Madras High Court
Vijaya vs Arunkumar on 31 March, 2023
AS.No.331 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 31.03.2023
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE P.B.BALAJI
AS. No.331 of 2015
and
C.M.P.Nos.20531, 20552 & 20547 of 2022
1.Vijaya
2.Nandhini
(Appellant No.2 declared as mojor and
Vijaya discharged from guardianship
vide order dated 29.11.2022)
3.C.Murugan (died) .. Appellant
Versus
1.Arunkumar
2.C.Jayavelu
3.C.Sekar (died)
4.Usha
5.Pavithra
6.Divya
(R4 to R6 are brought on record
as Lrs of the deceased 3rd respondent
vide order dated 29.11.2022)
7.Selvi
8.Karthikeyan
9.Nandhini .. Respondents
(R7 to R9 are brought on record
as Lrs of the deceased 3rd appellant
vide order dated 12.01.2023)
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AS.No.331 of 2015
PRAYER: First Appeal is filed under Section 96 of C.P.C. r/w. Section 54 of
L.A. Act, 1894, against the judgment and decree of the learned Principal
District Judge, Krishnagiri dated 01.11.2014 in O.S.No.20 of 2012.
For appellants : Mr.J.Hariharan
for Mr.V.Nicholas
For respondents
for R1 : Mr.R.Subramanian
for M/s.Gupta & Ravi
for R2, R4 to R9 : No Appearance
for R3 : Died (steps taken)
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J)
This Appeal Suit is filed against the judgment and decree of learned
Principal District Court, Krishnagiri dated 01.11.2014 in O.S.No.20 of 2012.
The appellants are defendants 2 to 4 in the suit in O.S.No.20 of 2012.
2. The brief facts are necessary for the disposal of this appeal are as
follows:
The first respondent as plaintiff filed a suit in O.S.No.20 of 2012 for
partition and separate possession of his 1/10 share in all the suit properties and
also for consequential reliefs. The suit properties consist of items 1 and 2. The
first item of the suit properties consist of 12 properties and the 2nd item of the
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property in a land measuring an extent of 0.76 hectares in S.No.46/1 in
Bargoor Village, Krishnagiri District.
3. The case of the first respondent in the plaint is that the suit
properties are the ancestral properties of one Chinnasamy. The genealogy tree
filed before this Court is not in dispute. Chinnasamy, who is the father of first
defendant died intestate leaving behind his wife, the 6th defendant and 4 sons
by name Chinnasamy, C.Jeyavel (1st defendant), C.Murugan (4th defendant and
C.Sekar (5th defendant). Out of 4 sons, Chinnasamy(Jr) died and his legal
heirs namely wife and minor daughter of Chinnasamy(Jr) are impleaded as
defendants 2 and 3. Plaintiff is the son of 5th defendant by name C.Sekar. The
first respondent stated that the 1st item of the suit properties are the ancestral
properties of Chinnasamy. According to the first respondent, the 2nd item of
suit property was purchased by the first defendant by virtue of a sale deed
dated 10.04.1997 and that the said property was also acquired out of the
income from the joint family properties.
4. The appellants contested the suit on various grounds. One of the
contention raised by the appellants is that the plaintiff has not impleaded his
sisters. The plaint averments in entirety are denied in the written statement.
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The written statement was filed by the 4th defendant / 3rd appellant and adopted
by defendants 2, 3 and 6. It was pleaded that there was a partition in the
family after the death of Chinnasamy between the brother of Chinnasamy and
6th defendant in the presence of Panchayatdars and that the property allotted to
sixth defendant was enjoyed by all the legal heirs of Chinnasamy. One of the
defence taken by the 3rd appellant / 4th defendant in the written statement is
that the 6th defendant who is the mother of defendants 1, 4 & 5, executed a
Will at the request of all the members of the family. Though the document
was written as a Will, it is contended that it was in fact, a family arrangement
by which, every members of the family was given specific share in the
properties. Stating that the plaintiff has not included some of the properties
sold by mother during her life time, it is contended that the plaintiff has not
come forward with a bonafide cause. It is also contended that all the parties
are in enjoyment of the properties as per Will and some of them have also
alienated the properties allotted as per Will.
5. Before the trial Court, defendants 1 and 5 remained exparte and
defendants 2 and 3 adopted the written statement filed by the 4 th defendant.
The trial Court framed the following issues, which reads as under:-
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AS.No.331 of 2015
1/ tHf;Fiu brhj;Jf;fSk; kw;w brhj;Jf;fSk; 20/08/1990k;
njjpapll; capy; rhrdj;jpd; thapyhf ghfk; gphpj;Jg; bgw chpatuh?
2/ thjp tHf;Fiuapy; nfhhpa[ss
; go 1/10 ghfk; gphpj;Jg; bgw
chpatuh?
3/ thjp tHf;Fiuapy; nfhhpas
[ s
; go epue;ju cWj;Jf;fl;lisg;
ghpfhuk; bgw chpatuh?
4/ thjp bgwf;Tow ntW ghpfhuk; vd;d?
6. Before the trial Court, Plaintiff examined himself as P.W.1 and
marked Exs.A1 to A5. On behalf of defendants, D.W.1 (4th defendant) and
D.W.2 were examined and Exs.B1 to B3 were marked.
7. Finding that the 6th defendant is only the wife of Chinnasamy and
she has no exclusive right over the properties of the family, the trial Court held
that the Will alleged to have been executed by 6th defendant is not valid and
that the alleged partition as a family arrangement on the basis of Will cannot
be accepted. Since the recitals of the Will are to the effect that the Will should
come into effect after the life time of 6th defendant, the lower Court held that
the contention of the defendant that there was a partition by way of Will
cannot be accepted. It also held that the alleged Will was not proved in the
manner known to law. Since the relationship is not in dispute and the plaintiff
is none other than the son of 5th defendant, the trial Court granted a decree in
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AS.No.331 of 2015
favour of plaintiff for his 1/10 share in all the suit properties. The
consequential relief was also granted by the trial Court, granting injunction
restraining the defendant from alienating the suit properties effected by metes
and bounds. Aggrieved by the judgment and decree of the trial Court, the
above appeal is preferred by defendants 2 to 4.
8. Learned counsel appearing for the appellants have raised the
following points while challenging the judgment and decree of the trial Court
in O.S.No.20 of 2012. The suit for partition is not maintainable and it is liable
to be dismissed for non-joinder of necessary parities. The learned counsel
pointed out that the plaintiff has not even impleaded two of his sisters who are
also the daughters of the 5th defendant. The counsel further stated that
Chinnasamy died not only leaving the 4 sons but also daughters. Since none
of the daughters of Chinnasamy are impleaded, it is contended by the learned
counsel that the suit is liable to be dismissed for non-joinder of necessary
parties.
9. Learned counsel also submitted that the plaintiff has admitted the
Will by acknowledging the sale of some of the properties allotted to fifth
defendant (father of plaintiff) under the Will. Referring to the fact that the
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properties alienated by the fifth defendant have not been included in the suit
schedule, the counsel submitted that the suit is also liable to be dismissed for
partial partition. Finally, the learned counsel submitted that the 5 th defendant
has filed another suit in O.S.No.274 of 2008 on the file of District Munsif
Court, Krishnagiri and admitted the partition or family arrangement on the
basis of execution of Will by 6th defendant on 20.08.1990. Since the 5th
defendant claimed right under the Will, accepting the Will as a partition
effected among the family members, the counsel submitted that the suit for
partition is unsustainable. Though several other grounds were raised by the
appellant's counsel in the memorandum of grounds, the counsel appearing for
the plaintiff / first respondent has admitted that the daughters of Chinnasamy
and the sisters of plaintiff are not made as parties in the suit.
10. Learned counsel appearing for the first respondent submits that
the 6th defendant died during the pendency of suit after reserving orders by the
trial Court. When the appeal was filed, the appellants have indicated the death
of 6th defendant. However, it was recorded that all the legal heirs of 6th
defendant are already on record. It is also admitted that the 3rd respondent in
this appeal is the 5th defendant namely the father of the plaintiff. He died
during the pendency of this appeal and respondents 4 to 6 were impleaded as
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AS.No.331 of 2015
the legal heirs of 3rd respondent. Since the plaintiff's sisters are now impleaded
and they are parties in this appeal, the daughters of Chinnasamy are not made
as parties before the trial Court.
11. Learned counsel appearing for the first respondent further
submitted that all the daughters of Chinnasamy got married before the Hindu
Succession Amendment Act and therefore, they are not entitled to any share in
the suit properties. Recently, a larger Bench of Hon'ble Supreme Court in
Uttam's Case has held that the Hindu Succession Amendment Act, 2005 is
retrospective and that the daughters are entitled to equal share in the joint
family properties, irrespective of their birth and irrespective of date of birth
before or after the amendment, the death of the father before or after
amendment.
12. It is in the circumstances, we cannot just ignore the right of
daughters of Chinnasamy by virtue of Hindu Succession Amendment Act,
2005. In view of the fact that the respondents 4 to 6 have been impleaded now
and notice is not yet served on them and the daughters of Chinnasamy are not
made as parties, this Court is of the view that the judgment and decree of the
trial Court granting 1/10 share in favour of plaintiff cannot be sustained, as the
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AS.No.331 of 2015
suit itself is liable to be dismissed for non-joinder of necessary parties.
13. This Court, recently in the case of K.Vishnu Vs. A.Kittusamy
reported in 2023 (1) CTC 25 has held as follows:-
“10. It is well settled that the Suit for Partition should be
filed after impleading all the properties which are common to
the members of the family. The position is also not different if a
Suit for Partition is filed in respect of the Ancestral properties.
In a Suit for Partition of common or Joint Family properties
every one in the family, who is entitled to a share in the
properties, should be made as parties as the properties could not
be divided amount the Co-Owners or the Co-parceners by metes
and bounds in the absence of any one of the sharer. Therefore,
the Trial Court may be right in dismissing the Suit for Partition.
However, when the Trial Court formed the opinion that the
Sisters of Respondent are also necessary and proper parties and
the Suit cannot be divided without impleading all the shares an
opportunity should be given to the Plaintiffs to implead the
necessary and proper parties, who may also have a claim or
share in the Suit properties to avoid multiplicity of proceedings.
However, the Trial Court has framed the issue only at the time of
pronouncing the Judgment. In the said circumstances, this
Court is of the view that the Judgment of the Trial Court
dismissing the Suit of Partition on the ground of non-joinder of
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AS.No.331 of 2015
necessary parties without giving opportunity to the
Plaintiff/Appellant is not appropriate.
11. The question of non-joinder of necessary parties ought
to have been decided after framing the issue and giving an
opportunity to the Plaintiff. In the present case the issue itself
was framed just before the pronouncement of Judgment. It is
well settled that the Court has powers to implead a necessary
party at any stage of the Suit or proceedings. This Court is of
the view that the Judgment of the Trial Court dismissing the Suit
on the ground of non-joinder without giving opportunity to the
Plaintiff/Appellant is liable to be set aside. The Trial Court,
however, held that the Respondent is liable to maintain the
Second Plaintiff and granted a Decree for past and future
maintenance qualifying the amount and created a charge over
Item II of the Suit property after holding that Item II of the Suit
property is the separate property of Defendant. In view of the
fact that the Suit Second Item is stated to be a property
purchased out of the income from the Suit 1st Item and the
quantum of Maintenance depend upon the overall income of
Defendant/Respondent, this Court is unable to sustain the
finding and Decree of Trial Court granting a Decree for
Maintenance in the absence of other sharers. Hence, the
Judgment and Decree as a whole is liable to be set aside.”
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AS.No.331 of 2015
14. As pointed out by this Court in the judgment, when a suit is liable
to be dismissed for non-joinder of necessary parties, an opportunity should be
given to the plaintiff. Since this Court has set aside the judgment only on the
technical ground of non-joinder of necessary parties, the matter has to be
remitted back to the trial Court for impleading the daughters of Chinnasamy.
One of the objection raised by the appellants is that the alienation of properties
allotted or bequeathed under the Will in favour of fifth defendant is not
included in the suit. Further to avoid dismissal of suit for partial partition, the
said property may also be included in the plaint by way of amendment.
Accordingly, the judgment and decree of the trial Court in O.S.No.20 of 2012
(Principal District Court, Krishnagiri) is set aside and the matter is remitted
back to the trial Court for fresh disposal. The first respondent / plaintiff is
permitted to implead his sisters and the daughters of Chinnasamy as well as
the alienees of the property alleged to have been sold by 5 th defendant or
anyone. The property that is conveyed by 5th defendant or anyone of the
member may also be included so as to avoid further objection that the suit is
bad for partial partition. It is open the to the parties to raise further objections
including the newly impleaded defendants and proper opportunity shall be
given to the parties concern if new issues have to be framed and answered.
The parties shall appear before the trial Court on 07.06.2023. The trial Court
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is directed to dispose of the suit as expeditiously as possible preferably, within
a period of six months from the date of first appearance of parties.
15. In the result, the Appeal Suit is accordingly disposed of.
Consequently, connected miscellaneous petitions are closed. There shall be no
order as to costs.
(S.S.S.R.J.,) (P.B.B.J.,)
31.03.2023
Index : Yes / No
Neutral Citation : Yes / No
AT
To
1. The Principal District Judge, Krishnagiri
2. The Section Officer,
V.R.Section, High Court, Madras.
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AS.No.331 of 2015
S.S.SUNDAR, J.
and
P.B.BALAJI, J.
AT
A.S.No.331 of 2015
31.03.2023
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