SRINATH DAS Vs. PROBHAT CHANDRA DAS

JUDGEMENT

(1.) The question of law which has been argued in this appeal is one of some novelty, and arises under circumstances of an exceptional character as to which there is no controversy among the parties except in one particular. The suit, out of which the appeal arises, was commenced for the partition of joint property which belonged admittedly to the plaintiff Kali Charan Das and the predecessor of the defendants. Ram Kanai Das, in equal shares. Ram Kanai Das had three sons Prosonna Kumar Das, the 1 defendant, Provath Chandra Das, the second defendant, and Rajani Kanta Das, who left his home many years ago. At the time when Rajani Kanta Das disappeared, he had married and he left behind him his wife Kristo Kumari Dasi, the third defendant. The plaintiff commenced the action for partition of the property, and he joined as defendants Prosonna Kumar, Probhat Chandra and Kristo Kumari. Of these the first defendant filed a written statement, in which he alleged that Rajani Kanta had predeceased his father, who died about the year 1891, and that consequently the third defendant had never acquired any interest in the property and was in no sense a necessary party to the suit. The second defendant, on the other hand, pleaded that Rajani Kanta, was still alive and was consequently a necessary party. The third defendant, Kristo Kumari, put her casein the alternative. She pleaded, in the first place, that Rajani Kanta was still alive and was a necessary party. She pleaded, in the second place, that if Rajani Kanta was proved to be dead, she was entitled to his share as his heir-at-law. Upon these conflicting allegations, on the 19 March 1906, the Court directed Rajani Kanta Das to be added as the the fourth defendant. The substantial question in controversy at the preliminary state was, therefore, the extent of the respective shares of the different parties to the suit. The Court of first instance held that as Rajani Kanta had not been heard of within 30 years of the date of the suit, he must be held, under Section 107 of the Indian Evidence Act, to have died more than 30 years before the suit, that as his father had died in 1891, he had never acquired any interest in the property and that the third defendant, as his widow, had accordingly no share in the property. In this view the Court directed one-half of the property to be allotted to the plaintiff and the other half to be divided equally between the first and the second defendants. The third defendant appealed to the Subordinate Judge. In answer to the appeal, it was argued that it was incompetent, because, as she had no interest in the property sought to be partitioned, she was not a necessary party to the proceedings, much less could she maintain an appeal against the decision of the Court of first instance. This preliminary objection was overruled. The Subordinate Judge then found on the evidence that Rajani Kanta had been heard of within 7 years of the suit, and that consequently the presumption under Section 108 of the Indian Evidence Act was, till the contrary could be proved, that he was alive at the date of the suit. In this view, the Subordinate Judge modified the decree of the Court of first instance, and directed that one-half of the property should be given to the plaintiff and that the other half should be divided equally among the first, second and fourth defendants, with the reservation that the share of the fourth defendant was to be held by his wife, the third defendant, so long as he did not appear. The first defendant has now appealed to this Court, and on his behalf the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that the third defendant was riot a necessary party to the proceedings and, secondly, that she was incompetent to prefer an appeal against the decision of the Court of first instance. The questions raised are apparently of first impression in so far as the Courts of this country are concerned, and are by no means free from difficulty. But after careful consideration of the arguments addressed to us on both sides, we are of opinion that both should be answered against the appellant.

(2.) In so far as the first objection is concerned, it has been argued that, as the third defendant has been found by both the Courts below, although for entirely different reasons, to have no interest in the property, she must be treated as an unnecessary party, and that in fact it was illogical for the Court of first instance to join as defendants both the third defendant and her husband, the fourth defendant, because manifestly, if either of them has any interest in the property, it must be to the exclusion of the other. This argument, in our opinion, must be treated as fallacious. It may be conceded that ordinarily only such persons should be added as defendants in a partition suit, as are owners of the interest to be partitioned, because a suit for partition is but a compulsory method of acquiring title in severally to the property subject thereto, which without such suit might have been acquired by voluntary conveyances and releases. The only safe course for the plaintiff to pursue is, therefore, to ascertain from what persons he would desire conveyances and releases, if he were not proceeding by suit, and, having so ascertained, to make them all parties defendant. If, however, there is some uncertainty in the matter, and ore or more of the owners cannot be traced, or it cannot be ascertained with precision whether they are alive or have left any heirs, what is the procedure to be followed. The question has been elaborately discussed in leading American text-books on the subject of partition ("Knapp on Partition", Ch. 20 and "Freeman on Co-Tenancy and Partition", Section 483). It is pointed out that such persons might be made parties under the description of unknown owners; and if notice is served by public proclamation or substituted service is effected at the last known place of residence according to the statutory provisions upon the subject, the proceedings, which culminate in a final judgment or decree for partition, would bind the joint owners not specifically named quite as much as those named and served with the writ. The leading decision on the subject is that of Gook V/s. Allen (1807) 2 Mass. 467, where Parson, O.J. pointed out that the procedure is substantially the same as that prescribed by 8 and 9 Will. III, Chapter 31. The same view was elaborated in the case of Nash V/s. Church 10 Wis 311, where Dixon, C.J., defended the justice of the rule on the ground that if judgment on any such proceedings is not to be, held binding and conclusive on all persons having an interest, both as to the amount and nature of their interests, like other judgments, then the mischief to be remedied cannot be reached and partition in many cases may become an impossibility. In the absence of statutory provisions in this country for the validity of the service of notice upon persons described as unknown, it is not necessary for us to rule that a decree for partition can be given a binding character as against unnamed absent persons by such method. But it is clear that in such cases of uncertainty, persons may be joined as defendants in the alternative. We may illustrate the proposition by a reference to the case of Johnson V/s. Johnson (1902) 170 Missouri 34 : 70 S.W. 241 : 59 L.R.A. 738, the facts of which were in many respects closely similar to those of the present litigation. The suit related to the partition of certain properties which had at one time belonged to a man by name Pleasant Johnson who at his death left, as survivors, his widow, sis children and certain other heirs. One of these sons, Charles Edward, had left his home more than twenty years before the trial. He was at that time unmarried, and since his disappearance, nothing had been heard of from him for that length of time. It could not be ascertained whether he was alive or dead or whether he had married and left any heirs other than the persons who were the heirs of his father. In the partition suit, neither he nor his unknown heirs, if any, were made parties, and the original Court and the parties proceeded to final judgment on the presumption that he had died intestate, unmarried and without issue, and that in the order of distribution his share would have to be divided among his brothers and sisters or their representatives-in-interest. This judgment was reversed on appeal by the Supreme Court of Missouri. Mr. Justice Sherwood, after elaborate investigation, held that there was no presumption that the missing person had died unmarried and without any heirs other than his brothers and sisters. He pointed out that, unless all persons whose interest in the subject-matter of the suit and the relief sought were bound up with that of others, were brought before the Court, and made subject to its jurisdiction, no decree ought to be made; because, if a decree were made under such circumstances, it might be re-opened by the absent parties upon their re-appearances, for if the decree was intended to bind them, they must be made parties to the suit and afforded an opportunity of being heard. Under these circumstances, it was ruled that the plaintiff must amend the plaint by making Charles Edward Johnson (if alive) a party, or his unknown heirs (if he were dead) parties to the suit, and have notice served in the manner provided by law. We do not refer to this decision as an authority binding in any way on this Court, but merely to show that the procedure which has been followed by the Courts, below in the present case, has been adopted elsewhere as based upon grounds of convenience and good sense, and not for any technical reasons peculiar to English or American jurisprudence. The case before us is in one sense stronger than the one to which we have referred. Here, as in that case, it is not known definitely whether Rajani Kanta is alive or dead. All that has been ascertained is that he survived his father, took an interest in his estate by right of inheritance, and has not been traced for some years past. If he is alive, he is undoubtedly interested in the property. If on the other hand, he has died intestate, his widow is interested in the property. Upon the facts which have been found, one of the two alternatives must, be adopted. Under such circumstances, the only reasonable course to follow is "to have both the third and the fourth defendants as parties on the record. We may point out that the view taken by the Court of first instance, namely, that as Rajani Kanta had not been heard of for more than thirty years, he must be presumed to have died more than thirty year before suit, was manifestly erroneous. The only presumption which is enacted by Section 107 of the Indian Evidence Act, is that the party is dead at the time of suit, but there is no presumption as to, the precise time of his death. Uhdrup Nath V/s. Gobind Saran 8 A. 614; Rango Balaji V/s. Mudyyeppa 23 B. 296; Fani Bhushen Banerji V/s. Surjya Kanta Roy Chowdhury 35 C. 25 : 5 C.L.J. 649 : 11 C.W.N. 83 and In re Phene's Trustee L.R. 5 Ch. App. 139. It is not necessary, however, to deal with this point, in farther detail, as the Subordinate Judge has negatived the conclusion of the Court of first intance that Rajani Kanta had not been heard of for more than thirty-years. The substance of the matter, therefore, reduces itself to this. The parties were in controversy as to the important fact whether Rajani Kanta was alive or dead. There were three different allegations. It was asserted by one party that Rajani Kanta had predeceased his father and never acquired any interest in the propeity. It was asserted by another that he was still alive and had a share in the property. A third alternative ?was put forward, namely, that he had died after his father and that his interest had been transmitted by succession to his widow, the third defendant. Under such circumstances, if any finality was to be impressed upon the decree in the partition suit, it was essential that both Rajani Kanta and his wife should be added as defendants, so that a decree made therein might be binding upon both of them. We must consequently hold that the procedure which was adopted by the Courts below, namely, to have Rajani Kanta added as a party to the suit, and to have service of notice effected in the manner prescribed by Section 82 of the Civil Procedure Code of 1882, was perfectly legitimate. As has been repeatedly pointed out, our Codes are not exhaustive and it is conceivable that the contingency, which has happened, was not anticipated by the framers of the Civil Procedure Code, and no provision has been made which precisely covers it. But the Court has inherent power to regulate its procedure in such manner as may shorten litigation and result in substantial justice to the litigant parties. The first ground urged on behalf of the appellant must, consequently, be overruled.

(3.) In so far as the second contention of the appellant is concerned, it is suggested that, upon the facts found by the Court of first instance as also by the Court below, it was incompetent to the third defendant to prefer any appeal against the judgment of the Court of first instance. In our opinion this contention is entirely unfounded. It may be conceded in the first place, as a general proposition of law, that no one can appeal from a judgment or decree unless he was a party to the action or was treated as such, or is the legal representative of a party, or has privity of estate, title or interest, apparent on the face of the record. It need not, also, be disputed that a second requisite of a valid appeal is that the appellant has an interest in the subject-matter of the suit. It is also obvious that a third requisite of a valid appeal is that the appellant should have been prejudicially affected by the judgment or decree complained of. Now in the case before us, in so far as the first test is concerned, the third defendant was, as we have held, a proper party to the proceedings in the Court of first instance. In so far as the second test is concerned, it is equally clear that her claim was in the alternative, and, if one of these alternatives was established upon the evidence, she had undoubtedly a substantial interest in the subject-matter of the litigation. It has, however, been strenuously contended that, if the other alternative was found to be true, that is if her husband was still found to be alive, she had no present interest in the property, and from this point of view her appeal ought not to have been entertained. There is, in our opinion, no force, in this contention, because, before the appeal was heard, no one could anticipate the ultimate decision. Besides, as a Hindu wife, she had aright of maintenance enforcible against the estate of her husband. Jagannath's Digest Tr. Colebrooke, Book IV, Chapter I, Section 1, Art. 45, Sonatun Bysak v. Sreemutty Jugut Soondree Dossee 8 M.I.A. 66. Indeed, a Hindu wife's right to maintenance has been attributed to a kind of identity with her husband in proprietary right, though her right may be of a quite subordinate character, but it is by virtue of this right that she gets a share equal to that of a son when partition takes place at the instance to mule members Jamna V/s. Machul Sahu 8 M.I.A. 66; West and Buhler's Digest of Hindu Law, 3 Edition pp. 262, 392). From this point of view, it is impossible to hold that she had no interest whatsoever in the property, and we are of opinion that when the partition takes place, the share of her husband may be appropriately made over to her, to be held by her on his behalf during his absence. In so far as the third test is concerned, it is indisputable that she had substantial grounds of grievance against the decision of the Court of first instance. That decision completely negatived her right present or prospective to any portion of the subject-matter of the litigation. The decision was, in substance, that her husband had predeceased his father, that he consequently had never acquired any interest in the property, and that she herself had no interest therein. It is difficult to appreciate how, under these circumstances, it can be seriously maintained that she was not rightly brought before the Court and that she could be concluded by an adverse judgment without any opportunity afforded to her to test the propriety of that decision by way of an appeal. This contention in substance is so extraordinary and so flagrantly unjust that no Court would give effect to it unless compelled to do so by clear and specific statutory provision in that behalf. It is needless to add that none such has been brought to our notice. We must, therefore, hold that the appeal was perfectly competent, and that the Subordinate Judge had jurisdiction to make the decree which he has passed.