Supreme Court Of India

U.F.M. Devaru Manjappa Hegde and others V. U.F.M. Ganapthi Ganesh Hegde and others

Civil Appeal No. 426 Of 1999. 22-04-2004

JUDGMENT

1. Heard the parties.

2. This appeal by special leave is by the defendants against the judgment rendered by Karnataka High Court in a second appeal. The plaintiff filed a suit for partition claiming one and a half share in the suit property and his case, inter alia, was that his father Manjappa Hegde had three sons, namely, the plaintiff and defendant Nos. 1 and 2. The parties were members of joint family and the suit property belonged to joint family consisting of plaintiff, defendants and their father. Manjappa Hegde died in the year 1967 in the state of jointness with his sons. As inconvenience was felt in joint enjoyment of the property, the same necessitated filing of the present suit.

3. Defendants filed written statements. Defendant No. 1 contested the claim for partition. According to him, though the parties were members of joint family but the suit property was his self-acquisition and the suit was not maintainable as Manjappa Hegde died in the year 1967 leaving behind three sons who were plaintiff and defendants besides a daughter upon whom the interest in the property dwelved, but the said daughter who was also a necessary party to suit, was not impleaded and consequently, the suit for partition was liable to be dismissed on this ground alone.

4. The trial court framed several issues and the parties led evidence in support of their respective cases. The trial court came to the conclusion that the suit property was self-acquisition of Defendant No. 1 and in the absence of daughter of Manjappa Hegde, the suit for partition was not maintainable. consequently the suit was dismissed. On appeal being preferred, the lower appellate court confirmed the decree of trial court. Thereafter, second appeal was preferred by the plaintiff before the High Court of Karnataka which has allowed the same, set aside the judgments and decrees passed by the trial court as well as the lower appellate court and while decreeing the suit for partition directed that in the final decree proceeding, notice shall be issued to the daughter of Manjappa Hegde. Hence, this appeal by special leave.

5. Learned counsel appearing on behalf of the appellant in support of the appeal submitted that the High Court adopted a novel procedure in directing that, though daughter of Manjappa Hegde who was necessary party, was not impleaded as a party in the suit, the trial court in the final decree proceeding shall give her notice while carving out shares of the parties. Daughter of Manjappa Hegde was never impleaded as a party in the suit originally filed nor an application was filed at any later stage for her impleadment by any of the parties in the trial court. No steps were taken for her impleadment by amending the paint either before the first appellate court or the High Court. In the absence of daughter of Manjappa Hegde, the High Court was not justified in decreeing the suit for partition and directing the trial Court to give her notice at the time of preparation of final decree which procedure adopted by the High Court is wholly unknown to law.
This being the position, we are of the view that the High Court was not justified in allowing the appeal and decreeing the suit for partition which was rightly dismissed by the trial court as well as the lower appellate court on the ground of non-impleadment as well as of the aforesaid daughter who was necessary part in the suit.

6. Accordingly, the appeal is allowed, the impugned judgment rendered by the High Court is set aside and the same passed by the lower appellate court is restored.No costs.

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