1. This revision is against the order of the learned Subordinate Judge of Cuddalore alloweing the application of defendant 4 made under O. 1, R. 10(2), C. P. C. for striking her out as party improperly and unnecessarily joined in the suit. The suit was for partition, defendant 4 who is the respondent to this petition being the wife of defendant 1, defendant 1 being brother of the plaintiff.
Defendant 1 was the managing member of the family. The family had extensive properties and was also doing money-lending business as could be seen from the plaint. The plaintiff impleaded defendant 4 as a party as the person in possession of cash , jewels and certain promissory notes standing in her name, all of which the plaintiff claimed as belonging to the joint family, and as such, liable to be partitioned between himself and defendant 1.
The case of the plaintiff in respect of the promissory notes is that they were all obtained benami by defendant 1 in the name of his wife, that the funds of the joint family were lent out on those promissory notes and therefore, that the real title in regard to the promissory notes vested in the family and in effect the promissory notes transactions were benami transactions, , the beneficial owner being the joint family. The application under Order 1, Rule 10(2) was based on the ground that the contention of the plaintiff that the promissory notes that stood in her name were only benami was false, and that the said items were her own absolute properties in which the joint family could have no. manner of right or interest, and in the circumstances, it was contended that she was improperly joined as a party and her name should be struck out of the suit.
2. The learned Subordinate Judge following the decision in -- 'Nilakanta Iyer v. Ramanarayana Iyer', AIR 1949 Mad 410 (A) accepted the contention and held that defendant 4 was neither a necessary nor proper party to the suit and therefore should be struck off the record. The decision in AIR 1949 Mad 410 (A) and that in -- 'Paramasivam v. Adilakshmi Animal', (B), are judgments, of single Judges of this Court and the learned Subordinate Judge preferred to follow the line of reasoning adopted in the former case, in preference to the view taken in the latter case.
3. The simple point for consideration is whether defendant 4 who is the wife of the managing member of a joint Hindu family would be a necessary and proper party in respect of property standing in her name or in her possession in a suit for partition instituted by a member of the joint family. I have no hesitation in answering this question in the affirmative. The learned Subordinate Judge, however, relied on observations made in AIR 1949 Mad 410 (A), the facts of which case, in his opinion, were on all fours with the present case. In this case which was also a suit for partition by a member of a joint Hindu family the plaintiff impleaded his brothers and other members of his family, besides a son-in-law of the family as a party defendant, the cause of action against the son-in-law being that two leases standing in his name were benami for defendant I and that they were really leases in which the joint family had an interest. In those leases the son-in-law had only a half share the other half share belonging to the stranger to the family, though the leases stood in the name of the son-in-law.
The decision in -- 'Annapurna Debia v. Amiya Nath', AIR 1922 Cal 307 (C) and the observation of Sir Asutosh Mookerjee J. were relied upon in support of the contention that the son-in-law was a proper and a necessary party. But the, learned Judge relying on some observations in the said Calcutta decision distinguished that case and other cases referred to and took the view -- that the claim of the son-in-law was that of an adverse claimant who had no community of interest with the parties to the suit and he was a person claiming paramount title and that, therefore, he could not be considered to be a proper party and that the suit was bad for misjoinder of parties.
In the other decision in (B) where a third party was impleaded at his re-quest as ,the real owner of some of the properties involved in a suit for partition, the learned Judge held that the addition of the third party who claimed a title in the properties was properly made and that the construction of the language of Rule 10 (2) of Order 1, C. P. C. should be as liberal and as wide as possible and should not be restricted merely to the parties involved in the suit, but the attempt should be always to make parties all persons who may be necessary, in order that there might be a final and complete adjudication of the points involved in the suit.
4. In a suit for partition the presence of parties who are entitled to a share and of those who are entitled to be maintained out of the family are obviously necessary, and if there is any alienation of any part of the joint family property or interest therein, the alienee also is a necessary party. This is evident from the Civil Rules of Practice and Circular Orders Vol. I, page 261, where the persons who are necessarily to be made parties to a suit for partition are set out. The question, there fore, is when the plaintiff alleges that properties are in the possession of a party who is a benami dar for the family, whether that person is also a necessary party.
It is the duty of a Court in a suit for partition to determine, what are the properties of the joint family in which the parties will be entitled to a share, apart from the question as to what the respective shares of the parties to the suit in the joint family properties would be. In ascertaining the assets of the joint family, it will be necessary to go into the question of title as to whether the joint family is the owner of the properties which are claimed to be the properties of the joint family by the plaintiff.
It may be that some such properties may be in ' the possession of the third party and it is common knowledge that in the case of a Hindu joint family properties are purchased in the names of the female members and sometimes in the name of the manager or other members of the family and there are claims arising as to the real nature of those transactions as to whether they are not benami transactions, for the reason that funds of the joint family have been utilised for the acquisition of those properties.
Such questions are usually raised and have to be decided in the suit, as it is essential that the properties of the joint family should first be ascertained before a decree for partition could be passed. If the alienee from a member of a joint Hindu family, of admittedly joint family properties, would be a necessary party, I can see no reason why a benamidar could not be a proper or necessary party in a suit for partition.
The position of a benamidar is that of a trustee for real owner. It is no doubt for the plaintiff to establish the benami nature of the transaction. But it could not be said, that simply for the reason that the tide of property stands in the name of a third party, neither that third party nor the property in which he claims an interest could be brought into the suit for partition.
Especially in a caste where a property stands in the name of the wife of the managing member of the family and the plaintiff alleges that such property was acquired out of joint family funds, the wife of such a manager is not merely a proper party, but necessary party in a suit for partition.
The following observations of Sir Asutosh Mookerjee J. has been relied upon by the teamed Judge in AIR 1949 Mad 410 (A) to distinguish that case:
"We need not discuss whether an adverse claimant, who has no community of interest with the parties to the suit, is in no view a co-tenant with them but stands out on his own independent right, and denies all rights in his adversaries, can be drawn into a partition suit for decision of the question of title paramount."
But as observed by Sir Asutosh Mookerjee J. in AIR 1922 Cal 307 (C), neither authority nor principle could support the narrow and restricted view of the scope of a "partition suit that a question cannot be raised or tried in a partition suit, unless it has a salient interest to each of the parties to the litigation.
The illustration which Sir Asutosh Mookerjee J. refers to is the case of a joint family in which the property stands in the name of female members and in such a suit it was held in that case that the plaintiff may include such properties and join the ladies as defendants so that they may be bound by the result of that litigation and if they contended that the property belonged to them personally, the matter must be investigated and decided. The scope of a partition suit is very wide and in order to put an end to litigation arising as to the title of the properties, it will be necessary that though the property may happen to stand even in a stranger's name, if it is alleged that the property is joint family property, the proper course would be to implead such a party and the question as to whether it is joint family property or the property of the Stranger, notwithstanding he if a stranger, should be enquired into, so that there may be a finality as to the title of the property.
This course may in certain cases cause inconvenience to strangers, but that will he necessary to put an end to further litigation, and such questions cannot ordinarily be reserved for a separate suit. The investigation of disputed questions of title when once they are alleged by the plaintiff in a partition suit notwithstanding the grave inconvenience may be caused in some exceptional cases, had better be disposed of than avoided as avoidance of such questions would lead to multiplicity of litigations.
But so far as the present case is concerned, no such difficulty arises as the party who seeks to get out of the suit is none other than the wife of the managing member and the properties that are sought be recovered from her as being put in her name benami for the family are promissory notes, apart from cash and jewels. The fact that the family is a money-lending family cannot he easily overlooked. Not only a sharer or an alienee of interest in joint family property, but also a benamidar in possession of the property claiming title thereto or any other person who is alleged to be in possession of the joint family property" Would, in my view, be not only a proper but necessary party in a suit for partition.
5. The revision petition is allowed with costs.