Sabasthi Nadar v. Savurimuthu Nadar and Another — 1998 DIGILAW 1036 (MAD)

Judgment :- 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. 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 second 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, in as much as the suit for partition cannot be maintained in view of the non impleading at least 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. (Vernacular matter omitted) The Appellate court has also considered this issue and has concluded that not only Durairaj had a sister (Silonmani), but Maraisusai also had one more daughter by name Savariammal. 5. But, in spite of the said finding, both the courts below have recorded a finding that the Genealogy as given by the plaintiff was correct. The said finding to say the least, is illegal and erroneous. 6. 5. But, in spite of the said finding, both the courts below have recorded a finding that the Genealogy as given by the plaintiff was correct. The said finding 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 1983 Mad LW 93, State of Bihar v. Sri Radha Krishna Singh. The following extract will aptly apply for the present case (at p. 691 of AIR) : "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 by the learned counsel for the appellants is equally applicable to the facts of the present case. In A. Ramachandra Pillai v. Valliammal, (1987) 100 Mad LW 486, the Division Bench has dealt with a similar case of disclosure that one of the parties had two daughters who would undoubtedly be entitled to a share, but were not impleaded as parties. The Division Bench held that the suit for partition was liable to be dismissed in view of the non impleading of the said two daughters. On the issue as to the applicability of Order 1 Rule 9 of Code of Civil Procedure, holding that no suit shall be dismissed for non-joinder, the Division Bench held that it was only an enabling provision to be applied by the courts in appropriate cases. 8. Another judgment of this court of a learned single Judge reported (1998) I CTC 453 : 1998 AIHC 3831) (P. Haridoss v. N. Subbayya Pillai) held that in a suit for declaration and injunction, all the co-sharers have to be impleaded as necessary parties. 9. Per contra, the learned counsel for the respondent referred to the following three judgments: (1) 1994 AIR(SC) 72, (Addepalli Venkata Lakshmi v. Ayinampudi Narasimha Rao); (2) 1975 AIR(Patna) 168, (Ramsurat Devi v. Satraji Kuer); (3) 1962 AIR(Kerala) 36, (V. Cherian v. Ouseph Korathu) 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 not be impleaded. For this proposition he relied on the judgments reported in 1953 AIR(Hyderabad) 170, (Lakshmamma v. Someswar Rao) and 1994 AIR(Gauhati) 18, (Smt. Monomoyee Barmani v. Smt. Upeswari Barmani). 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 Duraraj 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 Maria Susai. 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 partition, impleading of parties can be done at any stage before passing of the final decree. 11. The learned counsel for the respondent would further contend that at any rate, in a suit for partition, 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) (1970) 1 Mad Lj 243, (Swayamprakasam @ Chidambaranathan v. R. Vijayarangam); (2) (R. A. Narasinga Rao v. Chunduru Sarada); (3) 1978 AIR(Kerala) 152, (N. P. R. Nair v. A. Pillai Kumara Pillai) 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 1978 AIR(Kerala) 152, (N. P. R. Nair v. A. Pillai), it is specifically emphasized 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 bear 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 judgment of this court by the Division Bench reported in (1987) 100 Mad LW 486 (A. Ramachandra Pillai v. Valliammal) cited earlier. If a 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. If a 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. 12-A. On the other hand the decision of the learned single Judge of this court reported in (1970) 1 Mad LJ 243 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 Narasinga Rao v. Chundrur Sarada), 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. 13. The position which emerges 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 incorrect, 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. 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, and the Court to decide their claims on the merits afresh. 14. 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. 15. 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 dispose 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. Appeals allowed.