In a suit for general partition, all the sharers are necessary parties and the non-joinder of a necessary party is a fatal defect.

V. RAMASWAMI, J. :—

1.Defendants 1 to 5 are the appellants. The suit was filed by the first respondent Valliammal and her daughter the second respondent for partition and separate possession of 7/18th share of the plaint schedule properties.

2. One Arumugam Pillai died on 16-9-1956 leaving the first plaintiff, his widow, a son the first defendant and seven daughters. The second plaintiff and defendants 6, 7, 8 and 9 are five of the daughters. Another daughter by name Vairam, though survived Arumugam Pillai, died sometime in 1965 leaving the tenth defendant as her only heir. The other daughter of Arumugham Pillai was one Nagarathinam. The case of the plaintiffs was that the suit properties were the self acquired properties of Arumugham Pillai, that on the death of Arumugham Pillai, the widow, son and the seven daughters each inherited 1/9th share and that Nagarathinam died issueless and her share was inherited by the first plaintiff, the mother. The plaintiffs also contended that on the death of Vairam, the tenth defendant and the first plaintiff became entitled to one half share in the share of Vairam and that came to 1/18 of the total. Thus the first plaintiff would claim to be entitled to 5/18 share in the total and the second plaintiff to a 2/16 share.

3. The first defendant in his written statement contended that the plaint A schedule properties are the ancestral properties, that they were not the separate properties of Arumugham Pillai and that, therefore, he will be entitled to one half share as an undivided co-parcener and the plaintiffs will be entitled to only a share in the half share left by the father Arumugham Pillai. He further contended that the plaint B schedule properties were purchased by the fifth defendant, the wife of the first defendant, that they were neither the joint family, properties nor the separate properties of Arumugham Pillai and that the fifth defendant alone is entitled to the entirety of those properties. The fifth defendant also filed a written statement separately claiming the B schedule properties as her own. The first defendant and the fifth defendant also denied the existence of the C schedule jewels. The first defendant further contended that Nagarathinam, his sister, died leaving two daughters and that the suit is bad for nonjoinder of the daughters of Nagarathinam.

4. The trial Court framed as many as 13 issues of which the 10th issue related to the question, “whether Nagarathinam left any issue and whether the suit is bad for nonjoinder of the said issue?”. The trial Court held that of the A schedule properties the nanja and punja lands forming Part I of that Schedule are the self-acquired properties of Arumugham Pillai. However, it held that Part II of A Schedule, house and site, is the separate property of the first defendant and the B schedule properties also be longed to the fifth defendant absolutely and not liable for partition. The trial Court also accepted the contention of the defendants that the C schedule jewels did not exist. On the contention whether the suit is bad for non-joinder of the daughters of Nagarathinam, though the trial Court found that Nagarathinam left two daughters, the suit is not liable to be dismissed for non-joinder of those daughters. According to the lower Court, “At best, Nagarathinam will be entitled to 1/9th share and 1/9th share can be allotted to her heirs, if they seek to implead them as parties even at the time of final decree”, and in that view, it was held that the suit is not liable to be dismissed. Defendants 1 to 5, as stated above, have preferred this appeal.

5. The learned counsel for the appellants at the outset contended that the finding of the Court below that the suit is not liable to be dismissed for non-joinder of parties is incorrect and on that issue itself, the entire suit should have been dismissed. In this connection, he relied on the decision of the Supreme Court in Kanakarathanammal v. Loganatha 1, and another judgm