J.K. Tandon, J.
1. The above petition which has been framed under Article 227 of the Constitution has asked an order dated 26th September, 1957, passed by the learned Civil Judge, Kheri, in a suit No. 11 of 1952 pending before him to be set aside. It will be necessary to state at the very outset certain facts to enable the dispute to be appreciated.
2. There used to be in Oudh what was called Mahewa Estate belonging to a Taluqdar known by the said title. He made a will in 1907 and executed later a codicil in 1912. By these documents he granted to bis wife after his death a certain amount as maintenance and further set aside a number of villages for her use and benefit. The Taluqdar who was Rajendra Bahadur Singh died on 1st October, 1912. The case of the parties, other than the petitioners, so far as the bequest to the widow thus made was concerned is that she had been granted a life interest with the consequence that after her death which Occurred on 6th May, 1951, whatever property was left by her reverted to the Mahewa Estate.
As a matter of fact they have gone a little further in claiming -- obviously this Court is not in a position at the moment to express any opinion on their claim--that these properties were always part of the Mahewa Estate though they bad been set apart for the lifetime of the lady for her maintenance etc.
3. Some other facts are that on the death of Rajendra Bahadur Singh his nephew Jai Tndra Bahadur Singh succeeded to the Mahewa Estate. On account of Jai Indra Bahadur Singh's extra-vagance etc. the U. P. Court of Wards assumed superintendence of the estate so belonging to him. The property which had been set apart for the benefit of the lady is known by the name of the Chauch Estate. Jai Indra Bahadur Singh died in 1949 but the Court of Wards continued supervision over the Mahewa Estate as there was dispute about the person really entitled to it.
The lady also died a little later on 6th May, 1951. Before her death she had made a will on 9th February, 1951 by which she bequeathed her moveable and immoveable possessions to her daughters etc. Out of the property possessed by the lady there is a house at Varanasi and a substantial deposit also in one of the banks. It seems that the Court of Wards took Over superintendence of the properties left by the lady also. This was done under Section 14 of the U. P. Court of Wards Act 1912.
On 16th September, 1952, the Court of Wards, since inheritance to the Mahewa Estate was in dispute, instituted an inter-pleader suit impleading the rival claimants to the Mahewa Estate as defendants. This was done in pursuance of Section 48 of the Court of Wards Act which provides that where succession to the property left on the death of a ward is disputed, the Court may institute a suit for inter-pleader against the several claimants.
The plaint of the suit while referring to events connected with the conferring by will and codicil of the rights on the widow in respect or the properties set apart for her did not incorporate any relief in respect of them, nor were they pointed out as properties the title whereto was sought to be settled by the inter-pleader suit. The daughters in whose favour the lady made the will were also not arrayed in the list of the defendants or rather the claimants to the Mahewa Estate.
4. Order XXXV of Schedule I of the Code of Civil Procedure 1908 has, in prescribing the procedure to be observed in the case of interpleader suits, required in Rule 4 that the Court may at the first hearing of the case discharge the plaintiff from all liability to the defendants in respect of the thing claimed, and dismiss him from the suit or it may, if it thinks that justice or convenience so require, retain him until the final disposal of the suit. Sub-rules (2) and (3) lay down the procedure for decision of the case. Under the former the case can be decided by the Court if that can be done on the admissions etc. of the parties.
Where the admissions of the parties are unable to allow the title to be adjudicated the Courts is required to frame issues and try the same. It may also direct any claimant to be made a plaintiff in lieu of or in addition to the original plaintiff. What the Sub-rule has further laid down and with which we are presently concerned is that the suit has thereafter to proceed to trial in the ordinary manner i.e., in the manner laid down in the Code for the trial of the suits.
5. The fact which has ultimately given rise to the present proceeding is that on 22nd April, 1953, the Receiver who, I am told, is the Deputy Commissioner of Khari moved the Civil Judge in the above suit for an amendment of the plaint. The amendment asked was to the effect that the Chauch Estate was also a part of the Mahewa Estate and therefore in deciding the claim with respect to the Mahewa Estate the title thereto might also be determined. We have noticed that by the will which the lady made in 1950 she gave away the said estate to her daughters etc.
The prayer for amendment thus included a request for impleading the daughters also in the array of parties. The amendment was ordered on the same date it was applied for. Once the amendment had been ordered the daughters also were called upon to file their written statements as they did. On the defence raised by them, two further issues arose which were:--
'1. Whether there is any misjoinder of parties and causes of action in this suit?
19. Whether the property given in Schedule A to the written statement of defendants Nos. 5 and 6 could not have been included in this suit?'
These have now been held against the petitioners by the learned Civil Judge by his order, the subject matter of this petition. The petitioners claim that the learned Civil Judge was incompetent in the interpleader suit to permit any property not originally included in it to bo added to the property in dispute, both, therefore, the amendment and the issues including the decision thereon arising as a result are in violation of law. I have been taken by the learned counsel for the petitioners through the order of the learned Civil Judge.
He also invited attention to the frame of the suit including the fact that as originally framed the Chouch Estate was not in the list of properties the title thereto was sought to be settled by it. He referred me to Section 88 also of the Code of Civil Procedure and pointed out that the Court of Wards which commenced this suit never claimed at that time any interest in the Chouch Estate. It did not also then claim that it was part of the Mahewa Estate. From these premises he has contended that the order of the learned Civil Judge is without jurisdiction.
6. After a careful consideration of all the material and the provisions of Order XXXV also I am of the opinion that the order which the learned Civil Judge made in the case cannot be brushed aside on the ground that he was incompetent to make it. At this juncture I have no intention to examine the correctness of the order of the learned Civil Judge on merits which can properly be done if and when the case as a whole should come before the Court in the appropriate manner. The present order will, therefore, in no way be considered as upholding that order on merits.
The present concern merely is to judge whether the Civil Judges' order is in violation of law such as will entitle interference under the extra-ordinary powers belonging to this Court under Article 227 of the Constitution. Under Sub-rule (3) of Rule 4 qf Order XXXV, which applies to interpleader suits, there is clear direction that once the suit has proceeded on trial it shall be tried like any other suit in the ordinary manner. Order VI of the Code is applicable to suits and there is no reason why it should not be applicable to a suit which had its beginning as an interpleader suit.
If the pleadings placed by the several claimants to the property, the subject matter ofthe interpleader suit, should claim that there issome further property which is part of the estatebut has somehow Or the other been omitted fromit and should also be brought within the suit,there is no reason why it cannot be done so.Neither Section 88, C. P. C. nor Order XXXV hasrequired to the contrary. On the other hand, thelatter has enjoined that the suit shall proceed inthe ordinary manner.
Rule 17 in Order VI relating to the amendment of the pleadings gives to the court the power at any stage of the proceedings to allow any party to alter or amend his pleadings and the Court will under its provisions allow all such amendments as are necessary for the purpose of determining the real questions in controversy between the parties. The controversy in this case is the title to the Mahewa Estate. In deciding this question the property or properties whose title is to be determined are themselves the subject-matter of controversy. Whether any particular property is or is not part of the Mahewa Estate, therefore, is a question which in order finally to settle the controversy is necessary for determining the real question
7. The present case, if I may point out, stands on a stronger footing. Having regard to the allegations concerning the nature of bequest to the lady it cannot be said that -- these are that she was granted a life estate only and on her death the property reverted to the main estate--the property known as the Chouch Estate will according to one version be part of the Mahewa Estate. Whether it is so ultimately is a question which will require to be decided. But if the claim by one party is that it is a part of that estate and of the other is that it is not so, it is a matter which properly and reasonably deserved to be decided in the suit.
I do not, under the circumstances, think that the order of the learned Civil Judge can be questioned under Article 227 of the Constitution. The same applies to the order by which he allowed the petitioners to be made parties. Their presence before the Court is very necessary for a complete disposal of the question whether the Chouch Estate is a part of the Mahewa Estate. Order I, rule 10 authorised the Court below to implead them as defendants.
8. Before parting with the case I would like to refer to one further aspect. The amendment which is sought to be impugned was ordered in April 1953. Afterwards the petitioners appeared before the learned Civil Judge and also filed their written statements. I am told that an application was also made asking him to discharge them from the list of the defendants but no final order was made on it. The written statements filed by these defendants gave rise to the two issues which were decided in 1957.
For full six years the petitioners preferred to remain silent and also allowed the relative issues to be decided. The delay as well as the development, namely, the decision in the meantime of the two issues raised at the instance of these petitioners are themselves sufficient to deter us from interfering under Article 227.
9. In the result, therefore, this petition fails and is dismissed with costs. The stay order is discharged.