Case Note & Summary
The case involves a second appeal arising from a partition suit. The plaintiff, claiming to be the son of Ishwara, sought partition and separate possession of land Gat No. 127/A, alleging that the defendant no.1 intended to grab his share. The common ancestor Malhari died in 1962, leaving behind sons Ishwara, Pandurang, Rajaram, and daughters Laxmibai and Godabai. The plaintiff claimed a 2 anna share (1/3rd) in Malhari's 6 anna share. The defendant no.1 contended that the suit was bad for non-joinder of the daughters as necessary parties and that the plaintiff was only entitled to 1 anna and 9 ps. share. The trial court decreed the suit in favor of the plaintiff, but the first appellate court reversed the decree, holding that the daughters were necessary parties and the suit was not maintainable. The High Court, in second appeal, framed a substantial question of law regarding the necessity of joining the daughters. The High Court held that the daughters were not necessary parties as they were not claiming any share and the suit was for partition among the male heirs. The court also upheld the plaintiff's share as 2 anna, as determined by the trial court. Consequently, the High Court allowed the appeal, set aside the first appellate court's judgment, and restored the trial court's decree.
Headnote
A) Civil Procedure - Necessary Parties - Non-Joinder - Suit for Partition - Daughters of common ancestor are not necessary parties if they are not claiming any share and the suit is for partition among male heirs - The court held that the daughters Laxmibai and Godabai were not necessary parties as they were not claiming any share and the suit was for partition among the male heirs of Malhari (Paras 6-8). B) Hindu Succession Act, 1956 - Section 6 - Coparcenary Property - Share of Deceased Male Hindu - The share of a deceased male Hindu in coparcenary property devolves by succession under Section 8, not by survivorship, after the 2005 amendment - The court held that the plaintiff's share was correctly determined as 1/3rd of Malhari's 6 anna share, i.e., 2 anna share (Paras 9-10).
Issue of Consideration
Whether the suit for partition is bad for non-joinder of necessary parties, specifically the daughters of the common ancestor, and whether the plaintiff's share is correctly determined.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the decree of the trial court. The suit for partition was decreed in favor of the plaintiff with a 2 anna share.
Law Points
- Partition suit
- necessary parties
- non-joinder
- daughters' share
- Hindu Succession Act
- 1956
- Section 6
- Section 8
- substantial question of law
