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K.P.SIVASUBRAMANIAM
Sabasthi Nadar – Appellant
Versus
Savurimuthu Nadar and Another – Respondent
What are the rights of co-sharers in a partition suit when the plaintiff suppresses the existence of other family members? How to determine if a genealogy filed in a partition suit is legally valid when links are missing or disputed? What are the consequences of non-impleading necessary parties in a partition suit under Order 1 Rule 10(2) of the Code of Civil Procedure?
Key Points: - The suit for partition cannot be maintained if the plaintiff fails to implead family members with equal rights to the property (!) (!) . - A genealogy consisting of links is legally invalid if even one link is found to be missing or incorrect based on evidence (!) . - The trial court and appellate court erred by recording findings that the genealogy was correct despite evidence proving otherwise, such as the existence of unmentioned sisters (!) (!) . - Non-impleading of necessary co-sharers who were deliberately suppressed in the pleadings warrants dismissal of the suit rather than allowing impleadment at a later stage (!) (!) . - Impleadment of parties after the passing of a preliminary decree is generally not permissible if it requires reopening settled questions, leading to potential injustice (!) . - Courts cannot take initiative under Order 1 Rule 10(2) to implead parties without proper particulars regarding the omitted parties (!) . - The appropriate remedy in cases of suppressed co-sharers is to dismiss the suit or remand it to the trial court with liberty to implead necessary parties (!) . - Both the suit for partition and the suit for declaration must be remanded for joint trial to address the non-joinder of parties (!) . - The trial court is directed to prioritize the remanded suits and dispose of them within three months (!) .
S.A. No. 1836 of 1985 is directed against the dismissal of O.S. No. 379 of 1980, a suit for declaration by one Sabasthi Nadar, confirmed in appeal in A.S. No. 8 of 1985. Second Appeal No. 1837 of 1985 is directed against a decree in O.S. No. 392 of 1980, a suit for partition by one Maria Arokiam and confirmed in Appeal in A.S. No. 9 of 1985.
2. Both the suits were tried as well as heard in appeal together and disposed of by a common judgment and hence the above two second appeals.
3. It is not necessary to traverse the mutual pleadings, rival contentions and the findings rendered by the courts below or the sustainability of the said findings, in as much as the suit for partition cannot be maintained in view of the non impleading at least one of the family members having equal right along with the other sharers. The defendants (Appellants herein) in the partition suit have positively pleaded in the written statement that the Genealogy attached to the plaint as pleaded by the plaintiff was not correct. The trial court had also framed an issue as to whether the Genealogy attached to the plaint was true and whether the non impleading of any party would render the suit liable
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