Case: Devidas And Others Vs. Shrishailappa And Others

that property also the three branches were divided and it was since the partition of their tenancy-in-common. It was the case of the plaintiffs that the property was not divided by metes and bounds, as it could not be, pending the settlement of the disputes.11. After the case reached the High Court after remand, counsel for the appellants raised an argument about non-joinder of Parvatewa- step-mother of the plaintiff. It was urged that the suit as framed was defective and was bound to fail. Parvatewa was undoubtedly interested in the mortgagee right and was not joined as a party to the suit. But no objection as to non-joinder was raised in the trial court. After the finding of the trial court was received, Parvatewa applied to be joined as a party respondent in the appeal and that application was granted by the High Court. Relying upon the application and the order passed by the High Court, counsel for the appellants urged that the suit filed by the plaintiffs was not properly constituted because all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage. The partition of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint family status between members of these three branches inter se was severed. Plaintiff No. 1 was the manager of the branch of Basavanappa and when he filed the suit for enforcement of the mortgage, he must be deemed to have filed it as manager of that branch and the allegations in the plaint especially in paragraph 4 make it abundantly clear that the suit was filed on behalf of the branch of Basavanappa. Plaintiff No. 1 therefore represented all the members of that branch having an interest in the property.12. In Guruvayya Gowda v. Dattatraya Anant, ILR 28 Bom 11, it was held that the question of the right of a manager to sue in that capacity in one of authority, if the other co-sharers are adults, and the right to insist on the other coparceners being brought on the record is for the benefit of the defendant to insure himself against further litigation and is therefore dependent on the objection being taken at an early stage, the objection on the score of want of authorisation being one of a character which it is clearly open to the defendant to waive. Parvatewa was in the suit as constituted not a necessary party. It is true that she was interested in the mortgage security and could have been joined as a proper party; but failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of S. 22 of the Indian Limitation Act. The rule that a person who ought to have been joined as a plaintiff to the suit and is not made a party will entail dismissal of the suit, if the suit as regards him be barred by limitation when he is joined, has no application to non-joinder of proper parties. In Guruvayyas case, ILR 28 Bom 11, a suit to recover possession of a house was originally brought by two plaintiffs, the second plaintiff being described as the manager of the family. At a late stage of the suit, defendants raised an objection that the other members of the family had not been joined. The trial court allowed the application filed by the other members to be joined as parties and decreed the suit; but the appellate court dismissed the suit holding that it was barred because of S. 22 of the Limitation Act. The High Court held that S. 22 of the Limitation Act does not in itself purport to determine directly whether the joinder of the parties after the institution of a suit in all cases necessarily involves the bar of limitation if the period prescribed for such a suit has then expired. Such a result must depend upon whether the joinder was necessary to enable the court to award such relief as may be given in the suit as framed. If fresh parties are merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination of the date of the institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit and will not attract the application of the general provisions of the Limitation Act.13. Plaintiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 had the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must be regarded as instituted by plaintiff No, 1 in his capacity as manager and he must be deemed to represent all the members of his branch of the family, males as well as females. Addition to the suit of any member of the branch to which the plaintiff belonged would only mean setting out the name of such a person eo nomine.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It appears from entries in the record of rights that Rachappa received at the partition lands producing annually 86 bags of paddy, defendants 5 to 8 received lands producing 92 bags of paddy and Basalingappa received for his share lands producing 89 bags of paddy. It also appears from the village Panchayat extracts that the family was possessed in 1938-39, to 30 houses which stood in Rachappas name as manager and the total rental of those houses was Rs. 1,262/-. These 30 houses were also divided : 16 houses were allotted to defendants 5 to 8. 10 houses to Rachappa and 3 houses to the plaintiffs and this division was not shown to be unequal.is true that Rachappa stated that a tippan of the family properties was made at the time of partition, but he also stated that the tippan was not with him. Defendant No. 5 - Mallappa -stated that Basalingappa (father of the plaintiffs) had prepared a tippan but signatures were not taken thereon and it remained with Basalingappa. He further stated that the "tippan was not worth preserving". The plaintiffs stated that the tippan was not with them. If in the course of the trial, the Court is satisfied that a document having an important bearing on the dispute which is pending trial is withheld by a party, an inference adverse to the party withholding the document that if produced, the document would not support that partys case may properly arise.But there is no evidence on the record to show that the tippan was with the plaintiffs or within their power and it was withheld form the Court. Basalingappa - the plaintiffs father - is dead; Rachappa and Mallappa stated that the tippan was not with them, and in the absence of any evidence to show that the tippan was with the plaintiffs or other person in the same interest as the plaintiffs, and it was not produced, we think that the trail Court was right in refusing to raise an adverse inference against the plaintiffs. It may also be observed that the high Court examined the evidence in the light of an adverse inference against the plaintiffs and still accepted the evidence of Maflappa. It is also true that out of the four Panchas who assisted in making the partition two were alive at the date of the trial but they were not examined. We do not think that failure to examine the Panchas by itself is a circumstance which should be sufficient to negative the case of the plaintiffs. Counsel for the appellants it right in contending that Rachappa had made statements in the course of execution proceedings commenced by Gurappa suggesting that he was the sole owner of the mortgage right and his testimony to the contrary at the trial wasstatements made by Rachappa are inconsistent with the testimony given by him in the course of the trial in the suit. If the success of the plaintiffs case depended largely upon the testimony of Rachappa having regard to the inconsistent statements made by him, the plaintiffs case may have failed. But the evidence of the plaintiffs is supported by the evidence of defendant No. 5 and the division of the remaining properties in 1939. Nothing has been elicited in the evidence which would suggest that the story of defendant No. 5 is unreliable. It is true that this witness was not examined before the case was remanded but that in our judgment in not a ground for discarding hisis true that the mutation entries made in 1939 in respect of lands in these three villages were not produced. But the trial court took the view that these lands belonged to the joint family and had fallen to the share of Rachappa at the partition. It appears from the record of rights entries that a majority of the lands in Tivoli were mutated in the name of Rachappa under one entry. Similarly, the lands in Kupadgeri were also mutated under one entry. This would indicate in the light of the evidence of Mallappa that all these lands had fallen to the share of Rachappa under one transaction and even in the absence of mutation entries an inference may reasonably be made that mutation was pursuant to the partition. There is no evidence that Rachappa was, apart from the property of the joint family, possessed of any other property with the aid of which he could have purchased these properties. It is true that in respect of villages Badas and Itagi even the record of rights extracts for the year 1939-40 were not produced; but the trial judge accepted the evidence of defendant No. 5 that these properties had fallen to the share of Rachappa. On behalf of the appellants no attempt was made to controvert this statement. On the materials placed before him, the trial judge came to the conclusion that the lands in the five villages of Chappagaon, Tivoli, Kupadgeri, Badas and Itagi were properties belonging to the joint family and at the partition they had fallen to the share of Rachappa and that finding was approved by the High Court. We would not be justified in an appeal with special leave in discarding that finding because some other evidence which could have been brought before the court in support thereof was notpartition of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint family status between members of these three branches inter se was severed. Plaintiff No. 1 was the manager of the branch of Basavanappa and when he filed the suit for enforcement of the mortgage, he must be deemed to have filed it as manager of that branch and the allegations in the plaint especially in paragraph 4 make it abundantly clear that the suit was filed on behalf of the branch of Basavanappa. Plaintiff No. 1 therefore represented all the members of that branch having an interest in the property.Plaintiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 had the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must be regarded as instituted by plaintiff No, 1 in his capacity as manager and he must be deemed to represent all the members of his branch of the family, males as well as females. Addition to the suit of any member of the branch to which the plaintiff belonged would only mean setting out the name of such a person eo nomine.