Shew kumari Debi vs Deo alias Debnarayan Pandey

S.K. Roy Chowdhury, J.—This is an application, inter alia, for leave being granted to the Petitioner to intervene in the suit and the Petitioner be added as a party-Defendant to the suit and consequential amendment of the plaint and other consequential directions.

The facts of the case shortly are that the present suit has been filed for partition of joint family properties in or about August 1974. The parties to this suit are governed by the Mitakshara, school of Hindu Law claiming partition of properties belonging to one Shew Balak Pandey who died on or about January 17, 1961. It is alleged by the Petitioner that he has come to know about the present suit for partition only on or about December 6, 1974, under the circumstances as alleged in para. 2 of the petition and, thereafter, after causing enquiries and searches to be made in the records of this suit and proceedings thereunder. It is alleged by the Petitioner that the joint family properties which are the subject-matter of this partition suit include properties in which the Petitioner as Karta of Hindu joint family consisting of his sons and also widowed mother are interested as coparceners. It is alleged that the said properties have devolved on the heirs of the common ancestor one Mahananda Pandey who was the Karta of the joint family consisting of five sons. The said joint family started money-lending business with the joint family fund in the name of Shew Balak Pandey. It is alleged that the said money-lending business was also carried on in the name of Shew Dulari Pandey, one of the sons of the said Mahananda Pandey, but after the death of Shew Dulari since about 1911 the said joint family business of money-lending was carried on in the name of Shew Balak Pandey. It is further alleged that out of the income of the said money-lending business of the said joint family in the name of Shew Balak Pandey various properties in and around Calcutta were acquired. It is also alleged that various immovable properties were also owned by the said joint family in the joint names of the brothers of Shew Balak Pandey, that is, the sons of Mahananda Pandey at Jagatpur in the district Rai Bareilly in the State of U.P. being the native village of the parties hereto including the Petitioner. It is also alleged by the Petitioner annexing a copy of the genealogical table to the petition showing the relationship between the Petitioners and the parties to the suit that Petitioner''s branch is a co-sharer. It is alleged that a suit being suit No. 648 of 1914 Mahananda Pandey and Ors. v. Bhagabati Debi and Ors. was filed in this Court for a declaration that certain funds and assets belonged to the said joint family consisting of Mahananda Pandey and his lineal descendants and by a judgment dated May 4, 1915, passed in the said suit, it was declared that the said money-lending business was the joint family business of the Mitakshara Hindu joint family of which Shew Balak Pandey was a member. In the said suit Shew Balak Pandey gave evidence and admitted that the money-lending business was started with the money brought from home and also by the contributions of the members of the joint family. A copy of the said judgment is annexed to the petition. It is also alleged by the Petitioner that out of the five sons of Mahananda Pandey only two branches, that is, one of Phulan Pandey and the other of Shew Balak Pandey are surviving and the branches of the other three sons have become extinct as they left no issue. Therefore, it is alleged that all the properties which are the subject-matter of the present partition suit belong to the said joint family of the lineal descendants of Mahananda Pandey through his sons Phulan Pandey and Shew Balak Pandey. The parties to this suit only represent the branch of Shew Balak Pandey and they have deliberately excluded the branch of Phulan Pandey which is now represented by the Petitioner as Karta. The Petitioner also alleged that the properties at the native place and the properties at Calcutta which are the subject-matter of the present partition suit belong to the said joint family of which the Petitioner as Karta representing the branch of Phulan Pandey and Shew Balak Pandey had half share each in the said joint family properties. It is further alleged that after the death of Shew Balak Pandey on January 17, 1961, Prem Narayan Pandey became the Karta of the joint family and managed and controlled the Calcutta properties on behalf of the Mitakshara, Hindu joint family of which the Petitioner and the heirs and legal representatives of the said Shew Balak Pandey had an undivided half share each. It is alleged that the said Prem Narayan Pandey died on August 28, 1972 and thereafter, Deonarayan Pandey became the Karta and managed the joint family properties. It is also alleged by the Petitioner that an appointment of Receiver in the said partition suit has been made and thereby vitally affecting the right, title and interest of the Petitioner in the said joint family properties. On the basis of the said allegations in the petition, the Petitioner made this application on December 9, 1974 and after filing of the affidavits the matter has come up for hearing.

Mr. B.L. Jain, appearing with Mr. C.K. Deora for the Petitioner, has drawn my attention to the allegations in the petition and also to the annexures particularly the judgment in the suit No. 648 of 1914 Mahananda Pandey if Ors. v. Bhagabati and Ors. of Greaves J. dated May 4, 1915 and the genealogical table and also an affidavit filed by Shew Balak Pandey affirmed on September 14, 1915, in the said suit No. 648 of 1914 and copies of two notices of the Consolidation Officer, Satyanagar, Rai Bareilly in the State of U.P. dated September 3, 1967 and August 3, 1969, whereby the parties are described as Jaynarayan Shew Balak in respect of certain lands being the joint holdings of the parties. Relying on those statements and facts, Mr. Jain submitted that prima facie the Petitioner is representing as Karta, the branch of Phulan Pandey and, as such, interested in the joint properties which are the subject-matter of this partition suit. Mr. Jain submitted that the parties to this suit have deliberately excluded the Petitioner''s branch from the said suit by suppression of materials and true facts, Mr. Jain drawing my particular attention to the allegation in paras. 3, 4, 15, 16 and 17 of the petition and paras. 38 and 48 of the affidavit-in-reply. In support of his contention the Petitioner has disclosed various letters and post cards written by the said Shew Balak Pandey to his brother Phulan Pandey showing that the properties were purchased out of the joint family nucleus and, as such, prima facie there are materials to show that all the properties which are the subject-matter of the partition suit are the joint family properties of the Petitioner representing the branch of Phulan Pandey and the parties to this suit being the heirs and legal representatives of Shew Balak Pandey. Mr. Jain after drawing my attention to the petition and affidavit-in-opposition, affidavit-in reply and annexures thereto submitted that there was no prima facie evidence that the joint family separated at any time ; on the other hand, there are materials on record to show prima facie that all the joint family properties were purchased out of the joint family fund and, therefore, it is the joint properties of the Petitioner''s branch and parties to this suit and, as such, the Petitioner as a Karta is a necessary party to this partition suit being entitled to half share in the said joint properties. Mr. Jain referred me to Mulla''s Hindu Law, (14th ed., Articles 222 and 233) as to the principles on which properties belonging to Mitakshara Hindu joint family members are ancestral properties. Thereafter, Mr. Jain strongly relied on the Supreme Court decision in Razia Begum Vs. Sahebzadi Anwar Begum and Others, wherein the principles on which a party to be added under Order 1, Rule 10 of the Code of Civil, Procedure have been laid down and he submitted that applying the principles to this case also, the Petitioner is entitled to be added as a party-Defendant to this suit as a necessary party and the parties to this partition suit have deliberately excluded the Petitioner''s branch only to defraud, defeat and deprive the Petitioner''s branch of their half share in the joint family properties. Mr. Jain also referred to a decision of Orissa High Court in Datari Prasad Nayak and Ors. v. Umakanha and Ors. AIR 1971 Oris. 44, a Bombay decision in Apaya v. Gobin AIR 1958 Bom. 625, a Privy Council decision in AIR 1925 49 (Privy Council) and an M.P. High Court decision in Sm. Gomati Devi Vs. Ram Prasad Prabhudayal and Others, . Relying on the said decisions and the principles laid down therein, Mr. Jain rightly submitted that in the facts and circumstances of this case the Court should exercise its discretionary power to add the Petitioners representing the branch of Phulan Pandey in the said partition suit for complete adjudication of the partition suit which relates to the joint family properties governed by the Mitakshara school of Hindu Law.

Mr. B.C. Dutt, appearing with Mr. Bhabanath Dutt, for the Plaintiff in this suit, resisted the application on the ground that under the well-known principles of adding parties to a suit only in cases where the parties sought to be added is a necessary party or a proper party and only in cases where such addition and amendment would not change the cause of action and take away the valid defence of the parties to the suit should be allowed and in support of his contention he relied on a large number of decisions being Addanti Lakshmana Charryulu v. Madduri Venkata Ramanuja Charryulu AIR 1926 Mad 822, V.R.S.S. Chidambaram Chettiar Vs. P.L.N.K. Subramaniam Chettiar and Others, , Mujtabai Begum and Anr. v. Mehbub Rehman and Ors. AIR 1959 M.P. 369, M.T. Bindru v. Sadaram and Ors. AIR 1960 J&K. 67, Mohamed Abdul Razak v. S. Mohamed Shah AIR 1932 Mad. 346, Motiram Roshanlal Coal Co. (P) Ltd. Vs. District Committee and Others, , Banarasi Das v. Pannalal AIR 1969 Punj. 57 and Jivanlal Damodardas Wani Vs. Narayan Ukha Sali, . Mr. Dutt after citing those decisions submitted that the tests as to whether a party should be added or not is that the decisions in the suit is bound to affect the rights of such parties and such addition is necessary to effectuate adjudication upon the question involved in the suit. Further, Mr. Dutt submitted that when the Plaintiff in a suit does not want to implead a particular party it will only be embarrassing to add such party in the suit who claims adversely to the Plaintiff. He submitted that from the said decisions it is well settled that a party can only institute his own suit for the protection of his right as he may have in the property. Therefore relying on those principles and authorities he submitted that the Plaintiff being dominus litis is free to choose his opponent in his suit and, as such, a party cannot be forced upon him if he does not want it. Secondly, if anybody claims adversely the properties which are the subject-matter of this suit, he has a remedy by way of filing a suit and should not be added as a party and when all the parties to this suit are not concurring in adding the party to the suit, such application for addition should be refused and, further, the disputes in this suit, where the basis is that the properties belong to the heirs of Shew Balak Pandey only and, as such, the Petitioners are not necessary parties on the allegations in the plaint as they have no interest in the property and, lastly, there may be question of ouster of the Petitioner''s branch from the joint properties and, as such, the question of limitation would come up. Therefore, the Petitioners should not be added against the wishes of the Plaintiff and some of the Defendants. It is also submitted by Mr. Dutt that the Petitioners have been set up by the Defendant No. 1 Debnarayan Pandey, Surya Narayan Pandey and Sashi Bhusan Mishra and their group after Receiver was appointed over the properties which are the subject-matter of this suit only to harass the Plaintiff and the other Defendants in this suit.

Considering the matter very carefully, in my view, in the facts and circumstances of this case where prima facie it appears that the Petitioner belongs to the same family of Mahananda Pandey and also having regard to the facts viz. the judgment dated May 4, 1915, in the said suit No. 648 of 1914, affidavits of Shew Balak Pandey and also the notices of the Consolidation Officer and various letters disclosed by the Petitioners in this application, prima facie it appears that the Petitioner''s branch is vitally interested in the said properties on the basis of their claim that they are entitled to half share in all the properties belonging to the Mitakshara Hindu joint family now represented by two branches being the branches of Phulan Pandey and Shew Balak Pandey represented by the Petitioners and parties to this suit respectively. In my view, the principles laid down in the decisions cited by Mr. Dutt are well-settled but have no application to the facts of this case where it cannot be disputed that if the Petitioner''s contentions are true then they are undoubtedly necessary parties to the partition suit. In any event, if the Petitioners'' claims are disputed by the parties to this suit, that question has to be adjudicated in some proceedings and, as such, the Petitioners become necessary parties to this suit. No hard and fast rule can be laid down for addition of parties under Order 1, Rule 10 of the CPC as that would depend on facts and circumstances of each particular case and here undoubtedly the Petitioners have prima facie established the claim on the said properties as members of a joint family which traced its origin from one Mahananda Pandey. It also appears that the properties which are now the subject-matter of this partition suit were acquired out of the money-lending business carried on by Shew Balak Pandey and Shew Dulari Pandey, sons of Mahananda Pandey. There is no prima facie evidence or materials at this stage to show that the joint family was disrupted at any stage. However, that question has to be gone into in the suit after the Petitioner is brought in as party Defendant in the suit. There is another way of looking at it. Assuming for a moment the Petitioners are claiming adversely to the parties to this suit and if this application is refused they have every right to file a suit and agitate the question which they now seem entitled to raise on materials which prima facie appear to be reliable and founded on facts and, therefore, to prevent such multiplicity of proceedings and unnecessary costs and harassment to the parties, in my view, it is just and proper that the Petitioner should be added as party-Defendant to this suit as prayed for in this application. It is also a question of status of the joint family members and whether there was disruption of a joint family claiming descent from Mahananda Pandey. In my view, in the present case the principles laid down, in the Supreme Court decision in the Razia Begum''s case (Supra) apply with full force. In the result, order should be made as prayed for but I am making it clear that this order is strictly without prejudice to the rights and contentions of the parties and without going into the merits of the respective contentions of the parties.

The provisions of Order 1, Rule 10, Sub-rule (2) of the CPC make it abundantly clear that at any stage of the proceedings either upon or without the application of either party on such terms as it may appear to the Court as just, a party can be added as a Defendant to enable the Court factually and completely to adjudicate upon and settle all the questions involved in the suit. It has been further laid down in the Supreme Court decision in Razia Begum v. Sahebzadi Anwar Begum and Ors. Supra (895, para 13) the principles on which the Court would exercise its judicial discretion under Order 1, Rule 10, i.e. the discretion has to be exercised keeping in view all the facts and circumstances of a particular case.

In this particular case, it appears to me that, it involves both joint family properties and status of parties in which the Plaintiffs were the Petitioner''s branch and were directly interested. According to the allegations, the properties which are the subject-matter of the partition suit are joint family properties of the lineal descendants of Mahananda Pandey. The fact of this case is very peculiar and after considering this very carefully in the light of the allegations made by the parties in their respective affidavits and petitions, I am of the view that this is a fit case where an order should be made as prayed for.

Therefore, I am making the following order:

There will be an order in terms of prayers (a), (b), (d) and such amendment to be carried out within a fortnight from date on the signed copy of the minute, on the Petitioner''s Solicitor''s undertaking to complete and file this order and the Petitioner would file an additional written statement within a fortnight - after the Easter Vacation of 1975. The Plaintiff and the parties to this suit would be entitled to file additional written statement dealing with the allegations in the additional written statement to be filed by the Petitioners within a fortnight thereafter. Liberty to apply for appropriate directions for an early hearing of the suit. After such amendment a plain copy of the plaint would be served on the Petitioner''s Solicitors by April 7, 1975. Costs of this application will be costs in the suit.