Madras High Court
V. Sumathi And Anr. vs D. Vedagiri And Ors. on 26 March, 2003
Equivalent citations: 2003(3)CTC329
Author: A. Kulasekaran
Bench: A. Kulasekaran
ORDER A. Kulasekaran, J.
1. Application No. 5401 of 2002 has been filed by the applicant to implead herself namely Mrs. V. Bhuvanaeswari as 2nd defendant in the above suit.
2. Application No. 5014 of 2002 has been filed by the defendant to implead the proposed party namely the very same Mrs. V. Bhuvanaeswari as 2nd defendant in the suit.
3. The applicant in Application No. 5401 of 2002 is hereinafter referred to as applicant, the first respondent in both the applications as plaintiff and the applicant in Application No. 5014 of 2002 as defendant.
4. The suit has been filed by the plaintiff for partition of the plaint schedule described property and allot 1/2 share, to her. On 27.3.2000, this Court passed preliminary decree in the above suit. Aggrieved by the preliminary decree, the defendant has preferred O.S.A. No. 392 of 2002 which was also dismissed by the division bench of this Court on 11.11.2002. Thereafter, the Plaintiff has filed an application for passing of final decree. The above said two applications have been filed to implead the applicant as second defendant.
5. Mr. Kalyanasundaram, learned Senior Counsel appearing for the applicant submitted that the defendant has married one Valli @ Papathy on 22.1.1963. Out of the said wedlock, a male child was born on 12.4.1968, who has later died. Thereafter, the said Bhuvaneswari was born on 22.4.1980. The defendant also married Padmavathy on 6.7.1969 and the Plaintiff was born on 24.6.1970 to them. The learned Senior counsel pointed out from the written statement filed by defendant that she has admitted that the applicant was born to the first wife as such she was a necessary party to the suit and he prayed for dismissal of the suit on the ground of non-joinder of necessary party, but the trial Court has not taken cognisance of the said vital point. The learned Senior Counsel further advanced argument that the applicant was not aware of the suit C.S.No. 235 of 1998 which was also admitted by Vedagiri in his affidavit filed in support of the petition in Application No. 5014 of 2002. The learned Senior counsel advanced arguments that as per Section 2, Sub-clause (2) read with Order 20, Rule 18 (2), CPC, there could be more than one preliminary decree in a suit for partition and it can be varied or modified before final decree is passed. Even after final decree is engrossed in the stamp paper, but till the Judge signs the preliminary decree passed in the partition suit cannot and shall not become final. It is also brought to the notice of this Court by the learned Senior Counsel that the applicant herself has filed C.S. No. 492 of 2002 claiming half share in the suit property, which is pending before this Court. It is also submitted that the mother of the plaintiff Padmavathy has filed O.S. No. 25 of 2002 before the II Additional City Civil Court, Chennai to declare herself as legally wedded wife and a suit O.S. No. 128 of 2002 has been filed by the mother of applicant Valli @ Papathy before the same Court to declare herself as a legally wedded wife. In view of the same, the said Bhuvaneswari is a necessary party, to the above suit C.S. No. 235 of 1998.
6. The learned Senior Counsel appearing for the applicant relied on the following decisions in support of his case:
(i) Poolchand and Anr. v. Gopal Lal, to demonstrate that the preliminary decree could be varied if an event transpired after passing of it and it could be done before final decree is passed.
(ii) Jotindra Mohan Tagore v. Bejoy Chand Mahatap, I.L.R. 32 Cal. 483 (DB) wherein it was held that partition suit can be modified before final decree is passed and Order 1, Rule 10(2) provides for impleading necessary party at any stage of the suit.
(iii) A decision of this Court reported in Krishna Aiyar v. Subrahmania Aiyar, AIR 1924 Mad. 648 was relied on by the learned Senior Counsel to say that after preliminary decree in a mortgage suit and before a final decree is passed, it is open to the Court to add a party and allow the prior proceedings re-opened in so far as the new party is concerned.
(iv) Nanja Naickan v. Rangammal, 1972 (II) MLJ 12 in which this Court held that under Order 20, Rule 18 more than one preliminary decree can be passed and right of persons entitled to a share is to be adjudicated before passing of final decree and ultimately modified the preliminary decree.
(v) M. Shanmuga Udayar v. Sivanandam and Ors., wherein a Division Bench of this Court has held that passing of more than one preliminary decree is not prohibited under the Civil Procedure Code. It was also held by the Division Bench that necessary party could be impleaded even at appellate stage.
(vi) Vattam Ramakrishnayya v. Vattini Satyanarayana and Ors., AIR 1929 Mad. 291 in which this Court decided who is necessary party and appropriate party. While deciding so, this Court held that persons applies to bye made as a party to suit the Court ought to see whether there is any thing which cannot be determined owing to his, absence or whether he would be prejudiced by his not being joined as a party.
(vii) Ramaswami Chettiar v. Vellayappa Chettar, AIR 1931 Mad.357 wherein it was held that if the presence of the parties are necessary to enable the Court effectively and completely to adjudicate and settle all the questions involved in the suit.
(viii) Bhupendra Narayan Sinha Bahadur v. Rajeswar Prasad Bhakat and Ors., AIR 1931 P.C.162 in which this Court held that the course of adding proforma defendants as to plaintiffs should always be adopted where it is necessary for complete adjudication and to avoid multiplicity of proceedings.
(ix) A. Ramachandra Pillai v. Valliammal (died), 1987 (100) LW 486 (DB) wherein this Court held that though Order 1, Rule 9, CPC provides that no suit shall be defeated for reasons of misjoinder or non-joinder of the parties and the Court may in every suit deal with the matter in controversy in so far as regards the rights and interest of the parties actually before it, there is a proviso which ways that anything in the Rule will apply to non-joinder of necessary parties in a suit for general partition, there could be no doubt that all sharers are necessary parties as mentioned above. Apart from this the main part of Rule 9 is only enabling provision and the Court shall deal with each case with reference to the particular facts of that case.
(x) Kaliammal v. Karuppan and Ors., 2001 (1) MLJ 22. (xi) Ramdas v. Chunduru Sarada, AIR 1976 A.P. 226.
(xii) Chinnammal and 7 Ors. v. Elumalai and 4 Ors., .
These three decisions were relied on by the learned Senior Counsel for the applicant to say that under Section 16 of the Hindu Marriages Act, illegitimate children will be entitled to a share along with the legitimate children.
7. Mr. R. Krishnasamy, learned Senior Counsel appearing for the plaintiff submits that the applications are nothing but abuse of process of Court and Law which are liable to be dismissed in limini. The applications were filed by the applicant in collusion with the defendant. The suit filed in C.S. No. 235 of 1998 by the plaintiff was contested by the defendant and this Court, on consideration of the entire facts passed a preliminary decree in respect of item No. 1 and 4 and one Ground 750 square feet with a building in item No. 2 and 4 flats in item No. 6 by a judgment dated 27.3.2000. In respect of the remaining items, this Court was pleased to dismiss the suit. Aggrieved by the said judgment, the plaintiff has preferred O.S.A. No. 129 of 2000 which was dismissed on 2.4.2001. The defendant has also preferred O.S.A. No. 392 of 2002 which was also dismissed on 11.11.2002. Thus, the preliminary decree has become final. The learned Senior Counsel denies the allegation that preliminary decree was passed in collusion with the defendant and plaintiff. The applicant has filed a suit C.S. No.492 of 2002 and obtained an interim order as such there is no bar in passing of final decree in the present suit. According to the learned Senior Counsel for the respondent, the Division Bench of this Court, while disposing of O.S.A. No. 129 of 2000 and O.S.A. No. 392 of 2002 has taken note of the false averments made by the defendant that Bhuvaneswari was born to his first wife and rejected it. The suit O.S. No. 128 of 2002 and O.S. No. 25 of 2002 have no relevance to the issues involved in the present suit. Once a preliminary decree is passed and same was confirmed by the Division Bench of this Court, it reached finality. The applicant and the defendant are trying to reopen the preliminary decree on the guise of impleading application which is not sustainable in law. The intention of the applicant and the defendant are only to protract the proceedings to deprive of the legitimate share of the plaintiff over the suit property; that the defendant has also alienated few items of the property and if the suit is allowed to be reopened the applicant would take advantage of the same and prayed for dismissal of the applications.
8. The learned Senior Counsel appearing for the respondent relied on the below mentioned decisions in support of his case:
(i) Neelakantha Pillai Ramachandran Nair v. Ayyappan Pillai Kumara Pillai, wherein a Division Bench of the Kerala High Court held that the impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree would have to be reopened by the Court as a consequence of such impleadment; the addition of parties can be allowed at that stage only on condition that the further proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed, and none of the questions settled by the preliminary decree will be allowed to be re-agitated on the ground that the person newly impleaded was not before the Court at the time of passing of the preliminary decree.
(ii) Venkata Reddy and Ors. v. Pethi Reddy, wherein the Honourable Supreme Court held that the preliminary decree for partition is final decision. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to by such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees, a preliminary decree and a final decree, the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it. Section 97, CPC clearly indicates that as to the matters covered by it preliminary decree is regarded as embodying the final decision of the Court passing that decree.
(iii) The learned Senior Counsel also relied on the unreported Judgment delivered in the present case in O.S.A. No. 392 of 1998 preferred by Vedagiri to show that the Division Bench of this Court has confirmed the preliminary decree.
9. Mr. A.M. Loganathan, learned counsel appearing for the defendant submitted that the defendant has canvassed in the preliminary decree proceedings as well as in the O.S.A. that the applicant is the daughter of his first wife namely Valli @ Papathy as such the defendant is a necessary party and non-joinder of the defendant will render the suit liable for dismissal. It is also submitted by the learned counsel that no finding was rendered in the preliminary decree proceedings as well as in O.S.A. about the said issue. It is also further stated that the preliminary decree proceedings is liable for modification in the event of any one of the sharers is impleaded. The learned counsel also relied on (i) Jotindra Mohan Tagore v. Bejoy Chand Mahatap, I.L.R. 32 Cal. 483 (DB) (ii) Krishna Aiyar v. Subrahmania Aiyar, AIR 1924 Mad. 648 and (iii) Vattam Ramakriahnayya v. Vattini Satyanarayana and Ors., AIR 1929 Mad. 291 which are relied on by the counsel for the applicant.
10. The point for consideration in these applications is whether the applications for impleading the applicant is maintainable or not ?
11. Now, we look into the relevant provisions of CPC, Indian Evidence Act and Letters Patent.
Section 2(2), CPC - In this Act, unless there is anything repugnant in the subject or context,-
(1).....
(2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question with Section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) Any order of dismissal for default Order 1, Rule 10(2), CPC - Suit in name of wrong plaintiff-
(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 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 effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added.
Order 20, Rule 18, CPC - Decree in suit for partition of property or separate possession of a snare therein -Where a Court passes a decree for the partition of property or for the separate possession of a share therein, then -
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazzetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
Order XXIV O.S. Rules, 2 and 12
2. The plaint shall state the relationship, if any, of the parties, and the shares to which they are respectively entitled and the allowances or residences, if any, which it is proposed to allot to them respectively; and unless a general account is prayed for, the particular items of joint property of which division is sought, the encumbrances, charges and outgoings, if any, to which the same are subject; and the net value of each item; and shall also state whether any debts or liabilities of the co-owners, payable out of the joint property are outstanding or unsatisfied.
12. The final decree shall in all cases specify the several portions of the joint property assigned to the several parties as their respective shares.
Indian Evidence Act Section 13 - Facts relevant when right or custom is in question -Where the question is as to the existence of any right or custom, the following facts are relevant.
(a) Any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted, or denied, or which was inconsistent with its existence;
(b) Particular instances in which the right or custom was claimed, recognised, or exercised, or in which its exercise was disputed.
Section 112, Birth during marriage, conclusive proof of legitimacy -The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Clause 13 of Letters Patent - And We do further ordain that the said High Court of Judicature at Madras shall have the power to remove, and to try and determine, as a Court of Extraordinary Original Jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras, subject to its superintendence when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing recorded on the proceedings of the said High Court.
12. Now, I proceed to analyse the applicability of the provisions of law to the facts and circumstance of the case in hand. The plaintiff has obtained a preliminary decree against the defendant where the applicant herein was not arrayed as a party. Now, the plaintiff seeks for final decree. At this stage, the applications are filed.
13. The learned Senior Counsel appearing for the plaintiff advanced arguments that the preliminary decree passed in the suit is a conclusive one. If at all any right is claimed by the applicant it could be established in her suit which is filed already. The learned Senior Counsel appearing for the applicant and the counsel for the defendant submitted that more than one decree can be passed in a suit for partition when a sharer approach the Court before passing final decree.
14. Under Sub-section 2 of Section 2, CPC - Decree means the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It is clear that a decision of a Court may be said to be a decree, it must satisfy the following conditions - (i) there must be an adjudication (ii) which must have been given in a suit (iii) determining the rights of the parties with regard to all or any of the matters in controversy in the suit (iv) which must be of a conclusive nature and (v) there must be a formal expression of such adjudication.
15. So far as suits for partition are concerned the Court when declares and determines the share of the parties and does not decide which items, after division by metes and bounds, should be delivered over to the plaintiff, the decree is only a preliminary decree and any application to the Court to pass final decree is not an application for execution but one to proceed with the suit. Function of final decree is merely to restate and apply with precision what preliminary decree is ordered. No doubt a final decree is based on and controlled by the preliminary decree, but a preliminary decree does not satisfy the requirements contemplated under Section 2(2), CPC which are mentioned supra. In a partition suit more than one preliminary decree can be passed. A sharer impleaded after the preliminary decree but before passing final decree is entitled to have her share declared if necessary by rectification or amending the preliminary decree - followed Poolchand and Anr. v. Gopal Lal .
16. Order 20, Rule 18, CPC contemplates that a decree must declare the rights of the several parties interested in the property necessarily involves that all person who are interested in the property must be joined as parties to the suit, as the Rule can only mean that there should be a judicial declaration of rights of the parties which means that all the interested parties must be before the Court. Hence, I am of the considered view that after passing the preliminary decree, if addition of party is made, rectification of preliminary is certainly permissible in law - followed Nanja Naicken v. Rangammal, 1972 (2) MLJ 12.
17. In this case, the applicant claims that she is the daughter of the first, wife of defendant herein. Similarly, the plaintiff also claims that she is the daughter of the defendant born through Padmavathy, who is stated to be the first wife. Both of them claim share in the suit property as daughters of the defendant. The applicant has filed C.S. No. 492 of 2002 before this Court, on 16.7.2002 claiming half share in the suit property wherein the plaintiff herein was arrayed as defendant. The respective mother of the applicant and plaintiff also filed suit O.S. Nos. 25 of 2002 and 128 of 2002 claiming themselves as legally wedded wife of the defendant herein which are pending before the II Additional City Civil Court, Madras. In the above circumstance, I proceed to decide whether the applicant is a necessary party as defined under Order 1, Rule 10, CPC.
18. A necessary party is one without whom no order can be made effectively and proper party is one in whose absence an effective order can be made, but whose presence is necessary for complete and final decision on the questions involved in the proceedings.
19. The learned Senior Counsel appearing for the plaintiff advanced arguments that this Court, while passing preliminary decree has taken note of the averments made by the defendant that the applicant was born to his 1st wife and rejected it which was also confirmed by the Division Bench of this Court in O.S.A. No. 392 of 2002, hence the applications for impleading is unsustainable in law. It is true that the defendant herein has canvassed the above said facts in the suit and also in the O.S.A. When a matter whether on a question of fact or law has been decided between two parties in one suit or proceedings which is final and neither party will be allowed in a future suit between the same panics. The applicant was not a party in the preliminary decree proceedings or in O.S.A. No evidence was let in by the plaintiff or defendant relating to the right of the applicant herein in the said proceedings. Indeed, in preliminary decree proceedings and consequent appeals, the issue whether the applicant's mother is a legally wedded wife or not was not at all gone into. Hence, the argument of the learned Senior Counsel for the plaintiff that the said issue was decided in preliminary decree proceedings and O.S.A. is untenable. No difficulty in jointly disposing this suit and the one filed by the applicant in C.S. No. 492 of 2002 in the interest of justice and avoid conflict of verdicts.
20. The question of impleadment of a party is to be decided on the touch stone of Order 1, Rule 10, CPC. The object of the said Rule is to -enable the parties to litigate their own independent claims. The facts and circumstance stated above show that the applicant is a necessary party as her presence is necessary for the effectual and complete adjudication of the questions involved in the suit.
Hence, the application filed by the applicant in A.No. 5401 of 2002 is ordered as prayed for. In view of the same, no order is required in Application No. 5041 of 2002, hence the same is dismissed. No costs.