Patna High Court
Snehlata Devi vs Suman Kumar on 6 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1017 of 2019
======================================================
Snehlata Devi, W/o Lallan Prasad Singh, Vill.- Jalalpur, P.s.- Rupaspur, Distt.-
Patna
... ... Petitioner/s
Versus
1. Suman Kumar, S/o Sri Lallan Prasad Singh, Vill.- Jalalpur, P.s.- Rupaspur,
Distt.- Patna
2. Subham Raj (minor) S/o Suman Kumar, Vill.- Jalalpur, P.s.- Rupaspur,
Distt.- Patna
3. Sumit Raj (minor) S/o Suman Kumar Vill.- Jalalpur, P.s.- Rupaspur, Distt.-
Patna
4. Sri Dhiru Kumar Vill.- Gaura, P.o. and P.s.- Rampur Chauran, Distt.- Arwal,
at present R/o Mohalla- Patel Colony, Jallapur, Bailey Road (Ram Jaipal
Road), near Murgi farm, P.s.- Rupaspur, Distt.- Patna
5. Sri Kranti Kumar Vill.- Gaura, P.o. and P.s.- Rampur Chauran, Distt.- Arwal,
at present R/o Mohalla- Patel Colony, Jallapur, Bailey Road (Ram Jaipal
Road), near Murgi farm, P.s.- Rupaspur, Distt.- Patna
6. Smt. Arti Singh W/o Pradeep Kishore Sharan Vill.- Gopalpur, P.s.- Manner,
Distt.- Patna, at present R/o Mohalla- Mayur Vihar, Bailey Road, Maurya
Path, Mayur Vihar Colony, Near Shyamal Hospital, P.s.- Shastri Nagar,
Distt.- Patna
7. Pradeep Kishore Sharan S/o Sri Devendra Kishore Sharan Vill.- Gopalpur,
P.s.- Manner, Distt.- Patna, at present R/o Mohalla- Mayur Vihar, Bailey
Road, Maurya Path, Mayur Vihar Colony, Near Shyamal Hospital, P.s.-
Shastri Nagar, Distt.- Patna
8. Lallan Prasad Singh S/o Late Ram Khelari Singh Vill.- Jalalpur, P.s.-
Rupaspur, Distt.- Patna
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mrs. Shama Sinha, Advocate
For the Respondent/s : Mr. Ajay Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 06-05-2025
The present civil miscellaneous petition has been filed
by the petitioner for quashing the order dated 21.05.2019 passed
by learned Sub Judge-II, Danapur in Title Partition Suit No. 318
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
2/14
of 2010 whereby and whereunder the learned trial court
dismissed the petition filed by the petitioner under Order 1 Rule
10 read with Section 151 of the Code of Civil Procedure (for
short 'the Code') seeking impleadment.
2. Brief facts of the case are that the plaintiffs have
filed a title partition suit seeking their half share of the
Schedule-1 property (Annexure-1) claiming that the suit
property to be ancestral property of the plaintiffs and also for
declaring a sale deed dated 27.05.2005 executed by defendant
no.5 in excess of his share to be illegal, invalid, null and void
and not binding upon the plaintiffs. Now, plaintiff no.1 is the
own son of the petitioner and plaintiff nos. 2 and 3 are the minor
sons of plaintiff no.1 and they are arrayed as respondent nos. 1
to 3 and defendant nos. 1 to 5 as respondent nos. 4 to 8. The
partition suit has been filed as defendant no.5/respondent no.8,
who is the father of the plaintiff no.1 and the husband of the
petitioner sold a plot of 1 katha 15 dhur of Mauza Jallalpur,
P.S.-Danapur, District-Patna bearing Plot No. 228, Khata No.
123 in favour of defendant nos. 3 and 4 on 27.05.2005.
Defendant nos. 3 and 4 further sold the said land to defendant
nos. 1 and 2 on 25.04.2009. The petitioner filed a petition dated
02.01.2019
under Order 1 Rule 10 read with Section 151 of the
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
Code for impleading her as defendant in the said suit claiming
that she had no prior knowledge about the case. On 16.02.2019,
a rejoinder was filed by respondent nos. 1 and 3 and another
rejoinder was earlier filed on 18.01.2019 by respondent nos. 4
and 5 to the petition filed by the petitioner for her impleadment.
The learned trial court, after hearing the parties, went on to
dismiss the petition filed by the petitioner under Order 1 Rule
10 read with Section 151 of the Code. This order is under
challenge before this Court.
3. Learned counsel for the petitioner submitted that
the learned trial court passed the impugned order under the
presumption that the petitioner has made a wrong averment that
she was not having any knowledge of the case filed by his son
and grandsons. The same is not believable. Further, the learned
trial court held that the petitioner was not a necessary party and
the application has been filed after much delay but these
grounds are against the provisions of law. Learned counsel
further submitted that the petitioner being the mother of plaintiff
no.1 and wife of defendant no.5 has every right to participate in
a partition suit filed by her son and she is the necessary and
proper party and she could rightly intervene in a suit for
partition being contested between her son and her husband.
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
Learned counsel further submitted that though a wife cannot
demand a partition but she is entitled to receive a share equal to
that of his son and to hold and enjoy that share separately even
from her husband. In this aspect, learned counsel referred to the
decision of the Hon'ble Supreme Court in the case of Lakshmi
Chand Khajuria & Ors. vs. Smt. Ishroo Devi reported in 1977
AIR 1694, wherein the Hon'ble Supreme Court held that except
for Madras, according to Mitakshara law, when there is a
partition between the son and his father, mother is entitled to a
share equal to that of the son. On the same aspect, learned
counsel referred to the decision of the Hon'ble Supreme Court
in the case Ram Nath Sao @ Ram Nath Sahu Since Deceased
Thr. L.Rs. & Ors. vs. Goberdhan Sao Since Deceased Thr. Lrs.
& Ors., (Civil Appeal No. 1110 of 2006). Learned counsel then
referred to a decision of Andhra Pradesh High Court in the case
of Syed Mohiddin (Died) & Anr. vs. Abdul Rahim & Ors.,
reported in AIR 1964 AP 260, wherein the learned Single Judge
allowed impleadment of a person as defendant in a suit for
partition in which a preliminary decree has already been passed.
Learned Single Judge referred to the case of Krishna Iyar vs.
Subrshmania Aiyar reported in AIR 1924 Mad 648 wherein it
has been held that where circumstances render it necessary, the
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
court may add a person interested in the equity of redemption as
a party even after the preliminary decree and can reopen the
decree as far as added party is concerned. Thus, the learned
counsel submitted that since petitioner being mother of plaintiff
no.1 is having right and interest in the suit property, the learned
trial court committed an error of jurisdiction in rejecting her
claim for impleadment.
4. Learned counsel further submitted that the learned
trial court presumed that the petitioner was having knowledge
about the pending suit and filed the petition after much delay.
There could be no limitation for a petition filed under Order 1
Rule 10 of the Code. So the approach of the learned trial court
on this point was wrong. Learned counsel reiterated that as the
petitioner is a necessary party, the learned trial court wrongly
held that she was not a necessary party. Thus, the learned
counsel submitted that the impugned order could not be
sustained and the same needs to be set aside and application of
the petitioner for impleadment be allowed.
5. Learned counsel appearing on behalf of respondent
nos. 4 and 5 vehemently opposed the contention of the learned
counsel for the petitioner. Learned counsel submitted that the
impugned order does not suffer from any illegality and the same
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
does not deserve any interference by this Court. Learned
counsel further submitted that the petitioner in collusion with
plaintiffs/respondent 1st set and with the sole purpose of
delaying the disposal of the suit, she has filed the present
petition. The answering respondents have been arrayed in title
suit as defendant nos. 1 and 2 and they have been contesting the
suit. The specific case of the answering respondents is that they
have constructed a house over the suit property after purchasing
the same through two registered sale deeds dated 25.04.2009
executed by the title holders, respondent nos. 6 and 7 and got
their names entered into the revenue records of the State
Government. The answering respondents have purchased the
land which was within the knowledge of the plaintiffs as well as
defendant no. 5 and they have constructed the house by taking
home loan from State Bank of India and further invested their
own money and thus they have incurred expenses of Rs.
57,00,000/- in constructing their house in which they are
residing with their family. Thus, they have perfected their right,
title and possession over the Schedule-1 land. The vendors of
the answering respondents purchased the suit land from
defendant no.5/respondent no.8 vide registered sale deed dated
27.05.2005 for consideration amount of Rs. 2,47,000/-.
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
Defendant no.5/respondent no.8 sold the suit property to the
vendors of the answering respondents and the vendors are
maternal aunt and maternal uncle of plaintiff no.1 and the land
was sold for meeting the legal necessity and for purchase of
properties. The said defendant no.5 has also executed several
sale deeds to different purchasers in respect of his ancestral land
being the karta of his joint family and in this manner had sold
about 3 bigha of land. The answering respondents have also
brought these facts to the notice of the court by raising the issue
that suit is bad for partial partition and for non-joinder of other
purchasers and other joint family property have not been
included. This goes on to show that the plaintiffs have filed the
suit only to vex the respondents and for the same purpose, the
present petition has been filed by the petitioner. The suit has
proceeded, evidence of the parties have been recorded and when
the matter was fixed for final argument, a collusive petition has
been filed by the petitioner under Order 1 Rule 10 read with
Section 151 of the Code. From perusal of the petition, it is
apparent that address of the petitioner, her husband and her son
is the same. So any claim of not knowing about the suit of her
son and grandsons is not believable. Thus, the plaintiffs,
defendant no.5 and the intervenor-petitioner all are residing at
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
the same place.
6. Learned counsel further submitted that the
petitioner is the wife of defendant no.5 and in the lifetime of her
husband, defendant no.5 has got no right in the ancestral
property of her husband. She is not a co-sharer during lifetime
of her husband in the joint family property and she has got no
interest in the suit land. Therefore, she is neither proper nor
necessary party. Moreover, the power under Order 1 Rule 10 of
the Code is a discretionary power and the court has to see that
the petitioner has got any substantive interest in the suit property
and whether in her absence effective adjudication is possible or
not. Moreover, the suit has been filed for declaring the sale deed
dated 27.05.2005 void and the plaintiff has not been seeking any
relief against the petitioner. For effective adjudication of the
issue involved in the suit, absence of petitioner is not going to
affect the adjudication. Learned counsel referred to a decision of
the learned Single Judge of this Court in the case of Rameshwar
Mistry & Anr. vs. Bebula Mistry reported in AIR 1991 Pat 53:
1990 SCC OnLine 38, wherein the learned Single Judge held
that under the Hindu family, a female cannot be a member of
coparcenary governed under the Mitakshra School of Hindu
Law and during the lifetime of husband, the wife cannot be said
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
to be a member of the joint family. Learned counsel also
referred to a decision of the Hon'ble Supreme Court in the case
of Surjit Lal Chhabda vs. Commissioner of Income Tax,
Bombay reported in (1976) 3 SCC 142, wherein the Hon'ble
Supreme Court referred to Section 2(9) of the Income Tax Act,
1922 which defines a person and includes inter alia Hindu
undivided family and it was further held that appellant cannot
constitute a coparcenary with his wife and unmarried daughter.
The Hon'ble Supreme Court further distinguished Hindu
undivided family and coparcenary and held that a Hindu
coparcenary is much narrower body than the joint family and it
includes only those persons who acquire by birth an interest in
the joint or coparcenary property and observed that no female
can be member of Hindu coparcenary. Thus, the learned counsel
submitted that there is no infirmity in the impugned order and
the same needs to be sustained.
7. I have given my thoughtful consideration to the
rival submission of the parties and also perused the record.
Order 1 Rule 10(2) of the Code reads as under:- Order 1 Rule
10(2) of the Code reads as under:-
"(2) Court may strike out or add parties.- The
Court may at any stage of the proceedings, either
upon or without the application of either party,
and on such terms as may appear to the Court to
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
be just, order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the name of any
person who ought to have been joined, whether as
plaintiff or defendant, or whose presence before
the Court may be necessary in order to enable the
Court effectually and completely to adjudicate
upon and settle all the questions involved in the
suit, be added."
8. The Hon'ble Supreme Court in the case of Kasturi
vs. Iyyamperumal, reported in (2005) 6 SCC 733, has explained
that who are the necessary and proper party and held that
'necessary parties' are those persons in whose absence no decree
can be passed by the Court or that there must be a right to some
relief against some party in respect of the controversy involved
in the proceedings. On the other hand 'proper parties' are those
whose presence before the Court would be necessary in order to
enable the Court effectually and completely to adjudicate upon
and settle all the questions involved in the suit although no relief
in the suit was claimed against such person. Further the Hon'ble
Supreme Court in the case of Sumatibai Vs. Paras Finance,
reported in (2007) 10 SCC 82, has held that any person having a
semblance of interest could be made a party in the case, if the
court feels his presence to be necessary or proper for
adjudication of dispute between the parties of the case.
9. Coming to the facts of the present case, claim of the
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
petitioner is based on the fact that she, being the wife of
defendant no.5 and mother of plaintiff no.1, is also entitled to a
share in joint family property even during lifetime of her
husband. In the case of Lakshmi Chand Khajuria & Ors.
(supra), it has been noted that when there is partition between
the son and his father, mother is entitled to a share equal to that
of the son referring to Mulla's commentary on Hindu Law.
Thus, the petitioner has been stressing upon that she is having
interest in the outcome of the suit property since the suit has
been filed for partition as well. If the petitioner has been able to
show her interest, natural corollary is that she should be
impleaded as a party. But considering other facts and
circumstances, in the light of express provision of Order 1 Rule
10(2) of the Code which talks about discretion of the court in
allowing the impleadment, the paramount issue before this
Court is whether this discretion could be exercised in rejecting
the claim of impleadment even when the petitioner has been
able to show some interest in the subject matter? I am afraid the
facts disclosed justify the denial of impleadment of the
petitioner in the suit filed by the plaintiffs/respondents 1st party.
Admittedly, the suit land has been sold by defendant no.5 who is
none other but the husband of this petitioner and the father of
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
plaintiff no.1 to the maternal aunt and uncle of plaintiff no.1, the
respondent nos. 6 and 7, herein, who in turn, sold out the said
property to respondent nos. 4 and 5. Though it is a suit for
partition but at the same time, the plaintiffs, in primary relief,
have claimed declaration of sale deed dated 27.05.2005 as void
and inoperative against them. Whenever in a suit for partition,
the plaintiff questions a transfer made in the name of a stranger
on the ground that the property belongs to joint family, the same
requires independent declaration of title not necessarily
connected with the relief of partition as observed in the case of
Rameshwar Mistry & Anr. (supra), paragraph no.19 of which
reads as under:-
"19. Whenever in a suit for partition, an
alienation standing in the name of a stranger to
the joint family is questioned on the ground that
the same is a joint family property, the same
would require independent declaration of title
not necessarily connected with the relief of
partition."
10. But a declaration against the sale deed has been
claimed against respondent nos. 4 and 5 and has no concern
with the petitioner. It is also apparent that the petitioner took her
sweet time in seeking impleadment though the plaintiffs,
defendant nos. 5 and this petitioner are having the same address.
It is also an admitted fact that the suit is at the stage of argument
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
after recording of evidence of the parties. Therefore, at this
stage seeking intervention by the petitioner seems to be
malafide. The timing of intervention shows impleadment has
been sought with ulterior motive as the suit has reached the
stage of final argument. The discretion conferred upon the
courts under Order 1 Rule 10(2) of the Code has to be
judiciously exercised and the learned trial court has rightly
exercised this discretion to deny the claim of impleadment made
by the petitioner. Reliance could be placed on the decision of the
Hon'ble Supreme Court in the case of Mumbai International
Airport (P) Ltd. v. Regency Convention Centre & Hotels (P)
Ltd., reported in (2010) 7 SCC 417 wherein paragraph nos. 22
and 25, it has been held as under:-
"22. Let us consider the scope and ambit of
Order 1 Rule 10(2) CPC regarding striking
out or adding parties. The said sub-rule is not
about the right of a non-party to be impleaded
as a party, but about the judicial discretion of
the court to strike out or add parties at any
stage of a proceeding. The discretion under
the sub-rule can be exercised either suo motu
or on the application of the plaintiff or the
defendant, or on an application of a person
who is not a party to the suit. The court can
strike out any party who is improperly joined.
The court can add anyone as a plaintiff or as
Patna High Court C.Misc. No.1017 of 2019 dt.06-05-2025
a defendant if it finds that he is a necessary
party or proper party. Such deletion or
addition can be without any conditions or
subject to such terms as the court deems fit to
impose. In exercising its judicial discretion
under Order 1 Rule 10(2) of the Code, the
court will of course act according to reason
and fair play and not according to whims and
caprice.
25. In other words, the court has the
discretion to either to allow or reject an
application of a person claiming to be a
proper party, depending upon the facts and
circumstances and no person has a right to
insist that he should be impleaded as a party,
merely because he is a proper party."
11. Therefore, in the peculiar facts and circumstances
of the case, I do not find any infirmity in the impugned order
dated 21.05.2019 passed by learned Sub Judge-II, Danapur in
Title Partition Suit No. 318 of 2010 and the same is affirmed.
12. Accordingly, the present petition stands dismissed.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR
CAV DATE 24.02.2025
Uploading Date 07.05.2025
Transmission Date NA
