Second Appeal No.567 of 2004

4th August, 2016.

Petitioner Counsel: Shri C.A. JOSHI
Respondent Counsel: Shri ANIL MARDIKAR, Sr. Adv. assisted by Shri SUMIT JOSHI

Cases Cited:
Kanakarathanammal Vs. V.S.Loganatha Mudaliar and Anr., AIR 1965 SC 271 [Para 9,15]
Union of India Vs. Ibrahim Uddin and Anr., 2012(5) ALL MR 462 (S.C.)=(2012) 8 SCC 148 [Para 9]
Md. Mohammad Ali Vs. Jagdish Kalita and Ors., (2004) 1 SCC 271 [Para 17]
Mohammadbhai Kasambhai Sheikh and Ors. Vs. Abdulla Kasambhai Sheikh, (2004) 13 SCC 385 [Para 17]

JUDGMENT

JUDGMENT :- One Sitaram @ Balabhau Pande was the owner and in possession of the suit property. He died in the year 1978 and was survived by 5 sons, namely, (1) Ramkrushna, (2) Pandurang, (3) Haribhau, (4) Laxman and (5) Bharat and two daughters, namely, (1) Smt. Jankibai and (2) Smt. Tarabai. Smt. Dwarkabai, wife of Sitaram, died in the year 1943 and was thus a pre-deceased. The son, Pandurang Sitaram Pande, filed Regular Civil Suit No. 81 of 2001 on 08.11.2001 for partition and separate possession of his 1/5th share in the suit properties. He also claimed a decree of Rs.30,950/- with future interest at the rate of 18% per annum by way of mesne profit and also claimed an enquiry into the mesne profit under Order XX, Rule 12 of Civil Procedure Code. The suit was filed on the basis of cause of action shown in the plaint as 06.10.2001 when the plaintiff by issuing notice to the defendant no.7 called upon him to effect partition of the suit property.

2. The brothers Haribhau and Laxman were joined as defendant Nos. 1 and 2. The third brother Bharat died before filing of suit and therefore, his widow Smt.Kamal was joined as defendant No. 3. Two sisters namely Smt.Jankibai and Smt.Tarabai died in the year 1985 and 1987 respectively i.e. before filing of the suit, but their legal heirs were not joined as party defendants in the suit. Since the brother Ramkrushna died in the year 1990, his two surviving sons, namely Avinash and Pramod were joined as defendant Nos. 7 and 8 respectively, whereas the widow and daughter of one Subhash (dead), the another son of Ramkrushna, were joined as defendant Nos. 5 and 6 respectively. Smt. Kamal died on 11.02.2002 i.e. during the pendency of the suit and the defendant No.7-Avinash, the son of Ramkrushna, the eldest brother of the plaintiff, claimed himself to be the legatee in respect the share devolved upon Smt.Kamal, on the basis of will executed by her on 02.11.1997. The defendants opposed the claim of the plaintiff.

3. The trial Court in Regular Civil Suit No. 81 of 2001, decided on 31.10.2002 recorded the finding that the suit properties were the joint family properties and the plaintiff had established his claim of 4/15th share in the suit property against his claim for 1/5th share. The trial Court rejected the claim of defendant No. 7-Avinash for addition of 1/5th share on the basis of Will dated 02.11.1997, said to have been executed by Smt. Kamal, the defendant No. 3. The trial Court also rejected the contention of the defendants that the suit was liable to be dismissed as barred by law of limitation and for non joinder of necessary parties, namely the legal heirs of two daughters - Smt.Jankibai and Smt.Tarabai, by accepting the contention of the plaintiff that both the sisters had executed relinquishment deed dated 06.01.1981 in favour of all the brothers in respect of their shares in the properties.

4. Regular Civil Appeal No. 294 of 2002 preferred by the original defendant Nos. 7, 8 and 4 was allowed by the appellate Court on 30.08.2004 and the decree for partition and separate possession passed by the trial Court was set aside and the suit was dismissed. The lower appellate Court records the finding that Will executed by respondent No.3-Kamal in favour of defendant No.7-Avinash has been proved; the suit is liable to be dismissed for non joinder of legal heirs of deceased Smt. Jankibai and Smt.Tarabai in the suit; the suit was barred by the law of limitation and the trial Court had no pecuniary jurisdiction to entertain the suit. Hence, as the original plaintiff is died and his legal heirs along with original defendant no.2 through his legal heirs are before this Court in this second appeal.

5. The appeal was admitted on 16.12.2008 and this Court framed the substantial question of law as under;

"Whether the suit (wrongly typed as appeal) of the plaintiff/ appellant could have been dismissed for want of legal heirs of two sisters on record?"

6. The appellants filed Civil Application No. 5737 of 2008 in the second appeal for grant of permission to join the legal representatives of two sisters namely Smt.Jankibai and Smt. Tarabai on the record of the plaint as defendants and in this appeal as respondents. This Court passed an order on the said application on 10.01.2013, as under;

"The notices of this Civil Application were issued. The persons whose names are stated in the application are served. Shri Thakkar, the learned counsel has filed power for the proposed respondent Nos. 8 to 13.

The names of respondent Nos. 8 to 13 are, therefore, permitted to be brought on record.

Necessary amendment to be carried out within a period of 2 weeks .

The stand taken by the added respondents in their reply shall be considered by the Court at the time of hearing. Hence, the reply filed by the added respondents shall be taken on record.

C.A. No. 5737/08 stands disposed of".

7. Heard Shri C.A. Joshi, the learned counsel appearing for the appellants and Shri Anil Mardikar, the learned senior counsel assisted by Shri Amit Joshi, Advocate, for defendant Nos. 7 and 8, who are the respondent nos. 1 and 2 in this appeal (the sons of Ramkrushna, the eldest brother of the plaintiff)

8. Shri Joshi appearing for the appellants has urged that the relinquishment of claim of the share by two sisters - Smt. Jankibai and Smt. Taraibai on 06.01.1981 has been established and therefore, it was not necessary for the plaintiff to have joined the sisters as party defendants in the suit. He submits that even if it is accepted that two sisters were necessary parties to the suit in question, the defect was curable and this Court having allowed the Civil Application No. 5757/08 on 10.01.2013, it stands removed and the L.Rs of two sisters have filed their reply in this Court stating in clear terms that they do not want to claim any share in the suit properties. He further submits that the Will dated 02.11.1997 at Exh. 117 said to have been executed by Smt.Kamal, the defendant no.3, has not been proved and hence, the share of the plaintiff in the suit property shall increase from 1/5th to 4/15th, which was rightly decreed by the trial Court. Shri Joshi, therefore, submits that the decree passed by the trial Court be restored by setting aside the decision of the lower appellate Court.

9. Per contra, Shri Mardikar, for respondent Nos. 1 and 2, has urged that non joinder of two sisters in a suit for partition and separate possession becomes fatal for grant of reliefs claimed in the suit and to permit the plaintiffs to join the necessary parties to the suit at the stage of second appeal would create a bar of limitation as the cause of action for filing the suit as shown in the plaint was of 06.10.2001 and the application for joining the necessary parties was moved before this Court on 03.08.2008, which was allowed on 10.01.2013. He submits that the limitation is governed by Article 113 of the Limitation Act, which prescribes the period of 3 years from the date of cause of action. He relied upon the decision of the Apex Court in the case of Kanakarathanammal vrs. V.S.Loganatha Mudaliar and another, reported in AIR 1965 SC 271. Shri Mardikar also relied upon the decision of the Apex Court in the case of Union of India vrs. Ibrahim Uddin and another, reported in (2012) 8 SCC 148 : [2012(5) ALL MR 462 (S.C.)] for the proposition that the plaintiff having failed to produce the document of relinquishment deed dated 06.01.1981, adverse inference was required to be drawn and for it, the adverse inference cannot be drawn against the defendant no.7 on the ground that he was in possession of the relinquishment deed and has failed to produced it.

10. The lower appellate Court has recorded the finding that the suit properties were not the ancestral properties of Sitaram Jayram Pande, the father of the plaintiff and defendants, but were gifted to him by his father-in-law. Sitaram Pande died intestate and, therefore, the properties devolved upon the heirs of Sitaram Pande in accordance with the general rules of succession in the case of mens, as specified under Section 8 of the Hindu Succession Act, by 5 sons and 2 daughters - they being the Class-I heirs.

11. Normally, each of the heirs would be entitled to 1/7th share in the suit properties. The plaintiff in the suit in question, however, claimed 1/5th share in the suit properties by taking into consideration the fact that Smt. Jankibai and Smt. Tarabai, two daughters of Sitaram, have relinquished their shares in the suit properties. The relinquishment deed dated 06.01.1981 executed by two sisters of the plaintiff, namely Smt. Jankibai and Smt. Tarabai, has not been placed on record. I need not dwell upon this aspect any more except to hold that two sisters were necessary parties to the suit in question and they cannot be called as 'proper parties'. Let us now see whether non joinder of necessary parties, in the facts and circumstances of this case, becomes fatal.

12. No doubt, that the issue regarding non joinder of necessary parties was raised in the trial Court and it was also framed. The trial Court records the finding that since two sisters have relinquished their share, the suit cannot be dismissed for non joinder of necessary parties. The lower appellate Court for the first time dismisses the suit on the ground of non joinder of necessary parties. As pointed out earlier, the appellant/plaintiff, realizing the mistake, filed Civil Application No. 5737 of 2008 in this second appeal for grant of permission to join the legal representatives of two sisters, was not opposed and allowed by this Court on 10.01.2013. Accordingly, their names are brought on record and also in the present second appeal.

13. Order I, Rule 10(2) of the Civil Procedure Code being relevant, is reproduced below;

"O.I R 10(2) - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may be appear to the Court to be just order that the name of any party improperly joined, whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

The aforesaid provision confers a discretion upon the Court to permit the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court to effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added at any stage of proceedings. The second appeal being continuation of the suit, this Court is competent to exercise discretion even at the second appellate stage to permit the joinder of necessary parties to the suit. Once such permission is granted and the parties are joined as defendants/ respondents in the proceedings, the order relates back to the date of filing of the suit and the defect stands cured.

14. All the parties added, who are the legal representatives of the two sisters of the plaintiff namely Smt. Jankibai and Smt. Tarabai, have filed their reply on oath to the application of the plaintiff for grant of permission to join them as party defendants/respondents in the proceedings. In categorical terms they have stated in their reply that they do not want to claim any share or interest in the suit properties and their predecessor in title had relinquished their shares in favour of the brothers. There is no contest involved which is required to be adjudicated by this Court upon granting permission to join certain persons as defendants/respondents in the proceedings. The plaintiff would, therefore, be entitled to 1/5th share in the suit property and the suit cannot, therefore, be dismissed in the facts and circumstances of this case for non joinder of necessary parties. The lower appellate Court ought to have granted an opportunity to the plaintiff to add the necessary parties to the proceedings and it is only upon the failure of the plaintiff to comply with such direction as contemplated by Order 1, Rule 13 of C.P.C., the suit could not have been dismissed on the ground of nonjoinder of necessary parties. The substantial question of law is, therefore, answered accordingly.

15. Shri Anil Mardikar appearing for defendant No.7 has relied upon decision of the Apex Court reported in AIR 1965 SC 271 (cited supra) to urge that the Apex Court had refused to grant permission to add necessary parties to the suit in the appeal pending before the Apex Court on the ground that the appellant therein was not vigilant and that the bar of limitation would also operate for permitting the joinder of necessary parties in the appeal pending before the Apex Court. In my opinion, the decision is clearly distinguishable. It was a suit filed for recovery of possession by the appellant claiming exclusive title over the entire suit property. It was not a suit for partition and separate possession. The Apex Court found that such claim was not tenable and the other brothers were also entitled to succeed to the estate. In the present case, the plaintiff claims only 1/5th share in the suit properties and other co-sharers likely to oppose the claim are joined as parties to the suit. The Apex Court has also held that the trial Court itself dismissed the suit on the ground of non-joinder of necessary parties, the appellant did not take any steps to join the necessary parties either in the appeal before the High Court or even in the appeal before the Apex Court till the hearing was concluded. In the present case, immediately after the decision of lower appellate Court, the plaintiff moved application which has been allowed. The Apex Court considered the bar of limitation in a situation which is not available in the present case.

16. So far as applicability of law of limitation is concerned, Articles 58, 65, 110 and 113 of the Limitation Act were brought to my notice. In some decisions of this Court, it was held that Article 65 would apply, whereas in some decisions, it was held that Article 113 would apply. Article 58 deals with the suits filed to obtain any declaration and for that 3 years limitation is prescribed from the date when the right to sue first accrues. Article 113 deals with the suit for which no period of limitation is prescribed elsewhere in the schedule and the period of limitation is of 3 years which begins from the date when the right to sue accrues. Article 65 deals with the possession of immovable property or any interest therein based on title and it prescribes the period of limitation of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Article 110 deals with the suit by a person excluded from a joint family property to enforce a right of share therein and the period of limitation prescribed is of 12 years from the date when the section becomes known to the plaintiff.

17. In the decision of the Apex Court in the case of Md. Mohammad Ali vrs. Jagdish Kalita and others, reported in (2004) 1 SCC 271, the Court was concerned with the applicability of Article 65 of the Limitation Act and it was held that the plaintiff will succeed if he proves his title over the suit property and it would be for the defendant to plead and prove the plea of adverse possession to defeat the claim of the plaintiff. This decision has been followed by the Apex Court in the case of Mohammadbhai Kasambhai Sheikh and ors vrs. Abdulla Kasambhai Sheikh, reported in (2004) 13 SCC 385, wherein it is held that unless the defendant raises defence of adverse possession to claim for a share by a heir to be ancestral property, he cannot also raise an issue relating to limitation of the plaintiff's claim. The Court held that in the absence of such plea of adverse possession being raised in the written statement, the plea of limitation was not available. Both these decisions are applicable to the facts of this case and in the absence of any plea of adverse possession by any of the parties, the suit cannot be dismissed as barred by limitation.

18. Article 110 of the Limitation Act relied upon by Shri Mardikar deals with the suit by a person excluded from a joint family property to enforce a right to share therein. In the present case, the shares are devolved upon the parties to the suit in accordance with Section 8 of the Hindu Succession Act and it is not a suit where the partition has already taken place and the plaintiff is excluded from the joint family property. It is also not a suit for enforcement of partition and separate possession, as contemplated by Section 6 of the Hindu Succession Act, though it is styled as such. The decision has no application to the facts of this case.

19. The trial Court took into consideration the enhancement in the share of the plaintiff from 1/15th to 4/15th because of the death of defendant No. 3 - Smt. Kamal, one of the co-sharers in the suit properties. The appellate Court has rejected the contention of the plaintiff that the defendant No.3-Smt. Kamal was insane on the ground of lack of pleadings and evidence on record. Smt. Kamal was residing with defendant No. 7-Avinash, who claims the share of Smt.Kamal in the suit property on the basis of Will dated 02.11.1997 at Exh. 117, though the Will was registered. With the assistance of the learned counsels appearing for the parties, I have gone through the evidence of defendant no.7 and the attesting witness over the Will i.e. DW-2 Omprakash Chandulal Soni and I find that the findings recorded by the lower appellate Court accepting the said Will are based upon the evidence available on record. The Will has been proved and there is no perversity in recording such finding. As a result, the plaintiff would not be entitled to enhancement of share from 1/5th to 4/15th as was granted by the trial Court. Hence, the decree passed by the trial Court will have to be modified to that extent.

20. The Second Appeal is, therefore, partly allowed. The judgment and order dated 30.08.2004 passed in Regular Civil Appeal No.294 of 2002 is hereby quashed and set aside. The decree passed by the trial Court in Regular Civil Suit No. 81 of 2002 on 31.10.2002 is modified as under;

I] The plaintiff is entitled to partition and separate possession of 1/5th share in the suit property i.e. (1) field Gat No. 1277, 6H 52R, (2) field Gat No. 1257, 4H 27R at village Shirpur, (3) House bearing Gram Panchayat No. 895, admeasuring 100 x 100 sq.feet and (4) space "Chakki Chi Jaga" with flour mill.

II] The defendant No.1 is entitled to 1/5th share, the defendant No. 2 is entitled to 1/5th share, the defendant no. 4 is entitled to 1/20th share, the defendant nos. 5 and 6 are jointly entitled to 1/20th share, the defendant No. 7 is entitled to 1/4th share and the defendant no.8 is entitled to 1/20th share from the whole suit property described above.

III] The plaintiff is entitled to an enquiry into mense profit against the defendant No.7 as per Order 20, Rule 12 of C.P.C from the date of suit i.e. 08.11.2001 until the actual partition and possession of the suit property.

IV] The defendant Nos. 4, 7 and 8 do bear their own cost and proportionate cost of the plaintiff.

V] Defendant Nos. 1, 2, 5 and 6 do bear their own cost.

VII] A precept be sent to the Collector, Washim to effect partition and separate possession of the suit field Gat Nos. 1277, 6H 52R and 1257, 4H 27R situated at village Shirpur for 1/5th share to the plaintiff only.

Appeal partly allowed.