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HIGH COURT OF CALCUTTA
S. C. LAHIRI, J. P. MITRA
RANJIT KUMAR PAL CHOWDHURY - Appellant
Versus
MURARI MOHAN PAL CHOWDHURY - Respondent
Civil Revn. 3058 Of 1954
Decided On : JULY 12, 1957
PARTITION SUIT - MULTIFARIOUSNESS - JOINDER OF PARTIES AND CAUSES OF ACTION - INTERPRETATION OF ORDER 1 RULE 3 AND ORDER 2 RULE 3 OF THE CODE OF CIVIL PROCEDURE - COMMON QUESTION OF FACT - BENAMI TRANSACTIONS - JURISDICTION OF COURT TO DECIDE QUESTIONS OF TITLE AND BENAMI - RULE OF CONVENIENCE - DELAY IN RAISING PLEA OF MULTIFARIOUSNESS.
Fact of the Case:
Plaintiff filed a suit for partition of joint family properties, including properties that were transferred to stranger defendants through various transactions allegedly intended to place the properties beyond the reach of creditors. The stranger defendants were impleaded to obtain a declaration that the properties standing in their names were part of the joint family estate. The defendants raised a preliminary issue of multifariousness, arguing that the suit offended against Order 1 Rule 3 and Order 2 Rule 3 of the Code of Civil Procedure.
Finding of the Court:
The court held that the suit was not bad for multifariousness and that the plaintiff was entitled to include all the properties and implead all the stranger defendants in the suit. The court found that there was a common question of fact with regard to all the properties, namely, whether they formed part of the joint estate despite the transactions by which the ostensible title passed to the stranger defendants. The court also held that the properties in which all the defendants did not claim interest could be included in the suit for partition, provided all the co-sharer defendants had an interest therein.
Issues: 1. Whether the suit was bad for multifariousness and offended against Order 1 Rule 3 and Order 2 Rule 3 of the Code of Civil Procedure. 2. Whether the plaintiff could include all the properties and implead all the stranger defendants in the suit. 3. Whether the properties in which all the defendants did not claim interest could be included in the suit for partition.
Ratio Decidendi: 1. Order 1 Rule 3 allows joinder of defendants against whom any right to relief arising out of the same act or transactions or series of act or transactions is alleged to exist, where a common question of law or fact would arise if separate suits were brought against such persons. In this case, the common question of fact was whether the properties formed part of the joint estate despite the transactions by which the ostensible title passed to the stranger defendants. 2. The court held that the properties in which all the defendants did not claim interest could be included in the suit for partition, provided all the co-sharer defendants had an interest therein. This is because in a partition suit, the defendants may include co-sharers as well as strangers, and the properties in which all the defendants do not claim interest have to be left out only if they are not held in common by the co-sharer defendants.
Final Decision: The court discharged all the Rules obtained by the defendants, holding that the suit was not bad for multifariousness and that the plaintiff was entitled to include all the properties and implead all the stranger defendants in the suit.
( 1 ) THESE six Rules have been obtained by several defendants against an order of the Subordinate Judge, 1st. Court Howrah, dated the 3rd August, 1954, by which the learned Subordinate Judge has decided a preliminary issue on rnultifariousness in favour of plaintiff. The facts which are relevant for the purposes of these Rules are these: The plaintiff opposite party instituted a suit for partition as far back as the 12th of March, 1941, and the suit was registered as Title suit No. 5 of 1941. In the plaint as originally filed, there were only seven items of property in the schedule. But from time to time by amendment of the plaint the plaintiff was allowed to include certain other properties. Amongst the defendants who were impleaded as parties to the suit, defendants Nos. 1 to 19 are members of the Pal Choudhury family and are co-sharers of the plaintiff but defendants Nos. 20 to 27 were impleaded on the allegation that some of the properties which are really parts of the joint family estate stood in their names. In the plaint as originally filed, again, there were two prayers, namely, prayers B and C -- prayer B being for a declaration that defendant No. 1 holds the Kadamtolla bazar as trustee for the benefit of the entire family including the plaintiff, and that defendant No. 120 was only a benamdar for the defendant No. 1; Prayer C being for an injunction restraining defendants Nos. I and 20 from putting to sale the Kadamtolla bazar in execution of mortgage decree in title execution case No. 62 of 1940. Upon these two prayers the learned Subordinate Judge held that the suit was not a simple suit for partition and directed the plaintiff to pay the ad valorem court fees. Against that order of the Subordinate Judge the plaintiff moved this Court and obtained a Rule which was Civil Rule No. 295 of 1945. At the hearing of that Rule the plaintiff gave up his prayer for injunction and the prayer for declaration, with the result that the plaintiff was allowed to proceed with the suit as one for partition but liberty was reserved to the defendants to take all such objections as they could under the law as to the maintainability of the suit on the ground of misjoinder of the parties. This order was passed by this Court on the 12th of November, 1943. The plaintiff included several items of properties in the suit by one application for amendment dated the 20th or April, 1942 and another application dated the 1st of June, 1942.
( 2 ) THE substance of the plaintiff's case is that with a view to place the joint family properties beyond the reach of creditors, Kunja Behari Pal Chowdhury, who was the father of defendant No. 1, and who was the karta of the joint family resorted to various kinds of fictitious transactions for the purpose of transferring the ostensible title in those properties in favour of strangers, but the plaintiff claims that in spite of these transfers some of which are challenged as benami, and some as fraudulent, the properties which stand in the names of the strangers, never ceased to be parts of the joint family estate. Upon these allegations, the plaintiff prays for one-fourth share of all the properties which are included in the schedule to the plaint. The stranger defendants who are defendants Nos. 20 to 27 have been impleaded by the plaintiff for the purpose of a decision in their presence to the effect that the properties which stand in their names are nevertheless, parts of the joint family properties.
( 3 ) UPON the pleadings filed by the parties issues were settled by the court on the llth of November, 1942. Thereafter, after several appeals and revisional applications to this Court, the suit was taken up for peremptory hearing on 20-6-1954, when the defendants filed an application for raising an additional issue on the question of multifarious-ness. This issue was raised and decided in favour of the plaintiff by the learned Subordinate Judge by his order dated the 3rd of August, 1954, w
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