1. This is a defendant's appeal. The only point urged in this appeal is that the plaintiff's suit is liable to be dismissed for nonjoinder of necessary parties. The question of non-joiner was raised in the trial Court and an issue was framed in that connection. The trial Court came to the conclusion that the suit being one for ejectment, the sisters of the plaintiff-respondent are not necessary parties to the suit. It accordingly repelled the contention of the defendant that the suit is bad for non-joiner of necessary parties. The first appellate Court affirmed the decision of the trial Court on this point.
2. Mr. B. V. Deshpande, the learned counsel for the appellant strenuously contended that in the light of the decision of the Supreme Court in Kanakarathanammal v. V. S. Loganath Mudaliar, : 6SCR1 , the view taken by the Courts below must be held to be an erroneous one and further as the plaintiff had persisted in prosecuting the suit without impleading the necessary parties, the suit ought to be dismissed. The question for consideration is whether the ratio of the decision of the Supreme Court in Kanakarathanammal's case, : 6SCR1 , governs the facts of the present case.
3. The suit property originally belonged to one Basavva who died on 28-8-1960 leaving behind her the plaintiff and her two sisters Mallavva and Shivalingawwa. The defendant took possession of those properties asserting that he had been adopted by Basavva to her husband. The adoption pleaded was held to be invalid in an earlier suit In the present suit, the defendant asserted that he was entitled to hold the property in view of a Will said to have been executed by Basavva bequeathing the suit properties to him. The Will in question has not been marked as Exhibit in the case nor has it been proved. The Courts below have concurrently come to the conclusion that the defendant is a trespasser in the suit property. It may be noted that the present suit is one for ejectment of the defendant from the suit properly.
4. It may be further noted that in the plaint, the plaintiff specifically admits that she and her two sisters have inherited the property as the heirs of her mother and that they are the joint owners of those properties. Her case is that she being the eldest sister was entitled to sue for ejecting the defendant who is a trespasser from the suit property. The fact that she is the eldest amongst co-owners has no relevance. It is not a suit by a manager of a Hindu family. It is a suit by one of the co-owners. Therefore, the sole question that falls for decision is whether one co-owner can sue to eject a trespasser from the suit property without impleading in the case the other co-owners.
5. There is a catena of decisions which have taken the view that one of the co-owners can bring a suit for ejecting a trespasser from the property owned by him and others either jointly or as co-owners, the basis being that he has a right to hold every inch of the joint property until a division takes place. The judicial opinion on this point is uniform -- see the decisions in Ahmad Sahib v. Magnesite Syndicate Ltd.. AIR 1915 Mad 1214, Tuljaram Harkisondas v. Harkisan Jagjivan, AIR 1929 Bom 244, Currimbhoy and Co., Ltd. v. L. A. Creet : AIR1930Cal113 , Sambhu Gosain v. Piyari Mian, AIR 1941 Pat 351, Ambika v. Rameshwar AIR 1946 Oudh 221, Ram Kali v. Pahilwan Singh, : AIR1953All331 , Biharilal v. Wasundarabai AIR 1956 Madh-B 35 and Rama Motibhai v. Dalwadi Tupoo Ram, : AIR1956Bom264 . No decision taking a contrary view has been brought to my notice. The ratio of the decision of the Madras High Court in Adhilakshmi Animal v. T. Nallasivan Pillai : AIR1944Mad530 or that of this Court in Somalinge Gowda v. Kalyanamma, S. A. No. 269 of 1959 (Mys) does not bear on the point under consideration. They dealt with cases where one co-owner sought to set aside the alienation made by other co-owner or where one co-owner sues for possession of property which is in the possession of another co-owner.
6. Mr. B. V. Deshpande, the learned counsel for the appellant contended that the line of decisions beginning with the decision of the Madras High Court reported in AIR 1915 Mad 1214, must be deemed to be overruled in view of the decision of the Supreme Court in : 6SCR1 . The decision of the Supremo Court does not refer to the decisions cited by me earlier. Therefore, it is clear that those decisions are not specifically overruled. The question for decision is whether they are impliedly overruled.
7. As seen earlier, the rule laid down by those decisions has found acceptance at the hands of almost all the High Courts in this country. It is difficult to believe that the Supreme Court would have brushed aside such arule without even noticing the decisions laying down that rule. The very weight of judicial opinion on that question is entitled to respect and I have no doubt if the Supreme Court thought it necessary to overrule the view taken by the various High Courts, it would have given its careful attention to the decisions in question. Therefore, it becomes all the more necessary for this Court to closely scrutinise the decision of the Supreme Court in Kanakarathnammal's case. AIR 1965 SC 371.
8. In order to find out the ratio of the decision in Kanakarathnammal's case, : 6SCR1 , it is necessary to refer briefly to the facts of that case. The father of Kanakarathanammal, who was the plaintiff in the suit from which the appeal before the Supreme Court arose, appears to have been an affluent person owning considerable properties. He bequeathed most of his properties by means of a Will to the Mudaliar Sangham. One Loganatha Mudaliar was appointed as the Executor under the Will. He took possession of the properties under dispute and made over the same to the Mudaliar Sangham. Kanakarathanammal sued for possession of those properties on the ground that those properties did not belong to her father but were that of her mother Rajambal. Admittedly, the sale deed in respect of those properties stood in the name of Rajambal. The case for the defendants was that though the properties were purchased in the name of Rajambal, they were really the properties of her husband, Rajambal being merely a benamidar for him. The Courts rejected that contention. They came to the conclusion that the properties were that of Rajambal, and that after her death they devolved not only on the plaintiff, but also on her brothers. Therefore, the plaintiff had only a share in those properties. In the plaint the plaintiff claimed that she was the exclusive owner of those properties. One of the grounds on which the defendants resisted that suit was that the brothers of the plaintiff were necessary parties to the suit and the suit is not maintainable without joining them as parties to it. One of the issues raised in the suit was whether the suit is bad for non-joiner of necessary parties? Despite the defendant's objection that the suit is bad for non-joiner of necessary parties, the plaintiff did not choose to implead in the suit her brothers. One of the grounds on which the trial Court dismissed the suit was that the suit was bad for non-joiner of necessary parties. Even at the appellate stage, the plaintiff did not seek to implead her brothers. The appellate Court (the High Court of Mysore) dismissed the plaintiff's suit on the ground that the property in question belonged to the father of the plaintiff and not to her mother. The Supreme Court did not agree with the view of the High Court that that property belonged to the father of the plaintiff. It came to the conclusion that the mother of the plaintiff was the owner of the suit property. But, yet, it dismissed the plaintiff's suit on the ground that the suit was bad for non-joiner of necessary parties. Dealing with this aspect this if what Gajendragadkar, J. (as he then was)speaking for the court observed in paragraph 15 of the judgment:
'It is unfortunate that the appellant's claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under Section 12 of the Act. (The Act therein being the Mysore Hindu Law Women's Rights Act, 1933 (No. X of 1933). That, in fact, is conclusion which the trial court had reached and ye! no action was taken by the appellant to bring the necessary parties on record. It is true that under Order 1, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or nonjoinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1, Rule 10, Sub-rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of the trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers arc co-heirs with her in respect of the properties left intestate by their mother the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceedings with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229 the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of Order 1, Rule 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that 'they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India.'
From the above decision, it follows that if a person is a necessary party to a suit and not merely a proper party, the failure of the plaintiff to implead him as a party despite the objection taken by the defendant would be fatal to his suit. Hence, the question for consideration is whether the plaintiff's sisters were necessary parties to the suit. If the decisions to which Imade reference earlier lay, down the law correctly, then, in a suit of the type which we are concerned in this case, the plaintiff's sisters are not necessary parties to the suit; they are only proper parties to the suit, as those decisions have laid down that one co-owner alone can bring a suit for ejecting a trespasser from the property owned by him or her along with others. I am unable to agree with Mr. Deshpande that the Supreme Court has taken a contrary view of the law on the subject. In the case before the Supreme Court as seen earlier, the plaintiff claimed that she was exclusively entitled to the suit property. She repudiated the right of the other co-sharers. The Supreme Court understood her claim as being that so far as the properties in that suit are concerned, she was alone entitled to the same and that her brothers have no right in them. Such a contention could not be upheld in the absence of the other co-sharers. That is why it was observed in the course of the judgment:
'The present suit filed by the appellant partakes of the character of a suit for partition.'
The suit did not purport to be one for the benefit of all the co-sharers. That being the position, it was not possible for the Court to decree the plaintiff's claim. I am unable to read the above decision as overruling the numerous decisions to which I have made reference earlier, either specifically or even by implication.
9. I am also unable to agree with Mr. Deshpande that in a suit of this character, even if the Court is to decree, it can only decree the plaintiff's share in the suit property. The plaintiff has not sued for a partition of the property. She has sued for the possession of the entire property for the benefit of all the co-sharers. No partition can be granted to her in the absence of other co-sharers. I am unable to read the decision of the Madras High Court reported in : AIR1944Mad530 or the decision of this Court in S. A. No. 269 of 1959 (Mys) as laying down a rule that in a case where one co-owner brings a suit for ejectment of the trespasser, he can be granted a decree for possession only in respect of his share of the property taken possession of by the trespasser. That would be amounting to partitioning one item of joint property.
10. In the result, this appeal fails and the same is dismissed with costs.
11. Appeal dismissed.