JUDGMENT
S.S. Subramani, J.
1. Second plaintiff in O.S. No.289 of 1979, on the file of Sub Court, Mayuram, is the appellant.
2. One Mahadeva Sastrigal died on 11.8.1973 leaving Lakshmi Ammal as his widow, two sons by name Seshagiri and Swaminathan, who are respectively defendants 1 and 2 in the suit and two daughters Sankari and Rukmani; who are defendants 3 and 4 respectively. Long before the death of Mahadeva Sastrigal, he and defendants 1 and 2 had entered into a deed of partition, as evidenced by Ex. A-5 dated 15.7.1953. The plaint schedule properties are the properties retained by Mahadeva Sastrigal under the said deed.
3. The suit was filed by Lakshmi Ammal (widow of Mahadeva Sastrigal), claiming one-fifth share in the plaint schedule properties on the ground that she is Schedule 1 heir under Hindu Succession Act and alleging that Mahadeva Sastri died intestate. Pending litigation, Lakshmi Ammal died, and, on the basis of a will alleged to have been executed by her, under Ex.A-1 dated 26.3.1980, second plaintiff was impleaded it is worthwhile to note that second plaintiff is none other than the wife of first defendant, i.e., daughter-in-law of Mahadeva Sastri and Lakshmi Ammal.
4. In the written statement filed by the first defendant, he did not dispute the right of his mother for one-fifth share. Second defendant, in his statement, disputed the claim of the mother, on the ground that his father, a few days before his death, executed Ex.B-1 Will dated 1.8.1973. He contended that on the basis of that Will, his mother is not entitled to any share. Third defendant, who is one of the daughters, also contended that her father did not die intestate, but executed a Will under which her daughter Jayanthi Sunderaman is also a beneficiary. It is also contended by the third defendant that pursuant to the Will, patta has been taken in the name of the beneficiaries and portions of the property have also been sold to third parties. It is also contended that the other daughter Rukmani’s children Jayasree and Bhuvaneswari are also beneficiaries under the Will executed by Mahadeva Sastri, and the Will has come into effect. The 4th defendant, in her written statement, supported the claim of her mother and contended that she is entitled to one-fifth share.
5. On the above pleadings, the trial court took elaborate evidence, both oral and documentary, and finally decreed the suit. A preliminary decree was passed. Exs.A-1 to A-17 were marked on the side of the plaintiff Exs. B-1 to B-10 were marked on the side of the defendants. None of the plaintiffs entered the box. But two witnesses were examined, including the attestor to Ex.A-1 as P.W.2. On the side of the defendants, second defendant was examined as D.W.1, and an independent witness was examined as D.W.2.
6. The trial court, in its judgment, held that Ex,B-1 is not a Will executed by Mahadeva Sastrigal and the same could have been created by the sons with a view to deprive the mother from claiming any right. It also came to the conclusion that Ex.A-1 was also validly executed by Lakshmi Ammal and, therefore, the additional second plaintiff, i.e. daughter-in-law of the acquirer is entitled to the benefit of getting one-fifth share which Lakshmi Ammal was entitled to as the legal heir of late Mahadeva Sastri.
7. Before going further into the merits of the case, it may be noted that before the trial court, the children of defendants 3 and 4 were not parties, though they were beneficiaries under the Will alleged to have been executed by Mahadeva Sastri. Aggrieved by the judgment, an appeal was by the second defendant as A.S.No. 150 of 1981. The lower was of the view that everything depends upon the validity of Ex.A-1 Will alleged to have been executed by Lakshmi Ammal in favour of second plaintiff. If that is found against, there is no purpose in proceeding with the appeal. Thereafter, the lower appellate court found that Ex.A-1 is not valid, and dismissed the suit. It did not enter a finding on the validity of Ex.B-1 or whether Lakshmi Ammal will be a legal heir. It is against the said judgment, second plaintiff has preferred this second appeal.
8. At the time of the second appeal, the following substantial question of law was framed for consideration:
Whether the lower appellate court has correctly settled the point for determination for holding whether the Will of Lakshmi Ammal Ex.A-1 is true and whether the Will of Mahadeva Sastri Ex.B-1 is true, genuine and valid?
9. Pending second appeal, Sankari and Rukmani, i.e., defendants 3 and 4 died, respectively on 16.3.1985 and 22.2.1990. Their legal heirs have now been impleaded in the second appeal. They include the husband of Sankari and her daughter Jayanthi. Likewise, Rukumani’s husband and daughters have also been impleaded as additional respondents 7 to 9. It is seen that respondents 7 to 9 were impleaded as per order of court and costs were also paid.
10. Learned Counsel for both parties argued the matter in detail.
11. While extracting the facts, I have already said that in the suit instituted, only the children of Mahadeva Sastri have been impleaded. The granddaughters of Mahadeva Sastri, i.e., children of respondents 3 and 4 who were beneficiaries under the alleged Will are not impleaded. Without them, the suit cannot proceed. But this defect was not found out either during trial or before lower appellate court. It is true that defendants 1 and 2 are also beneficiaries under the Will alleged to have been executed by late Mahadeva Sastri. Second defendant has taken a defence that his father has executed a Will and he did not die intestate. But the second defendant cannot be treated either as a agent or as a representative of the other beneficiaries under the Will and even if ultimately it is found out that the Will is not valid, if the grandchildren of Mahadeva Sastri are not on the party array, the decree passed by this Court will be of no use. A binding declaration cannot be granted in the absence of the beneficiaries under the alleged Will. But the trial court has discussed the evidence to come to the conclusion that Ex.B-1 is not valid. It also found that under Ex.A-1, second plaintiff is entitled to take the estate of deceased Lakshmi Animal. To grant such a relief also, all the beneficiaries under the alleged will are necessary parties.
12. The lower appellate court has also discussed the evidence on Ex.A-1 and has held that the Will is not valid. According to me, the question whether the second plaintiff can claim under the alleged Will can arise only if Lakshmi Ammal has got an interest in the property. If Lakshmi Ammal has been disinherited, or cannot claim any right on the basis of any Will alleged to have been executed by Mahadeva Sastri, the question of considering the validity of Ex.A-1 (sic) alleged to have been executed by Mahadeva Sastri, may not arise. In either way, the grand daughters of Mahadeva Sastri born to defendant 3 and 4 in the suit are necessary parties without whom the original suit cannot proceed. No effective decree could be passed which would conclude the rights of parties.
13. It is now contended by learned Counsel for the appellant that these granddaughters are now respondents in the appeal and therefore, it can be treated as an effective representation. I do not think that such a contention can be accepted. The granddaughters have been impleaded only in the capacity of legal representatives of defendants 3 and 4. The 4th defendant also disowns the Will and has claimed one-fifth share in the property. It is on that basis, her daughters have been impleaded. When they have been impleaded only in their capacity as legal representatives, they can take a defence only in that capacity. In fact, in this case, these granddaughters ought to have been impleaded in their personal capacity. That they cannot do when they have been impleaded only as persons claiming under defendants 3 and 4. By virtue of the bequest under Ex.B-1, their right is independent of defendants 3 and 4. Hence, the representation in second appeal is not sufficient, and the same cannot cure the defect in the framing of the suit.
14. The question that arises for consideration is, whether this Court can permit impleadment, and what is the procedure to be adopted.
15. Order 1, Rule 10, C.P.C applies only to suits. Section 107, C.P.C. deals with powers of the first appellate court. Section 108 read with Order 42, C.P.C. deals with the procedure in second appeal. But all the powers under Section 107 and Order 41, C.P.C. are not made applicable to second appeal.
16. Section 108, C.P.C. only says that the procedure as far as may be made applicable to second appeals also. [Italics]. Strictly speaking, there is no specific provision which enables the second appellate court to implead a party who was not a party to the suit, but who is found to be a necessary party. In this connection, it may be noted that till the second appeal was almost heard, even the respondents did not take contention that the granddaughters are necessary parties to the suit. In the written statement also, there is no plea of nonjoinder of necessary parties. Under the above circumstances, I feel that the appellant was also under the bona fide belief that the parties already on record are sufficient for proper disposal of the suit. But, when the bona fide belief is not correct, and if the court feels that some more parties are necessary, is the court powerless to give necessary directions? Under Section 151, C.P.C. the court can pass any order to meet the ends of justice.
17. In P.R. Nallathambi Goundan v. Vijaya Raghavan and Ors. in paragraph 14 of the judgment (at page 35) it has been held thus:
…It would be a travesty of justice to hold that a party who is bound by the result of a litigation, though not eo nominee a party to the litigation, shall be denied an opportunity to draw the attention of the court to some step, which seeks to prejudice his interests behind his back. In all such cases, it is the plain duty of the court to implead the parties concerned either under Order 1, Rule 10, or in exercise of its undoubted, inherent power under Section 151. C.P.C.
[Italics supplied]
18. In that case, the suit was filed under Order 1, Rule 8, C.P.C. The question that arose for consideration was, how far the managing, number of a Hindu family can effect a compromise when the other members are not on the party array. By virtue of the compromise, persons affected will be the members of the family, who are not eo nominee parties. It was under those circumstances, the court gave the above dictum. But I feel that the same principle could be applied to this case also.
19. If the second appeal is fully heard and disposed of on merits, holding that the Will is invalid, what will be its effect? The daughters of the fourth defendant, though they have got independent right under the Will, are precluded from agitating the same since they are impleaded only as legal representatives. If the Will is found to be invalid, their rights are affected. It means that without hearing them, they will be deprived of their right to defend their independent right.
20. In an early decision of the Allahabad High Court in Firm Shiam Lal Joti Prasad v. Dhanpat Rai and Anr. A.I.R. 1925 All. 768, a similar question came for consideration. In that case for accounts, a contention was taken whether one Chhitar Mal was a necessary party. Evidence was taken in the suit, and the trial court held that this contention is taken only to defeat the rights of the plaintiff, and holding that he is not a necessary party, disposed of the suit. The matter was taken in appeal. The appellate court found that Chhitar Mal is a necessary party, and he was impleaded in the appeal. When he entered appearance before the lower appellate court, he pleaded that he must be given an opportunity to defend. The appellate court said that his request is justified. Therefore, it set aside the judgment of the trial court and remanded the case after impleadment. This question was challenged before the Division Bench of the Allahabad High Court. Their Lordships said thus:
We are of opinion that the trouble has arisen owing to the irregular way in which Chhitar Mal was impleaded. Under Order 41, Rule 20, Civil Procedure Code, the appellate court has power to implead in the appeal a person who has not been made a party to the appeal; but under that rule a court has no power to implead a person who was no party to the original suit at all, vide: Pachkauri Reut v. Ramkhilawan. The learned judge seems to have invoked the aid of the general Section 107 (Civil Procedure Code), but that gives an appellate court powers, generally speaking, as a trial court. In our opinion, if the learned District Judge was of opinion that Chhitar Mal was a necessary party and ought to have been impleaded, the proper procedure for him was to remand that case to the court of first instance with a direction that that court should implead Chhitar Mall and then proceed to dispose of the case. It is obvious that by impleading Chhitar Mall in the appeal the inevitable result was that the case had to be tried de novo as Chhitar Mal had never had an opportunity to contest the claim.
Their Lordships justified that the impleading is necessary, but the procedure adopted alone was not correct.
21. In United Provinces v. Atiqa Begum A.I.R. 1941 EC. 16 : 53 L.W. 397 (at page 28), their Lordships have considered a similar question, and held thus:
Section 107(2), C.P.C. confers on an appellate court the same power and directs it to perform, as nearly as may be, the same duties as are conferred on courts of original jurisdiction courts of original jurisdiction have under Order 1, Rule 10(2), C.P.C., power to order that the name of any person who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved, he added. A person would be a necessary party if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication.
… … …
It is contended before us that the powers of an appellate court are restricted within the limits imposed by Order 41, Rule 20, and that the same restriction is imposed on a court hearing a second appeal under Order 42, C.P.C. That rule no doubt permits of making a person respondent, who was a party to the suit in the original court, and who has not been made a party to the appeal, but is interested in the result of the appeal. Obviously, this rule would not apply to the present case. But the language of the rule does not show that it is exclusive or exhaustive so as to deprive a court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by Section 151, C.P.C.
The Allahabad High Court in 55 All. 825 at 832 referred to some cases where it had been held that there is also an inherent jurisdiction to add a new party even outside Order 41, Rule 20. There is nothing in A.I.R. 1925 All. 768 which in any way conflicts with this. Unfortunately, the headnote of that case is incomplete. It was obviously not intended to lay down that the appellate court has no power to implead a person who was no party to the original suit at all. All that was said was that there was no such power under Order 41, Rule 20, C.P.C. It was pointed out that Section 107, C.P.C., gives an appellate court powers, generally speaking of the trial court. In that case the District Judge had impleaded a new person in the appeal and then set aside the decree of the first court and “remanded the case for retrial”. It was pointed out by the High Court that the proper procedure was to remand the case to the first court with the direction to implead that person and then to proceed to dispose of the case. It would then have been possible for this new party to file his written statement upon which the court would be in a position to consider whether there should be a trial de novo on all the issues or whether only some of the issues should be retried. The order of the District Judge for the trial de novo, before knowing what pleas the new party would take, was considered wrong. It was therefore suggested that the more appropriate course should be to direct the Court below to implead him and give him an opportunity to file a written statement in the present case the impleading of the U.P. Government necessitated no retrial. 37 All. 57 was a peculiar where a pro forma defendant, who had benefited under the first court’s decree, was not impleaded in the first appeal by the principal defendants and was sought to be impleaded in the second appeal by the same defendants long after limitation had expired. The High Court naturally declined to implead him. The earlier cases referred to therein were under the previous Code. I therefore, find it difficult to hold that the High Court had no jurisdiction at all to implead the U.P. Government as a party to the appeal, particularly when a objection was taken on behalf of the plaintiff on that occasion. If there were no such jurisdiction at all, then the Provincial Government cannot appeal.
[Italics supplied]
22. The same principle was followed and reiterated in the decision reported in Rampur Tennery and Mfg. Co. v. Umar Uddin . It was held in that case that Order 41, Rule 20, C.P.C. is not the only provision which gives power to the appellate court to implead a necessary party. The scope of Order 41, Rule 20, C.P.C. is entirely different.
23. Even though the appeal was argued on merits, I do not think that I should enter a finding on the question since even discussion is likely to cause prejudice to further proceedings in the case. Therefore, I refrain from answering the question of law raised in this case, since I am remanding the suit to the trial court.
24. In the result, I set aside the judgments of both the courts below. The trial court is directed to implead S. Jayanthi, Jayashree and Bhuvanesweri, as additional defendants in the suit. Now that they are impleaded not only in their capacity as legal representatives, but also in their personal capacity, it is for them to raise contentions as legal representatives or in their independent capacity as legatees under the Will alleged to have been executed by Mahadeva Sastri. The findings on all the issues are left open to be decided afresh by the trial court. Parties shall be given reasonable opportunity to adduce necessary evidence.
25. In the result, the second appeal is allowed. No costs. The judgments of both the courts below are set aside. O.S.No. 289 of 1979 is remanded to Sub Court, Mayuram for a de novo trial, as directed above. Since the suit is of the year 1979, the trial court shall dispose of the suit expeditiously. Pending C.M.Ps. are closed.