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2016 Supreme(Bom) 1589
IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
R.K. DESHPANDE, J.
Pandurang Sitaram Pande, (Deceased through L.Rs) Org. Pltff Vinaykumar Pandurang Pande - Appellant
Versus
Avinash Ramkrishna Pande - Respondent
Second Appeal No. 567 of 2004
Decided on : 04-08-2016
Important Points
Subject
Civil Law - Property Law
Act Referred
HINDU SUCCESSION ACT : S.8
LIMITATION ACT : Art.65
Headnote
Partition - Hindu Succession Act - Section 8, Order 20 Rule 12 of Civil Procedure Code
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of his share in the suit properties. The trial court found in favor of the plaintiff, but the appellate court dismissed the suit citing non-joinder of necessary parties, limitation, and lack of pecuniary jurisdiction. The second appeal was filed to address the substantial question of law regarding the dismissal of the suit for want of legal heirs of two sisters on record.
Finding of the Court:
The court found that the non-joinder of necessary parties was curable, and the plaintiff was allowed to join the legal representatives of the two sisters. The court also held that the suit could not be dismissed for non-joinder of necessary parties and that the lower appellate court should have granted an opportunity to the plaintiff to add the necessary parties to the proceedings.
Issues: Non-joinder of necessary parties, limitation, and lack of pecuniary jurisdiction
Ratio Decidendi: The court has the discretion to permit the addition of necessary parties at any stage of the proceedings, and once such permission is granted, the defect stands cured. The suit cannot be dismissed for non-joinder of necessary parties if the necessary parties are added to the proceedings. The court also clarified the applicability of the law of limitation in the case.
Final Decision: The second appeal was partly allowed, and the decree passed by the trial court was modified to grant the plaintiff his rightful share in the suit properties.
Key Points: - (!) O.1 R.10(2) CPC empowers court to add or strike parties at any stage. - (!) Court may exercise discretion at second appellate stage to permit joinder; added parties relate back to filing date, curing defect. - (!) Upon granting permission to join, added parties’ replies are on record; suit cannot be dismissed for non-joinder. - (!) Civil Application allowing joinder of two sisters was disposed of, enabling their addition as defendants/respondents. - (!) Limitation discussion: dispute about whether Article 65 or Article 113 applies; Article 113 3-year period; Article 65 12-year period; court discusses applicability. - [4000527040015] Discussion of which limitation article applies; decision clarifies applicability in context. - (!) Decree details: plaintiff entitled to partition of specific shares; enumerates shares for defendants. - (!) Enquiry into mense profits under Order 20, Rule 12 from filing date. - (!) Will of Kamal (Exh.117) accepted; affects share calculation. - (!) Appeal partly allowed; decree modified accordingly.
Question 1?
How to permit the addition of necessary parties at any stage of proceedings in a suit for partition and separate possession?
Question 2?
What is the applicable law of limitation for joining necessary parties in a partition suit and how does it affect dismissal for non-joinder?
Question 3?
What are the effects of joining the legal representatives of two sisters on the record and the consequent shares in the partition decree?
Advocate Appeared:
For the Appellant : Shri. C.A. Joshi, Counsel.
For the Respondent:Shri. Anil Mardikar, Senior Counsel assisted by Shri. Sumit Joshi, Advocate.
R.K. Deshpande, J.
One Sitaram @ Balabhau Pande was the owner and in possession of the suit property. He died in the year 1978 and was survived by 5 sons, namely, (1) Ramkrushna, (2) Pandurang, (3) Haribhau, (4) Laxman and (5) Bharat and two daughters, namely, (1) Smt. Jankibai and (2) Smt. Tarabai. Smt. Dwarkabai, wife of Sitaram, died in the year 1943 and was thus a predeceased. The son, Pandurang Sitaram Pande, filed Regular Civil Suit No. 81 of 2001 on 08.11.2001 for partition and separate possession of his ?th share in the suit properties. He also claimed a decree of Rs. 30,950/- with future interest at the rate of 18% per annum by way of mesne profit and also claimed an enquiry into the mesne profit under Order 20, Rule 12 of Civil Procedure Code. The suit was filed on the basis of cause of action shown in the plaint as 06.10.2001 when the plaintiff by issuing notice to the defendant no.7 called upon him to effect partition of the suit property.
2. The brothers Haribhau and Laxman were joined as defendant Nos. 1 and 2. The third brother Bharat died before filing of suit and therefore, his widow Smt.Kamal was joined as defendant No. 3. Two sisters namely Smt.Jankibai and Smt.Tarabai died in the year 1985 and 1987 respectively i.e. before filing of the suit, but their legal heirs were not joined as party defendants in the suit. Since the brother Ramkrushna died in the year 1990, his two surviving sons, namely Avinash and Pramod were joined as defendant Nos. 7 and 8 respectively, whereas the widow and daughter of one Subhash (dead), the another son of Ramkrushna, were joined as defendant Nos. 5 and 6 respectively. Smt. Kamal died on 11.02.2002 i.e. during the pendency of the suit and the defendant No.7 Avinash, the son of Ramkrushna, the eldest brother of the plaintiff, claimed himself to be the legatee in respect the share devolved upon Smt.Kamal, on the basis of will executed by her on 02.11.1997. The defendants opposed the claim of the plaintiff.
3. The trial Court in Regular Civil Suit No. 81 of 2001, decided on 31.10.2002 recorded the finding that the suit properties were the joint family properties and the plaintiff had established his claim of 4/15th share in the suit property against his claim for ?th share. The trial Court rejected the claim of defendant No. 7 Avinash for addition of ?th share on the basis of Will dated 02.11.1997, said to have been executed by Smt. Kamal, the defendant No. 3. The trial Court also rejected the contention of the defendants that the suit was liable to be dismissed as barred by law of limitation and for non joinder of necessary parties, namely the legal heirs of two daughters - Smt.Jankibai and Smt.Tarabai, by accepting the contention of the plaintiff that both the sisters had executed relinquishment deed dated 06.01.1981 in favour of all the brothers in respect of their shares in the properties.
4. Regular Civil Appeal No. 294 of 2002 preferred by the original defendant Nos. 7, 8 and 4 was allowed by the appellate Court on 30.08.2004 and the decree for partition and separate possession passed by the trial Court was set aside and the suit was dismissed. The lower appellate Court records the finding that Will executed by respondent No.3Kamal in favour of defendant No.7 Avinash has been proved; the suit is liable to be dismissed for non joinder of legal heirs of deceased Smt. Jankibai and Smt.Tarabai in the suit; the suit was barred by the law of limitation and the trial Court had no pecuniary jurisdiction to entertain the suit. Hence, as the original plaintiff is died and his legal heirs along with original defendant no.2 through his legal heirs are before this Court in this second appeal.
5. The appeal was admitted on 16.12.2008 and this Court framed the substantial question of law as under;
"Whether the suit (wrongly typed as appeal) of the plaintiff/appellant could have been dismissed for want of legal heirs of two sisters on record?"
6. The appellants filed Civil Application No.
