Bombay High Court: Mangesh S. Patil, J., decided on the following questions for consideration:
- Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
- Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
- Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?
A suit for partition and separate possession of the suit property was filed by respondents against the predecessor of the appellants by the name Mr Gumansing, claiming that they had 1 / 2 share of the suit property.
It was stated that the respondents were the wife and children of Harising who contested the suit by his written statement and admitted that the suit property was the ancestral property.
Further, he had put up a plea of the previous partition about 70 years back, however, admitted that the suit property remained joint and he claimed to be the exclusive owner of the suit property and also claimed to be in possession.
Trial Court concluded that the suit property was the ancestral and joint family property but denied giving any share on the ground of non-joinder of all coparceners. Though the District Court quashed and set aside the judgment of the trial Court and decreed the suit partly.
Analysis and Decision
High Court noted that as per the provisions of the Hindu Succession Act, the suit property was simultaneously inherited by Shivam and Totaram who were real brothers and each one of them would be entitled to half share.
In a suit for partition, the heads of all the branches are the necessary parties.
Further, even if all the sons of Shivaram and Totaram were not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided into two halves only.
Bench found that the District Court had not directed a further division amongst the coparceners inter se from each of the branches.
Hence, High Court answered the substantial questions in favour of the respondents and the Second Appeal, therefore must fail.
There was absolutely no evidence to show that the respondents were completely excluded from receiving any yield from the suit property and the entire usufructs were being enjoyed by the appellant to their exclusion.
In view of the above, civil application was disposed of. [Late Gumansing Shivram Patil v. Abhiman Gumansing Patil, 2022 SCC OnLine Bom 866, decided on 22-4-2022]
Advocates before the Court:
Advocate for Appellants: Mr. S.B. Yawalkar h/f. Mr. B.R. Yawalkar
Advocate for Respondents1 to 5: Mr. S.V. Dixit