ECHARAN ALIAS KUNHUKUTTAN NAIR Vs. DEVAKI AMMA
LAWS(KER)-1967-11-22
HIGH COURT OF KERALA
Decided on November 22,1967

ECHARAN ALIAS KUNHUKUTTAN NAIR Appellant
VERSUS
DEVAKI AMMA Respondents

JUDGEMENT

- (1.) THIS appeal is by the 2nd defendant in a suit for partition under the Madras Marumakkathayam Act, 1933-58.
(2.) THE ancestress of the tarwad was Narayani Amma, the late mother of the 1st plaintiff and defendants 1 to 3, who got divided out from her tarwad in 1935. THE 2nd plaintiff and the 5th defendant are the children of the Ist plaintiff; and the 4th defendant the son of the 3rd defendant. Defendants 6, 7 and 8 are children of the 5th defendant. Under S. 38 of the Madras Marumakkathayam Act, the plaintiffs claim partition and separate possession of 2/10 of the suit properties, asserting plaint items 14 and 15 acquired by the 2nd defendant under Ext. B-1 dated September 22, 1950, and Ext. B-5 dated July 18, 1951, and item 16 acquired by defendants 1 and 2 as per Ext. B3 of March 17,1958, to enure to the tarwad as been acquired with the income of tarwad properties. All the defendants support the plaintiffs and claim their shares to be given in this suit, except the 2nd defendant who contends that he had never been in management of the tarwad, and claims plaint items 6 and 14 to 16 and a leasehold in plaint items 2 to 5 to be his separate properties, as also compensation for his improvements on plaint items 7 to 13. THE Subordinate judge, Ottapalam, found that the 2nd defendant had been in management of the tarwad from 1123. that his claim to a separate leasehold interest in plaint items 2 to 5 is false, that he cannot claim any compensation for his improvements on items 7 to 13, that item 6 is a leasehold of the ancestress narayani Amma which enures to the tarwad, that there is no reliable evidence that the tarwad had any surplus income, but evidence is that the 2nd defendant had some income of his own and that therefore the circumstance that the 2nd defendant was managing (he tarwad affairs cannot by itself be a sufficient ground to hold that items 14 and 15 acquired by him enure to the tarwad and that the purchase of item 16 is for and on behalf of the tarwad, and on the above findings passed a preliminary decree for partition of plaint items 1 to 13 and 16, with incidental reliefs, giving the plaintiffs two shares, 1st defendant one share, and defendants 3 to 8 six shares, leaving one share to the 2nd defendant. On appeal, the District Judge, Palghat, held that the 2nd defendant was "only cultivating the family properties as directed by the 1st defendant", though "there is no clear evidence when exactly the 2nd defendant entered management", that the 1st defendant "had actual control over the family funds", and that item 16 really enured to defendants 1 and 2 only, but since the 1st defendant has admitted it to belong to the tarwad his half share would be so treated and partitioned as tarwad property giving the 2nd defendant also a share therein, and affirmed the subordinate Judge in other respects. THE 2nd defendant has come up in second appeal against the dismissal of his claims and the plaintiffs have preferred a cross-objection claiming plaint items 14,15 and 16 to belong to the tarwad. This appeal was heard at length on November 2, 3 and 4,1967, but before the judgment could be delivered, it was found that one of the sharers has not been impleaded in this appeal and thereupon counsel for plaintiffs prayed an adjournment to get that defect cured. On November 10, the 5th defendant filed C. M. P. Nos. 10251, 10252 and 10253 of 1967. These petitions were opposed by counsel for the appellant and heard at length on november 17, and 20 and today. As I expressed my inclination to allow the petitions, counsel on all sides stated that on the merits of the case the arguments heard already may be taken as arguments for the party sought to be added newly. Before I proceed to dispose of the petitions and the appeal, I must record that I have had the greatest possible assistance from counsel on both sides and acknowledge my indebtedness to them both for the illuminating arguments they presented. Though elaborate discussions supported by numerous citations on various aspects of law were had at the bar, ultimately things have boiled down and I think in this single judge's judgment, it is not necessary to refer to them all and it would be enough to confine this pronouncement to the questions posed, my decisions thereon and the pointed reasons therefor. Aspects posed, discussed and ultimately given up are not therefore referred to here. First the petitions: The plaint in this case, filed on december 22,1950, averred that the 5th defendant was then big with child and conceding it to be a sharer, claimed 2/10 of the properties for the two plaintiffs. The written statement filed by defendants 3 to 7 on February 20, 1961, mentioned the 5th defendant to have given birth to a male child in january 1961 and therefore claimed 6/10 shares in the suit properties to themselves and that child. The judgment of the Court of first instance reads in its para 4, "the 5th defendant's child born after the suit has been impleaded as supplemental 8th defendant. Defendants 3 to 8 claim partition and recovery of their shares" and the decretal portion of that judgment is: "in the result, a preliminary decree is passed for partition. . . into 10 shares. The plaintiffs shall be entitled to partition and recovery of 2 shares, the 1st defendant shall be entitled to recover 1 share and defendants 3 to 8 shall be entitled to recover 6 shares. " The remaining one share is admittedly left to the 2nd defendant who has been found in possession and management of the tarwads properties. Though the judgment has thus mentioned the 5th defendants son born after date of suit as the 8th defendant in the suit, the cause title in the judgment as also in the plaint does not show an 8th defendant. Somuchso, in the appeal by the 2nd defendant in the District Court, Palghat, and in this second appeal the said 8th defendant has not been impleaded. C. M. P. No. 10252 is to implead him as the 9th respondent in the second appeal, C. M. P. No. 10251 to have him impleaded as a party to the plaintiffs' cross-objections and C M. P. No. 10253 to have the 5th defendant appointed his guardian ad litem. The 2nd defendant-appellant opposes these petitions saying that the boy had not been formally impleaded in the suit even though the judgment of the trial court said otherwise and that the boy not having been a party in the lower appellate court cannot be impleaded in this further appeal. Counsel for plaintiffs urges that the interests of the boy in this suit are identical with those of the other parties except the 2nd defendant, and that in a partition suit all persons claiming share should be deemed to be plaintiffs, whatever be their position in the array of parties in the cause title, and therefore the cross-objection that has been moved by the plaintiffs in the court below as well as in this court should be deemed to enure to them'as well under R. 4 of Order XLI CPC. In the light of the observations of the Supreme court in Koran Singh Sobti v. Sri Pratap Chand AIR. 1964 SC. 1305 the reliance placed on R. 4 of Order XLI CPC. cannot be ruled out primafacie.
(3.) A pretty large number of precedents on R. 4 and the propriety of impleading in second appeal a person who was no party to the first appeal have been cited and discussed threadbare at the bar. I do not think it necessary to refer to them here, as, in my opinion, the matter can be disposed of on another simple principle. The present suit involves two distinct causes of action: (1) partition of properties and (2) declaration of title to certain properties which the 2nd defendant claims as his own and the other parties claim to belong to the tarwad. The appeal and cross objections in the court below as well as here relate only to the second of them. There is no dispute between the parties as regards partition, which means only the separation of one's share from the joint possession of the tarwad. Partition stricto sensu presupposes unity of title in the plaintiff and the defendants. The determination of disputed titles to particular properties is not, strictly speaking, part of a claim to partition, though it may be very intimately connected with it. In Lokanath Singh v. Dhwakeshwar Prasad Narayan Singh AIR. 1915 calcutta 357 Asutosh Mookerjee and Beachcroft JJ. have observed thus: ". . . . We hold accordingly that the plaintiff has failed to prove that he had possession, actual or constructive, of any share of the disputed property. He is consequently not entitled to maintain a suit for partition: Bidhata Roy v. Ram Charitar Roy 6 Calcutta, Law Journal 651. In that case it was pointed out that the fundamental rule is that partition is not a substitute for ejectment, because partition implies an existing joint possession and enjoyment, to be converted into possession in sevarality. The remedy of the plaintiffs is by a suit for joint possession and partition, and on the plaint in a suit so framed, court-fees must be paid ad valorem. " [it was an appeal from a preliminary decree in a stilt for partition and the reference to court-fee was only incidental and. if I may say so, pertinent on the distinction their Lordships were adverting to. ] When the 2nd defendant claims certain properties as his own and the other parties assert them to belong to the tarwad, a dispute on title arises and that cause of action is, in my view, distinct from one in partition simpliciter. As partition among the Hindus connotes a transformation of joint tenancy into tenancy-in-common or individual property, a suit for partition simpliciter can only be of properties in the joint possession of the plaintiff and the other parties to the suit. Of course, in deciding whether one has such possession the presumption that possession of a co-owner is possession of all the co-owners may come into play. When certain properties stand in the name of the 2nd defendant, who, in the suit, asserts them to belong to himself alone, he has to be ousted from his claim of absolute title and exclusive possession of the property, and the property brought into the hotchpot for partition and then, and then only can partition be worked out. The plaint therefor involves really two distinct causes of action, one for declaration or establishment of the joint possession and the other for separation of the plaintiffs' share therein. When it is said that all sharers are necessary parties to an action in partition, the word 'partition' is meant in its strict or simple sense only. The following observation of the Supreme Court in Nani Bai v. Gita bai AIR. 1958 SC. 706 is pertinent here: "partition in the Mitakshara-sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-shares who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention In unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. " To determine the title to particular properties standing in the name of one member but claimed by the other members to belong to the tarwad, the persons to be heard necessarily are those who assert the rival titles; or, in other words, those who assert title, and. those who deny it. It does not appear to be essential unavoidably necessary that minor members of the tarwad, who are incapable of doing one or the other, should be dragged into that controversy. When under the Marumakkathayam Act, even for an outright alienation of tarwad property the major members only need be parties see S. 33 of the Act it is unimaginable that for securing a declaration that certain properties belong to the tarwad more than all the major members should be before Court. Admittedly all the major members of the tarwad are eo nomine parties to the appeal here and were so in the court below too when the title to the properties standing in the name of the 2nd defendant has been or was mooted. I would therefore hold that the appeal is properly constituted, and the non-impleadment of the 8th defendant is not fatal thereto. There is considerable force in the contention that the cross-objections preferred by the plaintiffs may enure to the benefit of all the claimants to shares in this suit, though it is not necessary to decide it here. It then follows that the prayers in these petitions are only to cure formal defects that do not affect the maintainability of the appeal. As I see no harm in allowing these petitions they are allowed and the person mentioned therein, minor Krishna Kumar, is impleaded as the 9th respondent in the memorandum of second appeal and as the 8th respondent in the memorandum of cross-objections. The 6th respondent-6th defendant is appointed guardian ad litem for the newly added party. The office will carry out the necessary amendments in the concerned papers.;


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