IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT NAGPUR
Savitribai w/o Gunwant Waghmare,
Versus
Deorao s/o Amrutrao Waghmare,
CORAM : R.M. SAVANT, J.
DATED : 22/2/2011.
Citation: 2011(4)ALLMR302, 2011(6)BomCR200, 2011(3)MhLj794
This Second Appeal takes exception to the judgment
1]
and decree dated 28th January 1994 by which the decree passed by
the Trial Court in Regular Civil Suit No. 533/1985 dated
30/11/1986 came to be set aside.
The above Second Appeal admitted on 7.12.1999,
2]
however, no substantial question of law was framed whilst admitting
the Appeal.
3]
The facts involved in the above Second Appeal can be
stated thus:
The common ancestor of the plaintiffs and the defendants is
one Baliram, who died on 3.2.1959. The said Baliram left his widow
Thakabai, and a son namely Amrut. Amrut had two sons namely
Bhaurao and Deorao. Thakabai died on 16.7.1993 and Bhaurao
died on 26.7.1973 leaving behind widow namely Savitaribai and
minor daughter namely Rekha alias Malti. Wife and daughter of
Bhaurao has filed Regular Civil Suit No. 533/1985 for partition and
separate possession. Deorao was the defendant no.1 to the said suit
and Amrut was the defendant no.2. It was the case of the plaintiffs
that there was a joint family property of Bhaurao and Deorao and
their father Amrut and said joint family held property Survey no.
33/1A admeasuring 12 acres at village Kohole Jateshwar, Survey
no.16/2, admeasuring 5 acres 11 gunthas, Survey no.21/1
admeasuring 2 acres of village Sakhare, and survey no.19
admeasuring 1 acres, 35 gunthas of village Nimswala. The joint
family also had a residential house on a plot admeasuring 70’ x 60’.
The plaintiffs claim 5/12th share in the said property. It was the case
of the plaintiffs that after the death of Bhaurao, defendant no.1 was
in possession of the entire joint family property. It was further her
case that she was driven out of the house after death of her husband
and though she issued notice dated 3.9.1983 claiming partition, she
was not given her share resulting in the filing of Regular Civil Suit
No. 533 of 1985.
4]
The defendants contested the said suit by filing their
written statement. They denied that there was any joint joint family
of Bhaurao and Deorao. It was their case that during the life time
of Amrut, Bhaurao had separated from the joint family and he did
not have share in the suit property after partition. It was stated that
the said Bhaurao died while living separately. From the point of
view of the present Second Appeal, it is relevant to note that the
defendants contended that the son of Bhaurao was a necessary
party to the said suit and the since he was not party, the suit was
liable to be dismissed on the said ground. The Trial Court framed
relevant issues. Insofar as the issue, whether the property was a
joint family property, the Trial Court recorded an affirmative finding
in that respect. However, insofar as the maintainability of the suit
on account of nonjoinder of the son of Bhaurao as a party to the
said suit, the Trial Court held that since the whereabouts of the said
son was not known to the plaintiffs as well as the defendants and
since it was the case of plaintiff no.1 who was mother, that her son
was given in a missionary, the Trial Court was of the view that the
son of Bhaurao was not a necessary party to the said suit. The Trial
Court, therefore, decreed the said suit and granted 5/12th share to
the plaintiffs.
5]
Aggrieved by the decree passed by the Trial Court, the
defendants Deorao and Chandrabhaga had filed Regular Civil Appeal
No.161/1987. The First Appellate Court confirmed the finding of
the Trial Court insofar as the issue regarding property being a joint
family property is concerned, however, insofar as the
maintainability of the suit was concerned, the First Appellate Court
was of the view that in the light of the case of the plaintiff no.1 and
in the light of the statement made by defendant no.1 Deorao, it
could not be said that there was a civil death of the son of
Bhaurao. The First Appellate Court was of the view that it was not
the case of plaintiff no.1 i. e. the mother that she was not aware
about the whereabouts of her son. The First Appellate Court was of
the view that it cannot be accepted that the mother is not aware of
the whereabouts of her son. The First Appellate Court, therefore,
recorded a finding that the suit was not maintainable in the absence
of son of the said Bhaurao being a party to the said suit. The First
Appellate Court, therefore, reversed the decree passed by the Trial
Court and dismissed the suit on the ground that it is not
maintainable.
6]
7]
I have heard the learned counsel for the parties.
The learned counsel for the appellant Mr. Gawande
submitted that in view of the undisputed position that plaintiff no.1
was not aware about the whereabouts of her son which was
supported by said Deorao i. e. the defendant no.1 who was the
uncle and who was also not aware of the whereabouts of the son of
Bhaurao. Relying on Order I Rule 9 of the Code of Civil Procedure
the learned counsel submitted that the Court had to adjudicate the
said suit insofar as the parties before it was concerned. The learned
counsel further submitted that in any event the plaintiff no.1 was
ready to protect the interest of the son if he appears later on and
questions the partition.
8]
On the other hand, the learned counsel for the
respondents would contend that son of said Bhaurao was necessary
party to the suit and relied upon the judgment of the Apex Court
reported in AIR 1965 SC 271 Kanakabathanammal vs. Loganatha.
The said judgment concerns a suit for partition, as in the instant
case wherein the brothers of of the plaintiff no.1 were not parties
to the said suit. It is in the said circumstances that the Apex Court
has observed that the suit was not maintainable in the absence of
the brothers. Paragraph 15 of the said report is material and is
reproduced hereunder:
“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 S. 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 that under O. 1 R. 9 of the Code of
Civil Procedure no suit shall be defeated by reason of
the misjoinder or nonjoinder 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 O.1 R.10, subrule 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 coheirs
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. The
estate can be represented only when all the three heirs
are before the Court. If the appellant persisted in
proceedings with the suit on the basis that she was
exclusively entitled to the suit property, she took the
risk and it is now too late to allow her to rectify the
mistake. In Naba Kumar Hazra v. Radhashyam Mahish,
AIR 1931 PC 229 the Privy Council had to deal with a
similar situation. In the suit from which that appeal
arose, the plaintiff had failed to implead comortgagors
and persisted in not joining them despite the pleas taken
by the defendants that the comortgagors were
necessary parties and in the end, it was urged on his
behalf that the said comortgagors should be allowed
to be impleaded before the Privy Council. In support of
this plea, reliance was placed on the provisions of O. 1
R. 9 of the Code. In rejecting the said prayer, Sir George
Lowndes who spoke for the Board observed that “they
are unable to hold that the said Rule has any application
to an appeal before the Board in a case where the defect
has been brought to the notice of the party concerned
from the very outset of the proceedings and he has had
Having heard the learned counsel for the parties and
9]
ample opportunity of remedying it in India.”
considering the fact that the substantial question of law has not been
framed, at the time of the admission of the above Appeal in the year
1999 the above Second Appeal has to be approached from that
angle. It is required to be noted that the Trial Court merely on the
basis of fact that the plaintiff no.1 was not aware of the whereabouts
of the son of Bhaurao as also since the whereabouts were not
known to defendant no.1 has proceeded to record a finding that the
suit was maintainable in the absence of the son as his whereabouts
are not known. On the other hand, the First Appellate Court has
considered the said issue in the proper perspective and has come to a
conclusion that merely because the plaintiff no.1 has stated that the
son was given in a missionary and the said Deorao was not aware
of the whereabouts of the son of Bhaurao it could not be said
that there was a civil death of the son of said Bhaurao. If it is the
plaintiff's case that the said son was given in a missionary then the
plaintiffs, ought to have produced documents concerning the said
aspect. The plaintiff no.1 has merely stated that the son was given
in a missionary, it is unnatural for the mother not to know the
whereabouts of her son assuming that he was given in a missionary.
Insofar as the submission of the learned counsel appearing for
the appellants that based on Order 1 Rule 9 of the Code of Civil
Procedure, the same is misconceived in the teeth of proviso thereto
which inter alia posits that what is mentioned in the main
substantive provision would not apply, if it concerns a necessary
party. As by the Apex Court in the judgment of AIR 1985 SC 271
Kanakabathanammal Vs. Loganatha (supra) the son is a necessary
party to a suit filed for partition and separate possession. In the
event, the plaintiff no.1 was not aware about the whereabouts of
the son, proper course for her was to adopt appropriate proceedings
in that regard. Having not done so, it was not open for the plaintiffs
to contend that the suit filed by them was maintainable
notwithstanding that the son of Bhaurao was not a party to the
suit. When admittedly, the property is a joint family property. In the
light of the authoritative pronouncement of the Apex Court, in my
view, though no substantial question of law was framed at the time
of admission of the appeal, considering the legal position, no
substantial question of law arises in the Second Appeal, which is
accordingly dismissed.
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