Whether plaintiff is entitled to get enhancement of share if there is death of one co-sharer of property?
The trial Court took into consideration the
enhancement in the share of the plaintiff from 1/15th to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, oneof the cosharers in the suit properties. The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt. Kamal was insane on the ground of lack of
pleadings and evidence on record. Smt. Kamal was residing
with defendant No. 7Avinash, who claims the share of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered. With
the assistance of the learned counsels appearing for the
parties, I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record. The Will has been proved
and there is no perversity in recording such finding. As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 567 OF 2004
Pandurang Sitaram Pande,
V
Avinash Ramkrishna Pande,
CORAM: R. K. DESHPANDE, J.
Dated: 04.08.2016
Citation:2016(6) ALLMR 273
1] One Sitaram @ Balabhau Pande was the owner
and in possession of the suit property. He died in the year
1978 and was survived by 5 sons, namely, (1) Ramkrushna,
(2) Pandurang, (3) Haribhau, (4) Laxman and (5) Bharat and
two daughters, namely, (1) Smt. Jankibai and (2) Smt.
Tarabai. Smt. Dwarkabai, wife of Sitaram, died in the year
1943 and was thus a predeceased. The son, Pandurang
Sitaram Pande, filed Regular Civil Suit No. 81 of 2001 on
08.11.2001 for partition and separate possession of his 1/5th
share in the suit properties. He also claimed a decree of
Rs.30,950/ with future interest at the rate of 18% per annum
by way of mesne profit and also claimed an enquiry into the
mesne profit under Order XX, Rule 12 of Civil Procedure
Code. The suit was filed on the basis of cause of action
shown in the plaint as 06.10.2001 when the plaintiff by
issuing notice to the defendant no.7 called upon him to effect
partition of the suit property.
2] The brothers Haribhau and Laxman were joined
as defendant Nos. 1 and 2. The third brother Bharat died
before filing of suit and therefore, his widow Smt.Kamal was
joined as defendant No. 3. Two sisters namely Smt.Jankibai
and Smt.Tarabai died in the year 1985 and 1987 respectively
i.e. before filing of the suit, but their legal heirs were not
joined as party defendants in the suit. Since the brother
Ramkrushna died in the year 1990, his two surviving sons,
namely Avinash and Pramod were joined as defendant Nos.
7 and 8 respectively, whereas the widow and daughter of
one Subhash (dead), the another son of Ramkrushna, were
joined as defendant Nos. 5 and 6 respectively. Smt. Kamal
died on 11.02.2002 i.e. during the pendency of the suit and
the defendant No.7Avinash, the son of Ramkrushna, the
eldest brother of the plaintiff, claimed himself to be the
legatee in respect the share devolved upon Smt.Kamal, on
the basis of will executed by her on 02.11.1997. The
defendants opposed the claim of the plaintiff.
3] The trial Court in Regular Civil Suit No. 81 of
2001, decided on 31.10.2002 recorded the finding that the
suit properties were the joint family properties and the plaintiff
had established his claim of 4/15th share in the suit property
against his claim for 1/5th share. The trial Court rejected the
claim of defendant No. 7Avinash for addition of 1/5th share
on the basis of Will dated 02.11.1997, said to have been
executed by Smt. Kamal, the defendant No. 3. The trial Court
also rejected the contention of the defendants that the suit
was liable to be dismissed as barred by law of limitation and
for non joinder of necessary parties, namely the legal heirs of
two daughters – Smt.Jankibai and Smt.Tarabai, by accepting
the contention of the plaintiff that both the sisters had
executed relinquishment deed dated 06.01.1981 in favour of
all the brothers in respect of their shares in the properties.
4] Regular Civil Appeal No. 294 of 2002 preferred
by the original defendant Nos. 7, 8 and 4 was allowed by the
appellate Court on 30.08.2004 and the decree for partition
and separate possession passed by the trial Court was set
aside and the suit was dismissed. The lower appellate Court
records the finding that Will executed by respondent No.3
Kamal in favour of defendant No.7Avinash has been proved;
the suit is liable to be dismissed for non joinder of legal heirs
of deceased Smt. Jankibai and Smt.Tarabai in the suit; the
suit was barred by the law of limitation and the trial Court had
no pecuniary jurisdiction to entertain the suit. Hence, as the
original plaintiff is died and his legal heirs along with original
defendant no.2 through his legal heirs are before this Court in
this second appeal.
5] The appeal was admitted on 16.12.2008 and this
Court framed the substantial question of law as under;
"Whether the suit (wrongly typed as appeal) of the
plaintiff/ appellant could have been dismissed for
want of legal heirs of two sisters on record?"
6] The appellants filed Civil Application No. 5737 of
2008 in the second appeal for grant of permission to join the
legal representatives of two sisters namely Smt.Jankibai and
Smt. Tarabai on the record of the plaint as defendants and in
this appeal as respondents. This Court passed an order on
the said application on 10.01.2013, as under;
"The notices of this Civil Application were issued. The
persons whose names are stated in the application are
served. Shri Thakkar, the learned counsel has filed
power for the proposed respondent Nos. 8 to 13.
The names of respondent Nos. 8 to 13 are, therefore,
permitted to be brought on record.
Necessary amendment to be carried out within a period
of 2 weeks .
The stand taken by the added respondents in their reply
shall be considered by the Court at the time of hearing.
Hence, the reply filed by the added respondents shall
be taken on record.
C.A. No. 5737/08 stands disposed of".
7] Heard Shri C.A. Joshi, the learned counsel
appearing for the appellants and Shri Anil Mardikar, the
learned senior counsel assisted by Shri Amit Joshi,
Advocate, for defendant Nos. 7 and 8, who are the
respondent nos. 1 and 2 in this appeal (the sons of
Ramkrushna, the eldest brother of the plaintiff)
8] Shri Joshi appearing for the appellants has
urged that the relinquishment of claim of the share by two
sisters – Smt. Jankibai and Smt. Taraibai on 06.01.1981 has
been established and therefore, it was not necessary for the
plaintiff to have joined the sisters as party defendants in the
suit. He submits that even if it is accepted that two sisters
were necessary parties to the suit in question, the defect
was curable and this Court having allowed the Civil
Application No. 5757/08 on 10.01.2013, it stands removed
and the L.Rs of two sisters have filed their reply in this Court
stating in clear terms that they do not want to claim any share
in the suit properties. He further submits that the Will dated
02.11.1997 at Exh. 117 said to have been executed by
Smt.Kamal, the defendant no.3, has not been proved and
hence, the share of the plaintiff in the suit property shall
increase from 1/5th to 4/15th, which was rightly decreed by
the trial Court. Shri Joshi, therefore, submits that the decree
passed by the trial Court be restored by setting aside the
decision of the lower appellate Court.
9] Per contra, Shri Mardikar, for respondent Nos. 1
and 2, has urged that non joinder of two sisters in a suit for
partition and separate possession becomes fatal for grant of
reliefs claimed in the suit and to permit the plaintiffs to join
the necessary parties to the suit at the stage of second
appeal would create a bar of limitation as the cause of action
for filing the suit as shown in the plaint was of 06.10.2001
and the application for joining the necessary parties was
moved before this Court on 03.08.2008, which was allowed
on 10.01.2013. He submits that the limitation is governed by
Article 113 of the Limitation Act, which prescribes the period
of 3 years from the date of cause of action. He relied upon
the decision of the Apex Court in the case of
Kanakarathanammal vrs. V.S.Loganatha Mudaliar and
another, reported in AIR 1965 SC 271. Shri Mardikar also
relied upon the decision of the Apex Court in the case of
Union of India vrs. Ibrahim Uddin and another, reported in
(2012) 8 SCC 148 for the proposition that the plaintiff having
failed to produce the document of relinquishment deed dated
06.01.1981, adverse inference was required to be drawn and
for it, the adverse inference cannot be drawn against the
defendant no.7 on the ground that he was in possession of
the relinquishment deed and has failed to produced it.
10] The lower appellate Court has recorded the
finding that the suit properties were not the ancestral
properties of Sitaram Jayram Pande, the father of the plaintiff
and defendants, but were gifted to him by his fatherinlaw.
Sitaram Pande died intestate and, therefore, the properties
devolved upon the heirs of Sitaram Pande in accordance with
the general rules of succession in the case of mens, as
specified under Section 8 of the Hindu Succession Act, by
5 sons and 2 daughters – they being the ClassI heirs.
11] Normally, each of the heirs would be entitled to
1/7th share in the suit properties. The plaintiff in the suit in
question, however, claimed 1/5th share in the suit properties
by taking into consideration the fact that Smt. Jankibai and
Smt. Tarabai, two daughters of Sitaram, have relinquished
their shares in the suit properties. The relinquishment deed
dated 06.01.1981 executed by two sisters of the plaintiff,
namely Smt. Jankibai and Smt. Tarabai, has not been
placed on record. I need not dwell upon this aspect any
more except to hold that two sisters were necessary parties
to the suit in question and they cannot be called as 'proper
parties'. Let us now see whether non joinder of necessary
parties, in the facts and circumstances of this case, becomes
fatal.
12] No doubt, that the issue regarding non joinder of
necessary parties was raised in the trial Court and it was also
framed. The trial Court records the finding that since two
sisters have relinquished their share, the suit cannot be
dismissed for non joinder of necessary parties. The lower
appellate Court for the first time dismisses the suit on the
ground of non joinder of necessary parties. As pointed out
earlier, the appellant/plaintiff, realizing the mistake, filed
Civil Application No. 5737 of 2008 in this second appeal for
grant of permission to join the legal representatives of two
sisters, was not opposed and allowed by this Court on
10.01.2013. Accordingly, their names are brought on record
and also in the present second appeal.
13] Order I, Rule 10(2) of the Civil Procedure Code
being relevant, is reproduced below;
"O.I R 10(2) – The Court may at any stage of the
proceedings, either upon or without the application of
either party, and on such terms as may be appear to the
Court to be just order that the name of any party
improperly joined, whether as plaintiff or defendant be
struck out, and that the name of any person who ought to
have been joined, whether as plaintiff or defendant, or
whose presence before the Court may be necessary in
order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in
the suit, be added."
The aforesaid provision confers a discretion upon the Court
to permit the name of any person who ought to have been
joined, whether as plaintiff or defendant, or whose presence
before the Court may be necessary in order to enable the
Court to effectively and completely to adjudicate upon and
settle all the questions involved in the suit, be added at any
stage of proceedings. The second appeal being continuation
of the suit, this Court is competent to exercise discretion
even at the second appellate stage to permit the joinder of
necessary parties to the suit. Once such permission is
granted and the parties are joined as defendants/
respondents in the proceedings, the order relates back to
the date of filing of the suit and the defect stands cured.
14] All the parties added, who are the legal
representatives of the two sisters of the plaintiff namely Smt.
Jankibai and Smt. Tarabai, have filed their reply on oath to
the application of the plaintiff for grant of permission to join
them as party defendants/respondents in the proceedings. In
categorical terms they have stated in their reply that they do
not want to claim any share or interest in the suit properties
and their predecessor in title had relinquished their shares in
favour of the brothers. There is no contest involved which is
required to be adjudicated by this Court upon granting
permission to join certain persons as defendants/respondents
in the proceedings. The plaintiff would, therefore, be entitled
to 1/5th share in the suit property and the suit cannot,
therefore, be dismissed in the facts and circumstances of this
case for non joinder of necessary parties. The lower
appellate Court ought to have granted an opportunity to the
plaintiff to add the necessary parties to the proceedings and
it is only upon the failure of the plaintiff to comply with such
direction as contemplated by Order 1, Rule 13 of C.P.C., the
suit could not have been dismissed on the ground of
nonjoinder of necessary parties. The substantial question of
law is, therefore, answered accordingly.
15] Shri Anil Mardikar appearing for defendant No.7
has relied upon decision of the Apex Court reported in AIR
1965 SC 271 (cited supra) to urge that the Apex Court had
refused to grant permission to add necessary parties to the
suit in the appeal pending before the Apex Court on the
ground that the appellant therein was not vigilant and that the
bar of limitation would also operate for permitting the joinder
of necessary parties in the appeal pending before the Apex
Court. In my opinion, the decision is clearly distinguishable.
It was a suit filed for recovery of possession by the appellant
claiming exclusive title over the entire suit property. It was
not a suit for partition and separate possession. The Apex
Court found that such claim was not tenable and the other
brothers were also entitled to succeed to the estate. In the
present case, the plaintiff claims only 1/5th share in the suit
properties and other cosharers likely to oppose the claim
are joined as parties to the suit. The Apex Court has also
held that the trial Court itself dismissed the suit on the ground
of nonjoinder of necessary parties, the appellant did not
take any steps to join the necessary parties either in the
appeal before the High Court or even in the appeal before
the Apex Court till the hearing was concluded. In the present
case, immediately after the decision of lower appellate Court,
the plaintiff moved application which has been allowed. The
Apex Court considered the bar of limitation in a situation
which is not available in the present case.
16] So far as applicability of law of limitation is
concerned, Articles 58, 65, 110 and 113 of the Limitation Act
were brought to my notice. In some decisions of this Court,
it was held that Article 65 would apply, whereas in some
decisions, it was held that Article 113 would apply. Article 58
deals with the suits filed to obtain any declaration and for that
3 years limitation is prescribed from the date when the right
to sue first accrues. Article 113 deals with the suit for which
no period of limitation is prescribed elsewhere in the
schedule and the period of limitation is of 3 years which
begins from the date when the right to sue accrues. Article
65 deals with the possession of immovable property or any
interest therein based on title and it prescribes the period of
limitation of 12 years from the date when the possession of
the defendant becomes adverse to the plaintiff. Article 110
deals with the suit by a person excluded from a joint family
property to enforce a right of share therein and the period of
limitation prescribed is of 12 years from the date when the
section becomes known to the plaintiff.
17] In the decision of the Apex Court in the case of
Md. Mohammad Ali vrs. Jagdish Kalita and others, reported
in (2004) 1 SCC 271, the Court was concerned with the
applicability of Article 65 of the Limitation Act and it was held
that the plaintiff will succeed if he proves his title over the suit
property and it would be for the defendant to plead and prove
the plea of adverse possession to defeat the claim of the
plaintiff. This decision has been followed by the Apex Court in
the case of Mohammadbhai Kasambhai Sheikh and ors vrs.
Abdulla Kasambhai Sheikh, reported in (2004) 13 SCC 385,
wherein it is held that unless the defendant raises defence of
adverse possession to claim for a share by a heir to be
ancestral property, he cannot also raise an issue relating to
limitation of the plaintiff's claim. The Court held that in the
absence of such plea of adverse possession being raised in
the written statement, the plea of limitation was not available.
Both these decisions are applicable to the facts of this case
and in the absence of any plea of adverse possession by any
of the parties, the suit cannot be dismissed as barred by
limitation.
18] Article 110 of the Limitation Act relied upon by
Shri Mardikar deals with the suit by a person excluded from a
joint family property to enforce a right to share therein. In the
present case, the shares are devolved upon the parties to
the suit in accordance with Section 8 of the Hindu
Succession Act and it is not a suit where the partition has
already taken place and the plaintiff is excluded from the joint
family property. It is also not a suit for enforcement of
partition and separate possession, as contemplated by
Section 6 of the Hindu Succession Act, though it is styled as
such. The decision has no application to the facts of this
case.
19] The trial Court took into consideration the
enhancement in the share of the plaintiff from 1/15th to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, one
of the cosharers in the suit properties. The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt. Kamal was insane on the ground of lack of
pleadings and evidence on record. Smt. Kamal was residing
with defendant No. 7Avinash, who claims the share of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered. With
the assistance of the learned counsels appearing for the
parties, I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record. The Will has been proved
and there is no perversity in recording such finding. As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.
20] The Second Appeal is, therefore, partly allowed.
The judgment and order dated 30.08.2004 passed in Regular
Civil Appeal No.294 of 2002 is hereby quashed and set
aside. The decree passed by the trial Court in Regular Civil
Suit No. 81 of 2002 on 31.10.2002 is modified as under;
I] The plaintiff is entitled to partition and separate
possession of 1/5th share in the suit property i.e.
(1) field Gat No. 1277, 6H 52R, (2) field Gat No.
1257, 4H 27R at village Shirpur, (3) House
bearing Gram Panchayat No. 895, admeasuring
100 x 100 sq.feet and (4) space "Chakki Chi
Jaga" with flour mill.
II] The defendant No.1 is entitled to 1/5th share, the
defendant No. 2 is entitled to 1/5th share, the
defendant no. 4 is entitled to 1/20th share, the
defendant nos. 5 and 6 are jointly entitled to
1/20th share, the defendant No. 7 is entitled to
1/4th share and the defendant no.8 is entitled to
1/20th share from the whole suit property
described above.
III] The plaintiff is entitled to an enquiry into mense
profit against the defendant No.7 as per Order
20, Rule 12 of C.P.C from the date of suit i.e.
08.11.2001 until the actual partition and
possession of the suit property.
IV] The defendant Nos. 4, 7 and 8 do bear their own
cost and proportionate cost of the plaintiff.
V] Defendant Nos. 1, 2, 5 and 6 do bear their own
cost.
VII] A precept be sent to the Collector, Washim to
effect partition and separate possession of the
suit field Gat Nos. 1277, 6H 52R and 1257,
4H 27R situated at village Shirpur for 1/5th share
to the plaintiff only.Whether plaintiff is entitled to get enhancement of share if there is death of one co-sharer of property?
The trial Court took into consideration the
enhancement in the share of the plaintiff from 1/15th to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, oneof the cosharers in the suit properties. The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt. Kamal was insane on the ground of lack of
pleadings and evidence on record. Smt. Kamal was residing
with defendant No. 7Avinash, who claims the share of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered. With
the assistance of the learned counsels appearing for the
parties, I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record. The Will has been proved
and there is no perversity in recording such finding. As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 567 OF 2004
Pandurang Sitaram Pande,
V
Avinash Ramkrishna Pande,
CORAM: R. K. DESHPANDE, J.
Dated: 04.08.2016
Citation:2016(6) ALLMR 273
1] One Sitaram @ Balabhau Pande was the owner
and in possession of the suit property. He died in the year
1978 and was survived by 5 sons, namely, (1) Ramkrushna,
(2) Pandurang, (3) Haribhau, (4) Laxman and (5) Bharat and
two daughters, namely, (1) Smt. Jankibai and (2) Smt.
Tarabai. Smt. Dwarkabai, wife of Sitaram, died in the year
1943 and was thus a predeceased. The son, Pandurang
Sitaram Pande, filed Regular Civil Suit No. 81 of 2001 on
08.11.2001 for partition and separate possession of his 1/5th
share in the suit properties. He also claimed a decree of
Rs.30,950/ with future interest at the rate of 18% per annum
by way of mesne profit and also claimed an enquiry into the
mesne profit under Order XX, Rule 12 of Civil Procedure
Code. The suit was filed on the basis of cause of action
shown in the plaint as 06.10.2001 when the plaintiff by
issuing notice to the defendant no.7 called upon him to effect
partition of the suit property.
2] The brothers Haribhau and Laxman were joined
as defendant Nos. 1 and 2. The third brother Bharat died
before filing of suit and therefore, his widow Smt.Kamal was
joined as defendant No. 3. Two sisters namely Smt.Jankibai
and Smt.Tarabai died in the year 1985 and 1987 respectively
i.e. before filing of the suit, but their legal heirs were not
joined as party defendants in the suit. Since the brother
Ramkrushna died in the year 1990, his two surviving sons,
namely Avinash and Pramod were joined as defendant Nos.
7 and 8 respectively, whereas the widow and daughter of
one Subhash (dead), the another son of Ramkrushna, were
joined as defendant Nos. 5 and 6 respectively. Smt. Kamal
died on 11.02.2002 i.e. during the pendency of the suit and
the defendant No.7Avinash, the son of Ramkrushna, the
eldest brother of the plaintiff, claimed himself to be the
legatee in respect the share devolved upon Smt.Kamal, on
the basis of will executed by her on 02.11.1997. The
defendants opposed the claim of the plaintiff.
3] The trial Court in Regular Civil Suit No. 81 of
2001, decided on 31.10.2002 recorded the finding that the
suit properties were the joint family properties and the plaintiff
had established his claim of 4/15th share in the suit property
against his claim for 1/5th share. The trial Court rejected the
claim of defendant No. 7Avinash for addition of 1/5th share
on the basis of Will dated 02.11.1997, said to have been
executed by Smt. Kamal, the defendant No. 3. The trial Court
also rejected the contention of the defendants that the suit
was liable to be dismissed as barred by law of limitation and
for non joinder of necessary parties, namely the legal heirs of
two daughters – Smt.Jankibai and Smt.Tarabai, by accepting
the contention of the plaintiff that both the sisters had
executed relinquishment deed dated 06.01.1981 in favour of
all the brothers in respect of their shares in the properties.
4] Regular Civil Appeal No. 294 of 2002 preferred
by the original defendant Nos. 7, 8 and 4 was allowed by the
appellate Court on 30.08.2004 and the decree for partition
and separate possession passed by the trial Court was set
aside and the suit was dismissed. The lower appellate Court
records the finding that Will executed by respondent No.3
Kamal in favour of defendant No.7Avinash has been proved;
the suit is liable to be dismissed for non joinder of legal heirs
of deceased Smt. Jankibai and Smt.Tarabai in the suit; the
suit was barred by the law of limitation and the trial Court had
no pecuniary jurisdiction to entertain the suit. Hence, as the
original plaintiff is died and his legal heirs along with original
defendant no.2 through his legal heirs are before this Court in
this second appeal.
5] The appeal was admitted on 16.12.2008 and this
Court framed the substantial question of law as under;
"Whether the suit (wrongly typed as appeal) of the
plaintiff/ appellant could have been dismissed for
want of legal heirs of two sisters on record?"
6] The appellants filed Civil Application No. 5737 of
2008 in the second appeal for grant of permission to join the
legal representatives of two sisters namely Smt.Jankibai and
Smt. Tarabai on the record of the plaint as defendants and in
this appeal as respondents. This Court passed an order on
the said application on 10.01.2013, as under;
"The notices of this Civil Application were issued. The
persons whose names are stated in the application are
served. Shri Thakkar, the learned counsel has filed
power for the proposed respondent Nos. 8 to 13.
The names of respondent Nos. 8 to 13 are, therefore,
permitted to be brought on record.
Necessary amendment to be carried out within a period
of 2 weeks .
The stand taken by the added respondents in their reply
shall be considered by the Court at the time of hearing.
Hence, the reply filed by the added respondents shall
be taken on record.
C.A. No. 5737/08 stands disposed of".
7] Heard Shri C.A. Joshi, the learned counsel
appearing for the appellants and Shri Anil Mardikar, the
learned senior counsel assisted by Shri Amit Joshi,
Advocate, for defendant Nos. 7 and 8, who are the
respondent nos. 1 and 2 in this appeal (the sons of
Ramkrushna, the eldest brother of the plaintiff)
8] Shri Joshi appearing for the appellants has
urged that the relinquishment of claim of the share by two
sisters – Smt. Jankibai and Smt. Taraibai on 06.01.1981 has
been established and therefore, it was not necessary for the
plaintiff to have joined the sisters as party defendants in the
suit. He submits that even if it is accepted that two sisters
were necessary parties to the suit in question, the defect
was curable and this Court having allowed the Civil
Application No. 5757/08 on 10.01.2013, it stands removed
and the L.Rs of two sisters have filed their reply in this Court
stating in clear terms that they do not want to claim any share
in the suit properties. He further submits that the Will dated
02.11.1997 at Exh. 117 said to have been executed by
Smt.Kamal, the defendant no.3, has not been proved and
hence, the share of the plaintiff in the suit property shall
increase from 1/5th to 4/15th, which was rightly decreed by
the trial Court. Shri Joshi, therefore, submits that the decree
passed by the trial Court be restored by setting aside the
decision of the lower appellate Court.
9] Per contra, Shri Mardikar, for respondent Nos. 1
and 2, has urged that non joinder of two sisters in a suit for
partition and separate possession becomes fatal for grant of
reliefs claimed in the suit and to permit the plaintiffs to join
the necessary parties to the suit at the stage of second
appeal would create a bar of limitation as the cause of action
for filing the suit as shown in the plaint was of 06.10.2001
and the application for joining the necessary parties was
moved before this Court on 03.08.2008, which was allowed
on 10.01.2013. He submits that the limitation is governed by
Article 113 of the Limitation Act, which prescribes the period
of 3 years from the date of cause of action. He relied upon
the decision of the Apex Court in the case of
Kanakarathanammal vrs. V.S.Loganatha Mudaliar and
another, reported in AIR 1965 SC 271. Shri Mardikar also
relied upon the decision of the Apex Court in the case of
Union of India vrs. Ibrahim Uddin and another, reported in
(2012) 8 SCC 148 for the proposition that the plaintiff having
failed to produce the document of relinquishment deed dated
06.01.1981, adverse inference was required to be drawn and
for it, the adverse inference cannot be drawn against the
defendant no.7 on the ground that he was in possession of
the relinquishment deed and has failed to produced it.
10] The lower appellate Court has recorded the
finding that the suit properties were not the ancestral
properties of Sitaram Jayram Pande, the father of the plaintiff
and defendants, but were gifted to him by his fatherinlaw.
Sitaram Pande died intestate and, therefore, the properties
devolved upon the heirs of Sitaram Pande in accordance with
the general rules of succession in the case of mens, as
specified under Section 8 of the Hindu Succession Act, by
5 sons and 2 daughters – they being the ClassI heirs.
11] Normally, each of the heirs would be entitled to
1/7th share in the suit properties. The plaintiff in the suit in
question, however, claimed 1/5th share in the suit properties
by taking into consideration the fact that Smt. Jankibai and
Smt. Tarabai, two daughters of Sitaram, have relinquished
their shares in the suit properties. The relinquishment deed
dated 06.01.1981 executed by two sisters of the plaintiff,
namely Smt. Jankibai and Smt. Tarabai, has not been
placed on record. I need not dwell upon this aspect any
more except to hold that two sisters were necessary parties
to the suit in question and they cannot be called as 'proper
parties'. Let us now see whether non joinder of necessary
parties, in the facts and circumstances of this case, becomes
fatal.
12] No doubt, that the issue regarding non joinder of
necessary parties was raised in the trial Court and it was also
framed. The trial Court records the finding that since two
sisters have relinquished their share, the suit cannot be
dismissed for non joinder of necessary parties. The lower
appellate Court for the first time dismisses the suit on the
ground of non joinder of necessary parties. As pointed out
earlier, the appellant/plaintiff, realizing the mistake, filed
Civil Application No. 5737 of 2008 in this second appeal for
grant of permission to join the legal representatives of two
sisters, was not opposed and allowed by this Court on
10.01.2013. Accordingly, their names are brought on record
and also in the present second appeal.
13] Order I, Rule 10(2) of the Civil Procedure Code
being relevant, is reproduced below;
"O.I R 10(2) – The Court may at any stage of the
proceedings, either upon or without the application of
either party, and on such terms as may be appear to the
Court to be just order that the name of any party
improperly joined, whether as plaintiff or defendant be
struck out, and that the name of any person who ought to
have been joined, whether as plaintiff or defendant, or
whose presence before the Court may be necessary in
order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in
the suit, be added."
The aforesaid provision confers a discretion upon the Court
to permit the name of any person who ought to have been
joined, whether as plaintiff or defendant, or whose presence
before the Court may be necessary in order to enable the
Court to effectively and completely to adjudicate upon and
settle all the questions involved in the suit, be added at any
stage of proceedings. The second appeal being continuation
of the suit, this Court is competent to exercise discretion
even at the second appellate stage to permit the joinder of
necessary parties to the suit. Once such permission is
granted and the parties are joined as defendants/
respondents in the proceedings, the order relates back to
the date of filing of the suit and the defect stands cured.
14] All the parties added, who are the legal
representatives of the two sisters of the plaintiff namely Smt.
Jankibai and Smt. Tarabai, have filed their reply on oath to
the application of the plaintiff for grant of permission to join
them as party defendants/respondents in the proceedings. In
categorical terms they have stated in their reply that they do
not want to claim any share or interest in the suit properties
and their predecessor in title had relinquished their shares in
favour of the brothers. There is no contest involved which is
required to be adjudicated by this Court upon granting
permission to join certain persons as defendants/respondents
in the proceedings. The plaintiff would, therefore, be entitled
to 1/5th share in the suit property and the suit cannot,
therefore, be dismissed in the facts and circumstances of this
case for non joinder of necessary parties. The lower
appellate Court ought to have granted an opportunity to the
plaintiff to add the necessary parties to the proceedings and
it is only upon the failure of the plaintiff to comply with such
direction as contemplated by Order 1, Rule 13 of C.P.C., the
suit could not have been dismissed on the ground of
nonjoinder of necessary parties. The substantial question of
law is, therefore, answered accordingly.
15] Shri Anil Mardikar appearing for defendant No.7
has relied upon decision of the Apex Court reported in AIR
1965 SC 271 (cited supra) to urge that the Apex Court had
refused to grant permission to add necessary parties to the
suit in the appeal pending before the Apex Court on the
ground that the appellant therein was not vigilant and that the
bar of limitation would also operate for permitting the joinder
of necessary parties in the appeal pending before the Apex
Court. In my opinion, the decision is clearly distinguishable.
It was a suit filed for recovery of possession by the appellant
claiming exclusive title over the entire suit property. It was
not a suit for partition and separate possession. The Apex
Court found that such claim was not tenable and the other
brothers were also entitled to succeed to the estate. In the
present case, the plaintiff claims only 1/5th share in the suit
properties and other cosharers likely to oppose the claim
are joined as parties to the suit. The Apex Court has also
held that the trial Court itself dismissed the suit on the ground
of nonjoinder of necessary parties, the appellant did not
take any steps to join the necessary parties either in the
appeal before the High Court or even in the appeal before
the Apex Court till the hearing was concluded. In the present
case, immediately after the decision of lower appellate Court,
the plaintiff moved application which has been allowed. The
Apex Court considered the bar of limitation in a situation
which is not available in the present case.
16] So far as applicability of law of limitation is
concerned, Articles 58, 65, 110 and 113 of the Limitation Act
were brought to my notice. In some decisions of this Court,
it was held that Article 65 would apply, whereas in some
decisions, it was held that Article 113 would apply. Article 58
deals with the suits filed to obtain any declaration and for that
3 years limitation is prescribed from the date when the right
to sue first accrues. Article 113 deals with the suit for which
no period of limitation is prescribed elsewhere in the
schedule and the period of limitation is of 3 years which
begins from the date when the right to sue accrues. Article
65 deals with the possession of immovable property or any
interest therein based on title and it prescribes the period of
limitation of 12 years from the date when the possession of
the defendant becomes adverse to the plaintiff. Article 110
deals with the suit by a person excluded from a joint family
property to enforce a right of share therein and the period of
limitation prescribed is of 12 years from the date when the
section becomes known to the plaintiff.
17] In the decision of the Apex Court in the case of
Md. Mohammad Ali vrs. Jagdish Kalita and others, reported
in (2004) 1 SCC 271, the Court was concerned with the
applicability of Article 65 of the Limitation Act and it was held
that the plaintiff will succeed if he proves his title over the suit
property and it would be for the defendant to plead and prove
the plea of adverse possession to defeat the claim of the
plaintiff. This decision has been followed by the Apex Court in
the case of Mohammadbhai Kasambhai Sheikh and ors vrs.
Abdulla Kasambhai Sheikh, reported in (2004) 13 SCC 385,
wherein it is held that unless the defendant raises defence of
adverse possession to claim for a share by a heir to be
ancestral property, he cannot also raise an issue relating to
limitation of the plaintiff's claim. The Court held that in the
absence of such plea of adverse possession being raised in
the written statement, the plea of limitation was not available.
Both these decisions are applicable to the facts of this case
and in the absence of any plea of adverse possession by any
of the parties, the suit cannot be dismissed as barred by
limitation.
18] Article 110 of the Limitation Act relied upon by
Shri Mardikar deals with the suit by a person excluded from a
joint family property to enforce a right to share therein. In the
present case, the shares are devolved upon the parties to
the suit in accordance with Section 8 of the Hindu
Succession Act and it is not a suit where the partition has
already taken place and the plaintiff is excluded from the joint
family property. It is also not a suit for enforcement of
partition and separate possession, as contemplated by
Section 6 of the Hindu Succession Act, though it is styled as
such. The decision has no application to the facts of this
case.
19] The trial Court took into consideration the
enhancement in the share of the plaintiff from 1/15th to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, one
of the cosharers in the suit properties. The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt. Kamal was insane on the ground of lack of
pleadings and evidence on record. Smt. Kamal was residing
with defendant No. 7Avinash, who claims the share of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered. With
the assistance of the learned counsels appearing for the
parties, I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record. The Will has been proved
and there is no perversity in recording such finding. As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.
20] The Second Appeal is, therefore, partly allowed.
The judgment and order dated 30.08.2004 passed in Regular
Civil Appeal No.294 of 2002 is hereby quashed and set
aside. The decree passed by the trial Court in Regular Civil
Suit No. 81 of 2002 on 31.10.2002 is modified as under;
I] The plaintiff is entitled to partition and separate
possession of 1/5th share in the suit property i.e.
(1) field Gat No. 1277, 6H 52R, (2) field Gat No.
1257, 4H 27R at village Shirpur, (3) House
bearing Gram Panchayat No. 895, admeasuring
100 x 100 sq.feet and (4) space "Chakki Chi
Jaga" with flour mill.
II] The defendant No.1 is entitled to 1/5th share, the
defendant No. 2 is entitled to 1/5th share, the
defendant no. 4 is entitled to 1/20th share, the
defendant nos. 5 and 6 are jointly entitled to
1/20th share, the defendant No. 7 is entitled to
1/4th share and the defendant no.8 is entitled to
1/20th share from the whole suit property
described above.
III] The plaintiff is entitled to an enquiry into mense
profit against the defendant No.7 as per Order
20, Rule 12 of C.P.C from the date of suit i.e.
08.11.2001 until the actual partition and
possession of the suit property.
IV] The defendant Nos. 4, 7 and 8 do bear their own
cost and proportionate cost of the plaintiff.
V] Defendant Nos. 1, 2, 5 and 6 do bear their own
cost.
VII] A precept be sent to the Collector, Washim to
effect partition and separate possession of the
suit field Gat Nos. 1277, 6H 52R and 1257,
4H 27R situated at village Shirpur for 1/5th share
to the plaintiff only.
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