B.S. Swaminatha Iyer and another vs Alagarswami Chettiar and others

Ramaswami, J.—The short point in this revision is whether certain creditors who have obtained decrees can be made parties before the final

decree stage to a partition suit which has been filed by the sons of the judgment debtor against the father judgment debtor and where they have

obtained a preliminary decree and in which proceedings these creditors could not intervene at an earlier stage and come on record by reason of the

fact that the Official Receiver who was on record and supposed to be vigilant about their interests also did not for reasons with which we are not

concerned and over which he probably had no control himself and represent and press their interests as well as the debtor''s interests. In my

opinion these creditors can be brought on record after the passing of the preliminary decree and before the passing of the final decree for the

following three reasons:

First of all the sum and substance of a partition suit is the finding out of the assets and the liabilities and the distribution of the residue to the

various coparceners entitled to share at the partition. There is no point in these creditors now being left out and their being relegated to the separate

suits because that would only add to costs and trouble to these coparceners and reduce the shares which they would ultimately obtain.

There is the authority for the proposition that in the circumstances the creditors can be brought on record as proper and/or necessary parties

before the final decree proceedings and they are Ramaswami Chettiar v. Vellayappa Chettiar 60 M.L.J. 22=-33 L.W. 734, Venku Reddi v.

Venku Reddi 50 Mad. 535, 539=25 L.W. 784, Baluswami Iyer, In re 51 Mad. 417 at 447=28 L.W. 109., Shanmuka Nadar v Arunachalam

Chetti 46 Mad. 194 at 198, 1991 4 L.W. 642., Subramania Iyer v. Sabapathi Iyer 51 Mad. 861 at 416 = 27 L.W. 688., Pannalal v. Mst. Naraini

(1952) 2 M.L.J. 83 at 90 =66 L. W.511 (S.C.). See also the provision made in Chapter III Part II, Civil Rules of Practice and Circular Orders

prescribed by this Court, Volume 1, 2nd Edn. page 261, and following rules relating to partition suits under the Code and under the Partition Act,

1893.

Thirdly even from the point of view of the respondent sons before me this imploding is very necessary because it is their case that there was

disruption of the joint family status even before the filing of the partition suit and that these debts are not binding upon them even if they are shown

as true and subsisting debts. They cannot escape the decision of this question at one stage r other or in separate proceedings or here and they can

agitate the matter better here and in fact the creditors are only assisting them to find out the character of the joint family status and the truth and

validity and the binding nature of these debts and avoid further complications for themselves.

Therefore looked at from any point of view the creditors can be brought on record as prepared for necessary parties to the partition suit which

is still in the stage of a Commissioner having been appointed and report being filed and no final decree having passed and the passing of which

being stayed. This will obviate vexatious multiplicity of litigation.

The result is the order of the lower Court is set aside and the Civil Revision Petitions are allowed and both parties are at liberty to adduce any

evidence which they desire in support of the contentions advanced by them. The costs of these Civil Revision Petitions will be provided for in the

ultimate decree and judgment to be passed in the suits.