Gomti Devi vs Ramprasad

Khan, J.—The facts giving rise to this revision lie within a short compass. In a suit for partition of joint family property between the co-parceners, the applicant Mst. Gomatibai filed an application before the trial Court, saying that her father who was a member of coparcenary, 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 St mainly on the ground that Bankelal had an adopted son named Munnalal and that in his presence Mst. Gomatibai 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 not there. He is not on record as the son of Bankelal. Order I Rule 10 Clause 2 of the CPC 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 Invoived in the suit.

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.

It goes without saying that in a suit for 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 (A. I. R. 1925 P.C. 49 in AIR 1953 Hyd 170 Laxmana v. Someshar Rao and another) 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 entitled to a share 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-shares 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 entitled to share on partition, the females are also necessary parties to the suit.

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) CPC at all, and it may be said with justification that in the exercise of its jurisdiction the Court acted with material irregularity.

In result the revision is allowed and the case Is remitted to the trial Court with the direction to decide the questions of addition of patties 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. Gomatibai has no right to be added as a party, The Defendants shall lead evidence of adoption and it will be open to Mst. Gomatibai and the Plaintiff''s 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) CPC Mst. Gomatibai is a necessary party. The parties shall bear their own costs of this revision.