Madhya Pradesh High Court
Smt. Veena Devi & Ors vs Smt. Krishna Agnihotri on 9 September, 2019
Author: Jagdish Prasad Gupta
Bench: Jagdish Prasad Gupta
12
F.A.No.23/2003
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
First Appeal No.23/2003
Smt. Veena Devi Wd/o Harish Chandra Tiwari and others
Vs.
Smt. Krishna Agnihotri Wd/o Late Satya Dev Agnihotri
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Shri D.K.Dixit, Senior Advocate with Shri T.K.Khadka and
Shailesh Kumar Jain, Advocate for the appellants.
Shri Abhijeet Awasthi, Advocate with Shri Kapil Duggal, Advocate
for the respondent.
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Whether approved for reporting : (Yes/No).
JUDGMENT
(09.09.2019) This first appeal has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 3 rd December, 2002 passed by Second Additional District Judge, Khandwa, in Civil Suit No.32-A/2001, which was instituted on 28 th September, 1998; whereby preliminary decree for partition of the suit property with regard to 1/5th share of the respondent/plaintiff has been passed.
2. Facts giving rise to this appeal in brief, are that the suit property was the self acquired property of deceased Ram Chandra Tiwari, who died on 14.12.1965 leaving behind his heirs i.e. his wife Heeramani, who died on 22.04.1998 and son Harish Chandra, who died on 09.06.1996 and three daughters i.e. Krishna Agnihotri, 12 F.A.No.23/2003 plaintiff/respondent and Chandra Bai and Usha Devi, who were not parties to the suit. The defendants/appellants No.1 to 4 namely Veena Devi being wife and Atul Chandra, Aseem Chandra and Pragati being son and daughter of Harish Chandra are his heirs. On 28.09.1998, Krishna Agnihotri being daughter of deceased Ram Chandra Tiwari filed a suit for partition against aforesaid heirs of her brother Harish Chandra claiming 1/5th share in the suit property as after the death of father Ram Chandra, mother Heeramani transferred her share in favour of Harish Chandra, the suit property is a dwelling house as well as other land and prayed that the property be partitioned and 1/5th share be provided to her. So far as other sisters Chandra Bai and Usha Devi are concerned, they have relinquished their share in favour of Harish Chandra, therefore, they are not made parties to the suit.
3. The defendants/appellants refuting the aforesaid claim submitted in the written statement that the plaintiff has no share in the property. The property left by Ram Chandra Tiwri was subject to recovery of tax in the form of estate duty which was paid by Harish Chandra and the value of the property was equivalent to the due amount and some money was also spent for legal necessity of the family and to protect the property, therefore, other co-sharers have no right in the property as they have not spent any amount which was incumbent on the property. Apart from it, as per the provision of Section 23 of the Hindu Succession Act plaintiff being a female heir cannot claim partition of dwelling house, therefore, no decree of partition can be passed. It is further submitted that the suit is time barred. After the death of Ram Chandra, in the year 1966 the plaintiff claimed share in her favour. At that time, deceased Heeramani, wife of Ram Chandra and deceased Harish Chandra refused her demand stating that the value of her share in the property left by deceased Ram Chandra has been adjusted in payment of due amount towards Ram Chandra and since they are in 12 F.A.No.23/2003 exclusive possession of the property openly as owner till filing of the suit and thereafter, therefore, the suit is time barred. It is also submitted that 4470 sq.ft. land out of the suit property was transferred by Ram Chandra to his wife Heeramani in the year 1962 and Heeramani executed her will in favour of defendant/appellant No.1 Veena Devi. This property be separated from the disputed property as the same cannot be claimed for partition and prayed for rejection of the suit.
4. The learned Trial Court has passed the impugned judgment accepting the suit of the respondent/plaintiff, hence, this appeal.
5. In this appeal it is submitted that the finding of the Trial Court is contrary to facts, evidence and law. The appellants/defendants have proved all the defence taken in the written statements despite that the learned Trial Court has decreed the suit. It is submitted that the issues No.3,4 & 7 have wrongly been adjudicated in favour of the plaintiff and it is also submitted that in the partition suit all heirs of Ram Chandra are necessary parties and Chandra Bai and Usha Devi are daughters of Ram Chandra but they have not joined as a party, therefore, the suit of the plaintiff on account of the lacuna of non-joinder of necessary parties deserves to be dismissed. On behalf of the appellants IA No.10372/19, an application for taking additional ground in the memo of appeal along with another application IA No.10373/19 under Order 41 Rule 27 of the C.P.C. with the Death Certificate of Harish Chandra and the documents relating to admission and treatment of Atul Chandra appellant No.2 have been filed raising the question that the Trial Court has wrongly proceeded ex parte against the defendant No.3/the appellant No.4, hence, as no summon was issued against him after allowing the application under Order 33 Rule 1 of C.P.C. and converted the same as Civil Suit, therefore, on the aforesaid 12 F.A.No.23/2003 ground the judgment and decree is not sustainable. It is further submitted that Harish Chandra was actually died on 9 th June, 1995 while the plaintiff has claimed that he died in the year 1996 and in this regard Death Certificate was in possession of the defendant No.3 that is why it was not produced before the Trial Court and the appellant/defendant was not given due opportunity to adduce evidence and case was wrongly closed while the other appellants were busy in the treatment of Atul Chandra (appellant No.2) at Indore, therefore, the decree is not sustainable and by way of additional evidence appellant wants to submit the aforesaid relevant record to prove the facts of actual date of death of Harish Chandra and the treatment of Atul Chandra (appellant No.2) during the relevant time of adducing the defendant's evidence at Indore, therefore, he be allowed to adduce additional evidence.
6. Learned counsel appearing on behalf of the respondent/plaintiff has submitted that the findings of the Trial Court are based on sound evidence and legal appreciation of the evidence and the decree does not require any interference and submitted that the plea taken by the defendants/appellants have not found to be proved and so far as the non-joinder of necessary party is concerned, the appellants/defendants have admitted that other sister Chandra Bai and Usha Devi have relinquished their share in favour of Harish Chandra and no objection was taken in the written statement with regard to non-joinder of necessary party, therefore, this objection cannot be raised by the defendants/the appellants in the appeal and learned Trial Court also not committed any error in proceeding ex parte against the defendant No.3/the appellant No.4 Aseem Chand. As no fresh summon was required in the case and he was well aware of the proceedings and common written statement has been filed with the signature of the defendant No.3/the appellant No.4 Aseem, therefore, the objection has no merit. Similarly the date of the death of Harish Chandra is not material in 12 F.A.No.23/2003 this case and before the Trial Court on 15.11.2002 there was no prayer that on account of illness of Atul Chandra (appellant No.2) and his admission in the hospital at Indore the defendants/appellants were not in position to adduce any evidence on the date fixed for defence evidence, therefore, the aforesaid objection that no proper opportunity of hearing was given is contrary to the record, therefore, there is also no need for giving any permission for producing any additional evidence to prove the aforesaid facts and the appeal deserves to be dismissed.
7. Having heard contention of the learned counsel for the parties and on perusing the record, before analyzing the contentions of the parties on merit it would be appropriate to deal with the preliminary objections with regard to sustainability of the impugned judgment and decree.
8. The first contention has been raised by the learned counsel for the appellant is that the impugned judgment and decree is not sustainable as the learned Trial Court has wrongly proceeded ex parte against defendant No.3/appellant No.4 Aseem Chandra as after dismissing the application for permission to file the suit as indigent person, no fresh summon was issued to him, therefore, he could not appear and defend the case and the decree is of non- separable in nature against other defendants, therefore, on account of aforesaid error the whole decree deserves to be set aside with a direction for fresh trial.
9. On perusal of the record, in view of this Court, the aforesaid contention has no merit. The written statement shows that it has been filed on behalf of all the defendants/appellants including Aseem Chandra and the written statement also bears the signature of Aseem Chandra. Apart from it, the order dated 02.05.2002 shows that an application filed by Aseem Chandra under Order 9 Rule 7 of 12 F.A.No.23/2003 C.P.C., with regard to setting aside the ex parte proceeding against him, was allowed by the Trial Court and thereafter again Aseem Chandra remained absent, thus, the Trial Court again proceeded ex parte against him, therefore, it cannot be said that the learned Trial Court has committed such error which make the decree unsustainable. In the trial the opportunity of hearing to Aseem Chandra, the defendant/appellant has also been given, therefore, there is no need of fresh trial in the light of the aforesaid objection, hence, the aforesaid contention being devoid of merit is disallowed.
10. On behalf of defendants/appellants it is also submitted that the learned Trial Court did not give due opportunity to adduce evidence and their right to adduce evidence was wrongly closed. On the date on which the evidence was closed the appellants were busy in the treatment of Atul Chandra at Indore and in this regard medical documents have been submitted here, therefore, the impugned judgment be set aside and appellants be given due opportunity to adduce evidence. But on perusal of the record of the Trial Court, it is found that the Trial Court fixed the case for defendants/appellants' evidence on 21.01.2002 then on 21.02.2002, 27.03.2002, 02.05.2002, 11.07.2002, 10.10.2002, 29.10.2002 and on 15.11.2002. On 15.11.2002, learned counsel for the defendants/appellants stated that now defendants did not want to produce any other evidence, therefore, the defendant's evidence was closed and thereafter on the aforesaid ground no prayer was made to get such opportunity before the Trial Court. In the aforesaid circumstances, it cannot be said that no due opportunity was given to the defendants/appellants to adduce the evidence, therefore, the defendants/appellants have no right to claim for further opportunity to produce the evidence.
11. The Second preliminary objection is about the non- joinder of the necessary party. In this regard, it is submitted that the 12 F.A.No.23/2003 present suit is a suit for partition and admittedly Chandra Bai and Usha Devi, being daughters of deceased Ram Chandra, were also having their shares, however, it is pleaded that they relinquished their share in favour of the appellants/the defendants' predecessor Harish Chandra son of Ram Chandra but there is no proof on record that the relinquishment had taken place in accordance with law. In such circumstances, all the heirs of Ram Chandra are necessary parties. In absence of them no effective and complete adjudication of the question involved in the suit can be determined, therefore, on account of non-joinder of necessary parties the suit deserves to be dismissed.
12. On behalf of the plaintiff/respondent it is submitted that the plea of non-joinder of necessary party cannot be taken at the stage of the appeal. As per the provision of Order 1 Rule 13 of the C.P.C., during the trial, at earlier stage, this plea can be taken so the opponent could get opportunity to correct the error and take steps to join the necessary party. Apart from it, in the present case, there is no need to join Chandra Bai and Usha Devi as a party. The plaintiff has claimed only 1/5th share. It would not affect the share of Chandra Bai and Usha Devi. Apart from it, Chandra Bai has died leaving behind no heirs, as stated by Krishna (PW-1), and not impeaches by the defendants/appellants in cross-examination of the witness. There is no doubt that the defendants have no right to raise question of non-joinder of necessary party at the stage of appeal in view of the provision of Order 9 Rule 13 of C.P.C. In this regard this Court in the case of Zamku W/o Bhavasingh Bhilala and others V/s. Masari W/o Bhursingh Bhilala and others reported in 2007 (2) M.P.L.J. 580 held that, "if the objection in respect of non-joinder of necessary party is not taken at the earliest possible opportunity, then such objection shall be deemed to have been waived."
12 F.A.No.23/2003The Apex Court in the case of Kanakarathanammal V/s. V.S.Loganatha Mudaliar and another reported in AIR 1965 Supreme Court 271 and Church of Christ Charitable Trust and Educational Charitable Society V/s. Ponniamman Educational Trust reported in 2012 (4) M.P.L.J. 578 held that, "the plea of non-joinder of necessary party cannot be taken first time before the Supreme Court in appeal."
Andhra Pradesh High Court in the case of Addepalli Venkata Laxmi V/s. Ayinampudi Narasimha Rao and others reported in AIR 1994 Andhra Pradesh 72 also held that, "Objection with regard to non-joinder of the necessary party must be taken as defence at trial stage and not for first time at appellate stage."
In view of the aforesaid enunciation of law, it is clear that the defendants have no right to raise the question of non-joinder of necessary party at the stage of appeal.
13. However, the First Appellate Court has power to direct the plaintiff to add necessary party in the suit for the purpose of complete and effective adjudication of the question involved in the case and with a view to prevent multiplicity of the litigation. The Court can exercise such power at any stage, wherever it is necessary and non-exercise of such power will result in failure of justice as held by the Apex Court in the case of Church of Christ Charitable Trust and Educational Charitable Society V/s.
Ponniamman Educational Trust (supra). In this regard Hon'ble Apex Court in the case of Baluram V/s.
P.Chellathangam and others reported in (2015) 13 Supreme Court Cases 579 in paragraph 22 has held as under :-
12 F.A.No.23/2003"Let us consider the scope and ambit of Order 1 Rule 10 (2) CPC regrding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, on on an application of a person who is not a party to the suit. The court can strike out any party who is improbably joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10 (2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."
This Court also in the case of Competent Authority, Alirajpur V/s. Shivrajsingh reported in 1983 MPWN 75 held that, "the First Appellate Court has not committed any error by remanding case for joining necessary party."
14. In view of the aforesaid enunciation of law, this Court at appellate stage suo moto can direct the plaintiff to add the necessary party to the suit and remand the case if fresh trial is required with a view to prevent the failure of justice and ensure effective and complete adjudication and to avoid multiplicity of the litigation.
12 F.A.No.23/200315. So far as the present case is concerned, the plaintiff has filed the suit for partition of the property left by her father then all the legal heirs of her father are necessary party. If Chandra Bai has died during the proceedings of this suit other co-owner Usha Devi is alive and the property cannot be partitioned merely by making averment by one co-owner and admission of another co-owner with regard to relinquishment of share by third co-owner in favour of any co-owner. Without any legal proof the decree of partition cannot be passed in absence of said third co-owner, therefore, Usha Devi is also necessary party. The Apex Court in the case of Kanakarathanammal V/s. V.S.Loganatha Mudaliar and another (supra) has held that, "in the suit of partition all the co- owners are necessary parties. Non-joining of them is fetal. Therefore, the suit for partition cannot be decided in absence of any co-owner, hence, despite of dismissing the suit on the ground of non-joinder of the necessary party it would be in the interest of justice that the plaintiff be given an opportunity to join the necessary party even at the stage of appeal as in the present case no objection was taken by the appellant at the stage of trial. If such objection had been taken at the stage of trial, this error would have been corrected, therefore, it is a fit case to exercise suo moto power to direct the plaintiff to add necessary party.
16. Considering the contentions and on perusal of the record, in view of this Court the learned Trial Court has granted sufficient opportunity to the appellants/defendants to adduce the evidence, therefore, it cannot be said that the impugned judgment and decree deserves to be set aside on account of non-providing due opportunity of hearing to the appellants/defendants. On behalf of the appellants to prove the fact that Harish Chandra was actually died on 9th June, 1995 and Atul Chandra (appellant No.2) was admitted at Indore for treatment, an application under Order 41 Rule 27 of C.P.C. along with Death Certificate and medical document 12 F.A.No.23/2003 has been filed, but the aforesaid fact is not required to be inquired in the case as the date of death of Harish Chandra during the trial is not relevant in the case. Similarly the treatment of Atul Chandra at Indore is also of no relevancy as there was no prayer before the Trial Court that all the defendants/appellants were busy in his treatment, therefore, they could not adduce the evidence in his favour and the Counsel for the appellants/the defendants voluntarily closed the evidence before the Trial Court, therefore, the appellants/the defendants cannot be permitted to adduce the aforesaid evidence as prayed in the application filed under Order 41 Rule 27 of the C.P.C., hence, the application deserves to be dismissed and is hereby dismissed.
17. In view of the aforesaid reasons, without going into the merit of the finding of the Trial Court, the impugned judgment and decree is set aside and this case is remanded back to the Trial Court with a direction that if the respondent/plaintiff files an application in accordance with law to implicate other heirs of Ram Chandra and in case of death, their legal representatives, if any, as parties to the suit and also make necessary averment about them by way of amendment in the plaint, the application be allowed and thereafter newly joined parties be given complete opportunity of hearing in accordance with law and also given opportunity to the present parties to meet the stand taken by newly added party/parties and thereafter adjudicate the matter afresh. It is also made clear that if newly added heir(s) do/does not contest the suit or there is no new issue for the trial then no opportunity of adducing evidence afresh be given to any party and case be disposed of as early as possible after service of the notice, probably within six months.
18. In case of non-filing of the application for joining as necessary parties as indicated above within 30 days after first 12 F.A.No.23/2003 appearance before the Trial Court the parties are directed to remain present on 01.10.2019 before the Trial Court.
No order as to cost.
(J.P.GUPTA) JUDGE ns NEERAJ Digitally signed by NEERAJ SARVATE DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=1de5ec9deb10706ff5d36eb3e8f79e1db6b2 b26800a815e3f0377420c0156e39, SARVATE serialNumber=6e796f0cecf7993df3f4917a66aafccc8 98cf78cd836766c429a4ddee6356fdb, cn=NEERAJ SARVATE Date: 2019.09.12 11:19:35 +05'30'