B.N. Pyne, J.
1. This appeal is directed against the judgment and order dated 19th Feb., 1980 of Mrs. P. Khastgir, J, dismissing the appellant's application made in the court of the first instance for amendment of the plaint filed in Suit No. 576 of 1'979 (hereinafter referred to as 'the said suit') and for addition of party. In the said application the appellant also prayed for fresh leave under Clause 12 of the Letters Patent against the added defendant.
2. The appellant as the plaintiff in the court of the first instance filed the said suit for partition and declaration of the shares in the estate of her father, Baldev Raj Sachdev, as also for a declaration that the partnership business of Printers Emporium, created by the Deed dated 1st September, 1975 was illegal, void and not binding on the plaintiff and for other reliefs as would fully appear from the plaint.
3. The appellant's father, Baldev Raj Sachdev, (hereinafter referred to as 'the said deceased') died on the 17th August, 1975 leaving his widow Bimala Sachdev, the respondent No. 2 in this appeal and three daughters namely, the appellant Ritu Sachdev, the respondent No. 1 Anita Jindal nee Sachdev and the respondent No. 3 Vanita Kuckreja nee Sachdev as his heiresses and legal representatives under the Hindu Law. According to the appellant, she was born on 21-10-60 and, therefore, vas a minor at the time of the death of her father, the said deceased. In the Schedule to the plaint, the appellant has stated various properties belonging to and comprising the estate of the said deceased. They are premises No. 53, Block 'D', New Alipore, Calcutta, monthly rent due and payable by the tenants of the said property, tenancy of the shop-room at premises No. 14/2, Old China Bazar Street, Calcutta and of the godown at No. 22, Sukeas Lane, Calcutta and No. 52A, Block 'D', New Alipore, Calcutta, assets and stock-in-trade of the firm of Printers Emporium of which the said deceased during his lifetime was the sole owner, several cars and other furniture and fixtures as fully stated in the said schedule to the plaint. The said premises Nos. l4/2, Old China Bazar Street and 22, Sukeas Lane are within the original side jurisdiction of this Court. New Alipore, properties are outside the said jurisdiction. In the plaint the plaintiff has claimed for partition of the proper-ties left by the said deceased It is also stated in the plaint that after the death of the said deceased at the instance of defendant No. 1 Anita Jindal and her husband one Satish Kant Jindal, the said business of the Printers Emporium was converted into a partnership with three partners namely, the appellant's mother and her two sisters. Tha appellant was admitted to the benefit of the said partnership. In the plaint, tha appellant has claimed a declaration that the said partnership namely Printers Emporium created by the deed dated 1st September, 1975 and the power of attorney of the same date given to the husband of the respondent No. 1 are illegal, void and not binding on the plaintiff or the estate of the said deceased. The said suit was filed after obtaining leave under Clause 12 of the Letters Patent. Leave under Clause 12 of the Letters Patent was obtained on tha basis that the immoveable properties being the tenancy rights in respect of the said shoproom and godown at No. 14/2.. Old China Bazar Street and No. 22, Sukeas Lane respectively are within tha original side jurisdiction of this court.
4. It appears that in Dec. 1979 the respondent No. 1, Anita Jindal (defendant No. 1' in the said suit) made an application, inter alia, for revocation of leava granted under Clause 12 of the Letters Patent to institute the said suit. Thereafter, on or about 18th Feb., 1980 the appellant made the application out of which tha present appeal has arisen. In the petition of the application the appellant has made the following prayers:--
'(a) Leave be given to the petitioner to amend the cause title and body of the plaint herein in the manner as shown in Red Ink in a copy of the plaint annexed to the petition and marked 'B';
(b) the amendments in pursuance of the order to be made directed to be incorporated in the plaint within a fortnight from the date of the filing of order to be made herein;
(c) the register of the suit be also amended accordingly;
(d) fresh leave under CJ. 12 of the Letters Patent be granted;
(e) leave be given to reverify tha amended plaint;
(f) that Writ of Summons be issued for service upon the added defendant and the same is made returnable by nine weeks from the date of issue and Sheriff of Calcutta do accept the same for service if lodged with him within 14 days from the date of Issue;
(g) that the other defendants be given liberty to file Written Statement within such time or this Hon'ble Court fix after service of the amended copy of the plaint upon them;
(h) such further order or orders be made or directions given as this Hon'ble Court may deem fit and proper.'
5. From the proposed amendment indicated in the plaint as will appear from pages 34-36 of the Paper Book it appears that the appellant has challenged a deed of dissolution dated April 1, 1978 whereby partnership of Printers Emporium was dissolved. 'By the said deed the assets and properties of the said firm of Printers Emporium including the tenancy right of the said shoproom were conveyed to Satish Kant Jindal the husband of the respondent No. 1. The appellant has further challenged the purported transfer of the tenancy of the godown in premises No. 22, Sukeas Lane, Calcutta in the name of the said Satish Kant Jindal. The appellant has also challenged the misappropriation of various money belonging to the said firm by the husband of the respondent No. 1. By the amendments the appellant has sought to introduce two further prayers in the plaint as follows:--
'(cc) A declaration that the purported Deed of Dissolution of Partnership dated April 1', 1978 is non-genuine, illegal, void and not binding on the plaintiff and/or the estate of Baldev Raj Sachdev and the same be cancelled and/or rescinded;
(ccc) A declaration that the purported transfer of tenancy in respect of the go-down at No. 22, Sukeas Lane, Calcutta in favour of the defendant No. 4 is illegal, fraudulent, void and of no effect and not binding on the plaintiff or the estate of Baldev Raj Sachdev and the same be set aside.'
6. It, therefore, appears that by the said application the appellant has prayed for amendment of the plaint, addition of said Satish Kant Jindal as a party to the said suit as also for fresh leave under Clause 12 of the Letters Patent.
7. The said application was heard by Mrs. P. Khastgir, J. and Her Lordship by the judgment and order dated 19th Feb., 1980 dismissed the said application. It appears that Her Lordship mainly relying on the case of Ranjit Kumar Pal Chowdhury v. Murari Mohan Pal Chowdhury, : AIR1958Cal710 and an unreported judgment of a Division Bench of this Court in the case of Promode Kumar Jalan and Shyam Lall Jalan held that so far as the tenancy right in respect of the two premises within the jurisdiction of this courtwas concerned, only the appellant and the proposed defendant No. 4, Satish Kant Jindal, would be entitled to and that all the co-sharers of the estate of the said deceased would not be entitled to the same and in that view of the matter Her Lordship dismissed the said application.
8. Mr. S. K. Gupta, the learned counsel appearing on behalf of the appellant, has submitted that in the present application the appellant has prayed not only the amendment of the plaint but also addition of a new party and for grant of fresh leave under Clause 12 of the Letters Patent Relying on a decision reported in the case of Daulatram Agarwalla v. Champalal Jugraj, : AIR1963Cal337 it was submitted that inasmuch as in the instant case the appellant has prayed for fresh leave under Clause 12 of the Letters Patent the impugned order is appealable, Mr. Gupta has further submitted that the plaintiff has challenged the deed of dissolution dated April 1, 1978 and if the challenge succeeds and the deed is set aside then that would be with regard to all the co-sharers and not in respect of the appellant's share or interest only in the property in question. In this connection reliance was placed on a passage in Mullah's Hindu Law, (14th Edition) Article 269, page 337. Mr. Gupta has also submitted that, in the instant case, as leave under Clause 12 of the Letters Patent has been revoked the appellant cannot agitate the question of dismissal of the prayer of the amendment in an appeal from any decree in the suit.
9. Mr. B. ,N. Sen, learned counsel appearing for Satish Kant Jindal (Proposed defendant No. 4 in the suit) has submitted that by the proposed amendment the appellant has sought to introduce an inconsistent case. It has been further submitted that if the said deed of dissolution is set aside it would be only with respect of appellant's interest in the said business and not in respect of the interest of other parties to the said deed because they have executed the said deed and obtained benefit thereunder. Therefore, excepting the appellant all other co-sharers cannot be said to have any interest in the said business of Printers Emporium of which at present Satish Kant Jindal is the sole owner. So far as the disputes regarding the tenancy righis of the said shoproom and the said godown are concerned the appellant and Satish Kant Jindal only are the interested parties. Other co-sharers have no interest in thesaid tenancy rights and are not interested in the dispute regarding the same. It is also submitted that a new cause of action is sought to be introduced by the proposed amendment.
10. In the case of Daulat Ram v. Champa Lal, : AIR1963Cal337 it has been held that if an order allowing the amendment of plaint in a suit instituted with leave under Clause 12 of the Letters Patent is an order of amendment simpliciter such an order is not an appealable order. But where the question is further complicated by the fact that fresh leave under Clause 12 of the Letters Patent was granted in respect of the amendment, as such leave was found necessary in view of the provisions of Clause 12 of the Letters Patent, the question of amendment of the pleading and the question of leave under Clause 12 of the Letters Patent are inter-connected or in other words when the question of procedure and the question of jurisdiction are mixed up and one cannot be dissociated from the other, the order dealing with such question of procedure and the jurisdiction is an appealable order and it is a judgment within the meaning of Clause 15 of the Letters Patent.
11. In the case of Ranjit Pal Chowdhury v. Murari Mohan Pal Chowdhury : AIR1958Cal710 relying on the earlier decisions it was observed as follows:--
'The true meaning of this rule is not that no property could be brought into hotchpot in which all the defendants do not claim interest but that no property can be so brought in which all the co-sharers do not claim interest, in a partition suit the defendants may include co-sharers as well as strangers. It is not the law that those properties in which all the defendants do not claim interest have to be left out in a suit for partition but it is the law that only those properties have to be left out which upon the allegations in the plaint, are not held in common by the co-sharer defendants. Otherwise no question of title or benami could be investigated in a suit for partition where as it is the settled law that such question can and should be decided in a partition suit'
In the unreported decision in the case of Promode Kumar Jallan v. Shyam Lall Jallan the principle laid down in : AIR1958Cal710 was followed. In that rase all the defendants were not interested in one of the two properties which was outside the jurisdiction although the said property along with one property withinthe jurisdiction were joined for partition. In view of the aforesaid fact the court held that since ail the co-sharers were not interested in the property outside the jurisdiction, the same could not be joined along with the property within the jurisdiction and on that basis leave under Clause 12 of the Letters Patent was revoked.
12. In the instant case, the appellant in her application made in the court of the first instance, apart from amendment of the plaint, also prayed for joinder of a new party namely, the said Satish Kant Jindal and for grant of fresh leave under Clause 12 of the Letters Patent. Therefore, the order appealed against is not an order for amendment of the plaint simpliciter but it also involves the question of refusal of grant of fresh leave under Clause 12 of the Letters Patent. Hence the question of procedure is mixed with the question of jurisdiction. In the aforesaid view of the matter we are of the opinion that the impugned order is appealable.
13. By the proposed amendment, the appellant has sought to challenge the deed of dissolution dated April 1, 1978 whereby the firm of Printers Emporium was dissolved and all its assets and stock-in-trade (including the tenancy right of the shoproom at No. 14/2, Old China Bazar Street) were transferred to Satish Kant Jindal, the proposed defendant No. 4 as also the transfer of tenancy right of the godown at No. 22, Sukeas Lane. The appellant's allegations is that the properties belonging to the estate of the said deceased were wrongfully and illegally transferred and/or conveyed to Satish Kant Jindal, the proposed defendant No. 4.
14. The question, therefore, is if the said deed of dissolution is declared void and the transfer of the tenancy rights in respect of the said shoproom and the go-down are set aside, whether that would affect only the appellant's share or the shares of all the co-sharers of the estate of the said deceased.
15. In Mulla's Hindu Law, 14th Edition, Article 269 page 337 it is observed that where a member of joint family governed by Mitakshara law as administered in Bengal, Bihar and Uttar Pradesh sells or mortgages the joint family property or any portion thereof without the consent of his coparcener, the alienation is liable to be set aside wholly unless it is for legal necessity or for payment by father of an antecedent debt and it does not pass the share even of the alienating coparcener. The result is that if the alienation is neither for legal necessity nor for payment of the antecedent debt the other coparceners are entitled to a declaration, that the alienation is void in itsentirety.
16. Therefore, it would appear that if the deed of dissolution and the transfer of tenancy rights in respect of the said shoproom and the said godown are set aside the same would be in its entirety and not merely only in respect of the plaintiff's l/4th share therein. That being the position, it cannot be said that the other co-sharers are not interested in the dispute concerning the said tenancy rights. Therefore, if the appellant's challenge succeeds all the co-sharers would be interested in the tenancy right of the shoproom and the godown.
17. Inasmuch as by any decision on the question regarding the validity of the transfer of the tenancy rights Satish Kant Jindal would be affected; he is a proper party, if not a necessary party, to the suit.
18. For all the reasons stated hereinbefore, in our view, the appeal should be allowed and the same is allowed. There will be an order in terms of clauses (a), (b), (c), (d), (e) and (f) of the Master's Summons filed in the court of the first instance. The defendants Nos. 1, 2 and 3 will be at liberty to file their respective addl. written statement to the amended plaint and such addl. written statement should be filed within two weeks from the date of service of a copy of the amended plaint upon them. Cost of the appeal as also of the application made in court of the first instance will abide by the result of the suit.
S.C. Ghose, C.J.
19. I agree.