SAO No. 13 of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
SAO No. 13 of 2002
Date of decision: September 05, 2009
Moh. Amin alias Amin etc. ........ Appellants
Versus
Shaymuddin .......Respondent
Coram: Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. Amit Jain, Advocate
for the appellants
Mr. Naresh Parbhakar, Advocate
for the respondent
-.-
1. Whether Reporters of local papers may be
allowed to see the judgement?
2. To be referred to the Reporter or not?
3. Whether the judgement should be reported in
the Digest?
Nirmaljit Kaur, J.
The appellants filed a civil suit for declaration to the effect that the
plaintiffs No. 1 to 4 are co-sharers in possession to the extent of 4/6th share in
equal share and the plaintiffs No. 5 to 8 are owners in possession of 1/6th share in
the land in dispute. It was pleaded in the suit that the parties are Muslims and are
governed by the Mohammedan law in the matter of inheritance. Thus, after the
death of Mansab Ali, his sons are entitled to the inheritance of the property in
equal shares. It was further stated that since their other brother Mohammad Sharif
died issue less, all his six brothers are entitled to inherit the land in equal share.
SAO No. 13 of 2002 2
The respondent-defendant, in the civil suit, put up a Will executed in his favour on
25.02.1976. The appellants-plaintiffs refuted the validity of the aforesaid Will.
The trial Court, vide judgement and decree dated 23.11.1997, partly decreed the
suit to the following effect:-
“it is only plaintiffs No. 1, 2, 3 and 4 being brothers of the
deceased Mohammad Sharif, who are entitled to the share in
the property of deceased Mohammad Sharif along with the
defendant and their three sisters and two daughters of
Mohammad Sharif and that plaintiffs No. 5 to 8 are not entitled
to the property of deceased Mohammad Sharif due to reasons
as fully elaborated above. The plaintiffs No. 1 to 4 defendant
and their three sisters and two daughters of deceased
Mohammad Sharif shall inherit the property of deceased
Mohammed Sharif, as detailed in para No. 4 of the plaint as per
Hanafi Law of inheritance, since the parties are admittedly
Sunnis.”
The respondent/defendant filed an appeal against the judgement and
decree passed by the Civil Judge, (Sr. Division) Sonepat before the Additional
District Judge, Sonepat, who remanded back the suit to the trial court to proceed
in accordance with the provisions of law, after joining the necessary parties.
The legal issue that arises in the present appeal is whether the suit
could be remanded back for fresh decision after impleading necessary parties in
view of Order 1 Rule 9 of Code of Civil Procedure.
It is apparent from the operative part of the judgement of the trial
Court that the Trial Court had directed that the property would now be inherited in
SAO No. 13 of 2002 3
accordance with Hanafi law of inheritance, as applicable to the Mohamdans and
the same shall be evolved upon the plaintiffs No. 1 to 4, defendant, their three
sisters and two daughters of deceased Mohammad Sharif. This judgement was
challenged by the defendant on the ground that the sisters and daughters being the
necessary parties and the plaintiffs have not joined them as such, the suit was bad
for non-joinder of the necessary parties. The Appellate Court, therefore, concluded
that the sisters were the necessary parties and, as such, the suit was bad for non-
joining them as a necessary parties. It was, accordingly, remanded back, as
mentioned above, to try the same after impleading the sisters as necessary parties.
While challenging the judgement dated 29.11.2001 passed by the
Appellate Court, learned counsel for the appellant submitted that the suit was not
bad for non-joinder of the necessary parties, as the trial Court had duly held that
the sisters are entitled to inherit the property left by Mohammad Sharif. Thus, no
prejudice has been caused to them, as the three sisters and two daughters are held
entitled to inherit the property in dispute. It was an order in their favour.
Learned counsel for the appellant relied upon a judgement of Hon’ble the
Supreme Court rendered in the case of ‘P Purushottam Reddy v. M/s Partap Steel
Ltd.’, 2002(2) RCR (Civil), to show that there should be no unwarranted order of
remand, which may give the litigation an underserved lease of life. He also relied
upon a judgement rendered by this Court in the case of ‘Ilam Chand v. Ved
Parkash’, 2003 PLJ 267, to substantiate that all the co sharers are not necessary
to be impleaded as party to the claim for possession. Even one of the co sharers,
has a right to claim for the benefit of all the co sharers.
On the other hand, learned counsel for the respondents vehemently
opposed the arguments raised by learned counsel for the appellants and referred to
SAO No. 13 of 2002 4
the Order 1 Rule 9 of the Code of Civil Procedure that no order except so far as
regards the rights and interests of the parties, who are actually before it, can be
passed and relied upon a judgement of the Apex Court rendered in the case of
Kanakarathanammal v. V S Loganatha Mudaliar and another, AIR 1965 SC 271.
Learned counsel for the parties were heard at length.
Order 1 Rule 9 of the CPC reads as under :-
“Misjoinder and non joinder- No suit shall be defeated by
reason of the misjoinder or non joinder of parties, and the Court
may in every suit deal with the matter in controversy so far as
regards the rights and interests of the parties actually before it.”
A reading of the Order 1 Rule 9, quoted above, would show that no
suit can be defeated by reasons of misjoinder or non-joinder of the parties. In
other words, the Court is required to deal with the controversy on merits and
cannot be rejected only on the ground of non joinder of parties.
Otherwise also, the appeal was to be decided on merits, in view of
Order 1 Rule 9 CPC instead of setting aside the order under appeal and remanding
it back to decide after impleading the parties. The suit cannot be dismissed on
account non-joinder of parties. Hence, a fresh opportunity to implead the
necessary parties would not be correct.
Learned counsel for the respondent has heavily relied on the words ”
so far as regards the rights and interests of the parties actually before it”, to stress
that even a favourable order cannot be passed in the absence of the parties. In
Kanakarathanammal case’s (supra), as relied upon by learned counsel for the
respondent, the appellant had filed a suit, claiming to recover the possession of
the property, as the sole heir of her mother. One of the issues framed in that suit
SAO No. 13 of 2002 5
whether the same was not maintainable on the ground that the necessary parties
had not been joined by the appellant. It was a common ground between the parties
that the appellant had brothers alive and the appellant had taken an alternative
plea that if the property was found to be belonged to the appellant’s mother, the
appellant and her brothers be held entitled to succeed that property. In these facts,
the Apex Court held:-
“The appellant contends that the property in question falls
under s. 10(2) (b), whereas according to the respondents it
falls under S. 10(2) (d). There is no doubt that if S. 10(2)
(b) takes in the property the appellant would be
exclusively entitled to it and the plea of non joinder of her
brothers would fail. On the other hand, if S 10(2)(d)
applies to the property, the appellant will not be
exclusively entitled to the property and her brother would
be necessary parties to the suit.”
There may have been merit in the arguments of the learned counsel
for the appellant, but for the facts and circumstances of the present case. As
already mentioned above, the respondent/defendant had put up a Will in the civil
suit and the following issue was framed:-
“Issue No. 2
2. Whether Mohammad Sharif had executed will on
25.02.76, if so to what effect? OPD.”
The following finding was recorded on the aforesaid issue:-
“Keeping in view my observations above, holding that Mansab Ali
had one wife and the plaintiff No. 1 to 4 and Badruddin being full
SAO No. 13 of 2002 6brothers of defendant Shamuddin, hence, they being heirs to the
property of deceased Mohammad, their consent was required in of
bequest of property by way of will in favour of the defendant and
their consent not being apparent, the Will cannot be held to be a valid
one.”
After holding as above, the Court further went to hold that as per
Sunni law, the daughters, the sisters, plaintiffs No. 1 to 4 and the defendant were
all entitled to inherit the property of deceased Mohammad Sharif, as fully detailed
in para No. 4 of the plaint. It was also observed that no doubt the daughters and
the sisters were necessary parties in the circumstances, nevertheless, having been
held them to be entitled to inherit the property, as per law of inheritance, no injury
or grievance is caused to them on account of their being not impleaded as
necessary parties. The trial Court, therefore, rightly proceed in deciding the
dispute on merits and holding as above, in accordance with the provisions of
Order 1 Rule 9 CPC, already quoted above. Moreover, it does not lie in the
mouth of the respondent/defendant to state that the suit is bad for non-joinder of
necessary parties as, he asserted, in the suit, that the only living heir at the time of
death of testator Mohammad Sharif was himself and his sister Manan and that
Manan had given her due consent for the execution of the said will in his favour.
But while doing so, he made no mention of the two daughters i.e. living heirs of
the testator Mohammad Sharif. In the face of the above facts, it is evident that
although the sisters and the daughters are the necessary parties, it is also true that
no order has been passed against them. Rather, they have been made entitled to
inherit the property of the deceased Mohammad Sharif. In fact, justice has been
done. Thus, the Judgement of the District Judge setting aside the well reasoned
SAO No. 13 of 2002 7
judgement of the trial Court and remanding the matter back to the trial Court to
afford opportunity to the plaintiffs to join necessary parties in the present case, and
thereafter, to proceed in accordance with the provisions of the law, will amount to
a futile exercise on account of the following:-
a) The Will dated 25.02.76 has been held to be invalid by the
Trial Court.
b) While passing the judgement, the trial Court has held all the
legal heirs, including the sisters and daughters, who are the
necessary parties, entitle to inherit the property left by
Mohammad Sharif.
c) Even if the Civil Court had given no direction qua inheritance
of the property by all the legal heirs, the Will having held in
valid, the consequence of the same would still be the same.
In the facts as in the present case, the remand order to enable the
appellants to implead the necessary parties would amount to a futile exercise. The
Hon’ble Supreme Court ‘P Purushottam Reddy v. M/s Partap Steel Ltd.’, 2002(2)
RCR (Civil), held that an unwarranted order of remand gives the litigation an
underserved lease of life and, therefore, must be avoided.
For the foregoing reasons, the present appeal is allowed and the
impugned judgement dated 29.11.2001 passed by the Additional District Judge,
Sonepat is hereby set aside. The first appeal shall stand restored in its original
number and place. The Additional District Judge, Sonepat is directed to decide the
same afresh on merits. The parties shall appear before the Additional District
Judge, Sonepat on 5.10.2009 either themselves or through their counsel, for further
consideration.
SAO No. 13 of 2002 8
However, it is made clear that any expression of opinion given, herein
above, shall not effect the merits of the case.
(Nirmaljit Kaur)
Judge
September 05, 2009
mohan