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2017 DIGILAW 252 (ORI)

Sudarsan Sahu v. Kuni Sahu

2017-03-08

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. This petition challenges the order dated 1.5.2014 passed by the learned Civil Judge (Senior Division), Keonjhar in C.S. No.95 of 2009. By the said order, learned trial court rejected the application of the plaintiff under Order 1 Rule 10 and Order 6 Rule 17 read with Section 151 CPC to implead the transferees of the suit land as parties and amendment of the plaint. 2. The petitioner as plaintiff instituted the suit for partition impleading the opposite parties as defendants. Pursuant to issuance of summons, defendants entered appearance and filed written statement. While the matter stood thus, the plaintiff filed an application under Order 1 Rule 10 and Order 6 Rule 17 to implead the transferees as parties and to incorporate the prayer that the subsequent sale deeds executed by defendants 2 and 3 in favour of the transferees are not binding on him and to declare the same as null and void. The defendant filed an objection to the same. It is stated that in the written statement, they have specified about the execution of the sale deeds. The plaintiff has full knowledge of the same. The suit for declaration of the sale deeds as null and void is barred by limitation. The learned trial court came to hold that the plaintiff is aware of the allegation made by the defendants. He has not taken any step at the earliest point of time. After lapse of statutory period of limitation, the plaintiff has sought for amendment. The proposed amendment will change the nature and character of the suit. Held so, learned trial court rejected the application. 3. The question does arise as to whether transferees are necessary parties or proper parties to the suit? 4. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 , the apex Court held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property. 5. 5. In a suit for partition, the plaintiff is bound to implead as defendant : (i) the heads of all branches; (ii) females who are entitled to a share on partition; (iii) the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener; (iv) if the plaintiff himself is a purchaser from a coparcener, his alienor. The above are necessary parties and if any of them is not joined, the suit is liable to be dismissed. The entire joint family must be represented either expressly or implicitly. (Article 332 of Mulla Hindu Law). Article 332 further provides that it is desirable that the following persons should be made parties; though not necessary parties, they are proper parties to the suit: (i) a mortgagee with possession of the family property or of the undivided interest of a coparcener; (ii) simple mortgagees of specific items of the family property; (iii) purchaser of the undivided interest of a coparcener; (iv) persons entitled to provision for their maintenance and marriage, i.e., widows, daughters, sisters and such like and distinguished heirs; (v) any person entitled to maintenance from the family. The plaintiff may also implead any other coparcener or any person interested in the family property such as a mortgagee or a lessee. Such a person may himself apply and be made a party. 6. This Court in Smt. Pramila Dash and others v. Smt. Basanti Dash (CMP No.614 of 2015 disposed of on 11.1.2017) held that the policy of law is to avoid multiplicity of proceedings. In an application for impleadment, the court has to see whether the intervener is necessary or proper party to the suit. The purchasers of the undivided interest of a coparcenery property are proper parties in a suit for partition. 7. In view of the same, the order dated 1.5.2014 passed by the learned Civil Judge (Senior Division), Keonjhar in C.S. No.95 of 2009 is quashed. The application filed by the plaintiff is allowed. The petition is disposed of.