Sikkim High Court
Indira Dahal vs Nil Kumar Dahal And Anr on 22 April, 2016
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK (Civil Appellate Jurisdiction) DATED: 22"? APRIL, 2016 SINGLE BENCH : HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE RFA No.04 of 2014 Appellant : Smt. Indira Dahal, Aged about 65 years, W/o Late Devi Prasad Dahal, R/o Raley, East Sikkim. versus Respondents : 1. -- ShriNil Kumar Dahal, S/o Late Devi Prasad Dahal, R/o Raley, East Sikkim. 2. Shri Durga Prasad Dahal, S/o Late Devi Prasad Dahal, R/o Raley, East Sikkim. Appeal under Order XLI Rules 1 and 2 of the Code of Civil Procedure, 1908 Appearance " a Mr. Jorgay Namka, Advocate with Ms. Tashi Doma Sherpa, Advocate for the Appellant. Mr. A. Moulik, Senior Advocate with Mrs. K. D. Bhutia, Advocate for Respondents. ait RFA No.04 of 2014 2 Smt. IndiraDahal vs. Shri Nil Kumar Dahal and Another JUDGMENT
Meenakshi Madan Rai, J.
1, This Appeal has been preferred against the impugned Judgment and Decree of the Learned District Judge, Special Division
- I, Sikkim at Gangtok, dated 30-11-2013, in Title Suit No.08 of 2011, vide which the Learned Trial Court, inter alia, decreed that the Respondents are entitled to get one-third share, each, along with the Appellant from the "7iwni Land" of Late Devi Prasad Dahal, father of Respondents No.1 and 2 and husband of the Appellant, the land being in the possession of the Appellant. She prays that the impugned Judgment and Decree be set aside.
2, In Appeal, it was argued that the Suit ought to have failed on account of non-joinder of necessary parties inasmuch as Bal Krishna Dahal (since deceased), son of Late Devi Prasad Dahal and the Appellant, was not made a party to the Suit. That the Respondents performed the death rites of their father under duress but had not taken care of him during his lifetime, therefore, as per the terms of the "Banda Patra" (Partition Deed) they were not entitled to the "/iwni Land" as the twin conditions therein were that whichever son would care of their father during his lifetime and perform his death rites would be entitled to the said land. That, the two conditions were to be considered together, therefore, merely RFA No.04 of 2014 3 Smt. Indira Dahal vs. Shri Nil Kumar Dahal and Another performing his death rites without having cared for him in his life time did not entitle them to the Suit property. | That the Respondents in their pleadings have not stated that they were driven out of their home by the Appellant, however, contrary to the provisions of Order VI Rule 2 of the Code of Civil Procedure, 1908 (for short "the CPC"), in their Evidence on Affidavit they have put forth such claims. It was prayed that the impugned Judgment and Decree dated 30-11-2013 be set aside.
3. The Respondents for their part contended that since Bal Krishna Dahal had passed away prior to the institution of the Title Suit, hence the question of him being made a party does not arise, besides which, he has only one daughter. That the only question that the Respondents are required to prove is as to how they are entitled to "Jiwni Land" which has been sufficiently established as both requirements of the "Banda Patra" have been met by them. While resisting the arguments of the Appellant that the evidence cannot go beyond the pleadings, reliance was placed on Kali Prasad Agarwalla (Dead by LRs.) and Others vs. M/s. Bharat Coking Coal Ltd. and Others' wherein it was observed that "/t was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The
1. AIR 1989 SC 1530 RFA No.04 of 2014 4 Smt. Indira Dahal vs. Shri Nil Kumar Dahal and Another parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle." That the Suit is based on a testamentary provision and is not under the Indian Succession Act, 1925, as the deceased has specified in the Partition Deed that his sons were to get the "{iwni Land" and thus the question of 50% share to the Appellant does not arise, apart from which the Appellant has prayed for setting aside the entire Judgment which tantamounts to a prayer for setting aside the relief granted to her as well. It was also contended that the "Banda Patra"
was made after the two Respondents had already separated from _ their father, the deceased, and their father had deliberately inserted the clause to ensure that they obtained the land as the Appellant in view of the animosity of the Respondents and their step mother, had driven them out from their home. However, it was conceded that they do not challenge the decision of the Learned Trial Court giving a 1/3" share to the Appellant from the "{fwni Land" nor was any cross-objection filed before this Court on this count.
4, I have heard the contentions of Learned Counsel and given it due consideration. I have also carefully perused the documents on record including the impugned Judgment.
pete wi RFA No.04 of 2014 5 Smt. IndiraDahal vs. Shri Nil Kumar Dahal and Another
5. The case of the Respondents/Plaintiffs before the Learned Trial Court, was that, they are Hindus by faith, governed by the Mitakshara School of Hindu Law and they are the sons of Late Devi Prasad Dahal. Their mother having passed away when they were only children, their father married the Appellant/Defendant No.1 from whom another son and three daughters were born. That on 17-05-1985 their father executed a Partition Deed duly making provision for his sons to inherit the "Jiwni Land" on the dual condition that the son who would look after him and perform his death rites would inherit the same. Their father passed away in the year 2001, on which, as per Hindu Customs the Respondents performed his death rites but the Appellant despite being widowed allegedly failed to shave her head. On 26-07-2010, the Appellant approached the District Collector (Defendant No.2 before the Learned Trial Court) for mutation of lands recorded in the name of their father, to her name. The Respondents objected to the application, however, the District Collector vide an Order dated 03- 11-2010 directed the Revenue Officer (Defendant No.3 before the Learned Trial Court), to mutate the land prayed for by the Appellant in her name. That in fact plot no.452 had already been recorded as per the Partition Deed dated 17-05-1985 in the name of the Plaintiffs but the District Magistrate has wrongly shown the said plot as Jiwni' of the father of the Plaintiffs, whereas it is plot no.450. Therefore, it was, inter alia, prayed that the Order of the District Magistrate dated RFA No.04 of 2014 6 Smt. Indira Dahal vs. Shri Nil Kumar Dahal and Another 03-11-2010 be quashed and a declaration, inter alia, be made that only the Respondents are entitled to the "Jiwni Land".
6. The averments of the Respondents/Plaintiffs before the Learned Trial Court were disputed and denied by the Appellant while asserting that it was the Appellant and her late Son Bal Krishna Dahal who tended to the ailing and bed ridden Devi Prasad Dahal apart from which Bal Krishna Dahal financed the death rites unlike the Respondents who had left the main house several years before. Besides which, the Respondents and Bal Krishna Dahal had allegedly obtained their respective shares by virtue of the Partition Deed of 1978 and the relief sought was infructuous. That she is entitled to 50% of her husband's property as per the Law of the land and that the District Collector was well within his rights in issuing the Order dated 03-11-2010 based on the Partition Deed.
7, Based on the pleadings of the parties, the Learned Trial Court framed eights issues.
8. Issues No.4, 5 and 6 were taken up first and together, for the sake of convenience. The issues are as follows:-
4, Whether the Jiwni land' can be mutated in the name of the defendant no.17 5, Whether the defendant no.1 is entitled to any share in the Jiwni land' as per 'Banda Patra' dated 17,05.19857
6. Whether the Defendant no.1 has already got her share as per 'Banda Patra' dated 17.05.1985?
LETTS:
% RFA No,04 of 2014 7 Smt. Indira Dahal vs. Shri Nil Kumar Dahal and Another 9, The Learned Trial Court after considering the evidence and the arguments advanced by the parties decided all three issues supra in Paragraph 58 of its Judgment, inter alia, holding that "/n view of the above discussions, observation and finding, the defendant No.1 is also entitled to get one third share (1/3) including with (sic) existing Mul Garh (wherein the defendant No.1 is living) from the Jiwni land and hence, these issues are decided accordingly."
10. Issues No.2, 3 and 7 were taken up together being as follows:-
2. Whether the Plaintifts have right, title and interest in the suit property, ie., "Jiwni land" being Plot no.4507 3, Whether the plaintitts are entitled to recover the suit land, ie, Jiwni land' trom the possession of the Defendant no.1.? and
7. Whether the plaintiffs have looked after and pertormed the death rites of late Devi Prasad Dahal?
11. On these issues, the decision of the Learned Trial Court was summed up in Paragraph 80 of the impugned Judgment as follows:-
"80. In view of the foregoing observation, discussion and finding this court come (sic) to the conclusion that the plaintitts are also entitled to get one-third share (1/3) each of the Jiwni land and hence, these issues are decided accordingly."
12. Issue no.1 was taken up alone being "whether the suit is maintainable" and it was concluded that in the light of the foregoing RFA No.04 of 2014 8 Smt.Indira Dahal vs. Shri Nil Kumar Dahal and Another discussion and finding in the issues hereinabove, the Suit was maintainable.
13. Issue no.8 was taken up finally which was as follows:-
8. To what relief or reliefs if any, are the plaintitts entitled?
On this issue, it was found that "/n view of the foregoing observation, discussion, findings and considering all the facts and circumstances of the case, the evidence adduced by the respective parties, this Court come (sic) to the conclusion that the plaintiffs are entitled to the reliefs prayed for at prayers (1), (ii), (iii), (iv) (partly),
(vii) and (x) of the plaint and thus hereby decreed as under:-
i) That the plaintiffs are entitled to get the one third (1/3) share each from the Jiwni land, which is presently in possession of the defendant No.1."
14, The Suit was decided accordingly.
15. What stares one in the face is that the Appellant bore one son Bal Krishna Dahal to Devi Prasad Dahal. It appears that the said Bal Krishna Dahal died in an accident in Nepal leaving behind his widow and a daughter. Indisputably, Bal Krishna Dahal used to live with his parents, looked after them and had also performed the death rites of his father along with his step brothers, the Respondents. Although the Learned Trial Court in its Judgment has alluded to the fact that Bal Krishna Dahal looked after and RFA No.04 of 2014 9 Smt. IndiraDahal vs. Shri Nil Kumar Dahal and Another maintained his late father as well as performed the death rites, however, in paragraph 56 of the impugned Judgment has recorded, inter alia, that "wc ssssesseesesee it may be necessary to mention that though the younger son of late Devi Prasad Dahal, Bal Krishna (since deceased) also maintained/looked after and performed the death ritual of their father, however, neither his legal heir and successor were made parties in the present suit nor any of them came as interested party to claim the said Jiwni land, as such, it is not necessary to go into the details."
16. On this point, it is manifest that Rule 10(2) of Order I of the CPC clothes the Courts with powers to strike out or add parties at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just. It may also 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 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.
17. Hence, in my considered opinion, the Court was sufficiently empowered to invoke the said provision of Law and implead the legal heirs and successors of the deceased Bal Krishna RFA No.04 of 2014 10 Smt. IndiraDahal vs. Shri Nil Kumar Dahal and Another Dahal as parties, in view of the admitted fact that he was also the son of the deceased, had been living with his parents, looking after them and on the demise of his father performed the death rites.
18, Although Order I Rule 9 of the CPC states 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 the parties actually before it, but the rider in the Proviso states that nothing in this Rule shall apply to non-joinder of a "necessary party". It may be elucidated here that "necessary parties" are those parties whose presence is essential for the proper constitution of a Suit, and in whose absence no complete and effective decree can be passed.
19, In Chief Conservator of Forests, Govt. of A. P. vs. Collector and Others', the Hon'ble Apex Court held that though Rule 9 of Order I of the CPC mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule _ Shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the Court, be it a Plaintiff or a Defendant, otherwise, the Suit or the proceedings will have to fail.
2. AIR 2003 SC 1805 RFA No.04 of 2014 11 Smt. Indira Dahal vs. Shri Nil Kumar Dahal and Another
20. In Shanmugham and Others vs. Saraswathi and Others' it was, inter alia, held that, the question of non-joinder of necessary parties in a suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a suit for partition is not maintainable in the absence of some of the co-sharers. 1 have to concur with the decision of the Hon'ble Madras High Court.
21, On the anvil of the decision of the Hon'ble Apex Court supra it may safely be opined that in the absence of the legal heirs of Bal Krishna Dahal who are necessary parties, it would not be possible to completely and effectively resolve the dispute in the instant matter and could lead to a multiplicity of proceedings.
22, In the result, the Judgment and Decree of the Learned Trial Court is set aside, consequently issues are not being delved into.
23, It is hereby ordered that the legal heirs and successors of Bal Krishna Dahal be impleaded as Defendants in the Title Suit which shall be readmitted to its original number in the Register of Civil Suits of the Learned Court of the District Judge, Special Division
-I, Sikkim at Gangtok. The Suit be determined as per Law within six months from today in view of the fact that the Title Suit is of the year 2010.
3. AIR 1997 Madras 226 ds RFA No.04 of 2014 12 Smt. Indira Dahal vs. Shri Nil Kumar Dahal and Another 24, Copy of this Judgment be sent to the Learned Trial Court for information and compliance.
25, In the circumstances, no order as to costs.
26. Records of the Learned Trial Court be remitted forthwith.
t ( Meenakshi Madan Rai ) Judge 22-04-2016 Approved for reporting : Yes Internet : Yes