1. These two cases may be conveniently disposed of by the same order as the points involved for consideration in both are practically identical. The order sought to be revised in both cases in one passed in a suit dismissing two applications one of which, I.A. No. IV was filed by a son of the plaintiff and the other I.A. No. VIII by the sons of the defendants for being added as parties in the suit. The original plaintiff now being dead the petitioner in I.A. No. IV has been impleaded s one of his legal representatives and in view of his being thus made a party in the case Sri Somasekhara Rao, the learned counsel, represents on his behalf that there is no need to consider the correctness of the order so far as he is concerned. The defendants and their sons have applied separately in these two cases for the order being set aside with respect to I.A. No. VIII.
2. The pleadings in the case are lengthy, the properties involved are of considerable value and the contest between the parties seems to be acute over several matters. It is sufficient for the purpose of these cases to state that the suit is for partition and that the plaintiff is the elder brother of defendants 1 to 8 and defendant 9 is their mother. The share claimed by the plaintiff is however, more than what is conceded to the defendants and for this a will said to have been executed by the father and consented to by the defendants is relied upon. This is disputed by the defendants. The main reason for rejecting the application. I.A. No. VIII as mentioned in the order is that in a suit for partition it is necessary only to make the head of each branch in the family a party and that defendants 1 to 8, who are plaintiff's brothers, represent each branch of the family and safeguard the interests of that branch. The learned Judge has apparently overlooked the fact that for upholding and enforcing the claim of the 'plaintiff it is not enough that the defendants are consenting parties to the arrangement and that the arrangement is such as would bind not only the defendants but their family including the petitioners in I.A. No. VIII. The contention of the sons is that whatever may be the truth or effect of the arrangement between their fathers and the plaintiff in the eye of law, they are entitled to impeach it and this they propose to do by themselves independently of the defendants.
3. Sri Lakshminaranappa the learned counsel argued that the defendants and their sons being still joint the sons cannot in the absence of any intention on their part to separate, intervene in the proceedings; and if they are allowed to do so it would lead to unnecessary complication and prolongation of the suit. He further urged that persons cannot be added as parties against the plaintiff's will as he is the dominus litis and that in any event the order being interlocutory and discretionary cannot be interfered with in revision. 30 My. H.C.R. 321 and 44 My. H.C.R. 319 are cited as authorities against interference. These cases no doubt lay down that interlocutory orders in pending cases are not lightly to be interfered with, and interference is called for only in cases of irreparable injury. Strong reliance was placed on the recent decision in Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Makras , where Sir John Beaumont observed that there can be no justification whatsoever for the view that Section 115 was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. This case is however distinguishable in regard to the circumstances under which observation was made as it related to an order in the course of a suit which was disposed of and the decree in which could be appealed against. As regards the correctness of the proposition laid down in these cases governing interference there is no doubt. Since these authorities do not preclude interference but only confine it to cases of exceptional kind and to cases in which irreparable hardship would follow from failure to interfere the question is whether this is a case of that kind.
4. On behalf of the petitioners, Lakshmidevamma v. Nagayya : (1948)2MLJ362 is cited to show that the question whether addition of a person as a party in a suit by a subordinate Court was raised and considered in revision, Moti Ram Motha Ram v. Lalchand Gulabchand, A.I.R. (24) 1937 Nag. 121: (I.L.R. (1937) Nag. 366) is another case in which the refusal of the lower Court to make the son of the defendant as a party to the suit was set aside in revision. This case bears some analogy to the present one, inasmuch as the suit was on the foot of a mortgage and the defendant was the mortgagor. The son of the mortgagor alleged that the property was the joint family property and there was no necessity for the mortgage. He therefore wanted to be made a party to the suit but the Court refused to do so. It was held that though he was not a necessary party he ought to have been joined in order to avoid multiplicity of proceedings, as the son himself may file a separate suit. The consideration strongly applies to the present case as there can be no doubt that the sons if shut out from the present suit can certainly file a suit on their own account for enforcement of their claims. In that event the proceedings in the present suit and the decree passed therein would not be final. Kunja Behari v. Chinto Moni, A.I.R. (21) 1934 Pat. 425: (148 I.C. 347), is a case in which the High Court set aside an order rejecting the application of some persons who set up a claim application of some persons who set up a claim to the properties involved to be made parties and directed that they should be added as parties. The observation of Fazl Ali. J. are pertinent:
'Ordinarily, the High Court would be most reluctant to interfere with an order refusing to make certain persons parties to the suit; but where the Judge has omitted to take into consideration certain matters and the order of the Judge really amounts to a refusal to exercise a jurisdiction vested in him, the High Court can interfere.'
The learned Judge further expressed:
'Under Order 1, Rule 10 the Court must consider whether the addition of the petitioners as parties is necessary to effectually and completely adjudicate upon the question at issue. Order 1, Rule 10 nowhere says that the Court in deciding whether a certain person should be made a party or not is to be guided by the wishes of those who are parties of the suit but throws the entire responsibility of deciding the matter upon the Court.'
It is also pointed out that though the matter is entirely discretionary with the Court that discretion must be exercised judiciously and with proper consideration. This Court has in 39 Mys. H.C.R. 22 set aside in revision an order for addition of parties. If the Court can direct removal of parties ordered to be added there can be hardly any objection to this Court exercising its powers in favour of persons being impleaded in the case.
5. With a view to show that this is not a fit case in which the petitioners are to be made parties, Sri Lakshminaranappa referred to, Bishamber Das v. Kanshi Pershad, A.I.R. (19) 1932 Lah. 641: (13 Lah. 483); Thakar Singh v. Sant Singh, A.I.R. (20) 1933 Lah. 465: (141 I.C. 567), Digambar v. Dhanraj, 1 Pat. 361: (A.I.R. (9) 1922 Pat. 96) and Atma Ram v. Banku Mal, 11 Lah. 598: (A.I.R. (17) 1930 Lah. 561). In the first of these case, viz., Bishambar Das v. Kanshi Pershad, A.I.R. (19) the headnote is as follows:
'Where the suit is not for partition of the properties between all the alleged coparceners inter se but one for a division the two branches of the family, it is settled law that to such a suit the really necessary parties are the heads of each branch of the family and it is not obligatory on the plaintiff to implead all the members of the two branches.'
But as a matter of fact in that case some of the sons and grandsons of the parties are made parties. The question in this case is not whether the suit is defective on account of the sons of the defendants not being made parties but whether in the light of the circumstances under which the claim for a higher share than what is permissible under the law is put forward by the plaintiff the sons of the defendants are not entitled to be added as parties. In the second case i.e. Thakur Singh v. Sant Singh, A.I.R. (20) 1933 Lah. 465: (141 I.C. 567), it was held that the sons though not necessary are proper parties and as such it is not quite against the petitioners. The view expressed in 1 Pat. 361 : (A.I.R. (9) 1922 Pat. 96) was also the same. Mt. Sahodra v. Ram Baboo, A.I.R. (36) 1949 All. 49: (1949 A.L.J. 38) which was referred to is distinguishable as that was a case in which the defendant was a person who claimed the property by collateral succession and as such his son were considered not to have any interest in the property by birth. It was, therefore, held that the sons were not necessary parties. The observation that the father was the kartha of the family and as such represented the whole family including the sons must be taken to be obiter. In United Provinces v. Mt. Atiga Begum which was referred to by the learned counsel on either side, Sulaiman J. pointed out the difference between necessary and proper parties in these words:
'A person would be a necessary party if he ought to have been joined, that is to say, in who se absence to effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication.'
The question is that case was whether the United Provinces Government was rightly allowed by the High Court to intervene as a party. In considering this the learned Chief Justice referred to Vaithilinga Pandara Sannidhi v. Sadasiva Iyer, 50 Mad. 34 : (A.I.R. (13) 1926 Mad. 836), wherein Srinivasa Ayyangar J. refused on application by the Secretary of State to be added as a party in a case said to involve the question whether an Act of the Provincial Legislature was ultra vires, the view of Venkatasubba Rao J. in Secy. of State v. Murugesa Mudaliar : AIR1929Mad443 , dissenting from this on the ground that the distinction between necessary and proper party is ignored in the former case. Shri Lakshminaranappa emphasized the parenthetical note (that the learned Chief Justice does not share this view) in indicating that the view in Vaithilinga Pandara Sannidhi v. Sadasiva Iyer : AIR1926Mad836 was held to be preferable to that in Secy. of State v. Murugesa Mudaliar : AIR1929Mad443 . But the facts in the said two cases are deemed to be different and the addition of the Government as a party was held to be proper. I do not find anything state in this case which would forbid the petitioners being made parties.
6. What may be gathered from an examination of the provisions of Order. 1, Rule 10, Civil P.C. and the case in which it has been applied is that there is a distinction between necessary and proper parties and the guiding principle for making a person as a party is to see whether his presence is
'necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit.'
The petitioners in I.A. No. 8 are majors and the properties involved in the litigation being alleged to be ancestral they have a right by birth, so that they are entitled to assert their claims to the same irrespective of their father's wishes. It is not controverted that in the reference to arbitration prior to the suit the sons in addition to their fathers were named as parties. If the plaintiff felt it was either necessary or proper for the sons to be made parties in the arbitration proceedings, I do not see any reason why they should be denied an opportunity to participate in the suit when they seek it. It is a share for themselves or prefer to be joint with their fathers. Having regard to the allegation that the defendants have assented to the arrangement enabling the plaintiff to get more than what is otherwise permissible under the law there may be difficulty or embarrassment for the defendants to safeguard the interests of the petitioners in I.A. No. 8 At any rate, the petitioners would be in a better position to assert their right and advance their contentions than the defendants since these may raise the propriety of defendants' own acts. In any even for shortening litigation and avoiding the possibility of the sons challenging the decision arrived at in this case in a separate suit, they may be added as parties.
7. The learned Judge in my opinion has not taken these considerations into account while holding that the defendants can duly safeguard the interests of the petitioners. Mayne in his book on Hindu Law at p. 570 states the rule as to who are to be and can be parties thus:
'Where 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 case, it is open to the other to apply to be made parties.' That the sons would be proper parties even though their fathers are on record as parties is recognised in Swaminatha Odayat v. Gopalaswami Odayar : AIR1937Mad741 . The petitioners contend that they are necessary parties. It seems to me that viewed in any light that this is a case in which the petitioners are entitled to be impleaded in the case and that interference with the order disallowing their prayer is called for. The plaintiff himself would be spared the contingency of another litigation by I.A. No. 8 being allowed. I would also add that the objection to the petition on the ground of dominus litis cannot be sustained for the reason apart from others that the suit being regarded as one for partition; each of the shares has a voice and an option as to who may be added as parties. I, therefore, allow the petitions, set aside the order of the lower Court and direct petitioners in I.A. No. 8 be added as defendants. Parties will bear their own costs.
8. Revision allowed.