Kanakarathanammal vs V. S. Loganatha Mudaliar And Another on 18 December, 1963
The decision of
the Hon'ble Apex Court in Kanakarathanammal v. V.S.
Loganatha Mudaliar3, in which at para 15, it was held is also
very relevant. It was held that "It is unfortunate that the
appellant's claim has to be rejected on the ground that she
failed to implead her two brothers to her suit, though on the
merits we have found that the property claimed by her in her
present suit belonged to her mother and she is one of the three
heirs on whom the said property devolves by succession under
Section 12 of the Act. That, in fact, is the conclusion which the
trial Court had reached and yet no action was taken by the
appellant to bring the necessary parties on the record. It is true
AIR 1963 SC 992
2
AIR 1965 SC 271
3
20
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
entitled to claim any relief against the respondents...."