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2012 DIGILAW 4740 (MAD)

Theivanai v. Shamugha Udaiyuar

2012-11-20

S.VIMALA

body2012
JUDGMENT 1. The second plaintiff is the appellant. After the death of the first plaintiff, Samidurai Udaiyar, the second plaintiff has been impleaded as per the order passed in C.M.P.No.327 of 1992 dated 4.11.1992. 1.1. The defendants are the respondents. After the death of the first defendant, defendants 3, 4 and 5 have been impleaded as legal representatives of the deceased first defendant Shanmuga Udaiyar. The second defendant Pichaipillai Udaiyar died issueless. (Rajavelu Udaiyar S/o. Thangavelu Udaiyar and Narayanasamy, S/o. Manicka Udaiyar have been shown as defendants 1 and 2 as per the amended cause title as per the order of court dated 13.3.2002 made in C.M.P.No.2759 of 2002) 2. The suit is filed seeking the relief of partition, claiming 2/3 share, in respect of item Nos.1 to 6, 8 to 11 and 1/3 share in respect of item Nos.14,16, and 17. The suit is filed seeking the relief of declaration and injunction in respect of item Nos.7, 12, 13 and 15. 2.1. a. The trial court decreed the suit granting 1/3 share to the second plaintiff in respect of all items of property except item No.14. b. Item Nos.7, 12, 13 and 15 over which the second plaintiff wanted declaration and injunction was ordered to be allotted to the share of the first defendant as per equity. c. So far as item No.14 is concerned, it was ordered that it need not be included in the final decree proceedings as it had been sold jointly by the first defendant and the first plaintiff. 3. The first defendant Shanmugha Udaiyar filed the first appeal in A.S.No.64 of 1997. The appeal was allowed holding that the suit is bad for mis-joinder of parties and partial partition. Thereby the decree and judgment of the trial court came to be set aside. Challenging the decree and judgment, the second appeal has been preferred by the second plaintiff. 4. The following substantial questions of law are framed for consideration in this second appeal: "i) Whether the first appellate court erred in law and misdirected itself in dismissing the suit for partition on the ground of non-inclusion of purchaser of suit item No.14, which was jointly sold by all the co-owners about 30 years back and that the suit item ceased to be the joint family property? ii) Whether the lower appellate court erred in law in dismissing the entirety of the suit claim even assuming that the alienee of item No.14 has not been impleaded as a party to the suit as in law the first appellate court should have remanded the matter for impleading such a party, who is a necessary party as it is a suit for partition? iii) Whether the lower appellate court erred in law in holding that the suit is bad for non-joinder of properties when no such plea has been put forward nor there is any evidence to establish items of joint family properties and yet they have not been included as one of the suit items for partition?" Having regard to the nature of the substantial questions of law raised, it is not necessary to elaborate the facts. 5. Learned counsel for the appellant assailed the dismissal of the suit on the contention that the dismissal is purely on technical grounds and that even on those technical grounds, the dismissal is unwarranted. Perusal of the judgment of the first appellate court reveal that the suit has been dismissed on the ground of (a) non-joinder of necessary parties and (b) non-inclusion of all items of properties. 5.1. Learned counsel for the respondents justified the dismissal of the suit on the contention that in a suit for partition, all properties should be included and all parties including the alienees should be impleaded, (so that there is finality to the litigation), and that having not been done the dismissal is fair and proper. 6. Whether the dismissal of the suit by the first appellate court is justified is the issue to be considered. 6.1. The decision reported in (1912) 23 MLJ 64 V.Subba Row v. Annathanarayana Aiyar and Others), quoted by learned counsel for the appellant, refers the article by Mr.Freeman, on partition (Cyclopaedia of American Law and Procedure), wherein summarising the legal position, it is stated: "every suit for partition should bring before the court all persons having any interest or equity in the property. Therefore, such suit should include all the lands of original co-tenancy and if it does not do so, any party, whether his interest extends throughout all such lands, or is restricted to some specific part thereof, may insist that the omitted land or lands be included in the suit and that all persons be made parties thereto whose presence is necessary to a partition with such lands included." 6.2. The rule against partial partition is merely, one of equity and convenience. Therefore, it is better to limit the rule in its application to properties over which the parties have community of interest and unity of possession. If partial partition can be had without inconvenience to the other sharers and if it will not stand in the way of equities being adjusted, it is not necessary to insist that all properties will have to be scheduled. This is the settled legal position. 6.3. The first appellate court has indicated that the family property in R.S.No.125/5 as disclosed by Ex.A2 has been omitted to be included. It is not explained rather not complained that non-inclusion of that item would come in the way of adjustment of equities or it would cause inconvenience to the sharers. It is also contended that it is not even proved to be a joint family property liable for partition. Therefore, the finding that suit is bad for partial partition cannot be sustained. 7. The second contention is that the suit is bad for non-joinder of necessary parties. The main contention is that the purchaser of item No.14 has not been impleaded as a party. The trial court has specifically ordered that item No.14 should not be added in the final decree proceedings as this item has been sold jointly both by the first plaintiff and the first defendant. The first defendant who is the appellant before the first appellate court and the 2nd plaintiff, who is the appellant herein, who claims through first plaintiff, who has jointly sold the property, cannot complain that non-impleadment of purchaser of 14th item of property has caused injustice/prejudice to them. Hence, neither the purchaser of 14th item of property is the necessary party nor the non-impleadment of him is fatal to the suit. 8. O.1. Hence, neither the purchaser of 14th item of property is the necessary party nor the non-impleadment of him is fatal to the suit. 8. O.1. Rule 13 of Code of Civil Procedure deals with the time at which the objections as to non-joinder or mis-joinder have to be taken and the consequences of not taking the same at appropriate time. Order 1 Rule 13 reads as follows:- "All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived." 8.1. A perusal of the records reveal that there is no issue framed with regard to non-joinder of parties. Hence, the plea is deemed to have been waived. Therefore, the plea raised by the defendants are unsustainable. 8.2. Thus, all the substantial questions of law raised are answered in favour of the appellant and as against the respondents. 9. In the result, the second appeal is allowed. The judgment and decree of the Principal District Judge, Cuddalore made in A.S.No.64 of 1997 dated 09.04.2001, dismissing the suit is set aside. The judgment and decree of the Subordinate Judge, Vridhachalam rendered in O.S.No.148 of 1991 dated 11.08.1997, is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.