Delhi High Court
Ram Murti Devi vs Pramod Kumar Gupta & Ors. on 16 August, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) No. 492/2007
Date of Decision: 16.08.2012
RAM MURTI DEVI ...... Petitioner
Through: Mr. Siddharth Bambha, Mr.
Nishant Nandan and Mr. Nitin
Kumar, Advocates.
Versus
PRAMOD KUMAR GUPTA & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution of India assails
order dated 01.03.2007 of Learned Additional District Judge, whereby
her application under Order 1 Rule 10 CPC was dismissed.
2. The petitioner is the mother of plaintiff who had filed the suit
against his father and one brother and two sisters for partition, rendition
of accounts and injunction. In the said suit, the petitioner being the
mother of the plaintiff and wife of defendant No.1 filed application U/O
1 Rule 10 CPC for impleadment and which came to be dismissed by the
Learned ADJ vide the impugned order. Reasoning as under:-
"She is the daughter in law of the deceased Gopi Ram,
whose son Sh. Krishan Kumar Gupta is the defendant No.1
who is the husband of applicant and she can claim her share
only through her husband that too as a widow of the son of
Sh. Gopi Ram i.e. her husband that too after his death.
Hence, the application is premature. The applicant being the
mother of plaintiff has no independent right or share.
Whatever right she derives that will be accrued to her after
the death of defendant No.1 being her widow. Hence the
application is devoid of substance being premature and
baseless. The applicant has no right being the mother of
plaintiff hence she is not a necessary party."
I have heard learned counsel for the petitioner/applicant. None
has turned up on behalf of the respondents.
At the outset, it is noted that in the suit that was filed by the
respondentNo.1/plaintiff, the defendant Nos. 1 to 4 had raised the
preliminary objection as to the maintainability of the suit on the ground
of non-joinder of necessary parties. It was specifically averred by them
that the petitioner, who is the mother of plaintiff and defendant Nos. 2 to
4 and wife of defendant No.1 was entitled to equal share on partition of
the family properties and was necessary and proper party. The
respondent No.1/plaintiff having failed to implead her as defendant, the
petitioner filed the instant application Under Order 1 Rule 10 CPC. The
reason that has been given by the Learned ADJ is apparently not
sustainable as per law. The defendant Nos. 3 & 4, being the daughters
of defendant No.1 have the status of coparcener by virtue of amendment
of Section 6 of Indian Succession Act in 2005. Explanation to Section 6
contains a formula for deducing the share of deceased by fiction.
Though the petitioner was not a coparcener, still if a partition was to
take place between her husband and his two sons and daughters, she
would be entitled to receive a share equal to that of his sons. This was
to be governed by the provisions contained in Section 9 & 10 of the said
Act. Thus it could not be said that she was only to inherit the share of
her husband after his death. She would definitely have the interest in
the share of her husband to be determined by the fiction of explanation
of section 6 and would certainly be affected by the partition of the
family property amongst the heirs of her father-in-law Gopi Ram.
Therefore, the presence of petitioner, being the wife of defendant No.1
and mother of plaintiff and other defendants is not only relevant, but
necessary for the just decision of the case. What is to be seen at this
stage is as to the necessity of presence of an affected person in the lis
and not determination of her rights in the subject matter. In view of all
this, I am of the view that the impugned order is perverse and is not
sustainable. The same is set aside. The petition is allowed.
M.L. MEHTA, J.
AUGUST 16, 2012
pkv
