Madras High Court
Meenambal vs Shantha on 2 February, 2016
RESERVED ON : 27.01.2016
DELIVERED ON : 02.02.2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02..02..2016
CORAM
THE HONOURABLE THIRU JUSTICE M. DURAISWAMY
A.S. No..441 OF 2002
and
Cross Objection No.80 of 2002
and C.M.P.No.1109 of 2016
A.S.No.441 of 2002
1. Meenambal
2. Thavu Vellaithambi
3. Kanagasundaram
4. Chithra
5. Hema Dayalan
6. Sundari Jawahar
.... Appellants/Defendants 1 to 6
vs
1. Shantha
2. Soundaravalli (deceased)
3. Prema
4. Ramachandran (died)
5. Lalitha ....Respondents/defendants
7 to 10
(5th respondent recorded as LR of the
deceased 4th respondent vide order
dated 10.08.2009 made in Memo
dated 14.07.2009)
6. Dayalan Rajesh
7. Mohan Rajesh
8. Vijayan Rajesh
9. Gowri Pandianathan
(Respondents 6 to 9 brought on record
as L.Rs of the deceased 2nd respondent
vide order of the Court dtd 15.12.2015
made in Memo in A.S.No.441 of 2002)
... Respondents
Cross Objection No.80 of 2002
1. Prema
2. Ramachandran (deceased)
3. Lalitha .... Cross Objectors/Defendants 8 to 10
vs
1. Meenambal
2. Thavu Vellaithambi
3. Kanagasundaram
4. Chitra
5. Hema Dayalan
6. Sundari Jawahar
7. Shantha
8. Soundaravalli (deceased)
9. Dayalan Rajesh
10.Mohan Rajesh
11.Vijayan Rajesh
12.Tmt.Gowri Pandianathan
(Respondents 9 to 12 brought
on record as LRs of deceased
8th respondent vide order of
Court dt 21.07.2010 made in
CMP Nos.1106 to 1108/2009
in Cross Objn.No.80/2002 in
A.S.No.441/2002)
..... Respondents
Appeal filed under Sec.96 of the Civil Procedure Code against the judgment and decree dated 13.8.2001 made in O.S.No.110 of 1999, on the file of Additional Subordinate Judge, Mayiladuthurai.
Cross Objection filed against the judgment and decree dated 13.8.2001 made in O.S.No.110 of 1999, on the file of Additional Subordinate Judge, Mayiladuthurai.
For appellants : Mr.S.V. Jayaraman,
Senior Counsel for
Mr.S. Rajasekar
For 1st respondent : Mr.A. Muthukumar
For respondents 3 & 5: Mr.K.V. Sundarajan
For respondents 7 & 9: Mr.G. Senthil Kumar
COMMON JUDGMENT
The above appeal arises against the judgment and decree passed in O.S.No.110 of 1999 on the file of Additional Subordinate Judge, Mayiladuthurai. The defendants 1 to 6 are the appellants. The first respondent is the plaintiff. The respondents 6 to 9 are the legal representatives of the deceased second respondent, who was the seventh defendant in the suit. The third respondent is the 8th defendant. The 4th respondent, who was the 9th defendant had died during the pendency of the appeal and the 5th respondent was recorded as the legal representatives of the 4th respondent.
2. The Cross Objection has been filed by the defendants 8 to 10, claiming 1/5th share in the suit properties.
3. The plaintiff filed a suit in O.S.No.110 of 1999 to declare that she is entitled to 1/5th share in the suit property and for separate possession in respect of her 1/5th share and for other reliefs.
4. The brief case of the plaintiff is as follows:
According to the plaintiff, she and the defendants 7 and 8 are the daughters of one Kanagasabai Nadar and Thirupurasundari Ammal. The said Kanagasabai Nadar died intestate on 22.05.1973 and his wife died on 28.11.1989. The said Kanagasabai Nadar and Thirupurasundari Ammal had one son and four daughters viz., Vellaithambi Nadar (son) and daughters viz., Shantha (plaintiff), Soundaravalli (7th defendant), Prema (8th defendant) and Sarojini, who had died prior to the filing of the suit. The defendants 9 and 10 are the legal representatives of the deceased Sarojini. The 9th defendant had died on 06.07.2008 leaving behind the 10th defendant as his surviving legal representative.
5. Vellaithambi Nadar, who is the son of Kanagasabai Nadar had died on 05.02.1996 leaving behind the defendants 1 to 6 as his legal representatives. The 7th defendant Soundaravalli had died on 24.11.2008 leaving behind the respondents 6 to 9 as her legal representatives.
6. According to the plaintiff, Kanagasabai Nadar was allotted the suit property in the suit in O.S.No.655 of 1921 on the file of High Court of Madras by decree dated 25.04.1941. They are the absolute property of the above Kanagasabai Nadar and the income derived from half of the said property is to be spent for the performance of the Charitable Trust. After the death of Kanagasabai Nadar, Vellaithambi Nadar was looking after the affairs of the family and managing the estate including the Chatram Dharmam, assisted by his mother. The mother was held in high esteem and respected by all the members of the family and she distributed her jewels amongst her children even during her life time. Even after the death of the mother, Vellaithambi Nadar, who was solely managing the estate, never denied the rights of the sisters in the suit property. Unfortunately, Vellaithambi Nadar died on 05.02.1996. As the 2nd defendant is in United States and the 3rd defendant is in Chennai, the 1st defendant is looking after the estate, but her attitude towards the plaintiff and other sisters became indifferent. The plaintiff could no longer enjoy the property in common. Therefore, the plaintiff caused a Notice to be sent to the defendants 1, 3 and 7 to 10, demanding partition of her 1/5th property in the estate of her father Kanagasabai Nadar. On 22.06.1998, defendants 1 and 3 sent a reply alleging that the plaintiff and her sisters have relinquished their interest in the suit property as early as in 1973 itself and that Vellaithambi Nadar has prescribed title by adverse possession.
7. The plaintiff stated that she neither released or relinquished her interest in the suit property nor did she express such an intention in any manner. The plaintiff, out of respect towards her mother Thirupuramsundari Ammal, did not choose to demand partition during her mother's life time. The possession and enjoyment by one co-owner will not become adverse to the other co-owners nor will mutation of patta and house tax in the name of Vellaithambi Nadar take away the rights of the plaintiff.
8. There is no clause in the decree with regard to the Trust, enabling only the male heirs to be the Trustees. The suit property were charged only to administer the Trust. The plaintiff also undertook to pay the proportionate amount to the Trust for the actual performance of the Trust. In these circumstances, the plaintiff filed a suit for partition, separate possession and for mesne profits.
9. The brief case of the defendants 1,3 to 5 is as follows:
According to the defendants, the suit properties were allotted to Kanagasabai Nadar by the decree dated 25.04.1941 in O.S.No.655 of 1921 on the file of High Court of Madras. After the death of Kanagasabai Nadar, his only son Vellaithambi Nadar was in possession and enjoyment of the property. Since the marriages of the plaintiff, defendants 8, 9 and 10 were celebrated, spending huge money, they relinquished their rights in the suit property and in the year 1973 itself, they gave a letter to that effect in favour of Vellaithambi Nadar. By virtue of the relinquishment letter, the said Vellaithambi Nadar was enjoying the property as absolute owner till his death i.e, in the year 1996. Vellaithambi Nadar also effected change of name in his favour in the patta and the property tax assessment records. From 1973 to 05.02.1996, the said Vellaithambi Nadar did not share the income from the suit property with his sisters. He was enjoying the property as absolute owner of the same. Since Vellaithambi Nadar was enjoying the property from 1973 to 1996 with the knowledge of his sisters, he had prescribed title by adverse possession. The plaintiff cannot claim any right in the suit property as a co-sharer. Since the plaintiff failed to claim any right for the past 27 years, the claim now made by her is barred by limitation. After the death of Vellaithambi Nadar in the year 1996, the defendants 1 to 6 are enjoying the property as the legal heirs of Vellaithambi Nadar. The first defendant, who is the wife of Vellaithambi Nadar had made improvements in the suit property, by putting up new construction and also developed coconut grove in the suit property. For developing the suit property, the defendants 1 and 3 obtained loan and the defendants 2 and 3 also provided money for the development of the suit property. Since the plaintiff, the other sisters of Vellaithambi Nadar and Thirupurasundari Ammal have relinquished their rights in respect of the suit property, Vellaithambi Nadar had effected mutation of records in his name. The suit property was not enjoyed jointly by the plaintiff and the defendants 1 to 6. There is no cause of action for filing of the suit. The plaintiff got married in the year 1953 and living with her husband. She never enjoyed the suit property jointly along with the defendants 1 to 6.
10. In the decree dated 24.11.1943, passed in O.S.A No.39 of 1942, half of the suit properties and half of the income derived from the shops were allotted for charitable purpose. Only the remaining half of the suit properties and the half of the income derived from the shops were allotted to Kanagasabai Nadar and his legal heirs absolutely. Since half of the properties were allotted for charitable purpose, the plaintiff cannot claim right in those properties. Therefore, the claim, made by the plaintiff in respect of the properties, which were allotted for the charitable purpose, cannot be partitioned. In these circumstances, the defendants prayed for dismissal of the suit.
11. The brief case of the defendants 8 to 10 is as follows:
According to the defendants, the 8th defendant is entitled to 1/5th share and the defendants 9 and 10 are jointly entitled to 1/5th share.
12. Before the trial Court, on the side of the plaintiff, the plaintiff was examined as P.W.1 and two documents viz., Exs.A.1 and A.2 were marked. On the side of the defendants, three witnesses were examined and 22 documents Exs.B.1 to B.22 were marked.
13. The trial Court, after taking into consideration the oral and documentary evidence, let in by both sides, passed a preliminary decree, finding that the plaintiff is entitled to 1/20th share and the defendants 7 to 10 are entitled to 1/20th share each in the entire suit properties. Aggrieved over the preliminary decree, passed by the trial Court, the defendants 1 to 6 have filed the above appeal.
14. Heard Mr.S.V. Jayaraman, learned Senior Counsel appearing for the appellants; Mr.A. Muthu Kumar, learned counsel for the 1st respondent; Mr.K.V. Sundarajan, learned counsel for the respondents 3 and 5; Mr.G. Senthil Kumar, leaned counsel for respondents 7 and 9.
15. Mr.S.V. Jayaraman, learned Senior Counsel appearing for the appellants, mainly contended that non-joinder of necessary part viz., Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust" as a defendant in the suit is fatal to the case of the plaintiff for the reason that the plaintiff had filed the suit in respect of the properties, belonging to the Trust also and the suit was also decreed by the trial Court in respect of those properties also.
16. The learned Senior Counsel also submitted that though this issue was not framed by the trial Court, since this is a legal issue, the same can be decided by this Court in this First Appeal. The learned Senior Counsel further submitted that the trial Court should have dismissed the suit on the ground of Ouster and granted a decree declaring that the defendants 1 to 6 have prescribed title by adverse possession. In support of his contention, the learned Senior Counsel relied on the following judgments:
(i) 1972 (2) MLJ 590(T. Panchapakesan (died) and others vs Peria Thambi Naicker (died) and others), wherein, the Division Bench of this Court has held as follows:
7. The same principle applies to this case also having regard to the reliefs prayed for by the plaintiffs. The question as to whether there was a partition, as contended by the plaintiffs is one in which all the sharers are interested. Even with regard to the plea of injunction which the plaintiffs have asked for, all the persons interested should be made parties. Even with regard to the limited rights of joint possession, all the persons interested should be made parties, for it may, be open to those who are not made parties to show that the plaintiffs have no subsisting title. Under these circumstances, we are clearly of the opinion that the lower Court erred in granting a decree which in fact has not been asked for by the plaintiffs themselves in view of their allegations. In this view, we do not express any opinion on the various questions that arise for consideration in this appeal, in the absence of the order said to have been passed by the Collector after the land was returned.
(ii) Vol.100 Law Weekly 486 (A. Ramachandra Pillai vs Valliammal (died), wherein, the Division Bench of this Court held that failure to implead all the sharers in a partition suit will result in suit being dismissed for non-joinder. Further, the Division Bench held 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 any one of the parties.
(iii) AIR 1997 Madras 226 (Shanmugham and others vs Saraswathi and others), wherein, this Court held that the question of non-joinder of necessary parties in the suit for partition can be raised at any time as it goes to the root of the matter. Further, in this judgment, this Court also followed the ratio laid down in the judgment reported in Vol.100 Law Weekly 486 (A. Ramachandra Pillai vs Valliammal (died).
17. Countering the submissions made by the learned Senior counsel for the appellants, Mr.A. Muthu Kumar, learned counsel appearing for the 1st respondent/plaintiff submitted that the trial Court has rightly decreed the suit, allotting 1/20th share in the suit property and rightly rejected the plea of ouster and adverse possession raised by the defendants 1 to 6. With regard to non-joinder of necessary party viz., "Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust" the learned counsel submitted that though there is a finding in paragraph-14 of the judgment of the trial Court, that the plaintiff and the defendants cannot claim a share in the property, belonging to the Trust, the trial Court, by mistake, passed a preliminary decree in respect of the entire suit properties. Further, the learned counsel submitted that if the preliminary decree passed in respect of the Trust property is set aside, the question of non-joinder of necessary parties does not arise.
18. The learned counsel further submitted that since the issue with regard to non-joinder of necessary parties is being raised for the first time before this Court, the same is liable to be rejected. Further, the learned counsel also submitted that the trial Court had rightly passed a preliminary decree and prayed for dismissal of the appeal.
19. The defendants 8 to 10 have filed Cross Objection in Cross Objection No.80 of 2002, challenging the preliminary decree with regard to the allotment of 1/20th share and contending that they are entitled to 1/5th share each.
20. Mr.K.V. Sundarajan, learned counsel appearing for the Cross Objectors submitted that when the cross objectors are entitled to 1/5th share, the trial Court had erroneously passed a preliminary decree that they are entitled to 1/20th share. Further, the learned counsel submitted that the Cross Objectors are entitled to 1/5th share along with the male heir by virtue of the amended provisions of Sec.6 of The Hindu Succession Act, 2005. In support of his contention, the learned counsel relied on the judgment reported in 2011 (9) SCC 788 (Ganduri Koteshwaramma & Anr vs Chakiri Yanadi & Anr), the Hon'ble Supreme Court held as follows:
11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have some rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 09.09.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
21. Countering the submissions made by the learned counsel for the Cross Objectors, Mr.S.V. Jayaraman, learned Senior Counsel appearing for the appellants submitted that when the property was allotted to the share of Kanagasabai Nadar in the year 1943, the daughters were not construed as heirs and therefore, the contentions raised by the learned counsel for the Cross Objectors, cannot be accepted.
22. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, the following points arise for consideration in this appeal:
(i) Whether the suit filed by the plaintiff is bad for non-joinder of necessary party viz., "Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust"?
(ii) Whether the suit is liable to be dismissed on the ground of Ouster?
(iii) Whether the defendants 1 to 6 have prescribed title by adverse possession?
(iv) Whether the cross objectors/defendants 7 to 9 are entitled to 1/5th share each in the suit property?
(v) Whether the plaintiff is entitled to a preliminary decree for partition?
23. There is no dispute with regard to the relationship of the parties. According to the plaintiff, Kanagasabai Nadar was allotted the property in the decree passed in O.S.No.655 of 1921. Therefore, the suit properties are separate properties. The said Kanagasabai Nadar died on 22.5.1973, leaving behind his wife Thirupurasundari Ammal; a son by name Vellaithambi Nadar and four daughters viz., the plaintiff, defendants 7 and 8 and one Sarojini, who had died prior to the filing of the suit. The said Thirupurasundari Ammal had died on 28.11.1989. The son of Kanagasabai Nadar viz., Vellaithambi Nadar died on 05.02.1996. The said Vellaithambi Nadar had died leaving behind the defendants 1 to 6 as his legal heirs, who are the appellants in the above appeal. The 4th respondent is the legal representative of Sarojini. The 4th respondent had died on 06.07.2008, leaving behind the 5th respondent as her legal representative. The respondents 6 to 9 are the legal representatives of the deceased 2nd respondent, who had died on 24.11.2008. The plaintiff contended that after the death of Vellaithambi Nadar, his wife, the first respondent's attitude became indifferent. Therefore, the plaintiff claimed 1/5th share in the suit property, which included the suit property, belonging to "Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust"? The defendants 7 to 10 contended that they are entitled to a share on par with the plaintiff. The defendants 1, 3, 4 and 5 contended that in the year 1973 itself, the wife and the daughters of Kanagasabai Nadar have relinquished their right in the suit property in favour of Vellaithambi Nadar and therefore, they cannot now claim a share in the suit property, after a lapse of 27 years. Further, the defendants contended that they never enjoyed the properties along with the daughters of Kanagasabai Nadar. Under Ex.A.1 Notice dated 5.6.1998, the plaintiff claimed partition from the defendants 1,3,7 to 10. The 1st defendant sent Ex.A.2 reply dated 22.6.1998 denying the claim made by the plaintiff. The defendants 1 to 6 produced documents to show that there was mutation of revenue records in the name of Vellaithambi Nadar and that, he was paying property tax in respect of the suit property on his own.
24. Though the defendants 1, 3 to 5 contended that they have prescribed title by adverse possession and ouster, in the absence of any evidence to show that the property was released by the wife and daughters of Kanagasabai Nadar in favour of his son Vellaithambi Nadar, the plea of adverse possession and ouster cannot be accepted. The plaintiff has filed a suit as a co-sharer and therefore, the plea of adverse possession and ouster was rightly rejected by the trial Court. I do not find any error or irregularity in the findings of the trial Court with regard to the rejection of the plea of ouster and adverse possession.
25. The next issue that arises for consideration is with regard to non-joinder of the Trust viz., "Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust" as a party to the suit. Though the appellants have not initially raised this issue as a ground in the first appeal, they filed a petition in CMP No.749 of 2011, raising two grounds with regard to non-joinder of the Trust as a party in the suit as additional grounds, which was ordered by this Court on 22.01.2016 and the learned counsel appearing on either side have also advanced arguments on this ground.
26. In the judgment reported in AIR 1997 Madras 226 (Shanmugham and others vs Saraswathi and others), this Court following the ratio laid down by the Division Bench of this Court in Vol.100 Law Weekly 486 (A. Ramachandra Pillai vs Valliammal (died) 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.
27. In the case on hand, admittedly, the properties, belonging to "Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust" were also included in the suit schedule. In the judgment and decree dated 24.11.1943, passed in O.S.A.No.39 of 1942, this Court allotted = share in the suit properties and = of the income derived from the shops in favour of the Trust absolutely. As per the said decree, the remaining = of the suit properties and the remaining = of the income derived from the shops were alone allotted to the share of Kanagasabai Nadar and his legal heirs absolutely.
28. The decree passed in O.S.A No.39 of 1942 dated 24.11.1943 was marked as Ex.B.22. The relevant portion in the said decree reads as follows:
1. That one half of the main building, vacant sites and garden and one half of the income from the rent yielding shops and other buildings, on the suit properties more particularly described in the plaint schedule shall be declared as having been endowed and dedicated for the performance of charities referred to hereafter, and the other half of the main building and vacant sites and garden and half of the income from the said shops and other buildings, shall be declared to belong absolutely to the first defendant V. Kangasabai Nadar and his heirs.
2. That out of the suit properties that half of the main building, vacant sites and garden lying to the East of the Railway Cross Road, which will belong to the said charity shall be the portion to the north of the line A B C D E F G H I J K marked in the plan Exhibit D-1 in the suit and that the other half of the said building, garage vacant site and garden which will belong absolutely to the first defendant and his heirs will be to the south of the said line. The shops and the sites attached thereto as well as the plot to the west of the Railway Cross Road and building thereon shall belong in equal shares between the said charity and the first defendant. The first defendant be entitled to take water from the well in the portion allotted to the charity.
3. That the said charities shall be known as Thavasimuthu Nadars wife Sundarathammal Dharma Chatram and Charities and are hereby declared to be a public charity and stone tablet to that effect shall be put up in the charity portion.
29. From the above, it is clear that = of the suit properties and = of the income derived from the shops absolutely belong to the "Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust". However, the Trust has not been made as a party in the suit, even without making the owner of the properties as a party in the suit, the plaintiff has filed the suit and also obtained a decree behind the back of the above said Trust. Since, non-joinder of the Trust goes to the root of the matter as per the judgment reported in AIR 1997 Madras 226 (Shanmugham and others vs Saraswathi and others), the said issue is allowed to be raised in the first appeal.
30. Though the trial Court had observed in paragraph-14 of its judgment that = of the properties belong to the Trust and that the plaintiff and the defendants cannot claim a share in those properties, but ultimately, passed a preliminary decree in respect of the entire suit properties, including the properties belonging to the Trust.
31. In the additional written statement filed by the 3rd defendant, it has been stated that by Ex.B.22 decree dated 24.11.1943 made in O.S.A No.39 of 1942, this Court had allotted = of the suit properties and = of the income derived from the shops in favour of the Trust and that the plaintiff cannot claim any right in respect of the properties, belonging to the Trust. However, the averments stated in the additional written statement, were not at all considered by the trial Court and no issue was framed with regard to this aspect.
32. Since the trial Court had passed a preliminary decree in respect of the entire properties including the properties, belonging to the Trust, the said Trust is a proper and necessary party for proper adjudication of the matter. No decree can be granted in respect of the properties behind the back of the true owner.
33. In the case on hand, even without making the Trust as a party, the decree has been passed in respect of the properties, belonging to the Trust. In the judgment reported in 1972 (2) MLJ 590(T. Panchapakesan (died) and others vs Peria Thambi Naicker (died) and others), the Division Bench of this Court held that in a suit for partition, all the persons interested in the property, should be impleaded as parties. Further, the Division Bench held that even with regard to the limited rights of joint possession all the persons interested should be made parties, for it may be open to those who are not made parties, to show that the plaintiffs have no subsisting title.
34. In the judgment reported in Vol.100 Law Weekly 486 (A. Ramachandra Pillai vs Valliammal (died), the Division Bench of this Court held that failure to implead all the sharers in a partition suit will result in suit being dismissed for non-joinder.
35. In the case on hand, though admittedly, = of the properties, belong to the Trust, even without making the Trust as a party, the plaintiff filed the suit for partition in respect of the properties that belong to the Trust also. The Trust is an interested party and it's properties cannot be partitioned, that too, in their absence. Though the trial Court had given a finding in paragraph-14 of the judgment that = of the properties belong to the Trust and that the plaintiff and the defendants cannot claim any right in those properties, but erroneously passed a preliminary decree in respect of the properties, belonging to the Trust also.
36. When the defendants have raised a specific plea in the additional written statement that = of the properties belong to the Trust and that the plaintiff cannot claim any right in those properties, the trial Court should have atleast framed an issue with regard to non-joinder of necessary party viz., The TRUST and decided the same on merits.
37. As held by the Division Bench of this Court reported in Vol.100 Law Weekly 486 (A. Ramachandra Pillai vs Valliammal (died), in the suit for partition, filed by the plaintiff, non-impleading the proper and necessary party viz., the Trust, is fatal to the case of the plaintiff. The non-joinder of necessary party viz., Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust cannot be cured now by excluding the property, belonging to the Trust.
38. When the matter was listed for hearing on 22.01.2016, the learned counsel on either side made their submissions and after hearing the arguments, when this Court was about to reserve the appeal for judgment, this Court wanted to know whether any Final Decree application filed by the parties, pursuant to the preliminary decree, passed by the trial Court, if so, wanted to know whether all the properties, including the properties, belonging to the Trust were also included in the Final Decree application. For production of the certified copy of the Final Decree application, the learned counsel on either side sought time till 27.01.2016. Accordingly, after hearing the submissions of the learned counsel on either side, for the purpose of production of the certified copy of the Final Decree application alone, the appeal was adjourned to 27.01.2016.
39. Accordingly, on 27.01.2016, the learned counsel appearing for the appellants/defendants 1 to 6 produced the final decree application, filed by the defendants 8 and 10 before the trial Court in I.A.No.14 of 2008. On a perusal of the final decree application, it is clear that the defendants 8 and 10 had sought for passing of final decree in respect of all the properties, including the properties, belonging to the Trust. The learned counsel appearing for the 1st respondent/plaintiff produced the Suit Register Extract in respect of O.S.No.110 of 1999. On a perusal of the Suit Register Extract, it could be seen that after the interim stay granted by this Court with regard to passing of final decree on 08.09.2002 in C.M.P.No.2108 of 2002 in the above appeal, the defendants 8 and 10 have, not pressed the final decree application in I.A.No.14/2008 on 20.10.2009 with liberty to file fresh final decree application. As already stated, the Trust is a proper and necessary party for the relief sought for in the suit. Hence, I am of the considered view that the suit filed by the 1st respondent/plaintiff is liable to be dismissed for non-joinder of necessary party viz., "Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust".
40. When the matter was listed on 27.01.2016, the 1st respondent/plaintiff took out a petition in C.M.P.No.1109/2016 to implead Sundarathammal Dharmachatiram Charities as a respondent in the appeal.
41. Mr.A. Muthukumar, learned counsel appearing for the 1st respondent/plaintiff submitted that necessary party would be added at any stage of proceedings and even at the appellate stage before this Court. In support of his contention, the learned counsel relied on the following judgments:
(i) 1970 (1) MLJ 243 (Swayamprakasam vs Vijayarangam), wherein this Court has held as follows:
Order I, rule 10(2) of the Civil Procedure Code gives jurisdiction to the Court to order that the name of any person who ought to have been joined 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 at any stage of the proceedings. The proceedings in a suit for partition cannot come to an end till the final decree is passed and hence an order directing a party to be added under Order I, rule 10, Civil Procedure Code, may be made in a suit for partition before it is actually terminated by the passing of the final decree.
(ii) 1998(II) CTC 403 (Sabasthi Nadar vs Savurimuthu Nadar and another), wherein this Court has held as follows:
14..... Even at present no steps were taken by the plaintiff to implead all the necessary parties who have been left out and the court cannot take any initiative on its own under Order I Rule 10(2) of the Code of Civil Procedure in the absence of proper particulars relating to all parties who are left out. But instead of dismissing the suit in its entirety, in the interest of justice, indulgence may be shown to the plaintiff by remanding the suit to the Trial Court, giving opportunity to the plaintiffs to implead all the members of the family who are necessary parties to proceed further in accordance with law by giving opportunity to all parties to adduce further evidence if any to the court and to decide their claims on the merits afresh.
(iii) AIR 1999 Karnataka 21 (Smt.Aswathamma vs H.M. Vijayaraghava), wherein, the Karnataka High Court has held as follows:
17 ..... Merely because preliminary decree has been passed, it cannot be said that the proceedings in the suit have come to an end. The proceedings in the suit continue when the application for final decree is made and when subsequent and new developments takes place, then keeping in view the subsequent developments or subsequent events, it is also open to the Court to modify that decree under law taking into consideration subsequent developments. That in order to finally adjudicate the matter, final decree is to be passed, taking note of subsequent events. So it cannot be said that stage in proceedings in the suit has come to an end with the passing of preliminary decree. The final decree proceeding are the continuation of proceedings of the suit, the proceedings in the suit are yet going on and have not come to a closure and if necessary as such. Court has got inherent powers to modify the decree, taking note of the subsequent events. So it can be said that stage of final decree proceedings, the proceedings in the suit had been going on and therefore stage of final decree proceedings being the continuation of proceedings in suit, the Court's jurisdiction did continue to consider the application for impleadment of necessary party who had not been impleaded for reasons best known by the plaintiff inspite of defendant No.2 raising such a plea and so the order impugned cannot be held to be without jurisdiction.
(iv) (2009 (3) CTC 760 (Balamani and another vs S. Balasundaram), wherein, this Court has held that necessary parties could be added even at any stage of proceedings and necessary parties could be added even at appellate stage before High Court and a suit for partition should not be dismissed by the High Court because of non-joinder of necessary parties and opportunity should be given to the parties concerned to implead necessary parties.
42. Countering the submissions made by the learned counsel for the 1st respondent/plaintiff, Mr.S.V. Jayaraman, learned Senior Counsel appearing for the appellants/defendants 1 t o 6 submitted that the present application, filed under Order I Rule 10 of Civil Procedure Code is at a belated stage, that too, after the completion of the submissions made by the learned counsel on either side and therefore, the said application is liable to be dismissed. Further, the learned Senior Counsel submitted that when the appellants have taken the grounds of non-joinder of necessary party as early as in the year 2011 itself, the 1st respondent/plaintiff had chosen to file the present petition only in the year 2016, that too, after the completion of arguments on either side.
43. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, as already stated, the suit was filed in the year 1999 and even in the additional written statement, filed by the 3rd defendant, he has taken a stand that the plaintiff is not entitled to seek for partition for the entire properties, which include the properties belonging to the Trust. Further, the 3rd defendant has stated that the plaintiff has no right or interest in the properties, belonging to the Trust. Inspite of the specific averment, stated in the additional written statement, the trial Court has not framed an issue to that effect. However, the trial Court passed a preliminary decree in respect of all the properties, including the properties, belonging to the Trust.
44. As against the preliminary decree, the defendants 1 to 6 have filed the above first appeal in the year 2002 itself. Though a specific ground was not raised in the original grounds of appeal in the year 2011, the defendants 1 to 6 filed a petition in C.M.P.No.749 of 2011 to raise additional grounds with regard to non-joinder of necessary party. This application was served on the respondents' counsel on 03.08.2011 itself. However, the 1st respondent has not taken any step to file an application to implead the Trust atleast after receiving the notice in C.M.P.No.749 of 2011.
45. The appeal was argued at length by the respective counsels appearing for the parties. The learned Senior Counsel appearing for the appellants/defendants 1 to 6 mainly argued that the suit is liable to be dismissed on the ground of non-joinder of necessary party viz., Thavasimuthu Nadar's wife Sundarathammal Dharma Chathiram and Charitable Trust". The learned counsel appearing for the 1st respondent also replied to the submissions made by the learned Senior Counsel, appearing for the appellants.
46. After hearing the submissions of the learned counsel on either side, the matter was adjourned to 27.01.2016 for the production of the certified copy of the final decree application. At this stage, the 1st respondent has filed the application for impleading the Trust as a party to the proceedings. The filing of the petition by the 1st respondent/plaintiff is only to get over the submissions made by the learned Senior Counsel for the appellants with regard to non-joinder of necessary party. That apart, the 1st respondent/plaintiff has not given any reason for not impleading the Trust at the earliest point of time in the affidavit, filed in support of the petition.
47. The ratios laid down by the Division Bench of this Court reported in 1972 (2) MLJ 590(T. Panchapakesan (died) and others vs Peria Thambi Naicker (died) and others) and by the Division Bench of this Court in the judgment reported in Vol.100 Law Weekly 486 (A. Ramachandra Pillai vs Valliammal (died), squarely applies to the facts and circumstances of the present case. Following the said judgments of the Division Bench of this Court, the petition filed by the 1st respondent/plaintiff deserves to be dismissed.
48. In these circumstances, the judgment and decree, passed by the trial court are liable to be set aside.
49. Since this Court is dismissing the suit, filed by the plaintiff in O.S.No.110 of 1999 on the ground of non-joinder of necessary party, I do not find any reason to entertain the Cross Objection, filed by the respondents 3 to 5/defendants 8 to 10, which is liable to be dismissed.
50. In these circumstances, the judgment and decree passed in O.S.No.110 of 1999 on the file of Additional Subordinate Judge, Mayiladuthurai are set aside. The suit in O.S.No.110 of 1999 stands dismissed. The first appeal in A.S.No.441 of 2002 is allowed and the Cross Objection No.80 of 2002 is dismissed. No costs. C.M.P.No.1109 of 2016 is dismissed.
02-02-2016 sr Index:no website:yes To The Additional Subordinate Judge, Mayiladuthurai M. DURAISWAMY,J., sr Pre-Delivery Common Judgment in A.S. No..441 OF 2002 and Cross Objection No.80 of 2002 and C.M.P.No.1109 of 2016 02-02-2016