ANNAPURNA DEBYA Vs. AMIYANATH BANERJEE

JUDGEMENT

(1.) This is an appeal by the fourth defendant in a suit for partition of joint family properties. Girish Chandra, Banerjee, the founder of the family, is alleged to have made a testamentary, disposition on the 24 November 1899, shortly before his death. He left, as his survivors, his widow, Golapmani, and three sons, Haripada, Tarapada and Ham Chandra. He directed that his properties should be taken in four equal shares by his widow and his three sons, subject to the, reservation that his widow would not be, competent to sell or make a gift of her one- fourth share. The eldest son, Haripada, died on the 19 June 1916, leaving a widow, Annapurna, and three daughters. The second son, Tarapada, has a son Amiya. On the 2nd August 19(sic)9, Golapmani, Lie widow of the testator, instituted the present suit for partition of the estate left by her, husband, She alleged that her daughter-in-law, Annapurna, had taken in adoption her grandson, Amiya, with the consequence that the share in the family estate which had devolved on Annapurna as the widow of Haripada had become vested in Amiya. Consequently, on this hypothesis, the persona interested in the joint estate, besides herself, were her sons Tarapada and Hem Chandra and her grandson Amiya; these three were accordingly joined as defendants. The relationship of the members of the family will be dear from the following pedigree:

(2.) The plaintiff proposed that her daughter in law, Annapurna, might be appointed guardian ad litem of the alleged adopted son, Amiya, and the usual notices were served accordingly. Annapnrna then appeared and intimated to the Court on the 27 December 1919 that she herself was a co-owner in the joint estate as the widow of her husband, Haripada, who had become entitled to a fourth share under the testamentary disposition of his father. The Court thereupon directed on the 28 January 1920, that Annapurna be made a defendant. This was followed by an order on the 8 March, 1920, that Tarapada, the father of Amiya, be appointed guardian ad litem of the infant. Written statements were filed in due course and issuses were framed. As Annapurna repudiated the alleged adoption of Amiya, an issue was framed, whether the first defendant, Amiya Nath Banerjee, was the validly adopted son of Haripada Banerjee, On the 1 September 1920, the Subordinate Judge held that the question of the validity of the adoption need not be determined in this suit, and that the partition might be effected, if the first and fourth defendants, namely, Amiya and his alleged adoptive mother Annapurna, both represented the share of Haripada either jointly or separately as they liked. On the 18 December, 1920 , the Subordinate Judge made a preliminary decree whereby it was declared that the plaintiff had a fourth share, the second and third defendants a fourth share each, and the heir or representative of Haripada the remaining fourth share. He further directed that, for the present and for the purpose of this suit, the first and fourth defendants might represent this last mentioned share without prejudice to their respective claims. The fourth defendant, Annapurna, has appealed against this decree and has argued that the question of the alleged adoption, raised in the first issue, should be decided before the preliminary decree for partition is made. We are of opinion that this contention must prevail.

(3.) In a suit for partition, it is incumbent upon the Court, before the preliminary decree is made, to determine whether the properties included in the suit are the joint properties, as alleged, of the parties to the litigation, In the case before us, by virtue of the testamentary disposition of the admitted owner, the estate vested in his widow and his three boos, in equal shares, Upon the death of the eldest son, the share vested in him devolved on his widow. The plaintiff came into Court on the allegation that the share which-had so devolved on the widow of the eldest son of the testator, had been divested as the result of a valid adoption made by her and had passed on to a grandson of the testator. It was en this assertion that the plaintiff did not originally bring before the Court the widow of the eldest son, who would, prima facie and bat for the alleged adoption by her, be a co-owner in the joint estate. She intervened at the earliest possible opportunity and was rightly joined as a defendant claiming a share in the joint estate. In these circumstances, it is plain that before the partition is effected, the question of the present title to the share successively vested in the eldest son and his widow should be investigated and determined. The argument on behalf of the respondents, who objected to this enquiry, proceeded on the erroneous assumption that a question cannot be raised and tried in a partition suit unless its solution interests each of the parties to the litigation. Neither authority nor principle has been invoked by the respondents in support of this narrow and restricted view of the scope of a partition suit put forward on their behalf. In suits for partition, questions may and do frequently arise which interest only soma of the parties. To take one illustration. There may be no dispute as to the extent of the share claimed by the plaintiff, while there may be a serious controversy as to the respective shares of the defendants inter se. One of the defendants may allege, for instance, that he had acquired a particular share as the preferential heir to a deceased member of the family; this may raise an obscure question of fact or a difficult question of law. Or, again, a defendant may allege that he has acquired title to a share either of the entire estate or of one or more of the properties comprised therein, under a dead executed by another member; this may conceivably involve an enquiry into questions of fact aid law not easy to solve. To take another illustration. It frequently happens that, in joint families properties stand in the name of female members. In a suit for partition of the family estate, the plaintiff may include such properties and join the Iadies as defendants so that they may be bound by the result of the litigation; if they contend that the properties belong to them personally, the matter must be investigated and decided. To take a third illustration. Soma of the properties in such a suit may be claimed as self-acquisitions by one or other of the members and all the members may not be agreed as to their true character; this may render necessary the determination of questions of title involving protracted enquiry. The substance of the matter is that a suit for partition may and does often involve the investigation of disputed questions of title and an attempt to avoid them can only lead to needless multiplicity of litigation. We do not feel pressed by the contention that if this view be adopted, grave inconvenience may be caused to some of the parties, as they will have to be present during the discussion of questions which specially affect others alone. Bat, as pointed out in Umabai Mangethrao V/s. Vithal Vasudeo Shetti 1 Ind. Cas. 120 : 33 B. 293 : 11 Bom. L. Rule 31 : 5 M. L. T. 2 Order and Ramendra Nath Ray v. Erojendra Nath Dass 41 Ind. Cas. 944 : 45 C. Ill : 21 C. W. N. 794 : 27 C. L. J. 158, the Court has ample authority to direst the succ(sic)eosive trial of the issues separately affecting different defendants and even to record interlocutory judgments thereon to be made the basis of the final judgment at the conclusion of the trial of the whole case. The case now before us is, however, free from such difficulty, for, so far as we can gather from what has happened before us, the trial of the question of the alleged adoption is not likely to embarra(sic)s even parties other than the first and fourth defendants. The first second and third defendants have plainly indicated their preference for the plaintiff rather than far the fourth defendant; and there can be little doubt that they are all keenly intarested in the determination of the question, whether the fourth defendant has been effectively divested of the one-fourth share which originally belonged to her husband.