JUDGMENT AND ORDER : 1. This appeal is directed against the judgment dated 13.6.2011 passed by the learned Civil Judge (Senior Division), Court No. 2, Agartala in Title Suit No. 78 of 2001 issuing a preliminary decree for partitioning the suit land. 2. The facts of the case in brief, as pleaded by the plaintiff-appellant, are that the late Bidhu Bushan Bhattacharjee, who died intestate on 26.4.1949, was his father and was survived by him, his mother, namely, Suniti Bala Devi (who has also died), his two other sons, namely, the original defendant No. 1 (on his death substituted by the respondent No. 1(b) and (c) and the defendant-respondent No. 2 and four daughters, namely, (i) Smt. Nisa Rani Bhattacharjee (now dead), (ii) Smt. Gouri Rani Bhattacharjee (also dead), (iii) the defendant-respondent No. 3 and (iv) the defendant-respondent No. 5. The father of the appellant is the owner of the suit land and was having exclusive physical possession of the suit land by constructing a dwelling house in a portion thereof, by maintaining a tank and by cultivating the nal land for paddy and by enjoying the usufruct thereof without any interference from any quarter till his death. As the parties belong to Dayabhaga School, the devolution of interest in the property of the father of the appellant is to be governed and regulated by Dayabhaga School of Hindu Law. The said Nisa Rani Bhattarcharjee died unmarried, whereas Gouri Rani Bhattarchajee (now dead) and the respondent Nos. 3 and 5 did not inherit any property of the father of the appellant as per Dayabhaga system of Hindu Law when the succession issue was opened and only the mother of the appellant, the late Suniti Bala Devi became entitled to life estate in the share of the property of her deceased husband (father of the appellant) under Section 3(3) of the Hindu Women’s Right to Property Act, 1937 (“Property Act” for short). Thus, after the death of the father of the appellant, the father of the defendant-respondent Nos. 2(b) and (c) and the respondent No. 2 and their mother (Suniti Bala Devi) became owners of the suit land in equal share to the order of ¼ share thereof. Thus, after the death of the father of the appellant, the father of the defendant-respondent Nos. 2(b) and (c) and the respondent No. 2 and their mother (Suniti Bala Devi) became owners of the suit land in equal share to the order of ¼ share thereof. The said Suniti Bala Devi (mother of the appellant) died in the year 1961 after the coming into force of the Hindu Succession Act, 1956 (“the Succession Act” for short) with the result that her limited right to the suit land became absolute ownership by the operation of Section 14 of the Act. Consequently, the appellant, the defendant Nos. 1 and 2 and their mother became the full owners of the suit land in equal share to the extent of ¼ each. The mother died intestate in the year 1961 whereupon her right to and interest in her share of ¼ devolved upon the appellant, the original defendant Nos. 1, 2, 3 and 6 and upon the defendant Nos. 4 and 5, being the legal heirs of the said Gouri Rani Bhattacharjee. The respective shares of the parties are as follows:- 1. Appellant 29.17 % 2. Original Defendant No 1. 29.17 % 3. Defendant No. 2 29.17 % 4. Defendant No. 3 4.17 % 5. Defendant No. 4 4.16 % 6. Respondent No. 5 4.16 % 3. In the month of June, 2001, the original defendant No. 1 started construction of a building on the suit land without partition by occupying its valuable portion as per his choice despite vehement objection by the appellant, who had time and again requested him to make partition of the suit land by metes and bound and construct a building only on the share to be allocated to him after the partition, but the said defendant No. 1 refused to do so and continued his construction activities almost by force. As the appellant was not interested in litigation, he took the initiative with the help of local influential people to amicably partition the suit land. Just after laying the foundation of the building by the defendant No. 1, at the instance of the appellant, a meeting was arranged on the suit land and the participants in that meeting requested the defendant No. 1 to stop the construction till the suit land was partitioned among the co-sharers by metes and bounds, but the efforts proved futile. Just after laying the foundation of the building by the defendant No. 1, at the instance of the appellant, a meeting was arranged on the suit land and the participants in that meeting requested the defendant No. 1 to stop the construction till the suit land was partitioned among the co-sharers by metes and bounds, but the efforts proved futile. On 19.7.2001, the appellant received copies of the caveats lodged by the said defendant in two civil courts wherein he had stated that he learnt from a reliable source that the appellant would institute a suit and claimed to be heard before issuing any interim order. On receiving these caveats, the appellant came to realize that no amicable settlement of their dispute was likely to succeed and, therefore, decided to institute this suit. The said defendant is occupying the front portion of the suit land on the western side of the National Highway and started to forcibly construct a commercial building without partitioning the suit land. On the death of his father, the appellant is entitled to a share of 29.17% on the suit land and is, therefore, entitled to a decree for partition of the suit land by declaring him as the owner of the suit land to the extent of 29.17% share. It was under the aforesaid circumstances that the suit has been instituted by the original plaintiff. 4. The suit was contested by the defendant No. 1 [father of the respondent Nos. 1(b) and (c)] by filing his written statement. He had stated that the original plaintiff without his consent with ill-motive and in collusion with the respondent No. 2 and the settlement staff managed to create khatian in respect of the suit land in the names of the brothers including his name, which was not known to their sisters, the respondent No. 3 and the defendant Nos. 4 and 5 and the husband of their deceased sister, namely, Gouri Rani Bhattacharjee; this is illegal. He denies that the defendant Nos. 3 and 5 as well as the husband of their deceased sister did not inherit the suit land under the Dayabhaga system of Hindu Law and that the mother of the appellant is only entitled to life estate in the suit land. He denies that the defendant Nos. 3 and 5 as well as the husband of their deceased sister did not inherit the suit land under the Dayabhaga system of Hindu Law and that the mother of the appellant is only entitled to life estate in the suit land. It is asserted by the answering defendant that after the death of their mother, her 1/7th share devolved upon all her legal heirs including their sisters and heirs of the deceased sister of the late Bidhu Bhusan Bhattacharjee in equal share, i.e. each of them got 1/6th share; the chart of devolution shown by the plaintiff is false. Though he has been residing at Kolkata after his retirement from service, he has been constantly looking after the suit land and his other properties. The construction on the suit land was done as per oral settlement and on the basis of his possession of the portion so settled for him orally and amicably and without affecting the interest of the plaintiff and other defendants. He has no objection in partitioning the suit land among all the brothers and sisters and legal heirs of the deceased sister but is only against the partition only amongst the brothers. He has no objection to partitioning the suit land but his case is that such partition should be done along with distribution of the sale proceeds of the other joint land which were already sold to others and also amongst their sisters and legal heirs of their sisters. According to him, the shares of the sale proceeds of their sisters and legal heirs of their deceased sisters are retained by the original plaintiff which he refused to part even after giving assurance by him. He has no objection if the partition of the suit land and distribution of the said sale proceeds are made equally amongst all the brothers and sisters and the legal heirs of the deceased sisters. The caveats were rightly filed to protect the interest of all the legal heirs of the late Bidhu Bhusan Bhattacharjee. These are the sum and substance of the case of the original defendant No. 1 in defending himself. 5. On the pleadings of the parties, the trial court framed the following issues for determination: 1. Whether the suit is maintainable? 2. Whether partition of the property was done partly properly? 3. These are the sum and substance of the case of the original defendant No. 1 in defending himself. 5. On the pleadings of the parties, the trial court framed the following issues for determination: 1. Whether the suit is maintainable? 2. Whether partition of the property was done partly properly? 3. Whether defendants are Class-I heirs as per Hindu Succession Act is applicable upon the Class-I heirs in the instant partition suit? (sic) 4. Whether the plaintiff is entitled to get the partition of property? 5. What other relief/reliefs are entitled to get by the defendants? (sic) 6. To substantiate his case, the original plaintiff examined himself as PW-1 and produced khatian relating to the suit land (Exbt.1 series). The defendants examined as many as five witnesses to defend their case. At the end of the trial, the trial court by the judgment dated 12.8.2002 passed the preliminary decree by directing the parties to partition the suit land with the share of the appellant as 29.17%. The trial court also gave liberty to pray for final decree to enforce the preliminary decree if the decretal land was not partitioned within six months. Aggrieved by this, the respondent No. 5 (Sankari Acharjee Bhattacharjee) and the late Suniti Bala Bhattacharjee had carried the matter in appeal before this Court in RFA No. 7 of 2003. This Court by the judgment dated 13.12.2006 set aside the impugned judgment and remanded the case to the trial court for fresh trial by framing the following three additional issues: 1. In absence of application of the Hindu Women’s Right to Property Act, 1937 (Act XVIII of 1937), whether the mother of the plaintiff Suniti Bala Devi acquired any right over her husband’s property by inheritance and what could be her share in the joint properties by way of inheritance irrespective of nature of land? 2. Whether the property acquired by Suniti Bala Devi widow of late Bidhu Bhusan Bhattarchee came to be her absolute property by operation of Section 14(1) of the Hindu Succession Act, 1956? 3. If it is found that Suniti Bala Devi had limited interest over her husband’s property by inheritance, whether right was made absolute by application of Section 14(1) of the Hindu Succession Act, 1956?” 7. 3. If it is found that Suniti Bala Devi had limited interest over her husband’s property by inheritance, whether right was made absolute by application of Section 14(1) of the Hindu Succession Act, 1956?” 7. After framing of the above three additional issues on the direction of this Court, the parties were allowed to adduce further evidence, but the original plaintiff did not examine any more witness in support of his case. On the other hand, the defendants examined the defendant No. 4 as DW-6 on 10.7.2009. At the conclusion of the trial, the trial court passed the preliminary decree. The trial court found that the defendants No. 1(b) and (c) are the grandsons of the late Bidhu Bhusan Bhattacharjee (father of the appellant), the actual owner of the suit land; that the defendant No. 2 is the brother of the appellant; that the defendant No. 3 is the sister of the appellant; that the defendant No. 4 is grandson of the late Bidhu Bhusan Bhattacharjee and that the defendant No. 5 (Smt. Sankari Acharjee Bhattacharjee) is the sister of the appellant. As per the Schedule to the Succession Act, the plaintiff and all the defendants are Class-I heirs and the plaintiff is therefore, entitled to receive 1/6th share in the suit property. The trial court also held that the defendant Nos.2 to 5 are entitled to receive 1/6th share each of the suit property. Similarly, the defendant Nos. 1(b) and (c) are entitled to 50% from the 1/6th share of their father, namely, the late Biswa Bhusan Bhattacharjee (original defendant No. 1). The trial court, however, held that the father of the appellant had died in the year 1949 when the Hindu Women’s Right to Property Act, 1937 (“Property Act” for short) was in force, the right of wife of the deceased (Smt. Suniti Bala Devi) was of limited interest and that Act protected the right of the wife of the deceased, but such right extended only to a homestead land and not to agricultural land. Since prior to the death of the said Suniti Bala Devi, mother of the plaintiff, the suit property was not partitioned or divided amongst the legal heirs of the father of the appellant and after the death of the father of the plaintiff, the plaintiff along with his brothers and his mother had been in possession of the suit land without partition and since the parties did not amicably partition the suit land or approach any civil court of competent jurisdiction for the same before the death of the said Suniti Bala Devi, there is no question of inheritance of the suit property by her; there is no need for ascertaining her share over the suit property either due to the non-applicability of the Property Act. The trial court further held that as the said Suniti Bala Devi died in the year 1961 when there was not yet any partition of the suit land, she never acquired equal share in the suit land with the plaintiff and the defendants by way of inheritance and that as the plaintiff approached the trial court for partition of the suit land only after the death of the said Suniti Bala Devi, there would be no share for her over the suit land at that stage. In so far as the shares in the sale proceeds of agricultural land measuring 14 kanis left behind by their father is concerned, which were sold by the plaintiff, the trial court held that as the defendants never challenged the same within the period of limitation, the defendants were not entitled to claim any share in such sale proceeds. It was under the aforesaid findings that the trial court passed the impugned preliminary decree. 8. At the outset, it may be noted that prior to the coming into force of the Hindu Succession Act, 1956, the law of inheritance with respect to a woman was governed by the Property Act. As the parties herein undoubtedly belong to Dayabhaga School, the right of a woman to property was regulated by sub-section (1) of Section 3 of the Property Act. As the parties herein undoubtedly belong to Dayabhaga School, the right of a woman to property was regulated by sub-section (1) of Section 3 of the Property Act. Under this provision, it is provided, among other others, that when a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving behind any property, his widow, or if there is more than one widow, then all his widows shall, subject to sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son. Sub-section (3) of Section 3, however, says that any interest devolving on a Hindu widow under the provisions of Section 3 shall be a limited interest known as Hindu Woman’s estate, provided, however, that she should have the same right of claiming partition as a male owner. Thus, under the Property Act, the widow or the widows, as the case may be, used to have only a limited interest, but in case of partition, she or they would have the same right as the male owner. In R. Narasimhachari vs. Andalammai (Died) and Others, AIR 1979 Mad 31 , the question which fell for consideration was whether a Hindu widow, who secured a limited estate under the Property Act, without being in corporeal possession of the property to which her husband was entitled to on the date of commencement of the Succession Act, can still maintain that her legal entitlement under the Property Act has been enlarged into absolute estate within the meaning of Section 14(1) the Succession Act. The Hon’ble Madras High Court held that the 1956 enactment which has made good strides in systematically and dimensionally improving and increasing the content of such right of a Hindu widow under the Property Act, has made it explicit in Section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as the full owner thereof and not as a limited owner. 9. Thus, sub-section (1) of Section 14 of the Succession Act has a very wide and extensive application and has to be read in a comprehensive manner. 9. Thus, sub-section (1) of Section 14 of the Succession Act has a very wide and extensive application and has to be read in a comprehensive manner. This Act overrides, inter-alia, the old law on the subject of stridhana (literally means woman property) in respect of all properties possessed by a female, whether by her before or after the commencement of this Act and this section declares that all such property shall be held by her as full owner. Section 14 of the Succession Act is in the following terms: “14. Property of a female Hindu to be her absolute property.—(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 10. This Act, therefore, confers fully heritable right/ownership upon the female heir and this section dispenses with the traditional limitations on the powers of female Hindu to hold and transfer property. The effect of the rule laid down in this section is to abrogate stringent provisions against the proprietary rights of a female which are often regarded as evidence of her perpetual tutelage and to recognize her status as independent and absolute owner of property. The effect of the rule laid down in this section is to abrogate stringent provisions against the proprietary rights of a female which are often regarded as evidence of her perpetual tutelage and to recognize her status as independent and absolute owner of property. The terms “any property possessed by a female Hindu” was explained by the Apex Court in Gummalapura Taggina Matada Kotturuswami vs. Setra Veeravva and Others, AIR 1959 SC 577 in the following manner: “12..........The opening words ‘any property possessed by a female Hindu’ obviously mean that, to come within the purview of the section, the property must be in the possession of the female concerned at the date of [the] commencement of the Act. They clearly contemplate the female’s possession when the Act came into force. That possession might have been either actual or constructive or in any form, recognised by law, but, unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word ‘possession’ in its widest connotation, when the Act came into force, the section would not apply.” 11. The issue again came up for consideration before the Apex Court in Gangamma and Others vs. G. Nagarathnamma and Others, (2009) 15 SCC 756 and the legal position was reiterated by the Apex Court in paras 10, 11, 12 and 13 of the report, which read thus: “10. The principle laid down in Section 14(1) of the said Act has been read by courts in a very comprehensive manner since the said Act overrides the old law on stridhana in respect of properties possessed by a female Hindu. In Eramma vs. Veerupana, AIR 1966 SC 1879 , Ramaswami, J. speaking for the Court held that Section 14(1) of the Act contemplates that a female Hindu, who in the absence of the said provision would have been a limited owner of the property, will now become full owner by virtue of the said section. Such female Hindu will have all powers of disposition to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. 11. Such female Hindu will have all powers of disposition to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. 11. Again, in Punithavalli Ammal vs. Minor Ramalingam, (1970) 1 SCC 570 : AIR 1979 SC 1730, a three-Judge Bench of this Court reiterated the position that the said Act has overriding effect and confers full ownership on Hindu female and made it very clear that rights conferred under Section 14(1) to a Hindu female are not restricted or limited by any rule of Hindu Law. In the opinion of the Court in Punithavalli (supra) the said section makes a clear departure from all texts of Hindu laws and rules and those texts and rules cannot be used for circumventing the plain meaning of Section 14(1) of the said Act. 12. In Seth Badri Prasad vs. Kanso Devi, (1969) 2 SCC 586 : AIR 1970 SC 1963 , the learned Judges held that the word “acquired” in sub-section (1) of Section 14 of the said Act has to be given the widest possible meaning (See paras 6 and 7). In V. Tulasamma vs. Sesha Reddy, (1977) 3 SCC 99 : AIR 1977 SC 1944 , Bhagwati, J. speaking for the Court held that sub-section (1) of Section 14 is very large in its amplitude and covers every kind of acquisition of property by a female Hindu. Regardless of whether such property was possessed by a female Hindu on the date of commencement of the Act or was subsequently acquired or possessed, she would be the full owner of the property.” 12. In R. Narasimhachari vs. Andalammai (Died) and Others, AIR 1979 Mad 31 , the question which fell for consideration was whether a Hindu widow, who secured a limited estate under the Hindu Women’s Right to Property Act, 1937, without being in corporeal possession of the property to which her husband was entitled to on the date of commencement of the Hindu Succession Act, 1956 can still maintain that her legal entitlement under the 1937 Act, has been enlarged into absolute estate within the meaning of Section 14(1) of the Hindu Succession Act, 1956. After reviewing various decisions of the Apex Court, the High Court held: “..........Still later, the question which is posed in the first instance arose as to what is the meaning of the expression possessed in Section 14(1) and whether such possession should be, as is popularly understood, physical or constructive possession or is it enough if an incorporeal right to possess or juridical possess the property is the equivalent of the popular understanding of the word possess in S. 14(1). In Kotturasami vs. Setra Veerayya, AIR 1959 SC 577 , the word possessed in S. 14 has been explained thus: "The word possessed in Section 14 is used in a broad sense and in the contract means the state of owning or having on one's hand or power." 13. The same view was expressed by the Supreme Court in Munnalal vs. S.S. Rajkumar, AIR 1962 SC 1493 and in a subsequent decision in Mangal Singh vs. Rattno, AIR 1967 SC 1786 . In the last case, the Supreme Court considered this legal concept rather elaborately and expressed thus (at p. 1790) "Thus, three different meanings are given; one is the state of owning, the second is having a thing in one's own hands, and the third is having a thing in one's own power. In case where property is in actual physical possession, obviously it would be in one's own hands. If it is in constructive possession, it would be in one's own power. Then there is the third case where there may not be actual, physical or constructive possession and, yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the expression the state of owning: It appears to us that the expression used in Sec.14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of Sec. 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property." 14. It would, of course, cover the other cases of actual or constructive possession. On the language of Sec. 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property." 14. We, therefore, come to the stage when there is an authoritative binding opinion of the Supreme Court that 'possession' within the meaning of Section 14(1) of the Act need not be possession in the dictionary meaning of that expression, but in the legal sense of entitlement to secure such possession. This is the second stage. We have......out the first state when it was thought that demand for partition or a suit for separate possession as a result of an action for partition was necessary to liberalise the content of the right of a Hindu woman under the Hindu Women's Rights to Property Act. 1937. 15. The second state, we have............above is wherein the Supreme Court has said that such possession need not be actual, physical or constructive and it will be sufficient that if she has the power to possess. In Badri Pershad vs. Kanso Devi, (1970) 2 SCR 95 , the Supreme Court expatiating again on the word possession said (at p. 1965): "Where a female Hindu acquired an interest under Hindu Women's rights to Property Act, 1937 in the properties of her husband which later on partitioned by metes and bounds and she gets possession of the properties allotted to her then she is not only possessed of that property at the time of coming into force of the Hindu Succession Act but has also acquired the same before its commencement and hence will become an absolute owner under sub-section (1)." They would also add that the word acquired in sub-section (1) has to be given the widest possible meaning and the word possessed in sub-section (1) has also to be interpreted in its widest connotation and possession contemplated therein may be in any form recognised by law. Ismail J. in C.S. 57 of 1964 did consider many of the above decisions in his instructive judgment delivered by him sitting on the Original Side. Ismail J. in C.S. 57 of 1964 did consider many of the above decisions in his instructive judgment delivered by him sitting on the Original Side. As usual in this court, such decisions rendered by Judges sitting on the Original Side are felt by the reporters of our journals as un-reportable and it has not seen the light till this day. 16. After 1970 in the third stage we have again the decision of the Supreme Court almost reiterating the position. In Tulasamma vs. Seshareddi, AIR 1977 SC 1944 , the Supreme Court said, sub-section (1) of S. 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. It is not necessary to increase the citations. 17. The net result of the exposition of law as made by the Supreme Court and our Court is that it is not necessary for a Hindu widow entitled to rights under the 1937 Act to seek for partition either by demanding it or by filing a suit for that purpose. Her entitlement or right to possess the property under the 1937 Act enlarges itself by reason of the liberal and wide amplitude of Section 14(1) of the 1956 Act. Thus understood, the first defendant's case that the plaintiff was not entitled to a right to institute an action for partition because she was not in possession of the suit house fails. The lower court, therefore, was right though for different reasons in having accepted the case of the plaintiff.” (Underlined for emphasis) 14. In my opinion, the trial court has misconstrued the provisions of Section 14 of the Succession Act and has in the process illegally held that the mother of the plaintiff had not acquired any ownership over the suit land at the time of her death in 1961 when partition was yet to be made. On the contrary, irrespective of whether there was partition of the suit land amicably or otherwise, she was deemed to have equal share with the plaintiff and other defendants on the date of the coming into force of the Succession Act. On the contrary, irrespective of whether there was partition of the suit land amicably or otherwise, she was deemed to have equal share with the plaintiff and other defendants on the date of the coming into force of the Succession Act. It is nobody’s case either that the mother of the plaintiff was not in possession of the suit land jointly with the plaintiff and the defendants when the Succession Act came into force. As already noticed, the mother of the appellant-plaintiff had already acquired a limited interest by virtue of the operation of Section 3(1) of the Property Act, though her possession might have been either actual or constructive or in any form, recognised by law, her limited estate in the suit land got transformed into absolute estate under this Section 14(1) of the Succession Act, the moment this Act had come into force in the year 1956. As she had become the absolute co-owner of the suit land and, therefore, had already acquired equal share thereof with the appellant and the respondent-defendants, her legal heirs will inherit the suit land in equal proportions in respect of her exclusive share. The learned Civil Judge (Senior Division), Court No. 2, Agartala is not correct in directing the partition of the suit land amongst the appellant and the deceased defendant No. 1, defendant No. 2, 3, 4 and 5 in equal shares without the legal heirs of the said Suniti Bala Devi being impleaded as party-defendants. Interestingly, three issues were framed over the possible right of the said Siniti Bala Devi, but the appellant did not bother to implead her legal heirs as parties to the suit. Since the legal heirs of the mother of the appellant, who are necessary parties in the suit, are not impleaded as parties to the suit, the suit was liable to be dismissed under the proviso to Order 1, Rule 9, CPC. The consequence of non-joinder of a necessary party was succinctly explained by the five-Judge Bench of the Apex Court in Kanakarathanammal vs. V.S. Loganatha Mudaliar and Another, AIR 1965 SC 271 , in somewhat similar circumstances. This is what the Apex Court said: “15. The consequence of non-joinder of a necessary party was succinctly explained by the five-Judge Bench of the Apex Court in Kanakarathanammal vs. V.S. Loganatha Mudaliar and Another, AIR 1965 SC 271 , in somewhat similar circumstances. This is what the Apex Court said: “15. It is unfortunate that the appellant's claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under s. 12 of the Act. That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under O. 1 R. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the mis-joinder or non-joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under O. 1 R. 10, sub-rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are coheirs with her in respect of the properties left intestate by their mother, the suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra and Another vs. Radheshyam Mahish and Others, MANU/PR/0053/1931 the Privy Council had to deal with a similar situation. If the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra and Another vs. Radheshyam Mahish and Others, MANU/PR/0053/1931 the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1 R. 9 of the Code. In rejecting the said prayer, Sir George Lowndes, who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India." [See also Man Singh (Dead) by Lrs. vs. Ram Kala (Dead) by Lrs. and Another, (2010) 14 SCC 350 and Kenchegowda (Since deceased) by Legal Representatives vs. Siddegowda alias Motegowda, (1992) 4 SCC 294.]” (Underlined for emphasis) 15. For what has been stated in the foregoing, the partition suit is not maintainable and, is, therefore, dismissed. Consequently, the appeal has no leg to stand on and must meet the same fate and same is, accordingly, dismissed. However, on the facts and in the circumstances of the case, I pass no order to costs. Let a decree be prepared accordingly. Transmit the LC record forthwith.