The petitioners are defendants 1,3 and 4 in O.S.No.4086 of 1997 on the file of the City Civil Court, Madras. The respondents 1 and 2 and one Gowri filed the said suit for partition and separate possession. A preliminary decree was passed in the suit in favour of the plaintiffs. Hence, the petitioners preferred appeal in A.S.No.232 of 2004 on the file of the V Additional Judge, City Civil Court, Chennai.
2. Pending the hearing of the said appeal, they filed C.M.P.No.2320 of 2005 under Section 151 of CPC praying the Court to permit them to raise additional grounds in the appeal. In the affidavit filed by these petitioners, it is stated as follows:-
2.1. The plaintiffs filed the suit without impleading the defendant's daughters. The petitioner is not all aware of the legal proceedings. she met her Counsel last week to prepare the documents and in the course of the conversation, she mentioned about her daughters. Then only, her Counsel came to know that they were not impleaded in the suit. It is stated that Lalitha, Kalyani and R.Padmavathy are the daughters of the petitioner. In a suit for partition, all the co-sharers must be impleaded and on the ground of non-joinder of parties, the suit is liable to be dismissed. She had not raised plea either in the written statement or in the grounds of appeal. Hence, she may be permitted to raise the plea by way of additional grounds of appeal that the suit is liable to be dismissed on the ground of non-joinder of parties, namely, her daughters above-mentioned.
3. In the counter filed by the respondents / plaintiffs, it is alleged as follows:-
3.1. The partition suit was filed by the legal heirs of one P.C.Shanmuga Achari against the defendants 1 to 4 in respect of the suit properties, which had been jointly purchased and each of them having half share. In respect of half share of the said P.C.Shanmuga Achari, the suit properties were bequeathed in favour of the plaintiffs. Therefore, after notice, on 04.12.1995, to the defendants, the suit was filed for partition. The present allegation that the daughters were also available was not pleaded, on the earlier point of time. It is false to state that the petitioner is not aware of the legal proceedings. The application is intended only to delay the disposal of the appeal and hence, the same may be dismissed.
4. The learned V Additional Judge, City Civil Court, Cheenai, has dismissed the application by observing that the respective claims of the parties have been settled in the preliminary decree passed by the trial Court and none of the questions settled by the preliminary decree will be allowed to be re-agitated on the ground that the persons now sought to be impleaded were not before that Court at the time of passing of preliminary decree. It is not denied that the first plaintiff is the wife of Munusamy Achari and their daughters are Lalitha, Kalyani and R.Padmavathy. It is true that the present plea as to non-joinder of necessary parties was not raised as a defence by these petitioners in the suit proceedings. It is also true that the rights of the parties to the suit have been ascertained by means of preliminary decree. But the fact remains that the three daughters of the first plaintiff, who are very much available in the family were not impleaded in the suit, even though the plaintiffs might have had knowledge. It is not their case that they do not know about the existence of other heirs of Munusamy Achari.
5. The findings of the trial Court that the rights of the parties settled in the preliminary decree may be correct. But when it is unearthed that some other co-sharers or persons interested in the properties are also available, without whose presence, no final adjudication could be made in a lis, then it is the matter for consideration to bring them to array of the parties. It is well settled law that in a partition suit all the parties have to be presumed to be plaintiffs. When one of the parties to the suit, namely, the first defendant, even if she comes forward without the present plea of non-joinder of parties, the Court has to bear in mind that in the absence of other co-sharers in future, there might be multiplicity of proceedings. It cannot be foreseen now, whether the other co-sharers would emerge on a future occasion with a proceedings to agitate their claims in the suit properties so as to disturb the terms of preliminary decree and the effect of final decree which would culminate in the actual division and then physical possession of the properties in favour of the respective parties.
6. It is also cardinal principle of law that every co-owner in a joint family property has interest in every infinitesimal particle of the property covered by a partition suit. It is not denied that the three daughters are not co-sharers. The only objection for this petition projected by the respondents is that the plea of defendants was not raised in the written statement or in any of the earlier proceedings to the preliminary decree. However, it would not be an embargo for the other co-sharers to put forth their claim. It is also not stated by the respondents that the daughters had knowledge about the suit proceedings.
7. In case, if this petition is allowed by the Court, it is for the appellate court to decide the plea of non-joinder of parties as per the merits of the case as well as the contention of the both parties. This Court is of the considered view that presently the petitioners are entitled to raise the additional grounds as to non-joinder of parties in the appeal and the nature of further course of proceedings will be decided by the appellate Court in accordance with law. Hence, the order challenged before this Court call for interference by this Court which is liable to be set aside and accordingly, it is set aside.
In fine, this civil revision petition stands allowed. Consequently, connected M.P. is closed. No costs.