THIRUMALAI AMMAL Vs. SAKUNTALA AMMAL

JUDGEMENT

(1.) 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.) 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.