In a partition suit, the non-joinder of necessary parties, including co-sharers and persons claiming independent rights to suit properties both at the trial and appellate stages, renders the proceedings unsustainable, necessitating a remand for proper impleadment of all affected parties under Order 1 Rule 10(2) of the Code of Civil Procedure.

J U D G M E N T

This is truly an unfortunate case, whereas, at the first instance, the plaintiff did not implead his brother's wife/his sister-in-law, one Nallammal @ Gandhimathi, who claims an independent right towards item No.38 of the suit property and defendants 1 and 2 did not implead the third defendant as a party to the appeal. In fine, it is a case of both the parties playing the “Hamlet” without the Prince of Denmark.

O.S.No.98 of 2005 is a suit for partition and separate possession. The claim of the plaintiff is that the suit schedule mentioned properties are the ancestral properties of the family. The admitted genealogy is as follows:

The defendants 4 and 5 are the junior paternal uncles of the plaintiff and the defendants 1 to 3. They have been made as formal parties to the suit.

The plaintiff claimed that Bagan(father) died about 10 years earlier to the presentation of the plaint. Post his death, the plaintiff and defendants 1 to 3 were in possession and enjoyment of the properties. The third defendant was married to one Natarajan, 20 years before the presentation of the plaint. The plaintiff claimed that he is entitled to 1/4th share, as he is a coparcener and an additional share of 1/16th share on account of the death of Bagan(father). In all, he claimed 5/16 share in the properties. He pleaded that he is impleading defendants 4 and 5 as formal parties, as some of the properties fell to the share of Bagan(father) and the revenue records of the same stood in the name of defendants 4 and 5. Claiming a share in the property, he issued a suit notice on 07.03.2005.

For the said notice, the defendants did not issue a reply. Hence, the suit was filed for partition, claiming 5/16th share in the suit properties. Summons were served on the parties. The first defendant, who is the eldest brother, filed a written statement.

According to him, after the death of Bagan (father), the plaintiff and defendants 1 and 2 partitioned the property. Despite the partition, the revenue records continue to stand in the name of the father. He gave a list of properties that were allotted to the 1st and the 2nd defendants. He pleaded that in the partition between the brothers, the plaintiff was given more shares in the Kesampatty Village. Therefore, the defendants 1 and 2 took the properties in Ettimangalam and Shennagarampatty Villages amongst themselves. They urged that post the original partition, they have been in independent possession and enjoyment of the properties. With an evil intention to knock off the properties from their hands, the present suit has come to be filed.

The daughter, Pachayammal, presented a separate written statement. She conceded that the properties were ancestral in nature. She pleaded that Bagan(Father) had passed away when she was a child and it was her junior paternal uncles and her brothers, who brought her up. She supported the plaintiff's pleading that the properties were not partitioned and that each member of the family was in possession of a portion thereof, only for the purpose of their livelihood. She urged that she has a share in the property and accordingly, sought for a decree to be passed in the suit.

An additional written statement was filed by defendants 1, 2 and 5. According to them, item No.38 of the suit schedule mentioned property is a tiled house. This property had been purchased by the first defendant in the name of his wife. He further pleaded that the funds for the purchase of this property includes his exclusive income and therefore, it should be excluded from the partition. Likewise, it was pleaded that insofar as item No.5 is concerned, that too, had been purchased by the first defendant independently, not out of the income from the joint family. Consequently, he sought dismissal of the suit.

With the pleadings being completed, the learned Tr