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2018 DIGILAW 996 (MAD)

Rukmani Ammal v. Gowri Ammal

2018-03-12

T.RAVINDRAN

body2018
JUDGMENT : 1. This second appeal is directed against the Judgment and Decree dated 19.05.2003 passed in S.C.A.S.No.30 of 1997- FTC II A.S.No.7 of 2003 on the file of the Additional District & Sessions Judge (FTC-II) at Tindivanam, confirming the Judgment and Decree dated 24.12.1996 passed in O.S.No.914 of 1991 on the file of the Additional District Munsif Judge, Tindivanam. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for Partition. 4. The case of the plaintiffs, in brief, is that the suit property situated in survey No.420/2 measuring 10.04 cents originally belonged to M.E.Ganapathy Mudhaliyar and his three sons and the deceased first plaintiff and the defendants 1 & 2 are the sons of M.E.Ganapathy Mudhaliyar and the properties belonging to the joint family of the above said persons were divided during the life time of M.E.Ganapathy Mudhaliyar by way of a registered partition deed dated 09.01.1960 and accordingly, the sharers enjoyed the properties as allotted to them separately. While so, M.E.Ganapathy Mudhaliyar settled the property comprised in survey No.420/2 measuring 10.04 cents exclusively in favour of his wife Kalyani ammal with the consent of his sons prior to the above said partition and the same had been accepted by his sons and accordingly, the above said property was not included in the partition effected by way of the partition deed dated 09.01.1960 and accordingly, the above said property belonged to Kalyani ammal and the patta was also mutated in the name of Kalyanai ammal and accordingly, Kalyani ammal was enjoying the property as her own by paying kist etc., Accordingly, Kalyani ammal, out of the above said extent of 10.04 cents of land, settled the southern extent of 7.04 cents of land in favour of the deceased first plaintiff and the defendants during 1980 and accordingly, the deceased first plaintiff and the defendants are equally entitled to the suit property comprised in survey No.420/2 measuring an extent of 7.04 cents on the southern side of the total extent of 10.04 cents and as such, the deceased first plaintiff is entitled to 1/3 share in the suit property. Kalyani ammal, even during her life time, settled an extent of 3 acres of land in the above said survey number located on the northern side in favour of her daughter Lalitha ammal and accordingly, the said extent is in the possession and enjoyment of Lalitha ammal. Inasmuch as the suit property had been left to be enjoyed jointly by the deceased first plaintiff and the defendants 1 & 2 and as the parties are unable to enjoy the same jointly subsequently, according to the deceased first plaintiff, demanding his share of the property, he claimed partition by way of a legal notice dated 19.08.1990 and the defendants did not respond to the same and left with no other alternative, it is stated that the deceased first plaintiff was necessitated to lay the suit for appropriate reliefs and during the pendency of the suit, the first plaintiff died leaving behind the plaintiffs 2 to 5 as his legal representatives. 5. The case of the first defendant, in brief, is that the averments contained in the plaint are true and the first defendant adopts the same in all aspects. It is only the second defendant, who is evading to effect the partition of the plaint schedule property, by creating a false deed in the name of his wife in respect of the suit property and the second defendant cannot lay any separate and exclusive claim over the plaint schedule property. The plaint schedule property is the joint family property belonging to the deceased first plaintiff and the defendants and hence, the first defendant also prays for effecting partition and allot his 1/3 share in the suit property and accordingly, prayed for the disposal of the suit. 6. The case of the second defendant, in brief, is that the suit is not maintainable either in law or on facts. 6. The case of the second defendant, in brief, is that the suit is not maintainable either in law or on facts. It is true that survey No.420/2, new survey No.522, originally consisted of 10.04 cents of land and as per the arrangements effected between his father M.E.Ganapathy Mudhaliyar and his three sons, it is true that the northern 3 acres of land in the above said survey number was allotted to his sister Lalitha ammal and it is false to state that an extent of 7.04 cents of land on the southern side was settled in favour of Kalyani ammal and thereby, the case of the plaintiffs that they are entitled to 1/3 share in the above said property is false. After settling the northern extent of 3 acres of land in favour of Lalitha ammal, even during the life time of M.E.Ganapathy Mudhaliyar, the 5 acres of land adjacent to the share allotted to Lalitha ammal in the above said survey number was allotted to the second defendant and the remaining extent on the southern side was given to his mother and accordingly, the partition was effected amongst the family members as regards the remaining properties by way of a partition deed dated 09.01.1960 and therefore, the case of the plaintiffs that the entire extent of 10.04 acres of land in survey No.420/2 had been allotted to Kalaynai ammal is false and the second defendant is entitled to an extent of 5 acres of land on the northern side out of 7.04 acres of land and the second defendant has been in possession and enjoyment of the above said extent exclusively and at no point of time, his mother had been in possession and enjoyment of the same as put forth by the plaintiffs and even if, as per the case of the plaintiffs, the said property had been allotted to Kalyani ammal and the plaintiffs are entitled to a share in the same, the plaintiffs should have impleaded Lalitha ammal, the daughter of Kalyani ammal as a party to the suit proceedings and hence, the suit is bad for non-joinder of Lalitha ammal. Kalyani ammal was allotted only an extent of 2.04 acres of land located on the southern side and only as regards the above said extent, the legal heirs of Kalyani ammal are entitled to effect partition and the partition suit laid by the plaintiff, without impleading the daughter of Kalyanai ammal, i.e. Lalitha ammal, is bad in law and the second defendant entrusted the 5 acres of land allotted to him to his wife and the same had been subdivided and patta had been granted in the name of his wife and it is only the second defendant's wife, who is in possession and enjoyment of the said extent of 5 acres of land and she is also a necessary party to the suit proceedings and there is no cause of action for the suit and hence, the suit is liable to be dismissed. 7. In support of the plaintiffs' case, PW1 has been examined and Exs.A1 to 3 were marked. On the side of the defendants' DWs1 & 2 were examined and Exs.B1 to B21 were marked. 8. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to accept the plaintiffs' case and accordingly, granted a preliminary decree in favour of the plaintiffs as prayed for. Aggrieved over the same, the present second appeal has been laid. 9. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: (i) Whether the Courts below were right in thinking that the suit as framed is maintainable in law? (ii) Whether the Courts below failed to note that the suit is bad for non-joinder of necessary party viz., the plaintiff and defendant's sister Lalitha? 10. Materials placed on record go to disclose that the property comprising an extent of 10.04 acres of land in S.No.420/2 originally belonged to M.E.Ganapathy Mudhaliyar and his sons. The deceased first plaintiff and the defendants are the sons of M.E.Ganapathy Mudhaliyar. It is further seen that excluding the above said property, M.E.Ganapathy Mudhaliyar and his sons had partitioned the remaining family properties by way of a partition deed dated 09.01.1960 and accordingly, enjoying the share allotted to them separately. As regards the above facts, there is no dispute. 11. It is further seen that excluding the above said property, M.E.Ganapathy Mudhaliyar and his sons had partitioned the remaining family properties by way of a partition deed dated 09.01.1960 and accordingly, enjoying the share allotted to them separately. As regards the above facts, there is no dispute. 11. Now, it is the case of the plaintiffs that an extent of 10.04 acres of land in survey No.420/2 was settled in favour of Kalyani ammal by M.E.Ganapathy Mudhaliyar during his life time and accordingly, it is only Kalyani ammal, who had been in possession and enjoyment of the suit property by obtaining patta, paying kist etc. Kalyani ammal is the wife of M.E.Ganapathy Mudhaliyar. It is further found that an extent of 3 acres of land in the above said survey number located on the northern side had been settled or entrusted to Lalitha ammal, the daughter of M.E.Ganapathy Mudhaliyar and Kalyani ammal. As regards the above position, there is no dispute between the parties. The only difference is that according to the plaintiffs, the above said extent of 3 acres of land was entrusted to Lalitha ammal by her mother and on the other hand, according to the second defendant, the said extent was entrusted to Lalitha ammal by his father M.E.Ganapathy Mudhaliyar. Be that as it may, the entrustment/settlement of the northern 3 acres of land in survey No.420/2 in favour of Lalitha ammal is not in issue between the parties. Excluding the same, it is seen that the remaining extent of 7.04 acres of land in the above said survey number is in dispute between the parties and the same is the suit property. 12. Now, according to the plaintiffs, Kalyani ammal passed away and hence, the suit property owned by her was inherited by her sons viz., the deceased first plaintiff and the defendants and as such, the plaintiffs are entitled to obtain 1/3 share in the suit property and inasmuch as the defendants failed to effect partition, despite demands, according to them, they had been necessitated to institute the suit for partition. 13. The first defendant supported the plaintiffs' case in toto and also prayed for partition of his 1/3 share in the suit property. 14. Only the second defendant is contesting the claim of partition made by the plaintiffs and the first defendant. 13. The first defendant supported the plaintiffs' case in toto and also prayed for partition of his 1/3 share in the suit property. 14. Only the second defendant is contesting the claim of partition made by the plaintiffs and the first defendant. Now, according to the second defendant, his father, M.E.Ganapathy Mudhaliyar, entrusted the northern 3 acres of land in survey No.420/2 to Lalitha ammal, his sister and it is his further case that the next 5 acres of land adjacent to the above said 3 acres of land had been allotted to him by his father and accordingly, it is he, who has in possession and enjoyment of the said 5 acres of land and further, according to him, only the remaining extent of 2.04 acres of land had been left to his mother Kalyani ammal. The above claim of the second defendant is contested by the plaintiff and the first defendant. As above seen, according to the plaintiffs, the suit property comprising an extent of 7.04 acres of land was allotted to Kalyani ammal. 15. Materials placed point out that M.E.Ganapathy Mudhaliyar was equally and favourably disposed of towards the deceased first plaintiff and the defendants. In such view of the matter, the contention put forth by the second defendant that he had been preferably allotted or given 5 acres of land in survey No.420/2 by the father as such cannot be straightaway accepted. It is further seen that if really, the 5 acres of land in survey No.420/2 was intended to be exclusively allotted to the second defendant, as rightly argued, necessary legal transaction would have been effected with reference to the same. On the other hand, only an oral entrustment of 5 acres of land is pleaded by the second defendant, however, when the said claim of the second defendant is hotly contested by the plaintiff and the first defendant, it is found that the case of the second defendant that the above said extent of 5 acres of land has been given to him exclusively and when there is no acceptable and reliable materials placed by the second defendant to sustain the same, we cannot uphold the above plea of the second defendant. Merely from the patta document and the kist receipts filed by the second defendant, we cannot conclude that he had been allotted the 5 acres of land to the exclusion of the other sharers by M.E.Ganapathy Mudhaliyar. Resultantly, the case of the second defendant that he had entrusted the same to his wife Rukmani ammal and it is only Rukmani ammal, who has been in possession and enjoyment of the same as such also cannot be countenanced. Therefore, it is found that the patta document and the kist receipts produced by the second defendant by itself would not lead to the conclusion that he has been validly allotted the 5 acres of land by M.E.Ganapathy Mudhaliyar and in such view of the matter, the case of the second defendant that the plaintiff and the first defendant cannot lay any claim of partition in the above said 5 acres of land as such cannot be accepted in any manner. 16. Inasmuch as it is found that the second defendant has failed to establish that he had been allotted the 5 acres of land in survey No.420/2 as put forth by him and when it is found that the parties are in agreement that the northern 3 acres of land in the above said survey number had been allotted to their sister Lalitha ammal, it is seen that the remaining extent in the above said survey number i.e. the suit property, which is not the subject matter of the partition effected by the parties concerned, also belonged to all the members of the family and accordingly, it is seen that if it is to be held that it belonged to M.E.Ganapathy Mudhaliyar or as the case may be, to Kalyanai ammal, either way their legal heirs would be entitled to claim equal share in the suit property. In such view of the matter, as rightly put forth by the second defendant's counsel, Kalyani ammal, having died intestate, the suit property would devolve upon her legal heirs, accordingly, it is found that the daughter Lalitha ammal would also be entitled to claim a share in the suit property. However, it is argued that Lalitha ammal, the daughter had been already given 3 acres of land in the above said survey number and therefore, she may not be entitled to lay any claim of share in the suit property. However, it is argued that Lalitha ammal, the daughter had been already given 3 acres of land in the above said survey number and therefore, she may not be entitled to lay any claim of share in the suit property. However, when it is found that as per the case of the plaintiff, the suit property had been entrusted to Kalyani ammal and the second defendant had failed to establish that he had been exclusively allotted 5 acres of land in the suit property and it is found resultantly that the suit property is only given to Kalyani ammal and accordingly, Kalyani ammal having died intestate, all her legal heirs including the daughter would be entitled to claim share in the suit property. As above seen, no doubt, the parties had agreed that the daughter, Lalitha ammal had been given 3 acres of land in survey No 420/2. However, when it has not been made clear as to under what arrangement she had been given the said extent of 3 acres of land and when it is also noted the pleas put forth by the respective parties that Lalitha ammal had relinquished her claim of share in the suit property, it is found that the daughter also would be entitled to claim a share in the suit property as one of the legal heirs of Kalyani ammal. 17. The plea has been taken by the second defendant in the written statement that the plaintiff's suit is bad for non-joinder of Lalitha ammal, who is a necessary party to the suit proceedings. Despite the above plea of the second defendant, the plaintiffs have not taken steps to implead the daughter, Lalitha ammal. As above discussed, Lalitha ammal is admittedly a necessary party as she is also entitled to a share in the suit property as one of the legal heirs of Kalyanai ammal. That being so, the plaintiffs, despite the plea of the second defendant that the suit is bad for non-joinder of Lalitha ammal, had failed to take appropriate steps to implead her. It is thus seen that the plaintiffs' suit is liable to be dismissed for failure to implead the necessary party. In this connection, the Counsel for the appellants placed reliance upon the decisions reported in AIR 1965 SC 271 (Kanakarathanammal Vs. V.S.Loganatha Mudaliar and another) and 100 L.W. 486 (A.Ramachandra Pillai Vs. Valliammal(died)). It is thus seen that the plaintiffs' suit is liable to be dismissed for failure to implead the necessary party. In this connection, the Counsel for the appellants placed reliance upon the decisions reported in AIR 1965 SC 271 (Kanakarathanammal Vs. V.S.Loganatha Mudaliar and another) and 100 L.W. 486 (A.Ramachandra Pillai Vs. Valliammal(died)). The position of law, as regards the failure of the non-joinder of necessary party, has been explained in the above said division bench of our high Court reported in 100 L.W. 486 (A.Ramachandra Pillai Vs. Valliammal(died)) as follows: C.P.C., O.1, R.9 Non-joinder of parties in a suit Effect Failure to implead all the sharers in a partition suit will result in suit being dismissed for non-joinder. Though O.1, R.9, of the Code of Civil Procedure provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of parties actually before it, there is a proviso which says that nothing in that rule will apply to non-joinder of necessary parties. In a suit for general partition, there could be no doubt that all the sharers are necessary parties as mentioned above. Apart from this, the main part of R.9, is only an enabling provision and the Court shall deal with each case with reference to the particular facts in that case. The decision in 1965 S.C. 271 is authority for the position that in a suit for partition, all the sharers are necessary parties and also for the position that the suit is liable to be dismissed for non-joinder of any one of the parties. In T.Panchapakesan and others v.Peria Thambi Naicker and others 85-L.W.841 (D.B) also, a Division Bench of this Court has taken a similar view. We are accordingly of the view that the finding of the learned Subordinate Judge on issue No.10 holding that the suit is not bad for non-joinder of Nagarathinam's heirs is unsound and liable to be set aside, Accordingly, we hold that the suit is liable to be dismissed for non-joinder of the heirs of Nagarthinam. 18. The counsel for the plaintiffs, in support of her contention, placed reliance upon the decision reported in (2015) 4 SCC 264 (Laxmidevamma And Others Vs. Ranganath and others). 18. The counsel for the plaintiffs, in support of her contention, placed reliance upon the decision reported in (2015) 4 SCC 264 (Laxmidevamma And Others Vs. Ranganath and others). The principles of law outlined in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 19. In the light of the above position, it is seen that in a suit for partition, all the sharers are necessary parties and in the event of the failure of the impleadment of all the sharers, the suit is liable to be dismissed and as far as this case is concerned, despite the plea put forth by the second defendant, the plaintiffs having failed to implead the daughter, Lalitha ammal as a party to the suit proceedings and when as above seen, Lalitha ammal is also entitled to a share in the suit property, the suit laid by the plaintiff is liable to be dismissed for non-joinder of the necessary party. It is thus found that the suit as framed by the plaintiff is not maintainable in law. The substantial questions of law formulated in this second appeal are accordingly answered in favour of the appellants and against the respondents. 20. In conclusion, the Judgment and Decree dated 19.05.2003 passed in S.C.A.S.No.30 of 1997- FTC II A.S.No.7 of 2003 on the file of the Additional District & Sessions Judge (FTC-II) at Tindivanam, confirming the Judgment and Decree dated 24.12.1996 passed in O.S.No.914 of 1991 on the file of the Additional District Munsif Judge, Tindivanam, are set aside. Resultantly, the suit laid by the plaintiffs in O.S.No.914 of 1991 is dismissed with costs. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.