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2005 DIGILAW 372 (PAT)

Naresh Mahto v. Durga Mahto

2005-03-30

S.N.HUSSAIN

body2005
Judgment 1. Heard learned counsel for the petitioners, who were plaintiffs in Title Suit No. 40 of 2003, which was fifed by them for partition of the joint family properties of petitioner no. 1 and his co-sharers. Petitioners no. 2 and 3.are his minor sons, whereas defendant no. 1 is his father and defendant no. 2 is his mother and defendants no. 3 to 6 are his brothers. 2. The petitioners are aggrieved by order dated 11.2.2005 passed in the aforesaid suit, by which the learned Subordinate Judge IV, Begusarai allowed the petition of opposite party no. 7 under Order I Rule 10 of the Code of Civil Procedure on the ground that she is admittedly the legally married wife of petitioner no. 1 and mother of petitioners no. 2 and 3. 3. Learned counsel for the petitioners vehemently challenges the aforesaid impugned order on the ground that since the properties involved are the ancestral properties of petitioner no. 1, hence the intervenor-opposite party no. 7 cannot have any iota of share in the suit properties, nor she was a necessary nor even a proper party to the suit. He further claims that she can only be made guardian of her minor sons alongwith petitioner no. 1 but in no case she could be impleaded independently as a party to the suit. He further claims that impleadment of the intervenor is against the specific provision of law and the learned court below without considering the same has allowed her petition and has committed serious illegalities. Learned counsel for the petitioners further submits that the intervenor-opposite party no. 7 had earlier filed similar petition in the court below, who after considering in detail dismissed the same by order dated 31.7.2003 (Annexure-1), whereafter she moved this Hon ble Court in Civil Revision No. 94 of 2004, which was permitted to be withdrawn on 16.7.2004 for moving before the court below again for better protection of the interest of the minor sons. He further submits that no direction was given by this Court to the trial court to reconsider the entire matter again with respect to her impleadment independently as a party to the suit. 4. After hearing the learned counsel for the petitioners and after perusing the materials on record, it is not in dispute that intervenor-opposite party no. 7 is the wife of petitioner no. 1 and mother of petitioners no. 4. After hearing the learned counsel for the petitioners and after perusing the materials on record, it is not in dispute that intervenor-opposite party no. 7 is the wife of petitioner no. 1 and mother of petitioners no. 2 and 3 and a divorce case has been filed by petitioner no. 1, which is pending before the court. The learned court below has also considered the claim of intervenor-opposite party no. 7 that petitioner no. 1 has remarried and the second wife is living with him and hence the interest of the intervenor and her two minor sons will naturally be disturbed, although petitioner no. 1 has denied this allegation but a petition to remove him from the guardianship of the minors is also pending. Hence due to the pendency of a number of litigations and in the special circumstances of the case, the learned court below has found that the intervenor-opposite party no. 7 is a necessary party to the suit. 5. Be that as it may, in my view, even if the intervenor-opposite party no. 7 is not a necessary party, she is definitely a proper party in the special circumstances of the case for full, final and proper adjudication of the matter keeping in view the interest of the minors. 6. In the aforesaid circumstances, I see no reason to interfere with the impugned order and accordingly this civil revision is dismissed.