1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.183 OF 1990 Motilal s/o Hiralal Chandalia age 58 years, occup. business, r/of Lasur, Taluka Gangapur, .. Appellant/ District Aurangabad. ori.deft.3 versus 01. Sukhraj s/o Jeevraj Banthia, age 64 years, occup.business, r/of Balaji Galli,Sadar Bazar Jalna, since deceased through his legal heirs:- 1-A. Umrao w/o Sukhraj Banthia age 67 years, occup.household r/of Balaji Galli,Sadar Bazar, Jalna,Taluka & District Jalna since deceased through legal heirs:- 1-AA Nirmalabai Sukhlal Bhatiya, age 45 years, occup.household r/o Badi Sadak, Jalna, Taluka and District Jalna. 2 1-B Chandulal s/o Sukhraj Banthia age 42 years, occupation agent r/of Balaji Galli,Sadar Bazar, Jalna, Taluka & Dist. Jalna. 1-C Ratanlal s/o Sukhraj Banthia age 35 years, occup. agent, r/of Balaji Galli,Sadar Bazar, Jalna, Taluak and Dist.Jalna. 02. Prithviraj s/o Ramchandra Darda, age 84 years, occup. business, r/of near Hanuman Mandir, Gunj Bazar, Latur District Latur, since deceased, through his Legal heirs: 2-A Kanhaiyalalji Prithviraj Darda age 72 years, occup. business, r/of Kirti General Stores, Opp.Bus stand,Main road,Latur. 2-B Jeevfajji Prithviraj Darda, age 65 years,occup.business, resident of Papvnash road, Solapur Galli, near Balaji Temple, Main road, Latur. 3 2-C Sukhrajji Prithviraj Darda, age 63 years, occup.busines, r/of Ravi Dresses,Main road, Latur. 2-D. Pukhrajji Prithviraj Darda, age 63 years, occup.business, resident of Subhash Chowk, above Airtel Office,main road, Latur. 03. Harakchand s/o Moolchand Darda since deceased, through his legal heir: 3-A Amarchandji Harakchandji Darda age 68 years, occup. business r/o as above. 4. Nagar District Urban Central Co-operative Bank Limited, Ahmednagar, Branch Jalna, through Manager. -------------------------------------------------- Shri S.B.Bhapkar, Advocate, for the appellant. Shri S.V. Gangapurwala, Advocate, for Respondent No.1A to 1C and 2A to 2D. Shri P.N. Sonpethkar, Advocate for Respondent No.2-AA. -------------------------------------------------- 4 Coram: P.R. Borkar J. Date: Augustg 6,2009 Oral Judgment 01. This first appeal is directed against the judgment and decree passed by the learned Civil Judge, Senior Division, Jalna in Special Civil Suit No.50 of 1985 decided on 8.6.1989, thereby declaring that the plaintiff - respondent No.1 herein is the owner of the contents of locker No. 18 in defendant No.4-Jalna Branch of Ahmednagar District Urban Central Cooperative Bank Ltd which is respondent No.4 in the present appeal. 02. At this stage an important point canvassed before me is whether the suit, without joining Kantabai and Shantabai as parties (to the suit), is bad for non-joinder of necessary parties. In case I hold that they are necessary parties, obvious result would be to give opportunity to plaintiff-respondent No.1 herein to add them as parties to the suit. In case, I concur with the finding on issue No.17 by the 5 trial court, naturally I will have to proceed with further hearing of the appeal. I am, therefore, first dealing with the issue whether the suit is bad for non-joinder of necessary parties. 03. Some of the facts giving rise to this appeal can be stated thus; One Inderchand was the original ancestor who had three sons viz. Hiralal, Jorawarmal and Chunilal. Admittedly, Chunnilal died issueless. Hiralal was surviving by his wife Kabbubai and son Nimichand both of whom are now dead. Nemichand survived by his wife Sayarabai and two daughters namely Shantabai and Kantabai. Admittedly Sayarabai expired. Jorawarmal survived by daughter Rajkunwarbai. Present Plaintiff-respondent No. 1 claims to be adopted son of said Rajkunwarbai. Some of the dates are relevant. Inderchand, Hiralal and Chunnilal died prior to death of Jorawarmal. Jorawarmal died on 13.10.1968. Rajkunwarbai died on 3.9.1985. Kabbubai, Nemichand and Sayarabai also expired prior to 6 filing of the suit. It is not in dispute that Jorawarmal was having a sarafa ( jewellery )shop at Jalna and he was also working as Munim in some firm. It is also not disputed and it is evident from the record, particularly certified copies of plaint in R.C.S. No.62 of 1980 produced on record that Rajkunwarbai, Shantabai and Kantabai had jointly filed suit against original plaintiff and defendant Nos. 1 to 3 in this litigation. 04. It is necessary to reproduce the contents of plaint in R.C.S. No.62 of 1980 to know what stand at one time said Rajkunwarbai had taken in respect of subject matter of the present suit because that would be relevant in determining whether Shantabai and Kantabai were necessary parties to the present suit. After mentioning relations between the parties in paragraph 1 of plaint in R.C.S. No.62 of 1980 referred to above, it is further stated in 7 plaint para 2 of the said suit that Hiralal, Jorawarmal and Chunilal were three brothers. Hiralal and Chunilal died long before 1956. Chunilal died leaving no legal heir whereas Hiralal died leaving behind his wife Kabubai who also died in the year 1972 and son Nemichand died in the year 1966 leaving behind his wife Sayrabai and two daughters namely Shantabai and Kantabai- plaintiff Nos.2 and 3 respectively in the said R.C.S. No.62 of 1980. Sayarabai died prior to filing of the suit. Jorawarmal died in the year 1970 leaving behind plaintiff No.1 Rajkunwarbai as his only heir. All three brothers Hiralal, Jorawarmal and Chunilal were members of the joint family till their deaths and even till filing of the said suit no partition of their joint family property had taken place. Only plaintiffs i.e. Rajkunwarbai, Kantabai and Shantabai were surviving members of the joint family. In plaint paragraph 3, it is further stated that Jorawarmal was karta of the joint family and therefore all things were in his hands. Before his death, Jorawarmal executed a registered will deed of all 8 landed and movable property of the joint Hindu family in his hands and a copy of the said will was also attached to the plaint and it is further stated that Jorawarmal distributed landed property of joint family, to the extent of 1/2 in favour of plaintiff No.1 Rajkunwarbai and remaining 1/2 jointly in favour of Shantabai and Kantabai- plaintiff Nos. 2 and 3 respectively. In paragraph 3 of the plaint, it is further stated that plaintiff No.1 Rajkunwarbai was entitled to 1/2 share and plaintiff Nos. 2 and 3 Shantabai and Kantabai were jointly entitled to 1/2 share in the joint family property of the three brothers which was in the name of Jorawarmal as Karta of the joint family. In paragraph 4 of the plaint, it is stated that after the death of Jorawarmal, there was no male member in the family and plaintiff Nos.2 and 3 (Shantabai and Kantabai) were living at their matrimonial houses and family had movable property, such as gold ornaments which were to be kept in a locker in present respondent No.4 bank. 9 Rajkunwarbai was not able to sign. Plaintiffs wanted to keep the gold ornaments in a locker and, therefore, locker was opened under joint signatures of present appellant and respondent Nos.1 to 3 with understanding that they would come and sign and open the locker as and when required by plaintiff Nos.1 to 3 in the said suit (i.e. Rajkunwarbai, Shantabai and Kantabai). It is specifically stated that though the locker stands in the name of present appellant and respondent Nos.1 to 3, still the plaintiffs in the said suit were entitled to movable property i.e.gold ornaments in the locker. The details of the shares in the properties to which the respective plaintiffs were entitled are given and ultimately it is said that since present appellant and respondent Nos.1 to 3 refused to come and open the locker, the suit is filed. The prayer clauses in said R.C.S. Nos. 62 of 1980 were as follows; "(1) that the plaintiff No. 1 to 3 may kindly be declared owner (and) are entitled to the extent of 1/2 to the plaintiff No.2 & 3 jointly of the 10 total movable property gold ornaments etc. in the Bank locker No.____ of the Nagar District Urban Central Co-op. Bank Ltd. Ahmedngar, Branch Jalna. (2) That the mandatory injunction may kindly be issued against the deft. Nos.1 to 4 so that they should come and sign in the said Bank to open the locker No.___ of the Bank." 05. It is, therefore, clear from the contents of the plaint in R.C.S. No.62 of 1980 reproduced hereinabove that at one point of time Rajkunwarbai (through whom respondent No.1-plaintiff claims his rights both as adoptive son and as a legatee admitted that the articles/gold ornaments kept in locker were belonging not only to Rajkunwarbai but also Shantabai and Kantabai. 06. It must also be stated at this stage that as can be seen from the document at Exhibit 41 Rajkunwarbai-plaintiff No.1 in RCS 62/1980 had filed an application on 11.3.1983 disowning the contents in the plaint and prayed for permission 11 to withdraw the suit unconditionally. So far as plaintiff Nos. 2 and 3 in that suit are concerned, they had no objection for withdrawal of suit but they had denied the reason given for withdrawal i.e. that they misled Rajkunwarbai. It is also no more disputed that subsequently, the suit was also withdrawn by plaintiff Nos.2 and 3 with permission to file fresh suit on the same cause of action. 07. The question is when as per the contents of the plaint in R.C.S. No.62 of 1980 present appellant and Respondent Nos. 1 to 3 have no concern with the ornaments kept in the locker with respondent no.4-bank being only trustees for the plaintiffs, can it be said that present respondent No.1-plaintiff has right to declaration that he is exclusively entitled to all articles kept in locker, without making Shantabai and Kantabai as parties to the suit. One thing is absolutely clear that plaintiff-respondent No.1 claims his right only through Rajkunwarbai and he will have to cross the hurdle, namely, the admissions given by Rajkunwarbai in the plaint in 12 R.C.S. No.62 of 1980 before he proves his case in present suit. 08. In my considered opinion when the above said documents regarding R.C.S. No.62 of 1980 are produced by respondent No.1-plaintiff in present suit No.50 of 1985 with list Exhibit 4, it cannot be said that he was not aware of the same. Under the circumstances, the court cannot give declaration sought for by respondent No.1- plaintiff regarding ownership of the articles /gold ornaments kept in the locker with respondent No.4-bank nor it is possible for this court to uphold the finding/decree of the trial court that Shantabai and Kantabai are not necessary party to the suit. It may be noted that, in fact, in the absence of Shantabai and Kantabai, effective and complete adjudication of the issues involved in present special civil suit No.50/1985 cannot be made. Whether R.C.S. No.62 of 1980 was filed by misleading Rajkunwarbai (plaintiff No.3) by plaintiff Nos.2 and 3 therein is also an issue which has to be decided in presence of Shantabai 13 and Kantabai and not behind their back without adding them as parties to present special civil suit No.50/1985. 09. At this stage, I may state that Shri S.V.Gangapurwala, learned Advocate for respondent Nos.1A to 1D and 2A to 2C informed that Kantabai is also dead. So, her legal heirs have right to be heard in the matter. 10. Shri Sonpethkar, learned counsel for Respondent No.2AA drew my attention to paragraphs 49, 50, 51 and 71 of the trial court judgment judgment. In my opinion, the trial court has completely misled itself in holding that Kantabai and Shantabai were not necessary parties to the suit. The trial court has not considered that the plaint in R.C.S. No.62 of 1980 contains certain admissions. The plaint is duly verified. The said admissions having been given by plaintiff No.1 Rajkunwarbai, those will have to be explained properly before present plaintiff-respondent No.1 can succeed. Paragraph 49 of the judgment shows 14 confusion in mind. In one breath the learned Judge stated that the property belongs to Rajkunwarbai and then he stated that it belongs to Jorawarmal. But the learned Judge did not hold that the contents of the plaint in R.C.S. No.62 of 1980 that those ornaments were not belonging to joint family of Jorawarmal and his two brothers. That aspect could be examined only after making Kantabai and Shantabai as parties to the suit. Even in paragraph 71, wherein issue No.17 regarding misjoinder of necessary parties is discussed, hardly we find any discussion with reference to the contents of the plaint in R.C.S. No.62 of 1980 referred to above. 11. Shri Gangapurwala, learned counsel for Respondent Nos.1A to 1D and 2A to 2C submitted before me that Shantabai and Kantabai were not the successors of Jorawarmal who was owner of the ornaments and that Rajkunwarbai was Class I heir and present plaintiff No.1 is son of Rajkunwarbai. However, fallacy of the argument lies in the fact that in the plaint in R.C.S. No.62 of 1980 it is 15 specifically mentioned that the movable property in the hands of Jorawarmal was of the joint family and plaintiff Nos. 2 and 3 in that suit have 1/2 share in the said ornaments jointly. Even if it is assumed for the sake of argument that present respondent no.1-plaintiff is the only heir of Rajkunwarbai and Rajkunwarbai was the only heir of Jorawarmal, still that by itself will not be sufficient to give declaration sought for by respondent No.1-plaintiff in absence of necessary parties i.e. Shantabai and Kantabai. It is also argued before me that though Shantabai and Kantabai withdrew R.C.S. No.62 of 1980 with permission to file fresh suit,they did not file such fresh suit. However, that will not take away their ownership right, not at least without making them parties to the suit. This court, therefore, will not be able to give any declaration against Shantabai and Kantabai in their absence. Present appellant is said to be husband of Shantabai, but Advocate Shri Bhapkar made it clear that he does not represent Shantabai. Shri Bhapkar Advocate submitted that his client is added as party in his 16 own right as signatory and person shown as owner of the locker in question. 12. Thus after adverting to the submissions advanced before me, I am of the opinion that Shantabai and Kantabai are necessary parties to special civil suit No.50 of 1985 and since kantabai is dead, her legal representatives are necessary parties to the suit and the suit cannot be completely and effectively adjudicated in their absence. The Plaintiff-Respondent No.1, therefore, should be given an opportunity to add them as parties to the suit and the suit can be decided afresh thereafter they are heard in the matter. 13. In the circumstances, this first appeal is allowed. The judgment and decree passed by the trial court in Special Civil Suit No.50 of 1985 on 8.6.1989 is set aside. The matter is remanded back to the Court of Civil Judge, Senior Division,Jalna with directions to take said Special Civil Suit No.50 of 1985 on record, give liberty to bring heirs of original plaintiff 17 Sukhraj on record of Special Civil Suit No.50 of 1985. Since present respondent Nos.2 and 3 are also dead their legal heirs (who have been brought on record in the present appeal) will have to be brought on record of Special Civil Suit No.50 of 1985. New plaintiffs (heirs of original plaintiff Sukhraj) shall be given liberty to add Shantabai and legal heirs of Kantabai as parties to the suit. If the plaintiffs wants to amend the plaint in view of addition of Shatabai and heirs of Kantabai, they will be given such liberty. Newly added parties (defendants) shall have an opportunity to file their written statements and thereafter issues be framed and the matter be decided afresh after giving opportunity to all the parties. Any of the witnesses already examined, if required, may be recalled for his further examination-in-chief and cross examination. Legal heirs of respondent No.1-plaintiff and appellant undertake to appear before trial 18 court on 15.9.2009. The Registry of this Court is directed to send back record and proceedings and copy of this order to the trial court forthwith. While sending record and proceedings to trial court, copy of the report dated 8.9.2009 made by the Principal District Judge, Jalna to the Registrar (Administration) High Court, Bombay, Bench at Aurangabad, together with its accompaniments, which contains description of the contents of locker No.18 with Respondent No.4 bank be sent to the court of Civil Judge, Senior Division, Jalna. Sealed packet containing second key of locker No.8 mentioned in the letter dated 6.6.2009 from Manager Nagar Urban Cooperative Bank, Ahmednagar, Branch Jalna to the Registrar (Administration) of this Court be sent with necessary security to the Civil Judge, Senior Division, Jalna and the acknowledgment of the same be kept with the office with copy thereof in the papers of this appeal. Parties before this court agree to cooperate with the trial court for early disposal 19 of the suit. Learned trial court is directed to decide the suit as expeditiously as possible on its own merits as per the evidence led before it. Interim injunction issued against respondent no.4-bank for not allowing withdrawal of contents in the locker in question to continue till disposal of the suit. pnd/fa183.90 (P.R.BORKAR, J.)