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Sm. Swarna Lata Devi Vs. Krishna Iron Foundry and Metal Works (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 515 of 1964
Judge
Reported inAIR1974Cal393,78CWN1039
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 9 - Order 6, Rule 4; ;Evidence Act - Section 35
AppellantSm. Swarna Lata Devi
RespondentKrishna Iron Foundry and Metal Works (P) Ltd.
Appellant AdvocateSudhir Kumar Acharyya and ;Manohar Chatterjee, Advs.
Respondent AdvocateBenoy Krishna Ghose, Adv.
DispositionAppeal allowed
Cases ReferredP. C. Purushothama v. Perumal).
Excerpt:
- .....of her son keshav. it is undisputed that this appeal was allowed and the preliminary decree passed by the trial court was modified. ultimately, in second appeal preferred by the present respondent in this court wherein radharani and all other co-sharers were parties, the preliminary decree on part modification was affirmed by this court. so. where a co-sharer having interest in the joint properties of the partis was in fact brought on record before the preliminary decree was finally passed by this court, it is difficult to see how such decree or the final decree that was passed in the partition suit would be ineffective against the present respondent. it is true 'that she was described as heir and legal representative of her deceased son keshav and not anath. but that fact.....
Judgment:

A.K. Sinha, J.

1. This appeal is preferred by defendant-appellant against an appellate judgment and decree affirming the decree of the trial Court passed in an instituted suit of the plaintiff-respondent.

2. We need not recite the facts of this case over again because they are sufficiently stated in the judgment of the appellate court below. Brief outline of the case, however, is that the appellant obtained a declaration and a decree for partition of her 1/3rd share in the disputed properties in a suit brought by her sometime in 1947. The respondent company which took lease of the disputed property from the rest of her co-sharers by different documents executed some-time between 1948 and 1951 during pendency of the partition suit brought subsequently the present suit only against the appellant for setting aside the partition decree and for other reliefs mainly on the ground of fraud and non-joinder of parties. The suit was contested by the appellant and apart from the general denial of material allegation of fraud in the plaint, in her written statement she challenged the maintainability of the suit on the principle of res judicata and lis pendens as also the right and status of the plaintiff to institute such a suit. The trial court decreed the suit. The learned appellate court in agreeing with the trial court took the view, firstly, that the partition decree was passed in absence of one co-sharer namely Radharani Devi secondly, the appellant brought all heirs and legal representatives of one of the co-sharers on making a false statement of the date of his death at the first appellate stage of that suit and thus obtained decree by practising fraud on court; thirdly, the family deity who was interested in the properties covered by the partition suit was admittedly not made party in that suit and as the shebaits of the deity granted lease of such properties to the respondent at the material time, partition decree could not be held to be binding on it. Accordingly, the learned appellate court affirmed the decree of the trial court and that is how in short the appellant felt aggrieved and preferred the present appeal.

3. Before we enter into the merits, we must notice that on the admitted position of the parties, the plaintiff-respondent was only a lessee from other co-sharers. It had therefore a sub-! ordinate and not co-ordinate interest in respect of the disputed properties in relation to the appellant. The question is whether such a suit for setting aside a partition decree in respect of joint immovable properties in which the respondent had merely a subordinate interest in absence of other co-sharers who had and still retain their interests as lessors in such properties is maintainable without making them parties in the suit. In the partition suit, the present respondent was not necessary party, more so. when all the leases in its favour were admittedly granted during pendency of the partition suit. If, therefore, its lessors have suffered a decree for partition, we think, apart from the other questions such a suit would not be maintainable without making its co-sharers lessors parties in the present suit. The interest of such co-sharers lessors not being identical with that of the respondent in the disputed property they would become necessary and not merely proper parties in the present suit. It is well established that a suit or any proceeding must fail by reason of non-joinder of parties. For. although provision of Order 1 Rule 9 of the Code of Civil Procedure is a Rule of procedure not affecting the substantive law. nevertheless, where the decree cannot be effective without the absent parties the suit is liable to be dismissed (See ILR 62 Cal 324 = (AIR 1936 Cal 193) Probodh Lal v. Neel Ratan). In Udit Narain v. Board of Revenue. Bihar, : AIR1963SC786 , the same principle, though in the background of writ proceeding, has been reiterated and the Supreme Court has laid down that where for quashing certain orders of the tribunal only the tribunal was made party and not the persons in whose favour the impugned order was passed the petition was incompetent and must be rejected. Here, in the instant case, clearly, the same principle will apply. In absence of other co-sharers who are parties in the partition suit the decree declaring the shares of the parties and for effecting partition of the joint immovable properties cannot be set aside in any event, without making them parties in the present suit. In our opinion, they were necessary and not merely proper parties, for no effective decree can be passed in absence of such parties as by result of such decision their interest would surely be affected. In this view of the matter, the suit must fail on this ground alone. It is true that this question which strikes at the root of the matter was not decided but to all appearances on the face of the record this seems to be a serious obstacle in the way of the respondent's success in the suit.

4. Even so. we would proceed to examine the correctness of the decision of the appellate court below on merits.

5. Now, as regards the first point namely as to whether the partition decres would be binding on the respondent, having been passed in absence of one co-sharef Radharani. it appears that she was admittedly brought on record in an appeal preferred by the appellant against the preliminary decree in the first appellate court on 22nd December, 1949, though as heir and legal representative of her son Keshav. It is undisputed that this appeal was allowed and the preliminary decree passed by the trial Court was modified. Ultimately, in second appeal preferred by the present respondent in this court wherein Radharani and all other co-sharers were parties, the preliminary decree on part modification was affirmed by this court. So. where a co-sharer having interest in the joint properties of the partis was in fact brought on record before the preliminary decree was finally passed by this court, it is difficult to see how such decree or the final decree that was passed in the partition suit would be ineffective against the present respondent. It is true 'that she was described as heir and legal representative of her deceased son Keshav and not Anath. But that fact by itself will not disentitle her to claim the share of her deceased son Anath. In other words, in a partition suit when a co-sharer is brought on record as having certain interest, he will be deemed to be representing the entire interests he is entitled to have in the joint properties irrespective of the question whether or cot there is any such averment or admission in the plaint. So. in the instant case, whether Radharani was brought on record as heir and legal representative of her deceased son Anath, the fact that she was brought on record as having interest in the joint properties subject, however, to the question whether such substitution was fraudulent, would be sufficient to hold that her entire interest in the joint properties either as heir of her son Keshav or her son Anath was sufficiently represented in the partition suit and therefore the preliminary decree that was passed finally in her presence as a party in the suit was valid and binding.

6. A question however, was raised on behalf of the respondent that such substitution at the first appellate stage was Ineffective, for, the proper procedure, where there is already an abatement, of the appeal, the substitution not having been effected, according to the respondent, in this case, within time, would be to set aside the decree and remit the case back to the trial court for setting aside abatement and for substitution of heirs and legal representatives concerned after giving opportunity of hearing to all the parties. In aid of such contention, a Bench decision of this Court in Kanailal v. Santra, : AIR1970Cal99 was cited in which a contrary view expressed by Single Bench of this Court in Naba Kumar v. Prafulla, (1947) 51 Cal WN 654 appears to have been overruled. It is unnecessary for the purpose of this case to enter into this disputed question. For here, precisely no question of abatement did arise at the time when substitution was effected on the prayer of the appellant before the first appellate Court in the partition suit in accordance with the provision of Order 22, Rule 4 of the Civil Procedure Code.

7. This brings us to the next question as to whether or not substitution itself was fraudulent. It appears that relying on a death certificate of Keshav in which the date of his death was recorded as March 31, 1948, the appellate Court below came to the conclusion that the appellant got the substitution of heirs and legal representatives of Keshav on suppression of the date of death and this necessarily constituted fraud practised by the appellant on court. We fail to see how this is so. The entry in a register: of death kept by the municipal authority I under Section 35 of the Indian Evidence Act may be admissible in evidence but by no means conclusive. In our opinion, mere entry of a particular date of death of a deceased person by itself cannot constitute fraud on the part of a particular party just because he has in an earlier proceeding given a different date as the date of the death of the deceased. The appellate court below made totally a wrong approach to the question and based its entire decision on mere surmise and not on any evidence in support of such supposed fraud. Then again, it is well established that under mandatory provisions of Rule 4, Order 6 of the Code, particulars of fraud, amongst other things, have to be given. As has been held by Judicial Committee, general al-legations, however strong, are insufficient even to amount to an averment of fraud of which any court will take notice (See Bal Gangadhar v. Srinivas. 19 Cal WN 729 = (AIR 1915 PC 7); Ganga v. Tiluckram, (1883) ILR 15 Cal 533 (PC)). Fraud being an objective fact and, not being a subjective process, known to the parties complaining, particulars thereof must be given. Applying this principle to the facts of the present case, we are unable to hold that mere mention of a different date of death of Keshav from that given in the death certificate, now produced by the respondent, will not in absence of proper averments and particulars and evidence in support of such fraud would constitute fraud on the part of the appellant. It would be pertinent to consider another aspect of the matter which is that no decree or order could be set aside as fraudulent merely on the ground of perjured evidence (See 29 Cal WN 325 = (AIR 1925 Cal 663) Nalini Kanta v. Hari Niksri, 44 Cal WN 912 = (AIR 1940 Cal 489) Kunisbehari v. Krishnadhone and : AIR1960Cal309 Atul Chandra v. E. B. C. Bank Ltd.). So, even if the evidence which was adduced either on affidavit or oral testimony could at best be considered as perjured evidence in the substitution proceeding but that fact by itself will not be sufficient to set aside that order of substitution or for the matter of that the decree that was passed, on the ground of fraud.

8. It is, however, contended by Mr. Ghosh on behalf of the respondent that death certificate was admitted in evidence without objection and that would amount to admission of the contents of such certificate. We cannot accept this contention as correct. The only effect is that its contents would be evidence but not conclusive (See : [1972]2SCR646 P. C. Purushothama v. Perumal).

9. This apart, the respondent which has merelv a subordinate interest acquired as a lessee during pendency of the partition suit does not seem to have any right or status to challenge the order of substitution effected at the appellate stage or the decrees both preliminary and final in the partition suit. It is undisputed that the order of substitution was made by the first appellate court with notice to all the co-sharers including Radharani but without any objection from anyone of them. Clearly, they suffered from the order of substitution as also the decrees both preliminary and final passed in the partition suit. This being so. the present respondent must be bound by the act of its lessors the co-sharers and necessarily by the partition decrees that were passed against them. The present respondent, in our opinion has no right as a lessee under those co-sharers to turn round to challenge that decree of the partition suit on the ground of fraud.

10. It now remains to be seen whether in absence of a family deity as a party the partition suit or the decrees passed would be totally ineffective. To this, the short answer is that on the admitted position of the parties the two she-baits, who executed again a lease as she-baits of the deity which subsequently was assigned to the present respondent were parties in the partition suit. They did not raise any objection at any state in the courts below as to the maintainability of the suit or challenge the decree as totally ineffective. It is difficult to see how shebaits of the deity could execute a deed of practically permanent lease of debattar property. On the face of it this deed seems to be ineffective and not binding upon the deity and no right, title or interest under such lease could be said to have passed to the present respondent. Considering this aspect, the respondent has no right to challenge such decree merely because the deity was not a party in the partition suit. In any case. Adhar and Gauri, who admittedly executed the impugned lease as shebaits of the deity and were already on record, must be deemed to have been representing the interest of the deity in the partition suit There is no finding that apart from deity's interest they had any interest of their own in the disputed properties. At any rate, since they did not raise any objection to the decrees being passed in the partition suit the present respondent must be held to be bound by their act and the decrees that were passed in the partition suit, necessarily, it would not have right to challenge the decree as ineffective or invalid.

11. Lastly, it appears, on the objection raised by the appellant that the suit is barred under the Specific Relief Act, the appellate Court below held that the respondent, in case the decree being declared inoperative, would be a co-sharer along with the defendants and others. In our opinion, the lower appellate court, although it is not necessary to decide this point, reached entirely a wrong conclusion. We have already held that the interest of the present respondent is subordinate and not co-ordinate with that of the appellant and other co-sharers. Therefore, it cannot, in event. be declared a en-sharer. But nonetheless, as a lessee from other co-sharers it would be deemed to be in joint possession along with the appellant. For the reasons, however, already given we are of opinion that the derision Given by the appellate court is not correct. We hold that the partition suit brought by the respondent and the decrees passed therein were valid and binding on the respondent.

12. In the result, the appeal is allowed, the judgments and decrees of both the courts below are set aside. The suit is dismissed but in the facts and circumstances of this case there will be no order as to costs.


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