Bombay High Court
Sumitra Anna Aware vs Anusaya Rajaram Aware on 6 February, 2012
Author: R. M. Savant
Bench: R. M. Savant
1 sa312-10w1646-10.doc
jpc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 312 OF 2010
WITH
CIVIL APPLICTION NO. 1646 OF 2010
IN
SECOND APPEAL NO. 312 OF 2010
Sumitra Anna Aware
and others ... Appellants
Versus
Anusaya Rajaram Aware
and others ... Respondents
Mr. Vishwanath Talkute for the Appellants
Mr. Dilip Bodake for the Respondent No.2
Mr. I. M. Khairdi with Ms. Chaitrali Deshmukh for the Intervenors.
CORAM: R. M. SAVANT, J.
DATED : 6 th February 2012
J U D G M E N T
1. By order dated 9th June, 2010 passed in the above Second Appeal, the parties were put to notice that the above Appeal may be heard finally at the admission stage. This is how the Appeal is taken up for hearing.
2. Admit. With the consent of the learned counsel for the parties, taken up for hearing forthwith.
::: Downloaded on - 09/06/2013 18:08:29 :::2 sa312-10w1646-10.doc
3. The above Appeal arises out of the judgment and decree dated 27th February, 2007 passed by the learned District Judge, Satara by which the the Appeal filed by the Respondent No.1 i.e. the original Defendant no.1 of whom, the Respondents herein are the heirs, came to be allowed and the decree passed by the trial Court dated 29th July, 1999 in Regular Civil Suit No.435 of 1987, came to be set aside.
4. The suit in question was filed by the Plaintiff of whom, the Appellants herein are the heirs, for partition and separate possession. The Plaintiff claims to be the son of one Ishwara who had two brothers- Pandurang and Rajaram and two sisters Laxmibai and Godabai. The common ancestor was one Malhari who died in 1962. It is the case of the Plaintiff that out of the heirs of Malhari, Bakulabai, Ishwara and Pandurang had expired and as such the Plaintiff was having 2 anna share i.e. 1/3 rd share in the 6 anna share of Malhari. The subject matter of the suit is the land bearing Gat No. 127/A in which Malhari had 6 anna share, Gangaram and Dadu i.e. the brothers of Malhari had 6 anna share and Pandurang had part share to the extent of 4 Ana. Gangaram and Dadu are the brothers of Malhari who is the father of Ishwara through whom the Plaintiff claims. The ::: Downloaded on - 09/06/2013 18:08:29 ::: 3 sa312-10w1646-10.doc Plaintiff, on the ground that the Defendant No.1 was intending to grab his share, had filed the suit in question for partition and possession. The Defendant no.1 filed his written statement and questioned the maintainability of the suit on the ground that the two daughters of Malhari namely Laxmibai and Godabai were not joined as parties to the suit and therefore the suit was bad for non joinder of the necessary parties. The Defendant no.1 further contended that on 12th October, 1968 the Defendant No.1 had purchased 4 anna share of Dadu Aware and therefore the other Defendants and Plaintiffs are not having any concern with the same. The Defendant No.1 denied the share of the Plaintiff and contended that the Plaintiff is only entitled to 1 Anna and 9 ps.
share and therefore prayed for dismissal of the suit.
5. The trial Court, on the basis of the pleadings of the parties, framed the issue as to whether the Plaintiff proves that he has 3 anna 4 ps share out of the 10 anna share in the suit land as alleged, which was answered in the positive by the trial Court.
The trial Court, in view of the fact that the Defendants questioned the maintainability of the suit on the ground of non joinder of parties, also framed the issue, whether the suit is bad for non joinder of the necessary parties and answered the said ::: Downloaded on - 09/06/2013 18:08:29 ::: 4 sa312-10w1646-10.doc issue in the negative. The trial Court, on the basis of the material on record held that the Plaintiffs were entitled to 3 anna 4 ps out of the 10 anna in the suit properties i.e. Gat no. 127-A. The trial Court rejected the case of the Defendants of prior oral partition. The trial Court on the basis of 7/12 extracts, observed that the names of both, the Plaintiffs and the Defendants were recorded in the said 7/12 extracts. Insofar as the share purchased by the Defendant no.1 from Dadu is concerned, the trial Court recorded a finding that the said share was not a self acquired property but it is purchased from the joint family fund and therefore was an ancestral property.
6. In the context of the present Second Appeal, what is crucial to note is that the trial Court has, in para 14 of the order, after going through the material on record, held that the suit was not bad for non joinder of the parties namely Godabai and Laxmibai who are the sisters of Ishwara and Gajara and Hira and Sarubai who are the sisters of the Plaintiff Anna Aware. Insofar as Godabai and Laxmibai is concerned, the trial Court observed that as per the case of the Defendant no.1 himself, during the lifetime of their father- the said Godabai and Laxmibai had not claimed any share in the ancestral land and that the evidence ::: Downloaded on - 09/06/2013 18:08:29 ::: 5 sa312-10w1646-10.doc of the Defendant no.3 also supported the evidence of Defendant no.1 on the said aspect. The trial Court therefore was of the view that it was not proper to join the sons and daughters of the said Godabai and Laxmibai as parties to the suit .
7. Insofar as the sisters of the plaintiff Gajara, Hira and Sarubai are concerned, the trial Court was of the view that even if they were not joined, the shares, if any, to which the said three sisters would be entitled would be in the share of the Plaintiff Anna and therefore would not impinge upon the share of the other Defendants in the suit property. The trial Court, therefore was of the view that the three sisters would be at liberty to claim their share within their own branch and thereby arrived at the conclusion that it therefore cannot be said that the suit is bad for non joinder of the necessary parties.
8. As indicated above, the trial Court, by the judgment and order dated 29th July, 1999 has decreed the suit by granting 1/3 share to the Plaintiffs, 1/3 to Defendant no.1 and 1/3 share to Defendant Nos. 2 and 3 in the land bearing Gat No. 127-A of village Bibi Ta. Phaltan. The trial Court has held that the Plaintiff is entitled to recover separate possession of his 1/3rd ::: Downloaded on - 09/06/2013 18:08:29 ::: 6 sa312-10w1646-10.doc share i.e. 3 anna 4 pai share from the Defendants.
The decree passed by the trial Court was assailed by the Defendant no.1 by filing Regular Civil Appeal No. 245 of 1999.
The said Appeal, as indicated above, was allowed by the Lower Appellate Court by the impugned judgment and decree dated 27th February, 2007 and the decree passed by the trial Court allotting separate share to the Plaintiffs, Defendant No.1, and Defendant nos.2 and 3 was set aside. The decree passed by the trial Court has been set aside principally on the ground that the sisters of the Plaintiff Anna who were necessary parties were not joined as such to the suit in question. The said finding, as can be seen, is recorded in paragraph 15 of the impugned judgment and order passed by the Lower Appellate Court. A reading of the said paragraph discloses that though the objection in respect of the non joining of the sisters of Ishwara i.e. Laxmibai and Godabai was considered by the Lower Appellate Court, the same can be said to be not found fatal by the lower Appeallate Court, in so far as the maintainability of the suit is concerned. However, what has weighed with the Lower Appellate Court is that the sisters of the Plaintiff Anna i.e. Gajara, Hira and Sarubai were not joined as parties to the said suit in question. The Lower Appellate ::: Downloaded on - 09/06/2013 18:08:29 ::: 7 sa312-10w1646-10.doc Court, therefore, reached the conclusion that the suit as filed was not maintainable as the Plaintiff had not taken any steps to join the sisters as parties to the said suit.
9. The following substantial questions of law therefore arise for consideration in the above Appeal:
1. Whether the lower Appellate Court was right in dismissing the suit on the ground of non-joinder of the necessary parties ?
2. Whether in the facts and circumstances of the present case, Sarubai, Gajara and Hira, sisters of the deceased Plaintiff Anna Aware are necessary parties to the suit, especially when their share is represented by the head of the branch Mr. Anna, Mugut.
10. Before proceeding further in recording a finding on the said substantial questions of law, it is required to be noted that the three sisters of the Plaintiff Anna Aware have filed Civil application 1646 of 2010 for being impleaded in the above Appeal. It has been averred in the Civil Application in Para 4 thereof that the Applicants do not claim any share in respect of ::: Downloaded on - 09/06/2013 18:08:29 ::: 8 sa312-10w1646-10.doc the suit property and whatever share to which the applicants are entitled to may be given to the Appellants i.e. the legal heirs of the deceased Anna Aware. It is further stated that the applicants are not interested in any share which may be available to deceased Anna and that if the applicants are joined as party Defendants-Respondents in the present suit, no prejudice would be caused to the Respondents.
The said Civil Application is opposed by the Appellants herein by filing an affidavit in reply. It is contended that though the proceedings in the Courts below were pending since last about more than 20 years, no efforts were made either by the plaintiffs or the said three persons to implead themselves as parties in the suit. It is further contended that the joining of the said three persons, at this stage would create complications and that the same would have effect on the decree that would have to be passed. In my view, the objections raised on behalf of the Appellants herein to the Civil Application filed by the said three sisters is without any substance. It is trite that in terms of Order 1 Rule 10(2) of the Code, the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be ::: Downloaded on - 09/06/2013 18:08:29 ::: 9 sa312-10w1646-10.doc just, order that name of any person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit, be added. The Court, therefore, as can be seen, is sufficiently seized with the powers to add a party to the suit if the presence of the said party is necessary to effectively adjudicate the lis between the parties and pass effective decree.
11. In the instant case, as mentioned herein above, right of the three sisters, if any, is within the branch of the Plaintiff Anna and would therefore have no impact on the shares which would became available to the other branches, in the event the suit for partition is to be decreed. Therefore, the applicants have also, in unequivocal terms, stated that their share, if any, be allotted to the Appellants and the said fact therefore would not come in the way of the Appellants from getting reliefs in the suit.
In my view, therefore, the Civil Application filed by the Applicants is required to be allowed and is accordingly allowed and the three sisters, namely Gajara, Hira and Sarubai are allowed to be impleaded as party Respondents to the above Appeal. However, the same need not detain me in far so far as the hearing of the Appeal is concerned. The learned counsel for the Appellants to ::: Downloaded on - 09/06/2013 18:08:29 ::: 10 sa312-10w1646-10.doc carry out amendment in the cause title within one week from date.
12. The learned counsel Shri Talkute appearing for the Appellants contended that in view of the fact that the Application as filed by the three sisters for being impleaded in the above Appeal as also stating that they would have no objection to their share being allotted to the Appellants, the very ground on which the suit came to be dismissed i.e. non joinder of necessary parties does not survive. The learned counsel, would contend that insofar as Godabai and Laxmibai is concerned, their non-
joinder has not been found fatal by the lower Appellate Court, as regards the maintainability of the suit. However, in so far as the sisters of the Plaitniff Anna is concerned, the lower Appellate Court, without adverting to or appreciating what the trial Court has held, has erroneously come to the conclusion that the suit is bad for non joinder of necessary parties. The learned counsel would contend that the trial Court has, in paragraph 14 of its judgment, very elaborately dealt with the issues as to why Godabai and Laxmibai and the three sisters of the plaintiff Anna were not necessary to be joined as parties to ::: Downloaded on - 09/06/2013 18:08:29 ::: 11 sa312-10w1646-10.doc the suit. However, the Lower Appellate Court has, without considering the findings recorded by the trial Court as to why the three sisters were not necessary parties, has held the suit bad for non-joinder of necessary parties. The learned counsel would lastly contend that in view of the fact that the Civil Application filed by the three sisters of the Plaintiff is allowed, there can be now no impediment in the decree passed by the trial Court being restored. The learned counsel would contend that the Defendant No.1 is sitting tight over the property for the last many years.
13. Per contra it is submitted by Mr. Bodake, the learned counsel appearing for the Defendant no.1 that even if the Civil Application filed by the three sisters is allowed, nevertheless, the decree for partition could not have been passed in their absence before the trial Court. The learned counsel would contend that there is gross negligence and laches on the part of the Plaintiff in not joining the three sisters as parties to the suit, inasmuch as the objection as regards non joinder of necessary parties was taken for the first time in the written statement filed on 30th of June, 1988. The learned counsel would contend that it is well settled position in law that if a partition is to be effected, it is ::: Downloaded on - 09/06/2013 18:08:29 ::: 12 sa312-10w1646-10.doc once and for all and cannot be permitted to be allowed to be reopened on the ground that a party who was a necessary party to a suit was not joined as such. The learned counsel would contend that therefore no reliefs can be granted to the plaintiffs in the instant Appeal.
14. In support of his contention, the learned counsel for the Respondent no.1 placed reliance on the judgment of the Apex Court in the case of Kenchegowda (Since deceased) By legal Representatives Vs. Siddegowda Alias Motegowda, reported in (1994) 4 Supreme Court Cases 294 , wherein the Apex Court has held that the Suit for partial partition, when all the joint family properties are not made subject matter of the suit nor the co-sharers impleaded, is not maintainable.
15. Having heard the learned counsel for the parties at some length, I have given my anxious consideration to the rival contentions of the parties. In the instant case, as can be seen from the above, the stumbling block as it were against the Plaintiff was that his sisters were not joined as parties to the suit in question. That stumbling block has now been removed in view of the fact that the Civil Application filed ::: Downloaded on - 09/06/2013 18:08:29 ::: 13 sa312-10w1646-10.doc by the three sisters being Civil Application No 1646 of 2010 has been allowed by an order passed today. In any event, as rightly held by the trial Court, right of the sisters for any share would be within the branch of the Plaintiff Anna Aware and would not impact the share of the other branches. In my view therefore, there is now no impediment in the way of the plaintiffs from getting the decree passed by the trial Court, restored.
16. However, since ig much store have been laid by the learned counsel appearing for the Respondent no.1 herein Mr. Bodake on the fact that Laxmibai and Godabai who are the sisters of Ishwara but were not joined as parties to the said suit and whose heirs were necessary to be brought on record, the said ground therefore would have to be dealt with. In so far as the Laxmibai and Godabai's heirs are concerned, the Defendant no.1 himself has deposed that the said two sisters did not claim any share in the property during the lifetime of their father which statement of the Defendant no.1 has been corroborated by the Defendant no.3. The trial Court therefore was right in recording a finding that in view thereof the heirs of the said Laxmibai and Godabai were not necessary to be brought on record.
::: Downloaded on - 09/06/2013 18:08:29 :::14 sa312-10w1646-10.doc
17. It is required to be noted that the suit is of the year 1987 and till this date neither the sons nor daughters of the said Laxmibai and Godabai have come forward to intervene in the aforesaid proceedings. The lower Appellate Court, as can be seen from the impugned judgment and decree, while holding that the suit is bad for non joinder of necessary parties, has referred to only the non joinder of the three sisters of the Plaintiff, as according to the Lower Appellate Court, non joinder of Laxmibai and Godabai, in the facts as stated herein above, was not fatal to the suit. In so far as the said three sisters are concerned, as mentioned herein above, the said impediment of non joining them as parties to the suit would now not come in the way of the Plaintiff in view of the fact that the Civil Application No. 1646 of 2010 filed by them for being impleaded in the above Second Appeal has been granted. Their non joining was the sole ground on which the Appeal filed by the Defendant No.1 in the lower Appellate Court was allowed and decree set aside. Since the said ground now no more survives, in my view, the Second Appeal would have to be allowed. The questions of law, accordingly stand answered in terms of the above. The judgement and decree passed by the learned Lower Appellate ::: Downloaded on - 09/06/2013 18:08:29 ::: 15 sa312-10w1646-10.doc Court dated 27th February, 2007 is quashed and set aside and the judgment and decree dated 29th July, 1999 passed by the trial Court in Regular Civil Suit No. 435 of 1987 is restored.
18. It is made clear that the Plaintiffs would be entitled to 1/3rd share, Defendant No.1 to 1/3rd share and Defendant Nos.
2 and 3 to 1/3rd share each out of 10 anna share in the land bearing Gat No. 127-A.
19. The above Second Appeal is accordingly allowed with the parties left to bear their own costs.
20. At this stage the learned Counsel for the Appellants applies for stay to the execution and implementation of the this order. In the facts and circumstances of the case, where the decree passed is one of partition, which would take its own time for being executed, the said prayer is refused.
(R. M. S AVANT, J.) ::: Downloaded on - 09/06/2013 18:08:29 :::