Delhi District Court
Sh. Ramesh Kumar vs Sh. Mool Chand S/O Late Sh. Sachal Das on 31 January, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.57786 OF 2016 Date of institution: 31.05.2013
Arguments heard on: 12.01.2023
Date of judgment: 31.01.2023
Sh. Ramesh Kumar
s/o Sh. Nicha Ram
r/o 4, Krishan Kunj
Laxmi Nagar, Delhi-110092
.........Plaintiff
VERSUS
1. Sh. Mool Chand s/o Late Sh. Sachal Das
r/o Kailash Nagar Jata Shankar
Pokhra, Gorakhpur (UP)
through legal heirs
1 (a) Sh. Chetan Das
1 (b) Sh. Raj Kumar
1 (c) Smt. Seema Hemani w/o Sh. Raj Kumar Hemani
1 (d) Varsha Hemani w/o Sh. Sharvan Kr. Hemani
1 (e) Smt. Jyoti w/o Sh. Dilip Kr. Lalwani
1 (f) Smt. Usha d/o Sh. Sharvan Kr Lalwani
1 (g) Smt. Reena w/o Late Sh. Dinesh Kr. Kukreja
(all are r/o Kailash Nagar Jata Shankar
Pokhra, Gorakhpur (UP) )
2. Sh. Daya Ram s/o Late Sh. Sachal Das
r/o H. No. B-31, Suraj Kund, Gorakhpur, UP
3. Sh. Rajesh Kumar s/o Late Sh. Sachal Das
r/o H.No.4, Krishan Kunj, Laxmi Nagar, Delhi
4. Sh. Hemant Das
through his legal heir
Sh. Laxman Das
r/o H. No. D-31, Suraj Kund,
Gorakhpur, UP
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.1
5. Sh. Nanak Chand
s/o LAte Sh. Sachal Das
through his legal heirs
i) Smt. Jasoda
w/o Late Sh. Nanak Chand
ii) Smt. Payal
w/o Late Sh. Hans @ Sonu
s/o Late Sh. Nanak Chand
Both r/o G-1/335, Upper Ground floor
Dalmill Road, Uttam Nagar,
New Delhi-110059
............Defendants
JUDGMENT
1. The plaintiff has filed the present suit for partition, rendition of accounts and permanent injunction.
2. The case of the plaintiff as pleaded in the plaint is as follows. It is stated that the plaintiff and the defendants were the sons of Sh. Sachal Das who was allotted with leasehold stall no. 30 and 31, New Central Market, New Delhi (hereinafter referred to as the "suit premises") in his name by the Land & Development Office, Delhi, being a migrant from Pakistan. After his death, the suit premises were transferred in the name of his wife Smt. Lakhma Devi (who was the mother of the plaintiff and the defendants) and lease deed dated 02/02/1987 as well as conveyance deed in respect of building constructed on the leasehold site was executed in her favour by the L&DO, Delhi which was duly registered with the office of the Sub- Registrat New Delhi as document no. 1633, Addl. Book No.1 Vol. No.5745 at pages 196 to 199 dated 02/03/1987. The suit premises comprise of brick built stalls measuring 170.32 sq. ft. GF stall with common platform in front of stall being 64.5 sq.ft. charged along with GF stalls (i.e. 18.92 sq. mts.).
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.2
3. It is stated in the plaint that Late Smt. Lakhma Devi had the following children: Sh. Mool Chand (plaintiff), Sh. Daya Ram, Sh. Hemant Das, Sh. Rajesh Kumar, Sh. Nanak Chand, Smt. Sadori Bai, Smt. Suri Bai, Smt. Devi Bai, Smt. Sevi Bai and Smt. Lehni Bai. The plaintiff was given up by his parents in adoption to one Sh. Nicha Ram in 1950 with the consent of his parents.
4. It is further stated in the plaint that Smt. Lakhma Devi had during her lifetime executed will dated 08/05/1987 and thereby bequeathed the suit premises in favour of the plaintiff and the defendants no.1 to 5, which was duly registered with the office of the sub- registrar New Delhi on 11/05/1987. Smt. Lakhma Devi expired on 20/03/1989 and after her death by way of the will dated 08/05/1987, the plaintiff along with the defendants no.1 to 5 became the owner of one-sixth undivided share in the property. It is stated that the defendant no.4 had expired on 08/04/2008 leaving behind his son Sh. Laxman Das who had been impleaded as a defendant.
5. It is further stated in the plaint that the defendant no.5 left the home and was missing since February 1986. It is stated that the defendant no.5 had left behind his wife Smt. Jasoda and two sons named Sh. Ravi and Sh. Sonu @ Hans and one daughter Ms. Sunita. It is stated that Sh. Ravi and Ms. Sunita had already expired, and Sh. Sonu @ Hans had expired on 15/02/2013 leaving behind his wife Smt. Payal and minor daughter Ms. Yashika. The said legal heirs have been impleaded in the array of defendants.
6. It is further stated in the plaint that Smt. Jasoda, the wife of the defendant no.5 used to look after the said stalls being the joint property with the consent of the plaintiff and the defendants no.1 to 4 by putting them on CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.3 rent. The said rent was earlier distributed among the shareholders, however now she had been misappropriating the same by utilising the same by herself. At the time of filing the suit, the stall no.30 was rented out to Mr. Ali, who was running the business of air conditioner repair for ₹ 7000 per month and 2 different courier collection centre for ₹ 3000 per month each. It is further stated that the stall no.31 was rented out to Mr. Vinay Kalra, owner of M/s. United International Courier Cargo for a monthly rent of ₹ 12,000. The entire rent income was appropriated by the legal heirs of the defendant no.5, without the consent of the plaintiff and the defendants no.1 to 4. The plaintiff had come to know that Smt. Jasoda and Smt. Payal, the legal heirs of defendant no.5 were in talks with local property dealers in respect of sale of the subject property and there was every apprehension that they may dispose of/sell the same without the knowledge of the plaintiff who had a legal right, title and interest in the said property being the owner of one-sixth undivided share in terms of the registered will dated 08/05/1987. It is further stated in the plaint that the legal heirs of the defendant no.5 were misappropriating the rental income out of the suit premises without any consent of the defendant and the defendants no.1 to 4, for which the legal heirs of the defendant no.5 were liable to be restrained. The plaintiff had by way of legal notice dated 22/05/2013 through his counsel asked the legal heirs of the defendant no.5 to hand over physical possession of his one-sixth share as well as the arrears of rent received by them in respect of his share to be delivered within 3 days of notice. It is stated that, however the notice was ignored. On this basis, the plaintiff has filed the present suit for partition, rendition of accounts and permanent injunction.
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.4
7. The defendants no.1 to 4 filed their joint written statement to the plaint in which they have admitted and supported the case of the plaintiff. In the order dated 25/02/2015 passed by the Hon'ble High Court in the present suit (numbered as CS (OS) No.1212/2013 prior to transfer to this Court due to change in pecuniary jurisdiction), the statement of the learned counsel for the defendants no.1 to 4 is recorded to the effect that they had no objection if the suit property was partitioned in terms of the prayer made by the plaintiff.
8. The right of the defendant no.5 to file a written statement stood closed vide order dated 04/04/2014. The application filed by the defendants no. 5(i) and 5(ii) seeking recall of the order dated 04/04/2014 closing the right to file written statement was dismissed by the order dated 25/02/2019.
9. During the course of the suit the defendants no.1 and 2 had expired and their legal representatives were brought on record.
10. Vide order dated 03/09/2019, the following issues were framed for adjudication:
"1. Whether the plaintiff is entitled for preliminary decree of partition in respect of stall no.30-31, New Central Market, New Delhi against the defendant? OPP
2. Whether the plaintiff is entitled for rendition of accounts against LRs of deceased defendant no.5 in respect of stall in question? OPP
3. Whether the plaintiff is entitled for relief of injunction against LRs of deceased defendant no.5 as prayed for in para (c) and (d) of prayer clause? OPP CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.5
4. Relief."
11. The plaintiff has himself deposed as PW-2 and has tendered his affidavit in evidence Ex.PW-2/A in which he has deposed on the lines of the plaint. The plaintiff has relied upon the following documents: Site Plan being Ex.PW-2/1; Lease deed dated 02/02/1987 being Ex.PW-2/2; Certified copy of Will dated 08/05/1987 being Ex.PW-2/3; NCR report dated 06/04/2019 in respect of lost will along with certificate u/s. 65B Evidence Act being Ex.PW-2/3A; Citation published in "Veer Arjun" Hindi newspaper dated 12/04/2019 in respect of lost will being Ex.PW-3/B; death certificate of Smt. Lakhma Devi being Ex.PW-2/4; Legal notice dated 22/05/2013 along with postal receipts being Ex.PW-2/5.
12. The plaintiff had also summoned an official from the Department of Delhi Archives, Govt. of NCT of Delhi, being Mr. Hira Lal as PW-1, and he produced the record of the registered will.
13. The defendants no.5(i) and 5(ii) did not lead any evidence, as their defence had been struck off.
14. The defendant no.1(g) also did not lead any evidence.
15. The learned counsel for the plaintiff has submitted that the plaintiff has proved the Will dated 08/05/1987 being Ex.PW-2/3 through production of the certified copy of the registered will. It is submitted that the registered will being 30 years old, the plaintiff is entitled to benefit of presumption under section 90 of the Indian Evidence Act regarding the valid execution and attestation of the will Ex.PW-2/3. It is submitted that once the will CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.6 Ex.PW-2/3 is proved, then the suit property ought to partitioned in terms of the will.
16. There has been no appearance on behalf of the defendants nos. 1 to 4 at the time of final arguments.
17. The learned counsel for the defendants no.5(i) and 5(ii) has submitted that the plaintiff has failed to prove the alleged Will dated 08/05/1987 Ex.PW- 2/3. It is submitted that there was no cogent evidence led by the plaintiff to prove that he had lost the original will and hence, no secondary evidence was admissible. It is further submitted that even otherwise the will Ex.PW-2/3 was not proved by the plaintiff in accordance with law. It is submitted that the plaintiff could not take advantage of section 90 of the Evidence Act as the same did not apply to wills. It is further submitted that there are suspicious circumstances surrounding the will. It is submitted that the original will was never filed by the plaintiff in the Court. It is submitted that the story of the plaintiff regarding the will having been lost was a fabrication. It is submitted that although the plaintiff has claimed that the will was executed on 08/05/1987 and Smt. Lakhma Devi died on 02/03/1987, however, there was never any claim made on the basis of the said will till the filing of the present suit in the year 2013.
18. I have heard the learned counsel for the plaintiff and the defendant no.5(i) and 5(ii), and I have perused the record including the pleadings and evidence.
19. My issue-wise findings are as under:
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.7 Issue 1. Whether the plaintiff is entitled for preliminary decree of partition in respect of stall no.30-31, New Central Market, New Delhi against the defendant? OPP
20. It is the case of the plaintiff that although he was the biological son of Smt. Lakhma Devi, however, he had been given in adoption to Sh. Nicha Ram with the consent of his parents. This position is also admitted by the defendants nos. 1 to 4 in their written statement. The claim of the plaintiff for partition in the present suit is based on the will dated 08/05/1987 Ex.PW-2/3 alleged to have been executed by Smt. Lakhma Devi.
21. The plaintiff has not produced the original will on the record which would have been the primary evidence. The plaintiff has claimed that the original will was lost and has sought to lead secondary evidence by calling for the certified copy of the will from the record of the sub- registrar. However, even if secondary evidence of the will dated 08/05/1987 Ex.PW-2/3 through the summoning of the certified copy from the record of sub-registrar is held to be admissible, that does not by itself prove the valid execution and attestation of the will. The mere admission of secondary evidence does not dispense with the proof of the document.
22. The learned counsel for the plaintiff has relied upon section 90 of the Indian Evidence Act to argue that since the will was 30 years old, there was a presumption of the valid execution and attestation of the will. Section 90 of the Indian Evidence Act provides as under:
"90. Presumption as to documents thirty years old. -- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.8 any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.-- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to section 81."
23. It would be appropriate to refer to Section 63 of the Indian Succession Act which provides as under:
"63. Execution of unprivileged wills.--
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.9
24. It would be appropriate to also extract the relevant provisions of the Indian Evidence Act, which provide for the requirements for proving execution of a document required by law to be attested:
"68. Proof of execution of document required by law to be attested.
--
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
"69. Proof where no attesting witness found. -- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person."
"70. Admission of execution by party to attested document. -- The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested."
"71. Proof when attesting witness denies the execution. -- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
(Emphasis supplied by me)
25. It has been held by the Hon'ble Supreme Court in Bharpur Singh v.
Shamsher Singh, (2009) 3 SCC 687, as under:
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.10 "19. The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence. (See B. Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449] , SCC p. 458, para 19.)"
26. The Hon'ble Supreme Court has in M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490, while relying upon Bharpur Singh (supra) held as under:
"17. At the same time we cannot accept the submission on behalf of the respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Evidence Act, 1872 ("the Evidence Act", for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh v. Shamsher Singh [(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act."
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.11
27. In view of the ratio in Bharpur Singh (supra) and M.B. Ramesh (supra), no presumption under section 90 of the Indian Evidence Act can be drawn in case of a will and the execution of the will has to be proved in the manner provided for in the Succession Act and the Evidence Act. In the present case, the plaintiff has not examined the attesting witnesses to the will. The plaintiff has also not led any evidence to show that the attesting witnesses were dead or could not be found. There has been no evidence led to prove the thumb impressions of the testator on the will or the signatures of the attesting witnesses on the will. The plaintiff has not led any evidence in terms of Section 63(c) of the Succession Act, 1925 and Sections 68, 69 and 70 of the Evidence Act, 1872 in order to prove the execution of the will. The defendants nos.1 to 4, who have supported the case of the plaintiff, have also not led any evidence to prove the will. In the result, I would hold that the plaintiff and the defendants nos. 1 to 4 have failed to prove the will Ex.PW-2/3.
28. I would also refer to the judgment of the Hon'ble Supreme Court in Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju, (1968) 2 SCR 292 : AIR 1968 SC 947, regarding the application of section 90 Evidence Act to a case when the original document is not produced and only a certified copy is produced. The relevant portion of the judgment is extracted hereunder:
"5. As aforesaid, the respondents did not produce the original will but produced only its certified copy, Ex. B. 9; which they obtained from the record of Suit No. 21 of 1923 wherein Surayamma had filed the original will along with her written statement. The respondents, however, had given notice to the appellants to CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.12 produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will. Both the trial court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants custody, that they had deliberately withheld it as it was in their interest not to produce it. The trial court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will. Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it. It was undisputed that its scribe and the attesting witnesses were all dead except Dalapati Venkatapathi Raju, DW 4. But the appellants' contention as regards DW4 was that he was not the same person who attested the will. The High Court appears to have relied upon Section 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Krishibai) [AIR 1947 PC 15] Where a certified copy of a document is produced the correct position is as stated in Bassant Singh v. Brij Rai [62 IA 180] where the Privy Council laid down that if the document produced is a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.13 Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old. Relying on the words "where any document purporting or proved to be 30 years old" in Section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Must of Munshi Nath Prasad [(1956) SCR 1, 19] . The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will."
(Emphasis supplied by me)
29. Even in view of the ratio in Kalidindi Venkata Subbaraju (supra), in any case, no presumption under section 90 of the Indian Evidence Act could be drawn of the valid execution and attestation of a will, when the plaintiff had not produced the original will but had only produced the certified copy of the will.
30. Furthermore, it is well settled that the presumption under Section 90 of the Evidence Act is not mandatory and absolute. As held by the Hon'ble Madras High Court in N. Ramaswamy Padayachi v. G. Ramaswami Padayachi, 1974 SCC OnLine Mad 29, the court must have regard to the evidence and surrounding circumstances and apply its mind as to whether the presumption will have to be drawn or not. The relevant extract from the judgment is extracted hereunder:
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.14 "4. The Learned Counsel for the appellant then relied on S. 90 of the Evidence Act and contended that the document was executed on 19th August, 1920 and by the time this suit was filed in 1966, more than 30 years have elapsed attracting the presumption that the document, was duly executed and attested by the person by whom it purports to have been executed and attested. As has been held by this court in Ramaswami Goundan v. Subbaraya Goundan(1) and a series of other decisions, the rule in S. 90 is not an absolute one and even in cases where the document is produced from proper custody, the court has a discretion to draw the presumption referred to in the section or require the proof of execution. The Section Itself states that the court may draw the presumption referred to in that Section and not that "it must draw the presumption". As pointed out by this Court in Ramaswami Goundan v. Subbaraya Goundan(1) it would be most dangerous to draw the presumption that a document was genuine merely because it was 30 years old and came from proper custody. The court must have regard to the evidence and surrounding circumstances and apply its mind as to whether the presumption will have to be drawn or not. We have in this case the following facts which make as feel that we cannot draw the presumption under that section. ... ... ..."
(Emphasis supplied by me)
31. Even assuming that section 90 of the Evidence Act could be applicable to the certified copy of the will in the present case, even then I would not consider it proper to make the presumption under section 90 in the facts of the present case. It is the own case of the plaintiff that he had been given up in adoption. His sole basis for the claim for partition is the will.
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.15 The will Ex.PW-2/3 is alleged to have been executed on 08/05/1987. Smt. Lakhma Devi expired on 20/03/1989. Prior to the filing of the present suit in the year 2013, the will Ex.PW-2/3 was never propounded by the plaintiff. The plaintiff has failed to lead any evidence to show that the will had been acted upon by the parties. The plaintiff has failed to lead any evidence to show that the rent for the stalls was being shared with the plaintiff as alleged by him. Thus, there is no explanation as to why the will in question never saw the light of the day till 2013 when the suit was filed. Even when the suit was filed, the original will was not filed but only a copy was filed. Subsequently, the plaintiff has claimed that will was misplaced/lost by him on 05/04/2019 in Laxmi Nagar Market in New Delhi. Thus, the original will was never produced in court. These are suspicious circumstances surrounding the will which the plaintiff has been unable to dispel. In such facts and circumstances, I would hold that it would not be appropriate to make any presumption under section 90 Evidence Act regarding the valid execution and attestation of the will.
32. Once the will Ex.PW-2/3 is held to be not proved and since there is no other will set up by any of the parties, then the implication would be that the succession to the estate of the deceased Smt. Lakhma Devi would have been through intestate succession. In such a case, the plaintiff would have no share in the estate of the deceased, in as much as it is his own case that he had been given away in adoption.
33. Although, the defendants nos. 1 to 4 would have a claim through intestate succession, however, there would also be other parties being the daughters of the deceased Smt. Lakhma Devi, or their legal representatives, who would also have a claim to a share through intestate succession. These daughters or their legal representatives would be CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.16 necessary parties to a suit for partition on the basis of intestate succession, however, they have not been arrayed as parties to the present suit. Hence, no decree for partition can be passed in the present suit in their absence.
34. I would refer to the judgment of the Hon'ble High Court of Madras in Venkataramana v. N. Munuswamy Naidu, 2010 SCC OnLine Mad 3194, wherein it has been held as under:
"20. The learned Senior Counsel for the Respondents would strenuously contend that two co-sharers by name Rajendran and Ravindran have not been included in the Suit, who are sons of Govindasamy Naidu, 6th Defendant in the Suit, who remained ex parte and died pending the trial of the Suit. He invited attention of the Court to the provision in Order 1, Rule 9 of C.P.C. which reads as follows:
"9. Misjoinder and non-joinder:
No Suit shall be defeated by reason of the misjoinder or non- joinder of parties and the Court may in every Suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it."
21. When proper parties were not included in the Suit, the Suit is not bad for non-joinder, but if the parties who are not on the array of the parties in the Suit who are necessary parties in whose absence no final adjudication could be made, then the Suit has to be held bad for non-joinder of necessary parties. If proper parties are not added, the Court may allow further time affording opportunity to the Plaintiff to include them. But if the necessary parties were omitted to be included in the Suit, then the Plaintiff has to face the legal consequence of dismissal of the Suit. In the absence of necessary party, no effective decree could be passed. In short, non-joinder of proper party is not fatal while non-joinder of necessary party is fatal to the case. When the Court sees that a particular party is a necessary party, who has been ignored by the Plaintiff in the suit, there is no option for the Court except to dismiss the same.
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.17
22. The learned Senior Counsel for the Respondents cited two authorities to stress this position. In a Division Bench decision of this Court reported in A. Ramachandra Pillai v. Valliammal (died), 1987 (100) LW 486 the learned Judges have extracted and followed the earlier decision of Supreme Court in Kanakarathammal v. Loganatha, AIR 1965 SC 271 and held that the non-joinder of the necessary party would lead to the dismissal of the Suit. Such extraction of the Apex Court decision as well as the observation of the Division Bench are as under:
"It is true that under Order 1, 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 entitle 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 non-joinder of any one of the parties. In T. Panchapakesan and others v. Peria Thambi Naicker and others, 1972 (85) LW 841 (DB) 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."
CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.18
23. The learned Senior Counsel for the Respondent has also admitted that specific defence as to the non-joinder of necessary party has not been raised in the Written Statement. However, it is open to the Defendant to raise the same at any stage of the case as it goes to the root of the matter. To establish his contention, he garnered support from a decision of this Court in Shanmugham and others v. Saraswathi and others, AIR 1997 Mad. 226 where it is held as follows:
"9. ... ... The contention 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-owners. See A. Ramachandra Pillai v. Valliammal, 1987 (100) Mad LW 486."
In view of the above said principles, this Court is of the considered view that non-joinder of necessary party in this partition Suit is fatal and the Suit has to face dismissal on this point. The point is answered accordingly."
(Emphasis supplied by me)
35. In the present case, although the written statement of the defendant no.5 was not taken on record and their defence was struck off, however, this did not absolve the plaintiff and the defendants nos.1 to 4 of the onus to prove the will Ex.PW-2/3 which was propounded by them. Since there was no other will propounded by any of the parties apart from the will Ex.PW-2/3, the parties clearly were aware that in case of failure to prove the will, by implication the succession to the estate of deceased Smt. Lakhma Devi would be through intestate succession in which case even the daughters of Smt. Lakhma Devi or their legal representatives would have been necessary parties. However, they have not been impleaded as parties in the present suit. The defendants nos. 1 to 4 did not even appear at the stage of final arguments. I have already held that the plaintiff and CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.19 the defendants nos. 1 to 4 have failed to prove the will Ex.PW-2/3. In these circumstances, it would only be proper to dismiss the suit in as much as, even on the basis of intestate succession, no decree for partition can be passed in the absence of other co-sharers who would be necessary parties.
Issue 2. Whether the plaintiff is entitled for rendition of accounts against LRs of deceased defendant no.5 in respect of stall in question? OPP Issue 3. Whether the plaintiff is entitled for relief of injunction against LRs of deceased defendant no.5 as prayed for in para (c) and (d) of prayer clause? OPP
36. For similar reasons on which Issue 1 has been decided against the plaintiff, the Issues 2 and 3 would also be decided against the plaintiff.
37. In the result, the suit is dismissed. Parties to bear own costs. Let the decree-sheet be drawn up accordingly.
File be consigned to record room.
Judgment pronounced in open court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/31.01.2023 CS NO.57786/16 RAMESH KUMAR VS. MOOL CHAND & ORS. PAGE NO.20