Madras High Court
Arulmony vs Thresammal (Died) on 23 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
S.A.No.1779 of 1996
1.Arulmony
2.Annamony
3.Mahalingam
4.Jayamary
5.Moses
6.Stephen
7.Poul Raja
8.Samuel Muthiah .. Appellants/
Defendants
Vs.
1.Thresammal (died)
2.Mary Rose Delphin
3.Y.Leon Rajasekar
[Respondent No.3 is brought on record
as legal heir of the deceased respondent
No.1, vide order, dated 13.10.2011 made
in M.P(MD)Nos.1 to 3 of 2009] .. Respondents/
Plaintiffs
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908, against the Judgment and decree dated 09.09.1995 passed in
Appeal Suit No.90 of 1993 by the District Court, Nagercoil reversing the
Judgment and decree dated 30.09.1993 passed in Original Suit No.82 of 1985 by
the Additional District Munsif Court, Nagercoil.
!For Appellant : Mr.K.P.Narayanakumar
^For Respondent No.2 : Ms.P.Jessi Jeeva Priya
for Ms.A.Bhuvaneswari
For Respondent No.3 : No appearance
:JUDGMENT
Three decades and three years ago, a suit was filed on the file of the 'Additional District Munsif's Court, Nagercoil', which shall hereinafter be referred to as 'Trial Court' for the sake of convenience and clarity. To be precise, a suit in O.S.No.82 of 1985 was filed in the Trial Court by one Thresammal and her daughter Mary Rose Delphin, on 23.01.1985.
2.Aforesaid suit in the Trial Court was for partition of plaintiffs' 1/5th share in the plaint schedule property and for separate possession of the same after division by metes and bounds. There were eight defendants in all in the Trial Court.
3.Property sought to be partitioned is land admeasuring 12+ cents or thereabouts with three houses thereon in Survey No.A3/39 in Vadasery Village in Agasteeswaram Taluk in Nagercoil Sub District in Kanyakumari District. The property (sought to be partitioned) as described in the plaint is as follows:
?SCHEDULE OF PROPERTY No : 1 District : Kanniyakumari District Sub District : Nagercoil Taluk : Agasteesvaram Village : Vadasery Sy. No. : A3/39 Extent : 12 + cents Description of property : 12 + cents property together with 3 houses in Sy.No.A3/39 of Vadasery Village.
Boundaries
West : Mahalingam's property
and House
East : Main Road
South : Vania Perumal's Property
and house
North : Street?
The aforesaid property shall hereinafter be referred to as 'suit property' for the sake convenience and clarity.
4.It is not in dispute that the suit property originally belonged to one Thavasi Nadar. It is also not in dispute that Thavasai Nadar had six sons, who go by the names Arulmony, Annamony, Mahalingam, Chelliah Nadar, Ramalingam and Jesudasan. It is also the plaint averment that one of the six sons, Ramalingam died issueless intestate. It is the further case of the plaintiffs that first plaintiff is the spouse of Jesudasan and second plaintiff is the daughter born out of that wedlock. It is also averred in the plaint that Jesudasan left for Bombay for work on 06.01.1975 and thereafter, he did not return. Therefore, plaintiffs claimed Jesudasan's share. Arulmony, Annamony and Mahalingam have been arrayed as defendants 1, 2 and 3 respectively and Chelliah Nadar's heirs being wife and children have been arrayed as defendants 4 to 8. This completes the array of parties in the aforesaid suit in the Trial Court.
5.Defendants entered appearance and completed pleadings. As can be culled out from the Court file placed before this Court, the sheet anchor defence on the side of the defendants is that first plaintiff Thresammal was not married to Jesudasan. It is also the positive assertion of the defendants that first plaintiff Thresammal was married to one Subbiah Pillai and there are two children out of this wedlock.
6.On the aforesaid rival pleadings, the Trial Court framed six issues, which read as follows:
?1/Kjy; thjp. n$Rjhrd; vd;gthpd; kidtpa[k;. 2k; thjp mth;fSf;Fk; gpwe;jth; jhd; vd;gJk; rhpah> 2/tHf;Fiur; brhj;J n$RjhrDf;Fk; 1 Kjy; 3 gpujpthjpfSf;Fk; fhy";brd;w bry;iyaht[f;Fk; chpajh> 3/n$RjhrDf;Fk; Kjy; thjpiaj; jtpu ntW kidtp me;jkhd; epf;nfhghh; jPtpy; cz;lh> 4/n$Rjhridg; gw;wpnah mtuJ ,Ug;gplk; gw;wpnah mthpd; cwtpdh;fs; kw;Wk; vtnuDk; fle;j 7 Mz;Lfspy; mth; Fwpj;J nfs;tpg;gl;lJ cz;lh> 5/thjpfSf;F fpilf;Fk; ghpfhu';fs; ahit> 6/bryt[j; bjhif gw;wpa Miz vd;d>?
7.From the rival pleadings in the Trial Court set out supra and the issues framed by the Trial Court, it will come to light that issue No.1 is the fulcrum of this entire lis.
8.Parties went to trial on the aforesaid issues. On the side of the plaintiffs, first plaintiff Thresammal examined herself as P.W.1 and one Mrs.Thai was examined as P.W.2. There shall be elaboration on this elsewhere in this Judgment, as this is very crucial and critical. One Father Russel Raj, a father in the Church in which second plaintiff's marriage tookplace, was examined as P.W.3 and one K.Rajagopal, who is said to have printed the marriage invitation of second plaintiff, was examined as P.W.4. Four witnesses were examined and like number of documents were marked, i.e., Ex.A.1 to Ex.A.4. Ex.A.1 is a marriage certificate, dated 20.11.1984, issued by a Church in Vettornimadam, which goes by the name Christ King Church. This, according to the plaintiffs, is the marriage certificate for second plaintiff. To be noted, this was marked in an attempt to establish that second plaintiff's father is Jesudasan. Marriage invitation for second plaintiff's marriage [dated 11.11.1970] was marked as Ex.A.2. Suit notice issued through a lawyer, dated 23.07.1984 by the plaintiffs was marked as Ex.A.3 and the reply issued by the defendants through their lawyer, dated 30.07.1984, was marked as Ex.A.4. As Ex.A.3 and Ex.A.4 are suit notice and reply exchanged between the plaintiffs and defendants (through their respective lawyers), prior to the filing of the suit, for all practical purposes, there are two exhibits, which turn on the lis and they are Ex.A.1 and Ex.A.2, i.e., marriage certificate and marriage invitation of second plaintiff.
9.On the side of the defendants, third defendant, Mahalingam, examined himself as the lone witness, i.e., D.W.1. No documents were marked on the side of the defendants.
10.Trial Court vide Judgment and decree, dated 30.09.1993, dismissed the suit by answering issue No.1 supra, against the plaintiffs. Trial Court returned a finding that the aforesaid exhibits, i.e., Ex.A.1 and Ex.A.2 and the deposition, do not establish first plaintiff's marriage to Jesudasan. This is articulated by the Trial Court in paragraph No.8 of the Judgment and the relevant portions of paragraph No.8 of the Judgment of the Trial Court read as follows:
?/// /// /// 2k; thjpf;F jpnurk;khs; nfhtpypy; jpUkzk; ele;jjhft[k;. jpUkzj;jpw;F Kjy; thjpa[k;. xa;/VRjh!; kfs; 2?k; thjp vd Fwpg;gplg;gl;Ls;sJ/ VRjhrdpd; je;ij bgah; jtrp vd th/rh/2 TWfpwhh;/ th/rh/2 VRjhrdpd; je;ij Mthh;/ Mdhy; VRjhrd; je;ij bgah; th/rh/2d; rhl;rpag;go jtrp vd;why; VRjhrdpd; bgaUf;F Kd;g[ w;wp/ vd Fwpg;gpl ntz;Lk;/ Mdhy; mjw;F khwhf xa;/VRjhrd; vd Fwpg;gpl;oUg;gJ th/rh/2 TWk; jdJ rnfhjuh; w;wp/ VRjh!; bgah; th/rh/M/2 Fwpf;ftpy;iy jPh;khdpf;fpnwd;
/// /// /// Mfnt. th/rh/M/1. 2 Mfpait xd;Wf;bfhd;W Kuz;ghlhf njhd;WtjpYk;. thhpRr;rhd;W. FLk;g ml;il thf;fhsh; gl;oay; jd;dpr;irahd rhl;rpfspd; rhl;rpankh rhd;whtz';fnsh jhf;fy; bra;J 2?k; thjp ,e;ePjpkd;wj;jpy; M$uhfp rhl;rpak; mspf;fhj epiyapy; VrjhrDf;Fk; 1?k; thjpf;Fk; jpUkzk; ele;jJ vdt[k;. 2?k;; thjp jhd; VRjhrdpd; kfs; vdt[k; j';fs; jug;g[ tHf;if thjpfs; epU:gpf;ftpy;iy vd Kot[ bra;J 1?tJ vGtpdhtpw;F tpilaspf;fpnwd;?/
11.Aggrieved, plaintiffs carried the matter by way of a regular first appeal under Section 96 of 'Code of Civil Procedure, 1908', which shall hereinafter be referred to as 'CPC' for brevity. This regular first appeal under Section 96 CPC is A.S.No.90 of 1993 on the file of 'District Judge's Court, Kanyakumari District at Nagercoil', which shall hereinafter be referred to as 'first appellate Court'.
12.Defendant's in the Trial Court were obviously arrayed as respondents in this first appeal. Respondents entered appearance and contested the first appeal. After full contest and hearing, vide Judgment and decree, dated 09.09.1995, the first appellate Court reversed the aforesaid Judgment and decree of the Trial Court, allowed the first appeal and decreed the suit as prayed for.
13.To be noted, Ex.A.1 and Ex.A.2 are not only two documents on behalf of the plaintiffs, but they are, for all practical purposes, two exhibits, on which, the entire lis turns in the Trial Court and the first appellate Court, as no documents have been marked and there are no exhibits on the defendants' side. Therefore, the thrust of the Judgment of the first appellate Court also turns on interpretation of Ex.A.1 and Ex.A.2. This is articulated in paragraph No.9 of the Judgment of the first appellate Court and the relevant portion reads as follows:
?9/th/rh.1. m2?y; 2k; thjpapd; jfg;gdhh; n$Rjhrd; vd;W Fwpg;gpl;oUg;gJ th/rh/1. 2d; rhd;Wf;F rhd;WUj;jk; mspf;Fk; tifapy; cs;sJ/ 1/11/1970?y; jpUkzk; ele;jjhf th/rh/M1?y; Fwpg;g[s;sJ/ me;jr; rkaj;jpy; cz;ikia kiwj;J. bgha;ahd tptu';fs; bfhLj;J jpUkzk; bra;J bfhs;s ntz;oa mtrpak; 2?k; thjpf;F ,Ue;jJ vd;gjw;F ve;jtpj MjhuKk; ,y;iy/ Kjy; thjpapd; jpUkz rhd;wpjH; jhf;fy; bra;ag;gltpy;iy vd;w fhuzj;jpw;fhf thjpfspd; nfhhpf;ifia epuhfhpg;gjw;fpy;iy/ 1940 Kjy; 1970 tiuahd Mz;Lfspd; jpUkz gjpntLfs; njoa[k; fpilf;ftpy;iy vd th/rh/3 ,l;l rhd;W jtW vd;W Rl;of;fhl;lg;gltpy;iy/ /// /// /// ,we;Jnghd n$Rjhrdpd; thhpRfs; vd;w Kiwapy; thjpfs; ,we;Jnghd bry;iyadpd; brhj;Jf;fspy; cld; brhe;jf;fhuh; vd;w Kiwapy; brhj;Jf;fspy; ghfk; nfhu chpika[ilath;fs;/ thjpfs; n$Rjhrdpd; rl;lg;goahd thhpRfs; vd;W bka;g;gpf;fg;gl;Ls;sJ/ Mifapdhy; thjpfs; nfhhpago tHf;fpilr; brhj;Jf;fspy; 1- 5 ghfj;jpw;F Kjy; epiyj; jPhg;gghiz tH';fplg;gl ntz;Lk;?/
14.Aggrieved, the defendants in the Trial Court have carried the matter to this Court by way of the instant second appeal. Obviously, two plaintiffs in the Trial Court have been arrayed as respondent Nos.1 and 2 in the instant second appeal. Pending second appeal, first respondent Thresammal died, her daughter was already on record and one Liyon Rajasekar has been brought on record as respondent No.3 citing that he is also a heir qua respondent No.1. To be noted, respondent No.3 has not entered appearance through anyone in this Court, though the name of respondent No.3 is shown in the cause list. Further, to be noted, there is no response, though name of respondent No.3 was called out aloud thrice in Court, in the adjoining corridor and in the visitors' gallery.
15.This second appeal is yet to be admitted. At the time of inception of this second appeal, notice was ordered to the respondents. Respondents have entered appearance and the matter is before this Court for final disposal now.
16.Mr.K.P.Narayanakumar, learned counsel is before this Court on behalf of the appellants and Ms.P.Jessi Jeeva Priya, learned counsel is before this Court on behalf of counsel on record for second respondent.
17.Learned counsel for the appellants contended that the Trial Court was correct in returning the finding that the purported marriage of first plaintiff and Jesudasan has not been established. Learned counsel also pointed out that other than Ex.A.1 and Ex.A.2, no documents have been marked. Learned counsel for the appellants also pointed out that even in Ex.A.1 and Ex.A.2, which pertain only to the marriage of second plaintiff, her father's name has been shown as Y.Yesudasan, whereas it should have read as T.Yesudasan, because it is the common case of all the parties that suit property is the estate of Thavasai Nadar and all of them are descendents of Thavasi Nadar, who are claiming share in the suit property. This has also been noticed by the Trial Court.
18.It was also pointed by the learned counsel for the appellants that there is a specific pleading in the Trial Court that first plaintiff was married to one Subbiah Pillai and that there were two children out of that wedlock.
19.In response to the same, Ms.P.Jessi Jeeva Priya, learned counsel, submitted that with regard to the averment that first plaintiff was married to Subbiah Pillai, plaintiffs cannot be called upon to prove the negative. It was also argued that the first appellate Court was correct in reversing the findings of the Trial Court, allowing the appeal and decreeing the suit. It was emphatically contended that the findings returned by the first appellate Court that the depositions of P.W.1 and P.W.2 established that there was marriage between first plaintiff and Jesudasan, is correct.
20.This takes us to the evidence of P.W.2. To be noted, this Court has already mentioned supra that there will be some elaboration about the evidence of P.W.2 in this Judgment. P.W.2 has deposed in her capacity as sister of defendants 1 to 3. This comes to light from paragraph No.8 of the Judgment of the first appellate Court, wherein it has been mentioned as follows:
?8/n$Rjh!; kw;Wk; 1 Kjy; 3 vjph; thjpfspd; rnfhjhpahd th/rh/2 jd;Dila rhl;rpaj;jpy; /// /// ///?
This throws up a very interesting proposition. If Ms.Thai is sister of defendants 1 to 3, she is also one of the heirs of Thavasi Nadar. A perusal of the Trial Court's Judgment also reveals that P.W.2 has deposed to the effect that she and defendants 1 to 3 are not civil to each other and that they are not in talking terms owing to certain property dispute. If this is the scenario, it emerges clearly that all the legal heirs of Thavasi Nadar, whose estate is the subject matter of the suit, have not been made parties to the partition suit. This takes us to the principle that failure to implead all sharers in a partition suit, will result in the suit being dismissed for non-joinder.
21.Appellants as protagonists of the instant second appeal have proposed and propounded three questions, which are as follows:
?1.Whether the 1st Appellate court is correct in allowing the appeal?
2.Whether the plaintiffs/respondents have proved their case beyond reasonable doubt?
3.Whether Ex.A.1 and A2 have been proved as per the provisions of the Evidence Act??
According to appellants, who are protagonists of the second appeal, the aforesaid three questions are substantial questions of law.
22.This Court has carefully applied its mind to the aforesaid three questions and tested the three questions using the Judgment in Hero Vinoth v. Seshammal reported in (2006)5 SCC 545, particularly paragraph 24(ii), as the touchstone for testing whether the aforesaid questions would qualify as 'substantial questions of law'. The answer is in the negative, as they are neither debatable nor non-application/misapplication of settled law.
23.Faced with the above situation, learned counsel for the appellants fell back on proviso to 100 CPC and requested this Court to formulate a substantial question of law with regard to all the sharers not being made party to the partition suit and that being fatal to the suit owing to non- joinder.
24.As the entire second appeal arises out of a partition suit, wherein the sharers qua Thavasi Nadar's estate, are the adversaries in the lis, it definitely falls for consideration as to whether all the heirs of Thavasi Nadar have been made parties to the partition suit. As it arises from the factual matrix of the second appeal and as it is a very crucial and critical question, which for all practical purposes, is the crux and gravamen of this entire partition suit, this Court considers it appropriate to formulate the following substantial question of law:
?Whether the suit in O.S.No.1982 of 1985 on the file of the Additional District Munsif's Court, Nagercoil, deserves to be dismissed for non-joinder, as all the sharers have not been impleaded as parties to the suit??
25.Search for an answer to the aforesaid substantial question of law turned out to be no conundrum. In other words, the answer was straight and simple. The answer is traceable to the principle laid down by a Constitution Bench of the Hon'ble Supreme Court in the Judgment in Kanakarathanammal v. V.S.Loganatha Mudaliar and another reported in AIR 1965 Supreme Court 271. This principle was also laid down [by a Division Bench of this Court] even in a suit for injunction qua joint possession, in a Judgment in T.Panchapakesan (died) and Ors. v. Peria Thambi Naicker (died) and Ors. reported in AIR 1973 Mad 133. Peria Thambi Naicker's case as well as the Constitution Bench Judgment in Kanakarathanammal's case were followed in A.Ramachandra Pillai v. Valliammal reported in (1987)100 L.W. 486 (Mad)(DB). To be noted, A.Ramachandra Pillai's case was rendered by a Division Bench of this Court and it is not only a ratio, but Judgment itself articulates with clarity that Kanakarathanammal's case is not only an authority but a determination of law qua 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 anyone of the parties. As mentioned supra, Kanakarathanammal's case is a Constitution Bench's Judgment and therefore, as lucidly held by a Division Bench of this Court in A.Ramachandra Pillai's case reported in (1987)100 L.W. 486 (Mad)(DB) supra, it is not only a principle or ratio, but it is a determination of law made by a Constitution Bench. This is articulated in paragraph No.7 of A.Ramachandra Pillai's case and this Court deems it appropriate to extract entire paragraph No.7, as it is elucidative, instructive and lays down the position that Kanakarathanammal's case is a determination of legal position:
?7.Though O.1, R.9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of mis-joinder 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. It is in that context, the decision of the Supreme Court in Kanakarathnammal v. Loganathad Mudaliar and another, is relevant. In that case, also, the plaintiff filed a suit for declaration and possession on the ground that the properties belonged to her mother and on her death she, as the sole heir, was entitled to the entirety of the properties. The suit was filed against two defendants who claimed that the father of the plaintiff had executed a will under which the first defendant had been appointed as executor and that as such executor he obtained probate of the said will, got possession of the properties and handed over possession to the second defendant therein as directed in the will. Thus the defendants set up a title in respect of the suit properties in the appellant's father. Alternatively they also added that if the properties belonged to the plaintiff's mother, she would not be entitled to claim exclusive title to the same, because by succession, the suit properties would devolve upon the appellant and her two brothers and the appellant's failure to join her brothers made the suit incompetent for nonjoinder of necessary parties. The trial Court held that the mother was the owner of the properties. However, it held that the suit is bad for non-joinder of necessary parties and on that ground the suit was dismissed. On appeal however, the High Court held that the properties belonged to the father. The appeal was dismissed on this ground and therefore there was no necessity to go into the question whether the suit was maintainable or not. On a further appeal, the Supreme Court accepted the contention of the plaintiff that the properties belonged to the mother. However, the Supreme Court held that since she was one of the three heirs of her mother and since she had not impleaded her two brothers to her suit, the suit was liable to be dismissed. The Supreme Court further observed:
"It is true that under Order I, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the mis-joinder 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 Order 1. Rule 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 co heirs 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."
This decision is thus an 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 nonjoinder of any one of the parties. In T.Panchapakesan and others v. Peria Thambi Naicker and others also, a Division Bench of this Court has taken a similar view by judgment dated 18-7-1972. 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 Nagarathinam?.
[Underlining made by Court to supply emphasis and highlight].
26.Thereafter, in a Judgment reported in AIR 1997 Madras 226, being Shanmugam and others v. Saraswathi and others, Justice M.Srinivasan, as a Judge of this Court, as his Lordship then was, laid down the principle that in a suit for partition, the question of non-joinder of parties can be raised at any time as it goes to the root of the matter. Therefore, the appellants, in law, are perfectly entitled to raise this issue in the second appeal before this Court. The legal position that the above principle can be raised in a partition suit at any stage, as it goes to the root of the matter, has been articulated in paragraph No.9 of aforesaid Shanmugam's Judgment and paragraph No.9 reads as follows:
?There is no merit in the contentions. 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. See A. Ramachandra Pillai v. Valliammal (1987) 100 ML.W.486?. Therefore, there is no difficulty in accepting the plea that the aforesaid plea of all sharers not being a party to the partition suit, can be raised in a second appeal, being accepted.
27.Once this plea is accepted and if it is tested on Constitution Bench's determination of law, made in Kanakaratnammal's case, as mentioned supra, it is no conundrum to answer the substantial question of law on which instant second appeal is being examined. In fact, it follows as a necessary sequitur that the suit in the instant case deserves to be dismissed for non- joinder of a necessary party, i.e., P.W.2, Mrs.Thai, who is sister of defendants 1 to 3, which inevitably means that she is also a heir/sharer qua Thavasi Nadar's estate, which is the subject matter of the partition suit.
28.As the lone substantial question of law, on which, the second appeal turns, has been answered in favour of the appellants, this second succeeds. Second appeal is allowed. Considering that it is a partition suit and also taking into account the trajectory of the litigation before this Court, the parties are left to bear their respective costs. Though obvious, it is made clear that the second appeal being allowed means the Judgment and decree of the first appellate Court, i.e., District Judge's Court, Kanyakumari District at Nagercoil, in A.S.No.90 of 1993, dated 09.09.1995, is set aside and the dismissal of the suit in O.S.No.82 of 1985 by the Trial Court, i.e., Additional District Munsif's Court, Nagercoil, vide Judgment and decree, dated 30.09.1993, is confirmed.
To
1.The District Court, Kanyakumari District at Nagercoil.
2.The Additional District Munsif Court, Nagercoil.
3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.