Non-joinder of necessary parties does not invalidate a suit for partition if the branches are duly represented.

JUDGMENT

1. The Second Appeal was admitted on 7/7/1992 on following substantial questions of law :

i. Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties ?

ii. Whether suit for partition and possession is bad for nonjoinder of necessary parties, and therefore, ought to have been dismissed ?

iii. Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by appellate court, in para 10 of the Judgment are proper ?

2. The substantial questions arise from following set of facts :

a. A suit for partition and separate possession of the suit property was filed by the respondents herein against the predecessor of the appellants by name Mr. Gumansing, claiming that they had 1/2 share in the suit property.

b. Though it was not specifically pleaded, the parties are unanimous about the genealogy which is as under :

c. The respondents are the wife and children of Harising who contested the suit by his written statement. He admitted that the suit property was the ancestral property. He also admitted genealogy. He put up a plea of previous partition about 70 years back, however, admitted that the suit property remained joint. He claimed to be the exclusive owner of the suit property and also claimed to be in possession thereof.

d. The trial court concluded that the suit property was the ancestral and joint family property but denied to give any share on the ground of non-joinder of all the coparceners namely all the sons of Shivram and all the sons of Totaram, by referring to para 333 (sic) of the Mulla's Principles of Hindu Law.

e. The respondents challenged the judgment and order passed by the trial court before the district court. By the judgment and order under challenge the district court quashed and set aside the judgment of the trial court and decreed the suit partly. It has held that though all the coparceners were not parties to the suit, in view of the provisions of Order I Rule 8 and Order I Rule 9 the suit could be decreed. Though it declared that the respondents had 1/10th share collectively and so did the rest of the coparceners, it directed partition to be effected by dividing the suit property in two equal portions to be delivered in possession of all the sons of Shivram as also all the sons of Totaram each.

3. Learned advocate Mr. Yawalkar for the appellants would submit that the district court had grossly erred in decreeing the suit in spite of the fact that all the coparceners who are entitled to have a share in the suit property were not made parties to the suit. He would submit that the trial court had correctly observed and concluded that no partition could be legally effected in the absence of all the coparceners and still the district court has held otherwise. The conclusion is clearly illegal.

4. Mr. Yawalkar would further refer to the decision of the Supreme Court in the matter of Kanakarathanammal Vs. V.S. Loganatha Mudaliar and Ors.; AIR 1965 SC 271 and submit that by following this decision a coordinate bench of this Court in the matter of Savitribai and Ors. Vs. Deorao and Ors.; 2011(3) Mh.L.J. 794 has also considered this aspect.

5. The learned advocate Mr. Dixit for the respondents would submit that admittedly there were two branches, one of Shivram and the other of Totaram. It was specifically averred in the plaint that the appellant Gumansing was the head of the branch of Shivram. The respondents were representing the branch of Totaram. Since both this branches were represented by a coparcener each, though the other brothers were formal parties they were not the necessary parties. Ultimately, the lower appellate court merely divided the suit property in two halves with a specific direction to the Collector to effect partition and to allot only of 1/2 share each. There was no direction to separate the individual shares of all the coparceners. He would further submit that the trial court had erred in re