Delhi High Court
Rattan Mala Jain And Ors. vs Prem Chand Jain And Ors. on 24 November, 1987
Equivalent citations: 34 (1988) DLT 50
Author: N Goswamy
Bench: N Goswamy
JUDGMENT
N.N. Goswamy, J.
(1) This revision petition by the wife of defendant No. 2 is directed against the judgment and decree dated November 19, 1985 passed by the Addl. District Judge, Delhi.
(2) Prem Chand Jain, plaintiff had filed a suit turn partition of Huf property against his father and three brothers. It was alleged that the plaintiff had 1/5th share in the property and each of the defendants had got 1/5th share. A preliminary decree was passed by the then Addl. District Judge on 28-2-1933 for partition of the property in accordance with the said shares and a local commissioner was appointed to suggest the mode of partition. The local commissioner consequently filed his report. Against the report of the local commissioner, only defendants Nos, 3 and 4 filed objections but at the time of hearing, defendants Nos. 3 and 4 absented themselves. The learned Addl. District Judge found that the objections, in any case, bad no merit and consequently dismissed the same. He accepted the report of the local commissioner and passed the final decree.
(3) At the stage of final decree, the petitioner, who is the wife defendant No. 2, filed an application under Order 1, Rule 10 of the Code of Civil Procedure for being imp leaded as a party. Initially the application was filed only on her own behalf, but later a supplementary application was filed wherein she had stated that besides her. the minor children should also be taken to be applicants and should be imp leaded as parties. It was stated in the application that a fraud was being played on her and the minor children inasmuch as the suit was a collusive one and defendant No. 2, in order to oust her, had accepted an inferior share in the property. The application was also dismissed on the ground that as long as defendant No. 2 was alive the petitioner had no locus standi to file objections to the report of the local commissioner or being imp leaded as a party.
(4) The revision petition has to be dismissed on the short ground that the impugned judgment and decree is appealable and a first appeal against the said decree was maintainable in this Court. The appeal not having been filed the revision petition is obviously incompetent. The contention of the learned counsel for the petitioner was that the revision petition was in fact directed against the dismissal of the application under order 1, rule 10 of the Code of Civil Procedure and in case that application was allowed, the decree would automatically fall and a fresh trial had to take place.
(5) After giving my careful consideration to this argument, I find that the contention of the petitioner was negatived by this Court in Maj Pran Nath Kaushik v.Rajinder Nath Kaushik Air 1986 Delhi 121. It was held in that case that it was enough to implead the heads of different branches of coparceners for joint family in a suit for partition and it was not necessary to implead the minor children of the various coparceners. The learned counsel for petitioner relied upon certain cases including Sukhrani and others v. Hari Shankar, for the proposition that were the decree was obtained by fraud, the minor children of a coparcener who had the interest in the coparcenary property could be imp leaded as parties. A reading of these cases revealed that this proposition was correct only to the extent that a subsequent suit could be filed by the minor children on the ground that the decree was obtained by fraud, under influence or misrepresentation. The Supreme Court has gone to the extent of holding that a partition could be reopened at the instance of the minor coparcener even if there wag no fraud but the partition was unfair or prejudicial to the interest of the minor. This again has to be in a subsequent suit where it has to be shown that the partition decree was obtained by fraud, misrepresentation or undue influence and it was in any way prejudicial to the interest of the minors. Nothing has been brought to my notice either in Hindu Law or in any decided case which indicates that minors have got a right to be imp leaded as parties in a suit for partition where the head of the branch is already a party. Consequently, I find no merit in this contention also.
(6) For the reasons recorded above, the revision petition is dismissed but the parties are left to bear their own costs.
