Smt. Anjinamma Vs Sri Nagaraj

MUNIRAJU, S/O. LATE ANJANAPPA, AGED ABOUT 67 YEARS, R/AT HANCHARAHALLI VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU DISTRICT – 560 049. NOW R/AT NO.1, MURTHAPPA GARDEN, 6^TH STAGE, SARAKKI KERE, J.P. NAGAR, BENGALURU – 560 078.

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SMT. UMADEVI, W/O. SRI. A. MUNIRAJU, AGED ABOUT 64 YEARS, R/AT NO.1, MURTHAPPA GARDEN, 6^TH STAGE, SARAKKI KERE, J.P. NAGAR, BENGALURU – 560 078

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…PETITIONERS

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(BY SRI. PRASANNA B .R., ADVOCATE)

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HC-KAR

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AND:

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SRI NAGARAJ S/O. ANJANAPPA, AGED ABOUT 54 YEARS, R/AT HANCHARAHALLI VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU DISTRICT – 560 049.

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SRI. VENKATESHAPPA, S/O. LATE ANJINAPPA, AGED ABOUT 68 YEARS, R/AT HANCHARAHALLI VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU DISTRICT – 560 049.

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SRI. H. M. MANJUNATHA, S/O LATE A. MUNIRAJU, AGED ABOUT 47 YEARS, R/AT, NO.1, MURTHAPPA GARDEN, 6^TH STAGE, SARAKKI KERE, J.P. NAGAR, BENGALURU – 560 078.

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SRI. NARAYANAPPA, S/O LATE ANJINAPPA, AGED ABOUT 61 YEARS,

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SRI. SUBRAMANI, S/O LATE ANJINAPPA, AGED ABOUT 51 YEARS,

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RESPONDENTS NO.4 & 5 ARE R/AT HANCHARAHALLI VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU DISTRICT – 560 049.

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SRI. SANTHAKUMAR MALAGI, S/O. LATE HANUMANTHAPPA, AGED ABOUT 67 YEARS, R/AT DOOR NO.86, COMMERCIAL STREET, BENGALURU – 560 001.

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SMT. T. SASIKALA, D/O. P. NARAYANA PILLAI, AGED ABOUT 61 YEARS, R/AT, NO.181, HMT LAYOUT, 6^TH MAIN ROAD, 9^TH CROSS, R.T. NAGAR, BENGALURU – 560 032.

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SRI. R. PANCHAKSHARAM NAIDU @ R.P KUMAR, S/O. LATE RAMACHANDRA NAIDU, AGED ABOUT 79 YEARS, R/AT NO.515, CMH ROAD, INDIRANAGARA, BENGALURU – 560 008.

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…RESPONDENTS

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THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD. 18.12.2025 IN O.S.NO.1316/2007 PASSED BY THE VII ADDL. SENIOR CIVIL JUDGE AND JMFC BENGALURU RURAL AT BENGALURU VIDE ANNX-G.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the defendant Nos.1(a), 1(b), 3 and 3(a) in O.S.No.1316/2007 is directed against the impugned order dated 18.12.2025, whereby the memo filed by the plaintiff seeking withdrawal of the suit with liberty to file a fresh suit was allowed by the trial Court.

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Heard learned counsel for the petitioner and perused

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the material on record. For the order proposed, notice to respondent is dispensed with.

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A perusal of the material on record will indicate that the respondent Nos.1 and 2 - plaintiffs instituted the aforesaid suit against the petitioners and respondent Nos.3 to 8 for partition and separate possession of their alleged share in the suit schedule properties and for other reliefs. During the pendency of the suit, the plaintiffs filed a memo seeking withdrawal of the suit with liberty to file a fresh suit. The said memo was accepted by the Trial Court by passing the impugned order, which is assailed in the present petition.

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Before averting to the contentions urged by the petitioner, it is relevant to extract the memo filed by the plaintiffs which reads as under:

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“MEMO

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In view of the fact that some of the joint family properties were not included in the present suit and also some of the parties were left out in the present suit, to add all the joint family properties which are available for partition

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and also to make proper parties to the suit, the plaintiffs intends to file a fresh suit by withdrawing the present suit. Hence, the plaintiffs hereby pray that this Hon’ble Court be pleased to permit the plaintiffs to withdraw the above suit with a liberty to file a fresh case in the interest of justice and equity.”

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The said memo was accepted by the trial Court by passing the impugned order by placing reliance on the judgment of division bench of this Court in the case of S.K.Lakshminarasappa,

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Vs. B. Rudraiah and Ors - ILR 2012 KAR 4129 , as hereunder:

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“Counsel for the plaintiff filed memo stating that some of the properties are not inserted and hence the plaintiffs are intending to withdraw the suit seeking liberty to file fresh suit.

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Suit is filed for the relief of partition and until and unless final decree is drawn any number of suits can be filed for this, this Court relies upon ILR 2012 KAR 4129.

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Hence, suit is dismissed as withdrawn.”

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6. In Lakshminarsappa's case supra, the Division

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Bench of this Court held as under:

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(2) SUIT FOR PARTITION - NECESSARY PARTY

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54. Plaintiff is the dominus litus. He cannot be compelled to sue a person against whom he does not claim any relief. Doctrine of ‘dominus litus’ is applied to one who though not originally a party has made himself one, by intervention or otherwise, and has assumed the entire control and responsibility for one side, and is treated by the Court as liable for costs as a person who is really and directly in this suit as a party. The theory of dominus litus, however, should not be overstretched in the matter of impleading of parties, because it is the duty of the Court to ensure that if for deciding the real matter in dispute, a person is a necessary party, the Court can order such person to be impleaded. It is the settled law that it is open to the Court to add any such person as necessary party in the suit to enable the Court to effectively adjudicate the question involved in the suit.

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55. Order 1 of CPC deals with parties to suits. Order 1 Rule 1 deals with the question as to who may be joined as plaintiffs; whereas, Order 1 Rule 3 stipulates who may be joined as defendants. Order 1 Rule 9 mandates that no suit shall be defeated by reason of mis-joinder or nonjoinder of parties and Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. The proviso to the said rule makes it clear that, nothing in the said rule shall apply to non-joinder of a necessary party. Order 1 Rule 10(2) gives jurisdiction to the Court to order that the name

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of any person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added at any stage of the proceedings. Sub-Rule (2) provides for the addition of (1) necessary parties, and (2) of proper parties.

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56. Therefore, it is necessary to find out who is a necessary party and who is a proper party to the suit. For determining the question who is a necessary party, there are two tests, one there must be a right to some relief against such party in respect of the matter involved in the proceedings in question; second - it should not be possible to pass an effective decree in the absence of such a party. An eventual interest of a party in the fruits of litigation cannot be held to be the true test for impleading a party. Persons who ought to have been joined as parties are called necessary parties, i.e., persons in whose absence the Court will not be able to give effective decree at all. Therefore, a necessary party is a party without whose presence a suit cannot be proceeded with, i.e., a party necessary to the constitution of the suit without whom no decree can at all be passed. Failure to implead a necessary party as a party to the proceeding is fatal to a suit.

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57. A person is a proper party if his presence enables the Court to adjudicate upon the questions raised in a suit more effectively and completely. A proper party is

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one in whose absence, an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Proper parties are those whose presence enable the Court to adjudicate the issues more ‘effectually and completely’. A person may be impleaded as a defendant to a suit, though no relief may be claimed against him, provided his presence is necessary for a complete and final decision of the questions involved in the suit. Such a person is called a proper party as distinguished from necessary party.

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58. As regards non-joinder of parties, a distinction has been drawn between the non-joinder of a person who ought to have been joined as a party and the non-joinder of a person whose joinder is only a matter of convenience or expediency. This is because Order 1 Rule 9 is a rule of procedure which does not affect the substantive law. If a decree cannot be effective without the absent parties, the suit is liable to be dismissed. A necessary party is one in whose absence the Court cannot pass an effective decree. Ordinarily, a decree does not bind a person who is not impleaded eo nomine in a suit. The words ‘so far as regards the rights and interests of the parties already before it’ in the rule show that the rights of parties not before the Court cannot be adjudicated. In cases where joinder of a person as a party is only a matter of convenience, the absent party may be added or the suit may be tried without him. It is in this context that the distinction between a necessary and a proper party becomes material. Except where there is a legal bar to the

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maintainability of a suit by reason of non-joinder of a party, or where in his absence, the decree that may be passed might become infructuous or inexecutable, the Court cannot dismiss a suit for non-joinder of a person. When the question is such that it can be decided between the parties to the suit, the Court cannot decline to do so because third persons might be interested therein. The plea of nonjoinder must be raised at the earliest opportunity and the party raising the plea should specifically state the persons who should have been impleaded.

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59. In a partition suit, all co-parceners must be before Court either as plaintiffs or as defendants. Any coparcener or co-sharer who sues for partition of property must make the other co-parceners or co-sharers as defendants because the partition which is made in his favour is a partition against his co-parceners or co-sharers. Any decree which gives him a portion of property takes away all rights which they, i.e., the others co-parceners or co-sharers would otherwise have to that portion, and therefore, it is a decree against them and in his favour. A decree for partition made in a suit instituted by a member of Joint Hindu Family is therefore res judicata as between all who are parties to the suit. Besides the co-parceners, the wife, the mother, grand-mother or other legal heirs, are necessary parties to the suit when they are entitled to a share on a partition having succeeded to the estate of such co-parceners or co-sharers. When the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties. Of course, in such a

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case, it is open to the others to apply to be made parties. Those members of the family who are entitled to maintenance would be proper parties to a suit for partition. So too, the joinder of creditors and in particular decree holders as well as mortgages as defendants may be proper in cases where their claims are disputed. Every coparcener and every purchaser of the interest of a coparcener is entitled to institute a suit for partition.

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60. In Section 333 of Mulla's Hindu Law 17^th Edition at page 537 dealing with the question as to who should be the parties to the suit, it is stated as under:—

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a) The plaintiff in a partition suit should implead as defendants:—

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(i) the heads of all branches;

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(ii) females who are entitled to a share on partition:

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(iii) the purchaser of a portion of the plaintiff's share, the plaintiff himself being a coparcener;

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(iv) if the plaintiff himself is a purchaser from a coparcener, his alienor.

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b) It is desirable that the following persons should be made parties; though not necessary parties, they are proper parties to such a suit:

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(a) a mortgagee with possession of the family property or of the undivided interest of a coparcener;

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(ii) simple mortgagees of specific items of the family property;

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(iii) purchaser of the undivided interest of a coparcener;

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(iv) persons entitled to provision for their maintenance and marriage, that is, widows, daughters, sisters and such like and distinguished heirs;

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(v) any person entitled to maintenance from the family, the plaintiff may also plead any other coparcener or any person interested in the family property such as a mortgage or a lessee. Such a person may himself apply and be made a party.”

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61. In a suit for partition, at the stage of passing of a preliminary decree for partition, the only question that needs to be adjudicated by the Trial Court is, whether the property in question is a co-parcenery property or a joint family property and if so, what is the share to which these family members are entitled to. For the declaration of such shares, the presence of alienees is not necessary. Even in their absence the suit of the plaintiff can be adjudicated upon and their presence is in no way necessary for the Court to determine the questions involved in the suit. It is only after declaration of shares, at the stage of dividing the property by metes and bounds and putting them in possession of the extent of the share so declared, the character, validity and the nature of alienations have to be taken note of. It is at that stage, it is necessary to hear the persons who are claiming title through such members of the family and who have parted with valuable consideration and who are in possession of the property. This is because if they have to be dispossessed from the property, if their sale deeds are to be annulled, they have to be heard. Therefore, a suit for partition cannot be dismissed on the ground of non-joinder of these third parties/strangers to the

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family. A suit for partition can be dismissed only if the members of the family who have an interest in the property are not made parties as they are the only necessary parties to the suit. At worst if a person other than a necessary party is not made a party to the suit, the decree passed in their absence may not bind them, if they are claiming any independent title to the property being in possession of the same. If members of a joint family file a suit for partition without impleading alienees and collude and get a decree passed affecting the interest of alienees, the said collusive decree being void, as alienees being not made parties and such a decree does not in any way affect their interests. But, a suit for partition cannot be dismissed on that ground.

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62. In a suit for partition not only those who are entitled to a share in the joint family property but also those persons who are entitled to maintenance and also those persons for whose marriages provision has to be made from out of the funds of joint family property are necessary parties. A transferee of an item of property from the vendee who purchased it from a party to the suit is not directly a transferee and therefore there is no nexus between the transferee and the party to the suit from whom the property was purchased. Therefore, such transferee is not a necessary party to the suit. In a suit for partition of properties of a Joint Hindu Family, there is no legal bar even after a preliminary decree had been passed, in an appropriate circumstances to add a party under Order 1 Rule 10, in the final decree proceedings if the Court thinks that the addition of such party is necessary to adjudicate

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upon all questions effectively and completely. The proceedings in a partition suit do not become final unless the final decree is passed. It is only the final decree that brings about termination of suit. The Court can add a party in a partition suit even after a preliminary decree but before a final decree takes place. A suit for partition is finally disposed off only with the passing of a final decree. Impleading of additional parties subsequent to passing of a preliminary decree in a suit for partition is permissible, only if none of the questions already settled by the preliminary decree would not have to be re-opened by reason of such a joinder. Therefore, it is clear in order to decide the share to which each member of a family or a person claiming under such member of a joint family, the necessary parties are only the members of the joint family. Once all those members are made parties, the suit for partition cannot be dismissed on the ground of non-joinder of necessary parties. The purchasers from those members of the family or subsequent purchasers from the earlier purchasers are proper parties in a suit for partition. They could be, added even during final decree proceedings. For not adding them as parties, a suit for partition cannot be dismissed.

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63. In the instant case it is not in dispute that, on the day the suit was filed, the members of the family whom the schedule property belonged were only the plaintiffs and the 11^th defendant. It is also not in dispute that earlier all the joint family properties except the suit schedule property had been partitioned by metes and bounds. The schedule properties were not partitioned because they were not

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partiable at that time, the same having been vested with the Government under the provisions of Village Offices Abolition Act, 1961, subject to the right of the holders of the village officers to seek re-grant. It is also not in dispute that the order of re-grant was passed on 20.6.1970. However, the same came to be set-aside in an appeal and the matter was remanded. After such remand again the schedule lands were re-granted and the said order of re-grant was confirmed by this Court on 22.1.1985 and it has attained finality. The defendants in the suit claimed title to the suit property under a registered sale deed executed by Late Narasimha Murthy, the husband of 11^th defendant. Subsequently, they in turn have sold bits of land in favour of various persons. Some of those purchasers in turn have sold the properties in favour of others. Even the first plaintiff has sold lands in bits in favour of others. All these alienations were made during the pendency of the re-grant proceedings and therefore, those sale deeds are subject to the final order of re-grant made. Now that in the final order of re-grant, the grant has been made in favour of each one of the members of the family to the extent of ⅓^rd share, the alienations made by Narasimha Murthy to the extent of his ⅓^rd share would be valid and in excess of the said ⅓^rd share would be void. Therefore, the question is whether these alienees from the members of the family are claiming title through them. All the persons who are entitled to a share in the land re-granted are parties to the suit. Even the persons who purchased the property from Late Narasimha Murthy are parties to the suit. Subsequent

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purchasers are not made parties. On that ground the suit for partition could not have been dismissed by the Trial Court. All those persons could be made parties in the final decree proceedings. If they are not made parties, the decree to be passed in the final decree would not be binding on them and it cannot be executed against persons against whom no decree is passed. But, that should be not a ground for dismissal of suit for partition.

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64. The Trial Judge was in total error in not properly appreciating the difference between a necessary party and a proper party in a suit for partition and in dismissing the suit of the plaintiff for partition and separate possession. It would have been proper for him to have directed the plaintiffs to implead those persons as parties in the final decree proceedings before any adverse order is passed against such alienees. In that view of the matter, the finding recorded by the Trial Court that the suit for partition is not maintainable for non-joinder of necessary parties is illegal and therefore, is liable to be set-aside.”

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In the instant case, it is the specific contention of the plaintiffs that all properties had not been included and as such, the present suit is to be dismissed as withdrawn with liberty for the plaintiffs to file a fresh suit. Under these circumstances in the light of the principles laid down by the Division Bench in Lakshminarsappa's case supra, I am of the considered opinion

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that the trial Court was fully justified in accepting the memo filed by the plaintiffs and permitting the plaintiffs to withdraw the suit with liberty to file a fresh suit by including all properties claimed to be joint family properties.

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Learned counsel for the petitioners submits that third party rights had been created much prior to the impugned order and the same would be affected if the impugned order is not set aside by this Court.

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In this context, it is pertinent to note that all that the trial Court has done is accepted the memo filed by the plaintiffs for permission to withdraw the suit on the ground that all alleged joint family properties had not been included and by reserving liberty in favour of the plaintiffs to institute a separate suit. It is needless to state that in the event the plaintiffs institute a separate suit against the petitioners and other defendants, the petitioners and other defendants would be entitled to defend/contest said suit by putting forth all defences available in law including the defence of limitation. Under these circumstances, It cannot be said that any prejudice would be caused to the petitioners if the plaintiffs are

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permitted to withdraw the suit and institute of fresh suit seeking their legitimate share in the suit schedule properties.

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It is trite law that a suit for partition is deemed to be pending till all items of alleged joint family properties are divided and partitioned and possession is handed over in favour of all the parties. Under these circumstances, mere withdrawal of a suit for partition cannot be said to deprive a party of their alleged legitimate share in the suit schedule properties and any defendant in a suit for partition intending to contest the same on any ground would be entitled to contest the suit on all the contentious suit by putting forth all defences available in law and mere withdrawal of a suit with liberty to file a fresh suit would not cause any prejudice to any of the defendants, much less the petitioners, who are before this Court.

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Under these circumstances, I am of the considered opinion that the trial Court was fully justified in passing the impugned order which cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse or having occasioned failure of justice, warranting interference by this Court in exercise of its jurisdiction under Article 227 of the

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Constitution of India as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath – ( 2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohammed Ali Vs. Jaya – (2022) 10 SCC 477.

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In the result, I pass the following:

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ORDER

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i) The petition is hereby disposed of without interfering

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with the impugned order.

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ii) It is made clear that in the event the plaintiffs or other defendants institute a separate/fresh/new suit for partition, the petitioners would be entitled to oppose/contest/defend the said suit putting forth all defences including the defence of limitation, maintainability, jurisdiction etc., and the concerned Court shall consider the same in accordance with law.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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MDS

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List No.: 3 Sl No.: 10

Smt. Anjinamma v. Sri Nagaraj

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Smt. Anjinamma v. Sri Nagaraj

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