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Judgment
P.R. Shivakumar, J.—The defendant in the original suit is the appellant in the second appeal. The respondent herein/plaintiff in the original
suit had filed the suit on the file of the Court of the Principal District Munsif, Thoothukudi for the relief of partition and separate possession claiming
to have half share in the suit properties.
According to the plaint averments, the suit properties, totally 8 items, originally belonged to one Lakkammal (Senior), the mother of both the
appellant and the respondent. She had executed a registered will on 09.11.1979 bequeathing her properties to her two daughters and two grant
daughters, namely the daughters of both the appellant and the respondent. Subsequently, she changed her mind and executed a fresh will on
10.05.1989 cancelling the earlier will and bequeathing all her properties in favour of the appellant and the respondent, who would get the
properties on the death of Lakkammal in equal moieties. The said will being the last will of Lakkammal (Senior) came into force on 02.06.1989,
when she died. Thus the appellant and the respondent are each entitled to a common half share in the suit properties.
The suit was resisted by the appellant/defendant disputing the genuineness of the will dated 10.05.1989 propounded by the respondent/plaintiff.
It was also contended that since the daughter of the respondent/plaintiff, by name Lakkammal (Junior) and one of the daughters of the
appellant/defendant, by name Shanmugalakshmi were also the legatees under the earlier will dated 09.11.1979, they had every right to challenge
the genuineness of the will dated 10.05.1989 propounded by the respondent/plaintiff. It was also contended that subsequent to the execution of the
earlier will dated 09.11.1979, the suit items 3 and 8 were given to Subbulakshmi, another daughter of the appellant/defendant by virtue of a gift
settlement deed; that thereafter the said items of properties ceased to be the properties of the said Lakkammal (Senior) and that hence, they were
not available for partition. With a specific plea of non-joinder of necessary parties in so far as Lakkammal (Junior), the daughter of the plaintiff and
Subbulakshmi and Shanmugalakshmi, daughters of the appellant/defendant had not been made parties to the suit, the defendant had prayed for the
dismissal of the suit.
After framing necessary issues including one regarding non-joinder of necessary parties, the trial Court tried the suit. Upon considering the
evidence adduced on either side, the learned trial Judge held that the suit was bad for non-joinder of necessary parties and hence, could not be
allowed. The learned trial Judge also gave a finding that the will propounded by the respondent/plaintiff dated 10.05.1989 and marked as Ex.A.1
could not be a genuine one. As against the said judgment and decree dismissing the suit, the respondent/plaintiff filed an appeal on the file of the
lower appellate Court, namely Sub Court, Thoothukudi in A.S.No.28 of 1991. The learned Subordinate Judge reversed the finding of the trial
Court regarding the genuineness of Ex.A.1-will dated 10.05.1989. The learned appellate Judge also held that since the dispute was between the
daughters of Lakkammal and the question involved was - whether the suit property should be divided in accordance with Ex.A.1-will?, others
need not have been made parties to the suit and hence, the plea of non-joinder of necessary party must fail. Accordingly, the learned Subordinate
Judge granted a preliminary decree for partition. Hence the appellant/defendant has brought forth this second appeal.
This Court heard the submissions made by Mr. S. Navaneethakrishnan, learned Counsel appearing for the appellant and also by Mr. S.
Meenakshi Sundaram, learned Counsel appearing for the respondent and perused the materials available on record including the judgments of both
the Courts.
The suit was filed praying for a decree for partition and separate possession based on Ex.A.1-will dated 10.05.1989. The appellant/defendant
resisted the suit not only on the ground that the said will was not a genuine one, but also on the ground that the suit was bad for non-joinder of
necessary parties. At the time of admission of the second appeal, the following three issues were framed as substantial questions of law involved in
this case:
(i) Whether the learned Subordinate Judge is correct in upholding the will under Ex.A.1 as validly proved especially when there were various
clouds of suspicious circumstances surrounding its execution?
(ii) Whether the learned Subordinate Judge is correct in holding that the will under Ex.A.1 stands proved when there are lot of discrepancies in the
evidence of the attesting witnesses P.Ws.2 and 3 and the scribe (P.W.14) regarding the manner of execution of the will especially when the
genuineness of Ex.A.1-will itself is disputed? and
(iii) Has not the learned Subordinate Judge committed an error in law in condoning the defect of non-joinder of a necessary party to the suit?
The first two questions are only regarding appreciation of evidence adduced on either side concerning the genuineness of Ex.A.1-will. Both the
questions can be clubbed together and stated precisely as follows:
1) Whether the lower appellate Court has given a perverse finding regarding the genuineness of Ex.A.1-will?.
The third question can also be re-shaped and renumbered as follows:
2) Whether the lower appellate Court has committed an error in law in rejecting the plea of non-joinder of necessary parties?
Admittedly all the 8 items of suit properties originally belonged to the mother of the parties to the suit, namely Lakkammal (Senior) and she
executed a registered will dated 09.11.1979 marked as Ex.B.1 bequeathing all her properties in favour of the respondent/plaintiff, her daughter
Lakkammal (Junior), appellant/defendant and her daughter Shanmugalakshmi. Ex.B.1-will is admitted. The properties have been divided into four
schedules and each schedule was allotted to each one of the legatees therein. Subsequent to the said will, the suit items 3 and 8 were given as gift
to another daughter of the respondent/defendant, by name Subbulakshmi under a registered settlement deed dated 18.09.1981. The original
settlement deed is Ex.B.7. Ex.B.7 has not been disputed by the respondent/plaintiff. Therefore, the contention of the appellant/defendant that the
said items were no longer the properties of the testator Lakkammal (Senior) and that since the relief of partition has been sought for in respect of
those items also, the donee under Ex.B.7, namely Subbulakshmi is the person entitled to resist the suit on that ground and that hence, the suit is bad
for non-joinder of Subbulakshmi, a necessary party so far as items 3 and 8 are concerned, has got to be countenanced.
Similarly, it is not in dispute that not only the plaintiff and the defendant but also the daughter of plaintiff by name Lakkammal (Junior) and one of
the daughters of the defendant, by name Shanmugalakshmi were the legatees under the admitted registered will Ex.B.7. As such, those two
persons are also the persons actually interested in questioning the genuineness and validity of Ex.A.1-will and hence, without any hesitation, it
cannot be said that the failure to make them parties to the suit for partition will definitely affect the suit on the ground of non-joinder of necessary
parties. The learned trial Judge seems to have dealt with the said question in a proper perspective and rendered a correct finding that the suit could
not be allowed, as it was bad for non-joinder of necessary parties. The well considered finding of the trial Court on the question of non-joinder of
necessary parties was lightly dealt with and erroneously reversed by the learned lower appellate Judge. The reasons assigned by the learned lower
appellate Judge for holding that the plea of non-joinder of necessary parties could not be accepted, are not sound. The said finding of the lower
appellate Court is definitely erroneous. Any person who would get the properties of the testator or a share in it as his/her heir, in the event of the
will propounded is defeated, is undoubtedly a necessary party in a suit filed based on such will. In this case, in the event of Ex.A.1-will being
disbelieved, all the legatees under Ex. B.1-will shall be entitled to get the properties of the testator Lakkammal (Senior). Therefore the failure to
make them parties to the suit has made the suit bad for non-joinder of necessary parties. As pointed out supra, Subbulakshmi, the daughter of the
defendant, who got a registered settlement deed in her favour under Ex.B.7 in respect of two items of suit properties is also a person interested in
defeating the claim of the plaintiff for partition in respect of those items. The above said three persons have not been made parties to the suit.
Despite a specific plea having been taken by the appellant/defendant that the suit was bad for non-joinder of necessary parties, in so far as those
three persons were not made parties, the respondent/plaintiff had chosen to proceed with the case without even impleading them as parties to the
suit at least in the latter part of the proceeding. Therefore, this Court comes to the conclusion that the lower appellate Court should not have
reversed the finding of the trial Court regarding the question of non-joinder of necessary parties and that the said finding of the lower appellate
Court has got to be reversed and set aside.
So far as the other question regarding the genuineness of the will is concerned, it shall not be appropriate to decide the same in this case, when
the suit is bound to fail on the question of non-joinder of necessary parties. Therefore, this Court comes to the conclusion that the lower appellate
Court''s judgment and decree should be set aside and the decree of the trial Court dismissing the suit on the ground of non-joinder of necessary
parties should be restored. This Court is also of the view that the other finding supporting the dismissal of the suit, namely the finding that the
plaintiff failed to prove the genuineness of Ex.A.1-will has got to be expunged. The said question shall be left open to be decided in a subsequent
suit, wherein all the necessary parties shall be present.
In the result, this Second Appeal is allowed and the judgment of the lower appellate Court is set aside. The suit shall stand dismissed on the
ground of non-joinder of necessary parties alone. There shall be no order as to payment of costs.