Krishnan Achari v. Parthasarathi — 1959 DIGILAW 136 (KER)

Judgment :- 1. This is a revision by the first defendant in O. S.292/1957 on the file of the Subordinate Judge's Court of Alleppey against the order dated 8th December 1958 on issue No. 2 in the suit. 2. The plaintiff filed the suit for partition and separate possession of what according to him, constituted the assets of his late father. 3. The first defendant raised a contention that he is not at all interested in the A schedule properties to the plaint in which a partition is asked for only as between the plaintiff and his brother, the second defendant. Nor is he interested in the maintenance arrangements to be made regarding the claims of the third and fourth defendants who are the widows of the deceased father of the plaintiff and the second defendant. It was also contended that the only relief claimed by the plaintiff as against D1, was regarding his share in the business carried on by the father of the plaintiff and the second defendant with the first defendant under a Vilasam known as "K. Krishnan Asari & Brothers". In view of these circumstances, the first defendant contended that the suit as framed is bad for misjoinder of parties and causes of action. 4. In view of the contentions raised by the first defendant, Issue No. 2 was framed on the question as to whether the suit is bad for misjoinder of parties and causes of action. The learned judge heard arguments on this Issue and by his order dated 18th October 1958 negatived the contentions of the first defendant and held that the suit is not bed for misjoinder of parties, or causes of action as contended by the first defendant. 5. It is this order that is challenged by the first defendant in this C.E.P. 6. Mr.T.S. Krishnamoorthy Ayyar, learned counsel for the first defendant-petitioner; has strenuously contended that the order of the learned judge is wrong and the plaint, if properly understood and appreciated, will show that the suit is bad for misjoinder of parties or causes of action. He has, in particular emphasised upon the fact that no reliefs are claimed by the plaintiff as against the first defendant regarding the plaint A schedule properties. He has, in particular emphasised upon the fact that no reliefs are claimed by the plaintiff as against the first defendant regarding the plaint A schedule properties. According to the learned counsel, his client is interested in fighting the plaintiff only in so far as a share is claimed by the plaintiff on the ground that the plaintiff's father and the first defendant carried on a business in partnership under the name and style of "K. Krishnan Asari & Brothers". His client will have to meet only the plaintiff's case regarding this business and also his liability to account to the plaintiff. The first defendant is in no way concerned with the partition that is claimed by the plaintiff in the separate assets of his father, Venketachalam Asari in which even on the plaintiff's own showing, only the plaintiff, his brother the second defendant, and the two widows (defendants 3 and 4) of the plaintiff's father are alone interested. A separate suit by the plaintiff regarding the business alleged to have been carried on by the first defendant along with the plaintiff's father could have been instituted. The first defendant will be put to great hardship and expense in being on record in this suit and watching the dispute between the plaintiff and his brother, the second defendant. It will be very embarrassing for the first defendant to have a trial regarding the business in the partition suit between the plaintiff and his brother. 7. On the other hand, Mr. S. Nilakanta Iyer, learned counsel for the plaintiff, contended that there is no question of misjoinder of parties, or of causes of action. According to the plaintiff, the assets available for partition as between the plaintiff and the second defendant are: (a) The assets in the hands of the first defendant in respect of the business conducted in partnership by the father of the plaintiff with the first defendant; and (b) The separate assets of the plaintiff's father referred to in the plaint. 8. The learned counsel also urged that there are several other allegations in the plaint which will show that the first defendant is in possession of some of the items of properties left by the plaintiff's father and he is in such possession as a guardian of the plaintiff and the second defendant or as a trustee liable to properly account to the plaintiff. The plaintiff's suit is for a partition of his share in the business assets in the hands of the first defendant, in the properties of the plaintiff's father in the hands of the first defendant and also in the separate assets left by the plaintiff's father. 9. To work out the proper shares of the plaintiff and the second defendant and also the maintenance claim of the widows of the plaintiff's father and to make those decisions binding on the first defendant, it is absolutely necessary that the first defendant should have been made a party in these proceedings. The fact that the first defendant is not interested in the plaint A schedule items or in the relief asked for by the plaintiff regarding those items will not make the suit as being bad for misjoinder of parties or causes of action. The question of misjoinder of parties or of the causes of action has to be considered from the allegations contained in the plaint. 10. In order to appreciate the contentions of the learned counsel on both sides, it is desirable that I refer to the allegations in the plaint. The plaint starts by saying that the suit is laid for ascertainment of the plaintiff's share in the profits and assets of the partnership business and payable by the first defendant and for a partition. 11. In Para.1 of the plaint, it is stated that the first defendant is the direct brother of the deceased Venketachalam Asari, father of the plaintiff and the second defendant, and that the first defendant and Venketachalam Asari were running a business in partnership known as "K. Krishnan Asari and Brothers" at Mullaikal in Alleppey. It is also alleged that while they were so carrying on the business, the plaintiff's father died on 24th Makaram 1114. 12. Para.2 of the plaint states that the plaintiff and the second defendant are the sole heirs of the deceased Venketachalam Asari and out of the three widows of Venketachalam Asari, one of the widows namely, the mother of the second defendant died on 22-11-1954. The third defendant is the mother of the plaintiff. 13. Para.3 alleges that the first defendant is having the income and also the amounts of the partnership business and he is appropriating the entire profits for himself. The third defendant is the mother of the plaintiff. 13. Para.3 alleges that the first defendant is having the income and also the amounts of the partnership business and he is appropriating the entire profits for himself. The accounts of the partnership have not been taken or settled either during the life-time of the plaintiff's father, or till the date of suit. According to the plaintiff, an account of the said business has to be taken and the first defendant must bo directed to render an account of the said business, and he is also liable to pay the plaintiff his 1/4 share in that business. The assets of the business carried on by the first defendant with the deceased father of the plaintiff are in the shape of cash, metals, gold and silver ornaments, rubies, emeralds etc, estimated in the sum of Rs. 5,000/-, according to the plaintiff's information and belief. There are also movables mentioned in schedule B to the plaint which are in the possession of the first defendant along with the accounts and other documents relating to the business. The first defendant is liable as guardian or as a trustee to account to the plaintiff. 14. In Para.4, it is further alleged that apart from the assets of the above business, the plaintiff and the second defendant are also equally entitled to certain other properties which have come into the possession of the first defendant such as the proceeds of the Policy of Insurance taken by the plaintiff's father in the Oriental Government Life Insurance Co., for about Rs. 1,069/- which the first defendant has collected from the Company on or about 10th Chingam 1115. The first defendant is also in possession of the Provident Fund investment amount of Venketachalam Asari in Nedungadi Bank and which amount has been received by the first defendant on 4th Mithunam 1114. Further, Venketachalam Asari owned an Otti right by assignment in three survey numbers mentioned in the said paragraph of the plaint and the first defendant has released the mortgage right on 14th Chingam 1119 and the first defendant is in possession of the amounts realised by the said release. The plaintiff is entitled to a half share in those amounts in the hands of the first defendant. 15. The plaintiff is entitled to a half share in those amounts in the hands of the first defendant. 15. Apart from the various assets mentioned earlier, the plaintiff further alleges in Para.5 of the plaint that Venketachalam Asari's movables in the house were taken possession of by the first defendant and they are mentioned in the C schedule to the plaint. The first defendant is also in possession of the plaintiff's gold waist belt weighing about 1 sovereign and also the gold bangles of the plaintiff weighing about 1/2 sovereign. 16. In Para.6, the plaintiff further alleges that the assets in business and shop are mentioned in schedule B to the plaint and that he is entitled to get a share in those articles in spicie, or in the alternative, the value representing his share from the first defendant. 17. In Para.7 it is alleged that the immovable properties of the plaintiff's father are mentioned in schedule A to the plaint and they are in the possession of defendants 3 and 4. It is also stated that the plaintiff has no objection to pay the third and fourth defendants the maintenance payable to them and suitable orders being passed to that effect. He has also no objection to the third and fourth defendants being in possession for their life-time and taking proportionate income. But the plaintiff and the second defendant alone are entitled to an equal half share in those items and he prays for a decree in that manner. 18. In Para.8, it is stated that the plaintiff became a major on the 20th April 1955 and demanded his share of the properties from the first defendant. A similar demand was also made on the first defendant by a lawyer's notice dated 27-5-1955, but the first defendant has not complied with the demands and so the necessity for the suit. 19. In Para.9, it is stated that the plaintiff will pay any additional court-fee that he may be found liable after ascertainment of his actual proceeds from the partnership business in the hands of the first defendant. 20. Ultimately, the plaintiff claims a partition of a half share as between himself and the second defendant in the plaint A and Al schedule properties after making suitable arrangements for the maintenance of the third and fourth defendants. 20. Ultimately, the plaintiff claims a partition of a half share as between himself and the second defendant in the plaint A and Al schedule properties after making suitable arrangements for the maintenance of the third and fourth defendants. He is also agreeable to an allotment to the second defendant of his share, if he so desires. He also asks for dissolution of the partnership business carried on between his father and the first defendant and for directions to the first defendant to account and also to give him an 1/4 share in respect of the business assets and profits. He also asks for his share of the amounts of his father in the hands of the first defendant namely, the proceeds from the Insurance Policy, the Provident Investment Fund and also the Otti already referred to and collected by the first defendant. 21. Therefore, it will be seen that the plaint is in effect and in substance one to enforce the claim of the plaintiff for a share in the assets of his father which comprises of: (a) a share in the business assets; (b) a share in the collections of the father's assets made by the first defendant; and (c) a share in the separate assets left by the plaintiff's father. 22. The main objection, on the basis of which the plea of misjoinder of parties and causes of action is raised by the learned counsel, Mr. T. S. Krishnamurthy Ayyar is on the ground that no relief is claimed by the plaintiff as against the first defendant regarding the A schedule properties. A schedule properties, as mentioned earlier, represents, according to the plaintiff, the separate property left by his father the late Venketachalam Asari which is available for partition as between the plaintiff and the second defendant in two equal halves after making suitable provisions for the maintenance of the two widows of the plaintiff's father, namely, defendants 3 and 4. 23. It is not possible for me to accept the contention of Mr.T. S. Krishnamurthy Ayyar that the suit as framed is bad for misjoinder of parties or causes of action. The relevant provisions of the Code of Civil Procedure which have a bearing on the question, are contained in R.3 of Order I relating to joining of defendants, and R.3 of Order II relating to joinder of causes of action. The relevant provisions of the Code of Civil Procedure which have a bearing on the question, are contained in R.3 of Order I relating to joining of defendants, and R.3 of Order II relating to joinder of causes of action. Order I R.5 itself makes it very clear that it shall not be, necessary that every defendant shall be interested as to all the reliefs claimed in any suit against him. The main cause of action for the suit is the plaintiff's right to obtain a share in the assets of the father and he was bound to include in this litigation one of the important assets namely, the share held by his father in the partnership business carried on with the first defendant. Further he was also claiming a share in some of the assets left by his father which, according to him, have been collected by the 1st defendant and those assets are in the hands of the first defendant. In a partition action like this, the plaintiff was bound to include all the assets of his father including the persons in whose hands those assets are; and the reliefs claimed as against the first defendant in this litigation, in my opinion, are quite proper and necessary to give a decision regarding the rights claimed by the plaintiff. In my view, the suit is not bad either for misjoinder of parties or of causes of action. 24. No doubt, Mr. T. S. Krishnamurthy Ayyar invited my attention to two decisions of the Calcutta High Court as also a Manipur decision reported in Krishna Chandra v. Sankarsan (A.I.R.1950 Cal. 128); Puma Chandra Khanra v. Nanda Sundari Dassi (I. L. R.1953-I-Cal. 15), and Muhon Singh v. Amujao Singh (A.I.R.1954 Manipur 5). 25. As the main contention in the case before me is based on the first defendant not being interested in the reliefs regarding plaint A schedule and as that is covered directly by the provisions of Order I R.5, I do not think it necessary to discuss those decisions. After all, the question of misjoinder of parties and causes of action has to be considered on the allegations contained in the plaint and in my view, the plaint in this case does not suffer from any such infirmity. 26. The order of the lower court is confirmed and the Civil Revision Petition is dismissed. After all, the question of misjoinder of parties and causes of action has to be considered on the allegations contained in the plaint and in my view, the plaint in this case does not suffer from any such infirmity. 26. The order of the lower court is confirmed and the Civil Revision Petition is dismissed. Costs in this C.R. P. will abide and be provided for in the decree to be passed by the lower court in the suit.