Anil L. Pansare, J.

1. Heard Mr. Dhiraj R. Bhoyar, learned Counsel for the Appellant and Mr. Rohit Joshi a/w Mr. S. J. Kadu, learned Counsel for the Respondent Nos. 1 to 8. By consent of both the parties, matter is taken up for final hearing at the admission stage.

2. The Appellant was original Plaintiff. The father of the Plaintiff was original Defendant. Pending suit, he expired. His legal representatives i.e. wife and children were brought on record. The parties will be hereinafter referred to by their original nomenclature.

3. The Plaintiff-son filed a suit against the Defendant-father (since deceased) for partition and separate possession of the agricultural lands. According to the Plaintiff, three agricultural lands are the suit properties. One was admeasuring 2 H. 12 R. situated at Nandra, Tahsil Hinganghat, District Wardha. According to the Plaintiff, this was the ancestral property and was fallen to the share of his father (original Defendant). The father had sold some land from the sale proceeds he has purchased the land bearing Survey No. 35, admeasuring 1 H. 08 R. and the land bearing Survey No. 2, admeasuring 3 H. 14 R. situated at village Khekdi, Tahsil Hinganghat, District Wardha. It was further the case of the Plaintiff that the house and an open plot in the same village was the ancestral property of the Defendant-father. The Plaintiff claimed equal share in all the immovable properties. Accordingly, the suit for partition and separate possession was filed.

4. The Defendant-father contested the suit by filing written statement, which was later adopted by his legal representatives.

5. The trial court, vide judgment dated 16/1/2009, dismissed the suit on the ground that the Plaintiff failed to prove that suit properties were ancestral properties, so also on the ground of non-joinder of necessary parties. The first appellate court, vide judgment dated 3/3/2014, rendered a finding that the Plaintiff has proved that part of the suit properties i.e. the suit property situated at village Nandra is ancestral and joint family property, but dismissed the appeal on the ground of non-joinder of the necessary parties. The first appellate court has also rendered a finding that the Plaintiff failed to prove that the suit properties at village Khekdi were ancestral and joint family properties. The Plaintiff is aggrieved by the judgment passed by both the courts below and thus has filed the present Appeal.

6. This Court vide order dated 18/4/2016 issued notice to the Respondents on the following substantial question of law :

"(1) Whether the Appellate Court was legally justified in dismissing the suit for partition and separate possession despite recording a finding that the property at Nandra was ancestral property"

On 14/12/2022 another substantial question of law was framed which reads thus :

"(2) Whether both the learned Courts below were justified in rejecting the claim of partition and separate possession of the Appellant when after the death of original Defendant Shankarrao, the Appellant is having share in the property situated at Khekdi, when both the courts below held that the same was the self-acquired property of Shankarrao"

7. As could be seen, the properties are situated at two different locations. Some properties are situated at Khekdi, Tahsil Hinganghat, District Wardha and one property is situated at village Nandra, Tahsil Hinganghat, District Wardha.

8. The learned Counsel for the Appellant contends that, so far as the first substantial question of law is concerned, there is absolutely no reason why the first appellate court has not allowed the claim of the Plaintiff in respect of the property situated at village Nandra, Tahsil Hinganghat, District Wardha, having held that the said property was ancestral property.

9. I have gone through the judgment passed by the appellate court. The reasons find place in paragraph No. 11 of the Judgment, which reads thus :

"11. It was the burden on the plaintiff to prove that entire suit property are ancestral property of original defendant. However in his pleading itself he has stated that the land at village Nandra had come to share of original defendant. This pre-supposes that it was the ancestral property of defendant along with the other persons and there was partition between defendant and his co-sharers. However, original defendant has come with the specific case that land at Nandra is not partitioned amongst him, his two brothers and one nephew (son of deceased brother). In his cross-examination, plaintiff has stated that he had made inquiry with Dnyaneshwar, Puneshwar, Mahadeorao, Ramkrushna but he has not stated that what was the outcome of the discussion with them. His own document Exh.55 is speaking against him. It is rather standing in the name of original defendant, brothers etc. Therefore, documentary evidence are supports the original defendant that there was no partition between original defendant and his co-sharers. Thus, it can be seen that when there were co-sharers to the original defendant and plaintiff wants to have partition of that property mentioned in Exh.55, then those co-sharers are the necessary parties to the suit. Since they have not made as party to the suit, even though objection was specifically raised by the original defendant. Issue to that effect was specifically framed in that case. The suit suffers from non-joinder of necessary parties. The suit need not be dismissed merely on the count of that necessary parties are not made as party to the suit. Court has discretion, can even direct the concerned party to add the necessary parties to the suit. However, in this case, plaintiff had opportunities to correct the mistake or fill-up lacuna immediately after the written statement filed, he could have added those necessary parties to the suit. Secondly, when specific issue was framed at that time also there was opportunity. In this case, issues were framed on 26.11.1998 and examination in chief of the plaintiff has been filed on 28.02.2008. That means, for about 10 years plaintiff had opportunity to bring the necessary parties to the suit. The matter has been ultimately decided in 2009 after about 11 years, therefore, even though as aforesaid there is mandate not to dismiss the suit on the count of non-joinder of necessary parties and give opportunity to the concerned litigants to bring them on record, yet in spite of those opportunities plaintiff has not utilized the same. The learned lower court was, therefore, right in dismissing the suit for non-joinder of the necessary parties."

(Emphasis now)

10. Thus, it appears that despite having opportunity, the Plaintiff failed to make necessary amendments and to add necessary parties to the suit. The first appellate court, therefore, has dismissed the Appeal. The learned Counsel for the Appellant has not pointed out any reason or the law on this point to take a different view. Rather, the Hon'ble Supreme Court in the case of Moreshwar Yadaorao Mahajan V/s Vyankatesh Sitaram Bhedi (D) Thr. L.Rs. and others, AIR 2022 Supreme Court 4710 has held in paragraph No. 18 as under :

"18. It could thus be seen that a "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed."

In the said case also despite specific objection in the written statement the Plaintiff did not implead the necessary party in the suit.

11. The learned Counsel for the Appellant has then emphasised on the second substantial question of law. He contends that even if it is presumed that the suit properties were self-acquired properties of his father, after the father's death, the Appellant would be entitled for succession to the properties in terms of Section 8 of the Hindu Succession Act, 1956 (In short, 'the Act of 1956'), being Class-I legal heir.

12. The learned Counsel for the Respondents has, however, rightly countered these contentions by pointing out that after the death of the father the Plaintiff has, except bringing on record, the legal representatives of father as Defendants in the cause title, not amended the plaint to the effect that he is entitled to the suit property, not in the capacity as coparcener, but as a Class-I legal heir of the father. He continued the suit for partition and separate possession on the premise that the suit property is an ancestral property and the Plaintiff has right in the suit property being one of the coparceners.

13. That apart, the Plaintiff has not raised this ground even in the first appeal, and therefore, this ground has not been considered either by the trial court or by the first appellate court. The Plaintiff, therefore, cannot raise this ground in the Second Appeal. Both the courts below have held that the suit for partition is not maintainable for non-joinder of necessary party. The Appellant failed to show that this finding is perverse. In fact, no attempt has been made in this regard.

14. Further, the learned Counsel for the Respondents has pointed out that there existed yet another property which ought to have been made subject matter of the suit, if the Plaintiff intended to seek partition. The property belonged to the first wife of Shankarrao/the Defendant. Her name was Parbatabai. The Defendant in written statement has categorically pleaded that in the year 1957 he had purchased a field Survey No. 49 (new S. No. 50) admeasuring 4.05 Hectors situated at mouza Amboda in the name of Parbatabai. Accordingly it is argued that, even if it is presumed that the said property was self-acquired property of Parbatabai, after her death the property would devolve upon the original Defendant being husband of Parbatabai as also the Plaintiff being son of Parbatabai. This property ought to have been made part of the suit. It is so because, after the death of the Defendant, his legal heirs (i.e. Plaintiff and present Respondents) would acquire interest in the said property to the extent of share of the Defendant. The said property, therefore, ought to have been made part of the suit property. Having not done so, the Plaintiff is precluded from filing suit for partition as he has not brought all the properties in the suit.

15. The learned Counsel for the Respondents has relied upon the Judgment of this Court in the case of Govindrao s/o Gangaramji Ajmire V/s Dadarao @ Shrawan s/o Gangaramji Ajmire (dead) L.Rs. Indrani wd/o Shrawan Ajmire and others, 2004(4) Mh.L.J. 653 in support of his contentions that the suit for partition is not maintainable, if all the properties are not brought in the suit. The Court upheld the findings given by the first appellate court therein that the suit is not maintainable without bringing entire joint family house property in common hotchpotch.

16. The learned Counsel for the Appellant has, however, opposed the above submissions on the count that the Defendants being step-sons are not entitled to inherit the property in terms of Section 15(1)(a) of the Act of 1956. He has relied upon the Judgment in the case of Lachman Singh V/s Kirpa Singh and others, AIR 1987 Supreme Court 1616, wherein the Supreme court has held that the word "sons" in clause (a) of Section 15(1) of the Hindu Succession Act, 1956 does not include "step-sons". Therefore, the step-sons of Hindu female dying intestate do not inherit share in her property simultaneously with her son.

17. This Judgment, however, will not be applicable in the facts of the present case, in as much as, the Defendants are not claiming right in the property belonging to their step-mother but are claiming rights in the property inherited by their father Shankarrao (the Defendant) upon the death of the step-mother Parbatabai.

18. The learned Counsel for the Respondents has, thus, rightly contended that the Plaintiff ought to have brought in the suit the aforesaid property and in absence thereof, the suit for partition is not maintainable.

19. The learned Counsel for the Appellant has then taken aid of the Judgment in the case of Gaiv Dinshaw Irani and Ors. V/s Tehmtan Irani and Ors. AIR 2014 Supreme Court 2326 to contend that in the interest of justice, a court including a court of appeal is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or on the entire purpose of the suit the Courts taking note of the same should mould the relief accordingly. Thus, the Plaintiff has proposed to mould the reliefs in view of the fact that the original Defendant expired pending suit.

20. To my mind, there are two difficulties in moulding reliefs. First is that all the properties are not included in the suit. Secondly, the brothers of the Defendants, who would be entitled for the partition of the property situated at Nandra, are/were not before the court and for which the first appellate court has dismissed the appeal.

21. Thus, the suit has been dismissed by the courts below by concurrent findings that the Plaintiff failed to add necessary parties to the suit despite giving ample opportunity. There is no serious challenge to said findings. The law is well settled on this point. Further, the suit is not maintainable for not including all the properties in the suit. Consequently, both the substantial questions are answered in the affirmative. There is, thus, no substance in the Appeal. The Appeal is, accordingly dismissed with no order as to costs.