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M. Abdul Razack Vs. S. Mohammad Shah - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 11338 of 1960
Judge
Reported inAIR1962Mad346
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantM. Abdul Razack
RespondentS. Mohammad Shah
Excerpt:
- - it is well settled that, in substance, a partition suit between mohamadan co-sharers is in the nature of an administration suit......partition suit cannot be supported. the claim of the third party is that he was entitled to the suit property in his own right. admittedly, he is not one of the sharers to the estate of madarsa sahib. it is well settled that, in substance, a partition suit between mohamadan co-sharers is in the nature of an administration suit. the question of the title of the third parties to the estate will not always be a proper one for adjudication in a suit for administration. mr. k. hariharan contends that, the plea that the respondent was entitled to the property had already been taken by defendants 1 and 2 in the case, and that, if e is impleaded as a party, multiplicity of suits will he avoided. these are not the only considerations that should guide a court in impleading a party to the suit......
Judgment:

(1) The order of the lower court impleading the husband of the second defendant as a party to the partition suit cannot be supported. The claim of the third party is that he was entitled to the suit property in his own right. Admittedly, he is not one of the sharers to the estate of Madarsa Sahib. It is well settled that, in substance, a partition suit between Mohamadan co-sharers is in the nature of an administration suit. The question of the title of the third parties to the estate will not always be a proper one for adjudication In a suit for administration.

Mr. K. Hariharan contends that, the plea that the respondent was entitled to the property had already been taken by defendants 1 and 2 in the case, and that, if e is impleaded as a party, multiplicity of suits will he avoided. These are not the only considerations that should guide a court in impleading a party to the suit. The power to implead a party to a suit is governed by O. 1, Rule 10, C.P.C. A party can he impleaded only when he is a necessary or a proper party. It cannot be stated that a person claiming an adverse title to the estate of the deceased would be either a necessary or a proper party in a suit for administration of the estate. It may be that in certain cases the plaintiff can implead such a person claiming adverse title in a partition or even administration suit; but where the plaintiff does not want him to be impleaded. it will only be embarrassing the trial of the suit if every adverse claimant to the estate were to be allowed to come in, as defendant to get his claim adjudicated. A third party can institute his own suit for the protection of such right as he may have in the property.

(2) This civil revision petition is allowed. There will be no order as to costs.

(3) Petition allowed.


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