Second Appeal No.465 of 1994

22nd February, 2011

Petitioner Counsel: Mr. A. V. GAWANDE
Respondent Counsel: Ms. SHILP O. TAPDIYA,Mr. V. M. DESHPANDE

Cases Cited:
Kanakabathanammal Vs. Loganatha, AIR 1965 SC 271 [Para 8,9]

JUDGMENT

JUDGMENT:- This Second Appeal takes exception to the judgment and decree dated 28th January, 1994 by which the decree passed by the Trial Court in Regular Civil Suit No.533/1985 dated 30/11/1986 came to be set aside.

2. The above Second Appeal admitted on 7.12.1999, however, no substantial question of law was framed whilst admitting the Appeal.

3. The facts involved in the above Second Appeal can be stated thus:

The common ancestor of the plaintiffs and the defendants is one Baliram, who died on 3.2.1959. The said Baliram left his widow Thakabai, and a son namely Amrut. Amrut had two sons namely Bhaurao and Deorao. Thakabai died on 16.7.1993 and Bhaurao died on 26.7.1973 leaving behind widow namely Savitribai and minor daughter namely Rekha alias Malti. Wife and daughter of Bhaurao has filed Regular Civil Suit No. 533/1985 for partition and separate possession. Deorao was the defendant no.1 to the said suit and Amrut was the defendant no.2. It was the case of the plaintiffs that there was a joint family property of Bhaurao and Deorao and their father Amrut and said joint family held property Survey no.33/1A admeasuring 12 acres at village Kohole Jateshwar, Survey no.16/2, admeasuring 5 acres, 11 gunthas, Survey no.21/1 admeasuring 2 acres of village Sakhare, and survey no.19 admeasuring 1 acres, 35 gunthas of village Nimswala. The joint family also had a residential house on a plot admeasuring 70' x 60'. The plaintiffs claim 5/12th share in the said property. It was the case of the plaintiffs that after the death of Bhaurao, defendant no.1 was in possession of the entire joint family property. It was further her case that she was driven out of the house after death of her husband and though she issued notice dated 3.9.1983 claiming partition, she was not given her share resulting in the filing of Regular Civil Suit No.533 of 1985.

4. The defendants contested the said suit by filing their written statement. They denied that there was any joint family of Bhaurao and Deorao. It was their case that during the life time of Amrut, Bhaurao had separated from the joint family and he did not have share in the suit property after partition. It was stated that the said Bhaurao died while living separately. From the point of view of the present Second Appeal, it is relevant to note that the defendants contended that the son of Bhaurao was a necessary party to the said suit and the since he was not party, the suit was liable to be dismissed on the said ground. The Trial Court framed relevant issues. Insofar as the issue, whether the property was a joint family property, the Trial Court recorded an affirmative finding in that respect. However, insofar as the maintainability of the suit on account of non-joinder of the son of Bhaurao as a party to the said suit, the Trial Court held that since the whereabouts of the said son was not known to the plaintiffs as well as the defendants and since it was the case of plaintiff no.1 who was mother, that her son was given in a missionary, the Trial Court was of the view that the son of Bhaurao was not a necessary party to the said suit. The Trial Court, therefore, decreed the said suit and granted 5/12th share to the plaintiffs.

5. Aggrieved by the decree passed by the Trial Court, the defendants Deorao and Chandrabhaga had filed Regular Civil Appeal No.161/1987. The First Appellate Court confirmed the finding of the Trial Court insofar as the issue regarding property being a joint family property is concerned, however, insofar as the maintainability of the suit was concerned, the First Appellate Court was of the view that in the light of the case of the plaintiff no.1 and in the light of the statement made by defendant no.1 Deorao, it could not be said that there was a civil death of the son of Bhaurao. The First Appellate Court was of the view that it was not the case of plaintiff no.1 i. e. the mother that she was not aware about the whereabouts of her son. The First Appellate Court was of the view that it cannot be accepted that the mother is not aware of the whereabouts of her son. The First Appellate Court, therefore, recorded a finding that the suit was not maintainable in the absence of son of the said Bhaurao being a party to the said suit. The First Appellate Court, therefore, reversed the decree passed by the Trial Court and dismissed the suit on the ground that it is not maintainable.

6. I have heard the learned counsel for the parties.

7. The learned counsel for the appellant Mr. Gawande submitted that in view of the undisputed position that plaintiff no.1 was not aware about the whereabouts of her son which was supported by said Deorao i. e. the defendant no.1 who was the uncle and who was also not aware of the whereabouts of the son of Bhaurao. Relying on Order 1, Rule 9 of the Code of Civil Procedure the learned counsel submitted that the Court had to adjudicate the said suit insofar as the parties before it was concerned. The learned counsel further submitted that in any event the plaintiff no.1 was ready to protect the interest of the son if he appears later on and questions the partition.

8. On the other hand, the learned counsel for the respondents would contend that son of said Bhaurao was necessary party to the suit and relied upon the judgment of the Apex Court reported in AIR 1965 SC 271 Kanakabathanammal Vs. Loganatha. The said judgment concerns a suit for partition, as in the instant case wherein the brothers of the plaintiff no.1 were not parties to the said suit. It is in the said circumstances that the Apex Court has observed that the suit was not maintainable in the absence of the brothers. Paragraph 15 of the said report is material and is reproduced hereunder:

"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 misjoinder or non-joinder of the 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 present 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 proceedings 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 Vs. Radhashyam Mahish, AIR 1931 PC 229 the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead comortgagors and persisted in not joining them despite the pleas taken by the defendants that the comortgagors were necessary parties and in the end, it was urged on his behalf that the said comortgagors 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."

9. Having heard the learned counsel for the parties and considering the fact that the substantial question of law has not been framed, at the time of the admission of the above Appeal in the year 1999 the above Second Appeal has to be approached from that angle. It is required to be noted that the Trial Court merely on the basis of fact that the plaintiff no.1 was not aware of the whereabouts of the son of Bhaurao as also since the whereabouts were not known to defendant no.1 has proceeded to record a finding that the suit was maintainable in the absence of the son as his whereabouts are not known. On the other hand, the First Appellate Court has considered the said issue in the proper perspective and has come to a conclusion that merely because the plaintiff no.1 has stated that the son was given in a missionary and the said Deorao was not aware of the whereabouts of the son of Bhaurao it could not be said that there was a civil death of the son of said Bhaurao. If it is the plaintiff's case that the said son was given in a missionary then the plaintiffs, ought to have produced documents concerning the said aspect. The plaintiff no.1 has merely stated that the son was given in a missionary, it is unnatural for the mother not to know the whereabouts of her son assuming that he was given in a missionary.

Insofar as the submission of the learned counsel appearing for the appellants that based on Order 1, Rule 9 of the Code of Civil Procedure, the same is misconceived in the teeth of proviso thereto which inter alia posits that what is mentioned in the main substantive provision would not apply, if it concerns a necessary party. As by the Apex Court in the judgment of AIR 1985 SC 271 Kanakabathanammal Vs. Loganatha (supra) the son is a necessary party to a suit filed for partition and separate possession. In the event, the plaintiff no.1 was not aware about the whereabouts of the son, proper course for her was to adopt appropriate proceedings in that regard. Having not done so, it was not open for the plaintiffs to contend that the suit filed by them was maintainable notwithstanding that the son of Bhaurao was not a party to the suit. When admittedly, the property is a joint family property. In the light of the authoritative pronouncement of the Apex Court, in my view, though no substantial question of law was framed at the time of admission of the appeal, considering the legal position, no substantial question of law arises in the Second Appeal, which is accordingly dismissed.

Ordered accordingly.