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1990 Supreme(Mad) 835
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.M. NATARAJAN & THE HONOURABLE MR. JUSTICE THANIKKACHALAM
G. Kanthimathi and Others
Versus
G. Lakshmi Ammal etc.
Appeal Suit No. 8 of 1983 and Cross-Objections and Appeal Suit No. 893 of 1985
Decided On :Decided On : 21-09-1990
For the Appellants:M.R. Narayanaswamy, Senior Counsel for M/s R. Ganesan, S. Sathyamoorthy, T.S. Subramaniam, Senior Counsel for A. Kanagasabapathi, Advocates.
For the Respondent:G. Subramaniam, Senior Counsel for M/s. S. Parthasarathy, K. Yamunan, T. Martin, Advocates.
Headnote:
ABATEMENT OF APPEAL - DEATH OF PARTY - NECESSARY PARTY - PARTITION SUIT - LEGAL REPRESENTATIVES NOT IMPLEADED - APPEAL ABATES IN ENTIRETY - O. 22, R. 4(3) READ WITH R. 11, C.P.C.
Fact of the Case:
Plaintiffs filed a suit for partition and separate possession of their 9/24th share and for directing defendants 2, 4, 5 and 7 to render accounts from 5-10-1972 till the date of delivery of possession and in the alternative to pass the decree for the relief of partition on the basis of the partnership deeds as well as taking of such accounts as are necessary to determine the shares of the plaintiffs in the plaint. The case of the plaintiffs is that the deceased Ganapathia Pillai had got three wives and that the first plaintiff is his third wife and through her plaintiffs 2 to 5 were born. Defendants 2 and 3 are the sons of Ganapathia Pillai through his first wife, the first defendant herein, and defendants 4 to 8 are the children of the said Ganapathia Pillai through his second wife Ponnammal and that the plaintiffs are entitled to 9/24th share while defendants 1 to 5 are each entitled to 1/12th share. It is also alleged that defendants 2 to 7 along with their father were partners while the plaintiffs 2 to 3 were admitted to the benefits of the partnership and that defendants 4, 5 and 7 have to account for the income from the lorries run by them from 5-10-1972 till they deliver separate possession. It is only defendants 1 to 3 who dispute the marriages of the first plaintiff and Ponnammal with Ganapathia Pillai and the legitimacy of plaintiffs 2 to 5 and defendants 4 to 8, in their written statement, and submitted that they are not entitled to submit any account, while the case of the plaintiffs as well as defendants 4 to 8 is that they are also legal heirs and that they are entitled to equal shares. It is seen that a joint written statement was filed by defendants 5 and 7 which was adopted by defendants 4 and 8. Defendants 4, 5, 7 and 8 claimed 4/12th share and for effecting division of their shares, they paid separate court fee. On the basis of the pleadings, the trial court framed as many as 10 issues and 3 additional issues, wherein issue No. 8 is relevant which deals with the entitlement of shares by plaintiffs and defendants 4 to 8. The lower court, on the basis of the evidence adduced in the suit, held under issue No. 8 that the plaintiffs and defendants 4 to 8 are not entitled to any share and answered the issue against them. It is Only against the said finding and conseqential dismissal of the suit, these two appeals are filed; It is not in dispute that the fourth defendant died on 24-10-1987 leaving behind his wife Chellammal, one daughter by name Ponnammal and two sons Ganapathy and Sankarasadasivam as his legal representatives and that the appellants have not taken any steps to set aside the abatement and to implead to legal representatives of the deceased fourth defendant. It is only in the circumstances we have to see whether the presence of the legal representatives of the deceased fourth defendant are necessary for determining the points involved in the appeal and deciding the issues.
Finding of the Court:
The court held that the presence of the legal representatives of the deceased fourth defendant are necessary for determining the points involved in the appeal and deciding the issues. The court also held that the decree of the lower court has become final as far as the fourth defendant is concerned as it has not been set aside, the appeals by the plaintiffs and the eighth defendant cannot be proceeded with, for the reasons already stated above. The cross-objections also cannot be proceeded with.
Issues: Whether the presence of the legal representatives of the deceased fourth defendant are necessary for determining the points involved in the appeal and deciding the issues.
Ratio Decidendi: In a suit for partition, every defendant is in the position of the plaintiff in relation to the relief of partition and therefore there was no distinction between the plaintiff and the defendant in a suit for partition. According to the learned counsel, since the fourth defendant died on 24-10-1987, the appeal was abated long ago. It was submitted that the appellants were fully aware of the death of the fourth defendant and inspite of the memo filed by the respondents, they did not choose to take any steps to implead the legal representatives of the deceased fourth defendant and the decree passed by the court below in so far as the fourth defendant is concerned has become final and the said decree is only a joint and indivisible one and as such the appeals abate as a whole.
Final Decision: The appeals are dismissed. The cross-objections are also dismissed. There will be no order as to costs in all the cases.
K.M. Natarajan, J.
1. A.S. No. 8 of 1983 is filed by the plaintiffs while A.S. No. 893 of 1985 is filed by the eighth defendant in O.S. No. 151 of 1980 sub court, Nagercoil, challenging the dismissal of the said suit holding that the plaintiffs are not the legal heirs of late Ganapathia Pillai and are not entitled to any relief. For the purpose of convenience, the rank of the parties before the trial court is adopted herein.
2. The material facts which are relevant for the disposal of these appeals are as follows: The plaintiffs (appellants in A.S. No. 8 of 1983), filed the suit for partition and separate possession alleging that plaintiffs 2 to 5 are the children of late Ganapathia Pillai through his third wife, the first plaintiff herein. Defendants 2 and 3 are the sons of the said Ganapathia Pillai, through his first wife, the first defendant and that defendants 4 to 8 are the children of Gnanapathia Pillai through his second wife Ponnammal. Ganapathia Pillai was having properties at Nagercoil, Tirunelveli and Shenkottah and he was also running bus transport and allied business under the name and style of Sri Ganapathia Motor Service. It is the further case of the plaintiffs that all the properties mentioned in A and B Schedules attached to the plaint are his separate and self-acquired properties. The second wife of Ganapathia Pillai, namely, Ponnammal died in or about 1950 and a few months thereafter Ganapathia Pillai married the first plaintiff as his third wife at Nagercoil when it was part of Travan-core State where was no law prohibiting marriage, a third time. Ganapathia Pillai died at Nagercoil intestate on 5-10-1972 leaving behind the plaintiffs also as his legal heirs, and as per the Hindu Succession Act the first plaintiff and the first defendant together are entitled to 1/12th share whereas the other plaintiffs and other defendants are each entitled to 1/12th share in the suit properties. It is also stated that defendants 4, 5 and 7 are running nine lorries of the said business for the benefit of the members of the family and they are claiming the same as their own. It is further stated that the second defendant who has been managing the suit properties is bound to render account from 5-10-1972 to the plaintiffs while defent dants 4, 5 and 7 are liable to render accounin respect of the income from the lorries.
3. The said suit was resisted by the first defendant and in her written statement it was inter alia contended that there was no marriage between the first plaintiff and Ganapathia Pillai and that the first plaintiff was only his concubine. The first defendant was the only wedded wife of Ganapathia Pillai, at the time of the alleged marriage of the first plaintiff and Ganapathia Pillai 1950. Even if there was any marriage between Ganapathia Pillai and the first plaintiff, it was illegal and void in view of the Hindu Bigamy Act, 1949. Defendants 1 to 3 atone are the legal representatives of late Ganapathia Pillai. Ganapathia Pillai never married Ponnammal and as such defendants 4 to 8 also are not the legal heirs of the deceased Ganapathia Pillai and their claim for partition is not sustainable in law.
4. Defendants 2 and 3 filed a separate written statement wherein also it was contended that neither Ponnammal nor the first plaintiff is the legally wedded wife of Ganapathia Pillai and therefore plaintiffs 2 to 5 and defendants 4 to 8 are not the legitimate children of Ganapathia Pillai. The first defendant is the legally wedded wife and defendants 2 and 3 alone are the legitimate sons of Ganapathia Pillai They further contended that the partnership firms formed by Ganapathia Pillai were all real transactions and they were fully acted upon and the present plaint ignoring all the partnership deeds and contrary to their terms is not maintainable. After setting out the re-constitution of the firms, it was contended that the second defendant is not liable to render any account. It was also contended that
