. It has to be borne in mind that in the very decision of the Kerala High Court relied upon by the learned counsel reported in, N.P.R. Nair v. A. Pillai, : AIR1978Ker152 it is specifically emphasised that the impleadment of parties after the passing of the preliminary decree is possible only on the basis that none of the questions already settled by the preliminary decree would have to be reopened by the court as a consequence of such impleadment and that the impleadment could be only on the condition that further proceedings will be only on the basis of the preliminary decree already passed. This decision would only make it obvious that it will be an injustice to the unimpleaded parties, if the court does not dismiss the suit for non-joinder of parties. This is what was emphasized in the, A. Ramachandra Pillai v. Valliamal, 100 LW 486, cited earlier. If co-sharer who is entitled to raise his pleas on the merits of the suit is to be deprived of his defence for no fault of himself and if the plaintiff could be put on premium for not having impleaded a necessary party, it would spell clear injustice, and it would only lead to multiplicity of proceedings.

13. On the other hand the decision of the learned Single Judge of this court reported in Swayamprakasam Chidambaranathan v. R. Vijayarangam, : (1970)1MLJ243 is more practical as it holds that Order 1 Rule 10 (2) of the Civil Procedure Code gives power to the Court to implead parties at any stage of the proceedings in a partition suit. The proceedings do not come to an end till the passing of the final decree and therefore at the stage of final decree proceedings also, parties can be impleaded. Similarly the judgment of the Division Bench of the High Court of Andhra Pradesh reported in Ramader Appala Narasingha Rao v. Chundrur Sarada, A.I.R. 1976 A.P 226, it is also to the effect that a party who was impleaded only after passing of the final decree, can seek for setting aside the preliminary decree and the court in appropriate cases can set aside the preliminary decree to do substantial justice between the parties having regard to the circumstances of the case.

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.

15. As far as S.A. No.1837 which arises out of suit for declaration is concerned, it is entirely dependent on the outcome of the suit for partition and hence the said suit has also to be remanded for joint trial along with the partition suit.

16. With the result, both the second appeals are allowed and remanded to the Trial Court giving liberty to the plaintiffs in O.S. No.392 of 1980 to implead all the necessary parties and to proceed further in accordance with law. The suit being an old one, the trial court is directed to give priority to the suits and disposed of the same within three months from the date of receipt of the copy of this judgment along with the records connected with the appeals. No costs.