Nima Kaur vs Surjith Singh and Others

M.H.S. Ansari, J.—Aggrieved against the order rejecting the application for impleading the unsuccessful petitioner, has filed the above Revision Petition.

The suit O.S.No. 54 of 1981 has been filed by Respondent No. 1 against Respondents 2 and 3 herein in respect of the properties left behind by one Santh Singh. Respondent No. 1 claims to be the adopted son of Santh Singh Respondent No. 2 -(Jugna Bai) is the second wife of the said Santh Singh and defendant No. 2 in the suit, Respondent No. 3 herein is daughter and is defendant No. 3 in the said suit. The petitioner herein claims to be a foster daughter of the said Santh Singh and entitled to a share in the estate of Santh Singh by virtue of a Settlement Deed (Ex.B-2) and therefore claimed to be a necessary and proper party to the suit O.S.No. 54 of 1981. A preliminary decree was passed by the Court on 11-10-1990 and an application LA.No. 697 of 1993 filed by the plaintiff for passing the final decree is pending adjudication and it is at this stage that the petitioner herein filed I.A.No. 1491 of 1993 for impleading her as a party to the said proceedings which by the order under challenge in the above Civil Revision Petition was dismissed.

Sri M.S.K. Sastry, learned Senior Counsel appearing on behalf of the petitioner contended that the order rejecting the application for impleadment of the petitioner suffers from material irregularity and failure to exercise jurisdiction vested in the Court below and if allowed to stand, it would occasion failure of justice and cause irreparable injury to the petitioner.

Learned Senior Counsel submitted that an application under Order 1 Rule 10(2), C.P.C. is maintainable and a party can be added at any stage of the suit. That a partition suit is deemed to be pending until a final decree has been passed. Learned Senior Counsel as also relied upon several judgments reference to which has also been made hereafter.

There can be no dispute with the aforesaid contentions of Sri M.S.K. Sastry, learned Senior Counsel for the petitioner that the partition suit stands disposed of only with the passing of a final decree and until the final decree is passed, a petition under Order 1 Rule 10, CPC is maintainable. In the instant case, admittedly final decree has not been passed and therefore it has to be held that the petition under Order 1 Rule 10, CPC filed by the petitioner is maintainable. There is ample authority for the said proposition vide Ramader Appala Narasinga Rao v. Chunduru Sarada, AIR 1976 A.P. 226.

Sri Koka Raghava Rao, learned Counsel for the Respondents, however, submitted that a preliminary decree has been passed and shares have been allotted, there is no reason justifying the unsettlement of the settled position and there is no necessity for the petitioner to be impleaded as party at this stage of the proceedings of the suit. I cannot accede to the said contention.

In Phoolchand and Anr. v. Gopal Lal, AIR 1967 SC 1470, it was held that any partition suit by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided, the decision amounts to a decree and that there is no prohibition in the CPC against passing a second preliminary decree in such circumstances. It was also clarified in the said judgment that this can be done so long as the final decree has not been passed and also that such course of action is permissible only in partition suits. It would be appropriate to extract a relevant portion of the said judgment, which is as under:

"(7) We are of opinion that there is nothing in the CPC which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the Court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that we are saying must be confined to partition suits".

The Madras High Court in Nanja Naicken Vs. Rangammal, , had to consider, with respect to the omission in the preliminary decree to declare one of the defendant''s share who had been impleaded as a party after the date of the preliminary decree, the question whether the preliminary decree can be rectified either by amendment of the preliminary decree or by the grant of a second preliminary decree. The Court after referring to and relying upon Phoolchand''s case (supra 2 cited), held that more than one preliminary decree can be granted in a partition suit and that it is the duty of Court to adjudicate upon the claims of all the parties to avoid anomalies and complications. Relevant portion of the judgment, reads as under:

"...It must not be forgotten that a partition suit must be deemed to be pending till a final decree is actually granted. It is the duty of the Court in a partition suit to adjudicate upon the claims of all the parties who claim a share in the subject matter of the suit. Otherwise it would lead to endless anomalies and complications. It has repeatedly held by this Court that in a partition action more than one preliminary decree can be granted".

It is thus amply clear that as long as the partition suit is pending and until a final decree is actually passed, application for impleading a party is maintainable. That a duty is cast on the Court in a partition suit to adjudicate upon the claims of all the parties who claim a share in the subject matter of the suit and that there is nothing in the CPC which prohibits the passing of more than one preliminary decree if circumstances justify the same. It is not only convenient to the Court and advantageous to the parties, specially in partition suits to have disputed rights finally settled before a final decree is prepared.

Let us now look at the reasons mentioned by the trial Court in the order rejecting the application filed by the petitioner.

The Trial Court noted that the petitioner is the foster daughter and is claiming share in the property on the basis of Settlement Deed dated 30-12-1978 (Ex.B-2) whereby the petitioner was given l/3rd share. The Court observed that the said aspect has been agitated before Court by defendants 2 and 3 and therefore it was neither just nor necessary to re-open the suit for fresh adjudication on the disputes which were already considered by the Court. A perusal of the judgment dated 11-10-1990 in the said suit based on which the preliminary decree was made, however, shows that though there is a reference to Ex.B-2, there is no finding either as to its validity or legality. The Court has also not considered the question whether any and if so what effect has to be given to Ex.B-2. The Court below was therefore not justified in stating that the matter with respect to the settlement deed Ex.B-2 has been adjudicated.

The construction of the language of Order 1 Rule 10(2), CPC requires that the same should not be restricted merely to the parties involved in the suit, but that an attempt should be always to make parties, all persons who may be necessary in order that there might be a final and complete adjudication of the points involved in the suit, specially so, in a suit for partition.

In the circumstances, it cannot be denied that the petitioner is a necessary and proper party whose presence is required for complete and final adjudication of the points involved in the suit. I do not see any reason why the dispute raised by the petitioner herein as to her claim based on Ex.B-2 should not be decided by the Court which passed the preliminary decree. The Court undoubtedly has jurisdiction to decide all disputes including those that may arise after the preliminary decree and before the final decree has been passed, as in the instant case.

The above Civil Revision Petition has therefore to be allowed and is accordingly allowed. The Order of the Subordinate Judge dated 12-7-1996 in I.A.No. 1491 of 1993 in I.A.No. 697 of 1993 in O.S.No. 54 of 1981 be and is hereby set aside and consequently the application filed by the petitioner I.A.No. 1491 of 1993 is allowed and the petitioner is directed to be impleaded as defendant to the suit O.S.No. 54 of 1981. No costs.