AMMINI AMMAL v. KRISHNAN — 1977 DIGILAW 298 (KER)

Judgment :- 1. The revision petitioner is a female member of a Mithakshara joint family. Her complaint is that her application to get herself impleaded as an additional defendant in a suit for partition was rejected by the court below. 2. The 1st plaintiff and his sou the 2nd plaintiff filed a suit for partition of the properties left by the (deceased Krishna Iyer The 1st plaintiff is the only son of, Subramonia Iyer who is one of the two sons of Krishna Iyer, Subramonia Iyer is also dead. Admittedly the Ist plaintiff and his son the 2nd plaintiff are together entitled to one half of the properties' left by Krishna Iyer. The other half has admittedly devolved upon Narayana Iyer and his heirs. Narayana Iyer who is the Ist defendant, has two sons. They are Vasudevan who is the 2nd defendant, and Radhakrishnan who is the 3rd defendant, The revision petitioner is Narayana Iyer's wife, Ammini Ammal, and she wants to be made an additional defendant in the suit for the purpose of agitating her alleged rights as a co-sharer along with her sons and husband. 3. She was not made a party in the suit apparently because the plaintiffs believed that she had no right to claim a share of the family properties. It appears that she herself was unaware of her rights until an interim preliminary decree was passed. When she woke up to her rights upon the passing of the. interim preliminary decree, she moved the court to add her as a defendant 4. Counsel for the plaintiffs, Shri. T.S. Venkiteswara Iyer contends that a female member of a Mitakshara family has no right to claim a share of the family properties. He says that the statements of text book writers that a female member is entitled to a share of the properties of a Mithakshara family have no application to South India. Shri C.M. Divan; appearing for trie revision petitioner has drawn by attention to the relevant passages in Mulla's Hindu Law (14th Edn page 403) and Raghavacharia's Hindu Law (5th Edn. page 407). The learned authors express the view that a female member of a Mithakshara family is entitled to a share. Shri C.M. Divan; appearing for trie revision petitioner has drawn by attention to the relevant passages in Mulla's Hindu Law (14th Edn page 403) and Raghavacharia's Hindu Law (5th Edn. page 407). The learned authors express the view that a female member of a Mithakshara family is entitled to a share. Mulla says: "A wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband." The learned author however points out that in Southern India the practice of allotting shares upon partition to females has long since become obsolete, and relies upon the decision in Subramanian Chetti v. Arunachalam Chetti (1LR (1905) 28 Madras 1) This observation in relation to the position in Southern India was severely criticised by this Court in Saraswathi Ammal v. Anantha Shenoi 196S KLT. 141). Madhavan Nair, J speaking for the court observed that in so far as Travancore and Cochin were concerned the exception to the general principles stated by Mulla had no application. In other words, the women in these two areas of South India enjoyed similar rights as those in the northern parts of India Shri Venkiteswara Iyer however says that this is still a moot point for, according to him, the authorities are not unanimous in their views on the question. He says that the decision in 1965 KLT. 141 was dealing with a case of a Hindu widow and therefore the observations in that judgment cannot be taken as having concluded the point. He further points out that that decision was rendered in respect of a Travancore family and not a Cochin family According to counsel, a female member of a South Indian Mithakshara family, particularly in the Cochin area, has no right to claim a share of the family properties. Be that as it may, this is a question which has to be examined and for that the petitioner is entitled to an opportunity. 5. Counsel for the plaintiffs, supported by counsel appearing for defendants 2 and 3 who are the revision petitioner's only sons, however contends that the revision petitioner cannot be added as a party after the passing of a preliminary decree. Such a procedure is not permissible under Order I R.10 of CPC. 5. Counsel for the plaintiffs, supported by counsel appearing for defendants 2 and 3 who are the revision petitioner's only sons, however contends that the revision petitioner cannot be added as a party after the passing of a preliminary decree. Such a procedure is not permissible under Order I R.10 of CPC. and relies upon a number of decisions, one of them being a recent decision of this Court in Vasudeva Kallurao v. Ramachandra Rao (1977 KLT. 414). 6. It may be stated here that by adding the petitioner as a party to the suit, the shares allotted to the plaintiffs would not be affected, as they are admittedly entitled to one half share. The plaintiffs are therefore not aggrieved by what is sought by the petitioner. However, the two sons of the petitioner would be affected, for there would be a diminution in the value of their shares. 7. Clause (2) of Order I R.10 of the Civil Procedure Code does not exclude the possibility of a person being validly impleaded even after a preliminary decree is passed. The decision in 1977 KLT. 414 related to a person who claimed to be impleaded in a suit for partition on the ground that she had a right to maintenance and a charge over the family properties. This Court held that although she was a proper party she could not be added as a party to the suit after a preliminary decree was passed. 8. A person having merely a charge as in 1977 KLT. 414 cannot be regarded as a necessary party, although she may be a proper party. (Jadunath v. Parameswar, AIR. 1940 PC. 11). A person who ought to have been impleaded or whose presence is necessary for a proper adjudication of all the questions involved in the suit, has a right to be impleaded at any stage of the proceeding i. e, until the final decree is passed: Banarsi Dass v. Panna Lal (AIR. 1969 Punjab 57): Swayamprakasam v. R. Vijayarangam (1970) 1 MLJ. 243) and M. Narasimha Reddy v. M. Ramachandra Reddy (1975) II Andhra Weekly Reporter 227). 9. A person who is a necessary party has a right to be added as a party at any stage of the proceedings. 1969 Punjab 57): Swayamprakasam v. R. Vijayarangam (1970) 1 MLJ. 243) and M. Narasimha Reddy v. M. Ramachandra Reddy (1975) II Andhra Weekly Reporter 227). 9. A person who is a necessary party has a right to be added as a party at any stage of the proceedings. The proceedings do not come to an end until the final decree is passed, although, as stated by the Supreme Court in Venkata Reddy v. Pothi Reddi (AIR. 1963 SC. 992), a preliminary decree is a final decision and operates as res judicata. But it is still not a final decree. A partition suit in which a preliminary decree has been passed is still a pending suit: AIR. 1940 PC. 11. 10. What is involved in a matter like this is a principle of justice and equity and the need to avoid multiplicity of suits. If, as contended by the petitioner, she is entitled to hold and enjoy a share of the property of a Mitakshara Family, she is a necessary party to a partition suit and the questions arising therein cannot be effectually and completely adjudicated upon without her presence. I have no doubt that the claim of the petitioner for a share is not based on any frivolous ground, although I do not express any view as regards the validity of the claim. Nevertheless, she has a right to agitate her alleged rights. The question is whether she should be allowed to do so in the present suit or be driven to the necessity of having to file another suit for that purpose. 11. Plaintiff's counsel suggests that a preliminary decree having been already passed the petitioner has no right to reopen the question, but she should take her chance in another suit. He contends that the plaintiffs have the right to choose the persons they wish to implead in a partition suit. And if others wish to get themselves impleaded, they have to do so at the earliest opportunity. He further submits that if the petitioner comes in as a defendant in the present suit the proceedings would be further protracted. I am not impressed. And if others wish to get themselves impleaded, they have to do so at the earliest opportunity. He further submits that if the petitioner comes in as a defendant in the present suit the proceedings would be further protracted. I am not impressed. If the petitioner is, as she appears to be, a necessary party and without bearing her the questions involved in the present suit cannot be finally settled, she has a right to be impleaded at any stage of the suit, that is even subsequent to the passing of a preliminary decree. If she is left to her chance in another suit, that in my opinion would protract the proceedings much longer than it would be the case if she is allowed to be impleaded in the present suit. It is better that she is given an opportunity to question the preliminary decree in the present suit, rather than the final decree in another suit, which would mean unnecessary expenditure and delay. The justice and equity of the situation demand a final settlement of the issues and a proper adjustment of the rights of parties in the present suit itself. 12. The plaintiffs as already stated, are not affected by the petitioner being made an additional defendant in the suit. The only persons who will be affected are the two sons, apart from her husband who wants her to be added as a party. I see no reason why the two sons should be permitted on mere technicalities to deny their mother, who I am told is 70 years old, an opportunity to agitate her rights, if any, as a member of the family. 13. Sri. Devan on behalf of the revision petitioner and the 1st defendant who appears in person fairly conceded that the plaintiffs are undoubtedly entitled to one half of the properties left by the deceased Krishna Iyer, and it will be perfectly in order to commence the final decree proceedings in respect of such share. This admission which relates only to the properties covered by items 1 to 6 of the interim preliminary decree is recorded. 14. The CRP. is allowed, subject to the direction that the court below may proceed with the passing of the final decree in respect of the plaintiffs' half share of the properties in items 1 to 6 of the interim preliminary decree. 14. The CRP. is allowed, subject to the direction that the court below may proceed with the passing of the final decree in respect of the plaintiffs' half share of the properties in items 1 to 6 of the interim preliminary decree. In respect of the other half, the revision petitioner is allowed to be impleaded, and the proceedings will continue. The parties will bear their respective costs. Allowed.