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Second Appeal No.267 of 1974, decided on 31st March, 1987.

---O.XX, R.18 & S.100--Suit for partition--Appellant asserting that respondent-plaintiff, asking for partition was not legitimate wife of deceased property owner and that two children to whom she gave birth were not legitimate daughters of deceased--No suggestion was put to respondent-plaintiff in cross-examination that two girls were not legitimate daughters of deceased and this omission amounted to admission of assertion made by her in examination-in-chief that she had given birth to two daughters as a result of union of his marriage with deceased--Appellate Court below observing that facts that these two girls were brought up in house of deceased and were given his parentage coupled with fact that they were given in marriage to his family were indicative of fact that these girls were always acknowledged by deceased as his legitimate children--Agricultural land was mutated in names of respondents also supporting conclusion arrived at by Appellate Court below that respondent was legitimate wife and her two children were legitimate daughters of deceased--Conclusions arrived at by Appellate Court neither based on misreading of evidence nor were result of any perverse approach to evidence on record- Interference declined in second appeal with findings of First Appellate Court on issues of legitimacy of wife and children of deceased, in circumstances.

---S.100 & O.1, R.3--Necessary party--Property in dispute jointly owned by deceased and his brother--In suit for partition, brought by wife of deceased, brother of deceased was not impleaded and Trial Court passed a preliminary decree in spite of the fact that Trial Court found that property in suit was jointly owned by deceased and his brother--Judgment and decree of Trial Court set aside and case remanded back with direction that brother of deceased be impleaded as a defendant in suit and notice issued to him.

Noor Muhammad and others v. Zain-ul-Abidin A I R 1940, All. 399 ref.

A.Q. Halepota for Appellants.

Nemo for Respondents.

Date of hearing: 31st March, 1987.

This appeal under section 100 CPC is filed by the defendants/ appellants against the judgment and decree passed by the 2nd Addl. District Judge, Hyderabad in appeal No.120/67.

2. The respondent No.1 instituted a suit seeking partition of the properties left behind by late Baqar Khan on the allegation that she is one of the heirs of deceased Baqar Khan. In the above suit the present appellants as well, as respondents No.2 and 3 were impleaded as defendants. In her plaint respondent No.1 claimed that the properties mentioned in schedule A to the suit belonged to deceased Baqar Khan and that the same has devolved jointly on the respondents and the plaintiffs on his demise. Only appellant No.1 filed his written statement in the suit which was adopted by Mst. Ami who is dead and whose name appeared in the suit as defendant No.4 at that time. The defendant No.1 in his written statement denied that respondent No.1 was the wife and respondents No.2 and 3 are the daughters of late Baqar Khan. He also categorically stated that the properties shown in schedule to the plaint were jointly owned by late Baqar Khan and Karam Khan in equal shares. The learned trial Court on the basis of above controversy in the suit framed the following issues:-

"(1) Whether the Plaintiff was the legally wedded wife of the late Baqar Khan

(2) Whether the plaintiff and defendants Nos.2 and 3 are legal heirs of Baqar Khan

(3) What shares the parties have in the property of Baqar. Khan

(4) Whether the plaintiff was in joint possession and enjoyment of the suit property '

(5) Whether the suit property was not exclusively of Baqar Khan. If so what is the effect

(6) Whether the land cannot be partitioned in view of the Martial Law Regulation No.64

(7) Whether the suit is barred by time

(8) Whether the plaintiff is entitled to rendition of accounts and partition of property

(9) What should the decree be "

On issues No.1 and 2 the learned trial Court reached the conclusion that respondent No.1 was not the legally wedded wife of late Baqar Khan but was a keep and as such the offsprings of such union, namely respondents No. 2 and 3 were not tree legitimate children of late Baqar Khan and on these reasonings the learned trial Court held the respondents disentitled to a right of inheritance in the properties left behind by late Baqar Khan. On issues No.3 and 5 which related to the shares of late Baqar Khan in the properties shown in the schedule the learned trial Court on the basis of evidence as well as admission of respondent No.1 in his cross-examination reached the conclusion that the properties shown in the schedule to the plaint were jointly owned by Baqar Khan and his brother Karam Khan in equal shares. As Karam Khan was not impleaded in the suit the learned trial Court dismissed the suit also on the ground that it was bad for non-joinder of a necessary party. On appeal the learned first appellate Court did not agree with the findings of the learned trial court on issues No.1 and 2 and reversed the same. The learned first appellate court held that respondent No.1 was entitled to a share of inheritance as the wife of late Baqar Khan while respondents No.2 and 3 were entitled to inherit his property as daughters of late Baqar Khan alongwith other heirs of deceased. With regard to the findings of the trial court on issues 3 and 5 the learned first appellate court, however, did not record any conclusion but reversed the judgment and decree of the trial court only on the basis of his finding on issues No.1 and 2. At the hearing of this appeal Mr. A. Q. Halepota learned counsel for the appellants has raised two-fold contentions before me. It is firstly contended by the learned counsel that the reversal of the finding of the trial court on issues No.1 and 2 by the learned first appellate court is not sustainable in law as the aforesaid finding is contrary to the evidence on record produced before the trial Court. It is contended by the learned counsel that the plaintiff-respondent No.1 in her evidence claimed that her Nikah with Baqar Khan was witnessed by Karam Khan, the brother of the deceased while Karam Khan in his evidence denied this fact and claimed that his brother deceased Baqar Khan was never married to respondent No.1. It is accordingly contended by the learned counsel that the finding of the learned first appellate court holding that the respondent No.1 was the legally wedded wife of Baqar Khan is based on misreading of evidence on record. I have gone through the evidence of the plaintiff and his witnesses as well as the defendants' evidence in the case on the above issues. It is quite clear from the pleadings of the parties that the defendants in their written statement had taken a specific stand that plaintiff /respondent No.1 was not the legally wedded wife of Baqar Khan but was a keep of late Baqar Khan. It was also asserted in the written statement on behalf of these defendants that the two daughters who were born to Mst. Khanzadi (respondent No.1) were the illegitimate children of Baqar Khan as there was no marriage between Baqar Khan and respondent No.1. Although in the cross-examination of respondent No.1 number of questions were put to her to find out the presence of the people who attended the alleged marriage of respondent No.1 with Baqar Khan and the names of witnesses of Nikah as well as the person who performed the Nikah but there was no suggestion in the cross examination to the respondent No.1 that the two daughters namely respondents No.2 & 3 who were born to respondent No.1 as a result of union with Baqar Khan were not the legitimate children of Baqar Khan. The absence of a suggestion to respondent No.1 in this regard amounts to admission of the assertions made by respondent No.1 in his examination-in-chief that she had given birth to the two daughters namely respondents No.2 and 3 as a result of his marriage with Baqar Khan. Apart from it the learned first appellate court has rightly observed that the fact that these two girls were brought up in the house of deceased .Baqar Khan and were also given the parentage of late Baqar Khan coupled with the fact that one of them was given in marriage to his real nephew Ali Muhammad son of Karam Khan while the other was also married in the family of Baqar Khan were indicative of the fact that these children were always acknowledged by the late Baqar Khan as his legitimate children. These facts coupled with the circumstance that after the death of Baqar Khan the agricultural land was mutated in the names of the respondents also supported the conclusion arrived at by the learned first appellate court that Mst. Khanzadi was the wife of late Baqar Khan and that other two respondents were the deceased's legitimate children. After hearing the learned counsel for the appellants at length I am 'of the view that the conclusion arrived at by the learned first appellate court on issues No.1 and 2 and the reversal of the finding of the learned trial Court on these issues is neither based on misreading of evidence nor was the result of any-perverse approach to the evidence on record. I, therefore, see no reason to interfere with the above findings of the learned first appellate court. However, Mr. A.Q. Halepota learned counsel for the appellants has raised a second submission in the case that the learned first appellate Court having failed to reverse the findings of the learned trial Court on issues No.3 and 5 could not have passed preliminary decree in the case as a necessary party in the suit was not before that Court. This contention of the learned counsel is well founded. There is enough evidence on record in support of the contention of the learned counsel for the appellants that the property in suit was jointly owned by Baqar Khan and his brother Karam Khan in equal shares. In fact the learned trial Court reached the above conclusion not only on the . basis of oral evidence on record but also on the admissions made by the respondent No.1 in her cross-examination in this respect. In spite of the fact that the learned trial Court found that the property in suit was jointly owned by late Baqar Khan and Karam Khan in equal shares no effort was made before the first appellate Court to implead Karam Khan as a party in the suit. In support of his contention that in a suit for partition all the persons interested in the property should be before the Court at the time of passing of the preliminary decree the learned counsel cited the case of Noor Muhammad and others v. Zain-ul-Abidin A I R 1940 All. 399. As it was sufficiently established on record that the property in suit was jointly owned by late Baqar Khan and Karam Khan the learned first appellate Court should have remanded the case back to the trial Court with the direction that Karam Khan should be impleaded as a party in the suit. I accordingly accept this appeal, set aside the Judgment and decree of the Courts below and remand the case back with the direction that Karam Khan be impleaded as a defendant in the suit and notice be issued to him. In case Karam Khan disputes the partition of the property the learned trial Court may frame such issues as may arise as a result of denial by Karam Khan and then retry the issues in the light of such assertions that may be made by Karam Khan. In case Karam Khan on appearance in the suit does not oppose the partition of the property on the basis of 50% share of late Baqar Khan the trial Court may proceed accordingly and partition the property in the light of observations made by the learned first appellate Court. It may be mentioned here that the respondents in this appeal have made an application under Order 41 Rule 27 CPC praying for production of additional evidence in support of the plea that respondents No.2 and 3 were legitimate children of late Baqar Khan but it is not necessary to pass any other on this application in view of the fact that I have not disturbed the findings of first appellate Court on issues No.1 and 2. The appeal is disposed off in terms of above order but there will be no order as to costs.

M.Y.H./H-18/K Case remanded.

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