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Sm. Gomati Devi Vs. Ram Prasad Prabhudayal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 124 of 1952
Judge
Reported inAIR1958MP6
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 1, Rule 10(2); Hindu Law
AppellantSm. Gomati Devi
RespondentRam Prasad Prabhudayal and ors.
Appellant AdvocatePatankar and ;Babolal, Advs.
Respondent AdvocateBhagwandas, ;Motilal Gupta and ;Murlidhar Maheshwari, Advs.
DispositionRevision allowed
Cases Referred(A). In Lakshmamma v. Someshwar Rao
Excerpt:
- .....to any share is not a proper and necessary party. conversely it means that where a person in a suit for partition is-interested in its result and is enfitted to a share he must be regarded as a necessary party.some observations in section 459 of mayne's treatise on hindu law and usage, 1953 edition, point in the same direction. it is laid down that in a partition suit, all the co-parceners must be before the court either as plaintiffs or as defendants. any co-parcener or co-sharer who sues for partition of property must make the other co-parceners or co-sharers defendants because the partition which is made in his favour is a partition against all co-parceners or co-sharers. when en-titled to share on partition, the females are also i necessary parties to the suit.4. for reasons.....
Judgment:
ORDER

A.H. Khan, J.

1. The facts giving rise to this revision lie within a short compass. In a suit for partition of joint family property between the coparceners, the applicant Mst. Gomati Bai filed an application before the trial Court, saying that her father who was a member of co-parcenary, as far back as the 16th April, 1936, had served a notice on the co-parceners of his intention to severe joint family status, and that her father being dead she is entitled to her father's share in the property in dispute. The plaintiffs agreed to make her a party but the defendants resisted it mainly on the ground that Bankelal had an adopted son named Munnalal and that in his presence Mst. Gomati Bai cannot be made a party.

The decision of the learned trial Court is slip-shod. He has not at all applied his mind and has brushed aside the question by saying that the said Munnalal is prosecuting this case. But it is neither here nor there. He is not on record as the son of Bankelal. Order 1, Rule 10, Clause 2 of the Civil P. C., lays down that the Court must determine whether a person who has applied for being added as a Party is or is not a necessary party to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

2. In view of this clear provision it was the duty of the Court to determine the question accordingly. It should have first of all decided whether Munnalal was or was not the adopted son of Bankelal.

3. It goes without saying that in a suit for a partition no effective decree can be made for partition unless all co-parceners (and all those who are otherwise entitled) are parties to the suit. Palani Ammal v. Muthu Venkata Chala Moniagar, AIR 1925 PC 49 (A). In Lakshmamma v. Someshwar Rao, AIR 1953 Hyd 170 (B), it has been said that in a partition suit a person who is not interested in the results of the suit or who is not entitled to any share is not a proper and necessary party. Conversely it means that where a person in a suit for partition is-interested in its result and is enfitted to a share he must be regarded as a necessary party.

Some observations in Section 459 of Mayne's Treatise on Hindu Law and Usage, 1953 Edition, point in the same direction. It is laid down that in a partition suit, all the co-parceners must be before the Court either as plaintiffs or as defendants. Any co-parcener or co-sharer who sues for partition of property must make the other co-parceners or co-sharers defendants because the partition which is made in his favour is a partition against all co-parceners or co-sharers. When en-titled to share on partition, the females are also I necessary parties to the suit.

4. For reasons stated above, I am of the opinion that the learned trial Court did not consider the provisions of Order 1, Rule 10 (2), C. P. C., at all, and it may be said with justification that in the 'exercise of its jurisdiction the Court acted with material irregularity.

5. In result the revision is allowed and the case is remitted to the trial Court with the direction to decide the question of addition of parties in the suit in the light of observations made above. In order to avoid further confusion, the following issue is framed: whether Munnalal is the adopted son of Bankelal and in consequence Mst. Gomati Bai has no right to be added as a party. The defendants shall lead evidence of adoption and it will be open to Mst. Gomati Bai and the plaintiffs to give evidence in rebuttal. The trial Court shall record the evidence on the issue and after hearing arguments decide whether under Order 1, Rule 10 (2), C. P. C. Mst. Gomati Bai is a necessary party. The parties shall bear their own costs of this revision.


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