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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.P. SIVASUBRAMANIAM
Sabasthi Nadar - Appellant
Versus
Savurimuthu Nadar and Another - Respondents
S.A. Nos. 1836 and 1837 of 1985
Decided On : 04 August 1998
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 for dismissal. The Appellate Court has also discussed the said point in its judgment.
4. In the plaint it is pleaded that the suit properties originally belonged to one Santhiyagu Nadar and after him, his properties devolved on Savariyayee, Mariasusai and Sandiyammal. While dealing with the heirs of Savariyayee, the positive case of the plaintiff is that one Duraraj was her only son and heir. In the evidence it has been clearly brought forth from Durairaj himself (PW1) that he has a sister by name Silonmani. The following is the finding of fact as recorded by the trial court.
(Vernacular matter omitted)
The Appellate court has also considered this issue and has concluded that not only Durairaj had a sister (Silonmani), but Maraisusai also had one more daughter by name Savariammal.
5. But, in spite of the said finding, both the courts below have recorded a finding that the Genealogy as given by the plaintiff was correct. The said finding to say the least, is illegal and erroneous.
6. The learned counsel for the appellants referred to a decision of the Supreme Court reported in 1983 Mad LW 93, State of Bihar v. Sri Radha Krishna Singh. The following extract will aptly apply for the present case (at p. 691 of AIR) :
"It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved..........."
7. Another judgment of a Division Bench of this court relied upon by the learned counsel for the appellants is equally applicable to the facts of the present case. In A. Ramachandra Pillai v. Valliammal, (1987) 100 Mad LW 486, the Division Bench has dealt with a similar case of disclosure that one of the parties had two daughters who would undoubtedly be entitled to a share, but were not impleaded as parties. The Division Bench held that the suit for partition was liable to be dismissed in view of the non impleading of the said two daughters. On the issue as to the applicability of Order 1 Rule 9 of Code of Civil Procedure, holding that no suit shall be dismissed for non-joinder, the Division Bench held that it was only an enabling provision to be applied by the courts in appropriate cases.
8. Another judgment of this court of a learned single Judge reported (1998) I CTC 453 : 1998 AIHC 3831) (P. Haridoss v. N. Subbayya Pillai) held that in a suit for declaration and injunction, all the co-sharers have to be impleaded as necessary parties.
9. Per contra, the learned counsel for the respondent referred to the following three judgments:
(1) 1994 AIR(SC) 72, (Addepalli Venkata Lakshmi v. Ayinampudi Narasimha Rao);
(2) 1975 AIR(Patna) 168, (Ramsurat Devi v. Satraji Kuer);
(3) 1
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