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Syed MohiddIn (Died) and anr. Vs. Abdul Rahim and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 280 of 1957
Judge
Reported inAIR1964AP260
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantSyed MohiddIn (Died) and anr.
RespondentAbdul Rahim and ors.
Appellant AdvocateC. Narasimhacharya, Adv.
Respondent AdvocateN.V. Suryanarayana Murthy, Adv.
DispositionPetition allowed
Excerpt:
property - parties to partition suit - order 1 rule 10 of code of civil procedure,1908 - decision to divide in metes and bounds in a suit for partition - after preliminary decree was passed commissioner proceeded with partition which was objected by third party - to avoid multiplicity of suits third party was allowed to be impleaded in suit - held, there is no legal bar in adding party to a suit at later stage on bona fide grounds. - .....the question arises in the following circumstances: the petitioner's father late mahiuddin filed a suit for partition of certain properties mentioned in a and 8 schedule claiming to be the grandson of one khader ali. the defendants to the proceedings were the grandsons of the same ancestor through the first wife. the suit was instituted on 4-12-1951 and a preliminary decree was passed on 22-9-1953 directing the partition of the properties by metes and bounds into 7 equal shares and allotting 3 shares out of 7 shares to the plaintiff. thereafter a commissioner was appointed on an applica-tion (i. a. 510/55) for the division of ths properties. so far as a schedule was concerned, the partition was effected. but when the commissioner came for the measurement and partition of b.....
Judgment:
ORDER

Sharfuddin Ahmed, J.

1. The short question that requires determination in this C. R. P. is whether a third party could be added as defendant to a suit for partition in which a preliminary decree has been passed.

2. The question arises in the following circumstances: The petitioner's father late Mahiuddin filed a suit for partition of certain properties mentioned in a and 8 schedule claiming to be the grandson of one Khader Ali. The defendants to the proceedings were the grandsons of the same ancestor through the first wife. The suit was instituted on 4-12-1951 and a preliminary decree was passed on 22-9-1953 directing the partition of the properties by metes and bounds into 7 equal shares and allotting 3 shares out of 7 shares to the plaintiff. Thereafter a Commissioner was appointed on an applica-tion (I. A. 510/55) for the division of ths properties. So far as A schedule was concerned, the partition was effected. But when the Commissioner came for the measurement and partition of B schedule, which consisted of a house, 1500 sq. yards in extent, the Commissioner found that many objections were raised by the defendants (third parties) who had purchased the suit house in or about 1913 and built a pucca house by spending heavy amounts thereon. He, thereupon sought for the directions of the Court.

The plaintiff-petitioner filed a petition for partition of the rest of the site leaving the portions that were in possession of third parties and an application was filed by third parties for being impleaded as parties to the proceedings. The learned Additional District Judge by his order dated 26th September 1956 dismissed the petition holding that he saw no bona fides in making the application to implead the parties to the suit at this stage. On the next day i.e., on 27th September 1956 he passed another order directing the commissioner not to proceed with the division of B schedule site. It is to be noted that he also dismissed the petitions filed by the respondents herein for being impleaded as a party on the ground that he had issued a ditection to the Commissioner not to proceed with the division. It is against the first order i. e., of 26th September 1956 that the revision petition has been filed.

3. The learned counsel for the petitioner relying on Krishna Lal Jha v. Mandeswar Jha, AIR 1921 Pal 296, Noor Mohammad v. Zainul Abdin, AIR 1940 All 399, Krishna Iyar v. Subrshmania Aiyar, AIR 1924 Mad 648 and Jotindra Mohan Tagore v. Bejoy Chand, ILR 32 Cal 483, has urged that the respondents herein could be impleaded as a party even after the passing of the final de-cred. In the Calcutta case referred to above ILR 32 Cal 483 it was held that a suit for partition, even when the report of the Commissioners is confirmed and a decree is directed to be drawn in accordance therewith, is a pending litigation, until the Court signs the final decree.

4. A decree for partition, to be operative must be engrossed on stamped paper as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit terminated, and an order directing a party to be added under Section 32 of the C. P. C. can be made in such a suit before it has actually terminated.

5. The same view has been taken by the Patna High Court, (AIR 1921 Patna 29G). Though it was a case of partition under Hindu Law, however, the principle enunciated therein is that proceedings for final decree are proceedings in a suit and although, ordinarily, the rights of the parties ought to be determined as at the date of the institution of the suit, a suit for partition under the Hindu Law is treated as an exception and, In order to save costs and to prevent multiplicity of proceedings, the Courts are entitled, and even bound to take into consideration matters subsequent to the commencement of such a suit

6. In AIR 1924 Mad 648, it was held that where circumstances render it necessary, the Court may add a person interested in the equity of redemption as a party even after the preliminary decree and can reopen the decree as far as added party is concerned.

7. The only decision in favour of the respondents seams to be reported in Namesa Gangasa v. Motisa, AIR 1935 Nag 64, wherein it has been held that where subsequent to a preliminary decree in a partition suit, an application is made to implead certain persons as parties who would have been proper parties if they were joined before preliminary decree; they cannot be joined after the preliminary decree, as they are not bound by it nor can the Court ignore it and rip up the case against a point anterior to that decree, especially when no injustice will be done by not adding them.

8. The said ruling can be distinguishable on facts, in the instant case as staled above, the respondents themselves filed applications to be impleaded as parties and there is observation in the judgment of the learned Judge who passed the preliminary decree in regard to the mental make up and, infirmities of the plaintiff in O. S. 64/51 i.e., the father of the plaintiff-petitioner. It has been observed by the learned Judge that 'from the demeanour of P.VV. 1 i.e., the plaintiff, I have to observe that the plaintiff is an old man lacking intelligence and very credulous.' Further 'it is not surprising that a man of his type did not apply for mutation of his name In the Municipal registers .....'

9. In view of these observations, it could not be urged that there was any deliberate omission on the part of the plaintiff-petitioner in not impleading the respondents herein as parties to the suit. I also find myself in agreement with the contention of the learned counsel for the petitioner that in the interests of justice and to avoid multiplicity of suits, it is desirable to implead the respondents as parties to the proceedings, there being no legal bar to the adoption of such procedure.

10. I therefore, allow the revision and remand the case to the lower Court for impteading the respondents as defendants to the proceedings. The lower Court also will consider the applications filed by the respondents I. As. 867 to 869 of 1956 and will proceed to dispose of the matter according to law. No costs.


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